Exhibit 10(a)56
PLANT SCHERER MANAGING BOARD AGREEMENT
AMONG
GEORGIA POWER COMPANY,
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP GENERATION & TRANSMISSION CORPORATION),
MUNICIPAL ELECTRIC AUTHORITY OF GEORGIA,
CITY OF DALTON, GEORGIA,
GULF POWER COMPANY,
FLORIDA POWER & LIGHT COMPANY
AND
JACKSONVILLE ELECTRIC AUTHORITY
DATED AS OF DECEMBER 31, 1990
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS . . . . . . . . . . . 4
1.1 Additional Units . . . . . . . . . . . . . . . . . 4
1.2 Additional Unit Common Facilities . . . . . . . . 4
1.3 Additional Unit Participant . . . . . . . . . . . 4
1.4 Agency Functions . . . . . . . . . . . . . . . . . 4
1.5 Agent . . . . . . . . . . . . . . . . . . . . . . 5
1.6 Business Day . . . . . . . . . . . . . . . . . . . 5
1.7 Capital Budget . . . . . . . . . . . . . . . . . . 5
1.8 Common Facilities Agency Functions . . . . . . . . 5
1.9 Common Facilities Agent . . . . . . . . . . . . . 6
1.10 Common Facility Cost of Construction . . . . . . . 6
1.11 Common Procurement . . . . . . . . . . . . . . . . 6
1.12 Common Procurement Participant . . . . . . . . . . 6
1.13 Co-Owners' Consents . . . . . . . . . . . . . . . 6
1.14 Cost of Construction . . . . . . . . . . . . . . . 7
1.15 Each Unit . . . . . . . . . . . . . . . . . . . . 7
1.16 FERC . . . . . . . . . . . . . . . . . . . . . . . 7
1.17 Governmental Authority . . . . . . . . . . . . . . 7
1.18 Legal Requirements . . . . . . . . . . . . . . . . 8
1.19 Operating Budget . . . . . . . . . . . . . . . . . 8
1.20 Operating Costs . . . . . . . . . . . . . . . . . 8
1.21 Owner . . . . . . . . . . . . . . . . . . . . . . 9
1.22 Participant . . . . . . . . . . . . . . . . . . . 9
1.23 Participation Agreements . . . . . . . . . . . . . 9
1.24 Plant Scherer . . . . . . . . . . . . . . . . . . 9
1.25 Plant Scherer Coal Stockpile . . . . . . . . . . . 10
1.26 Plant Scherer Common Facilities . . . . . . . . . 10
1.27 Plant Scherer Common Facilities Site . . . . . . . 10
1.28 Plant Scherer Managing Board . . . . . . . . . . . 10
1.29 Pro Forma Ownership Interest in Plant Scherer . . 10
1.30 Prudent Utility Practice . . . . . . . . . . . . . 11
1.31 Requisite Additional Units Owner Approval . . . . 11
1.32 Requisite Owner Approval . . . . . . . . . . . . . 12
1.33 Requisite Owner Fuel Approval . . . . . . . . . . 12
1.34 Requisite Units Owner Approval . . . . . . . . . . 13
1.35 Scherer Unit No. 1 . . . . . . . . . . . . . . . . 13
1.36 Scherer Unit No. 2 . . . . . . . . . . . . . . . . 13
1.37 Scherer Unit No. 3 . . . . . . . . . . . . . . . . 13
1.38 Scherer Unit No. 4 . . . . . . . . . . . . . . . . 14
1.39 Separate Coal Procurement . . . . . . . . . . . . 14
1.40 Separate Coal Stockpile . . . . . . . . . . . . . 14
1.41 Separate Coal Stockpile Participants . . . . . . . 14
1.42 Separate Procurement Participants . . . . . . . . 14
1.43 Spot Coal . . . . . . . . . . . . . . . . . . . . 14
1.44 Uniform System of Accounts . . . . . . . . . . . . 15
1.45 Unit Common Facilities . . . . . . . . . . . . . . 15
1.46 Unit Four Participation Agreements . . . . . . . . 15
1.47 Unit Three Participation Agreements . . . . . . . 15
1.48 Units . . . . . . . . . . . . . . . . . . . . . . 16
1.49 Units Participation Agreements . . . . . . . . . . 16
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ARTICLE 2
PLANT SCHERER MANAGING BOARD . . . . . . . 17
2.1 Establishment and Members of the Plant Scherer
Managing Board . . . . . . . . . . . . . . . . . . 17
2.2 Authority of the Board . . . . . . . . . . . . . . 18
2.3 Functions of the Board . . . . . . . . . . . . . . 19
2.4 Chairman of the Board . . . . . . . . . . . . . . . 20
2.5 Duties of the Chairman of the Board . . . . . . . . 21
2.6 Minutes of Meetings . . . . . . . . . . . . . . . . 23
2.7 Expenses . . . . . . . . . . . . . . . . . . . . . 24
2.8 Procedures . . . . . . . . . . . . . . . . . . . . 25
2.9 Attendees at Meetings . . . . . . . . . . . . . . . 25
2.10 Delegation of Authority . . . . . . . . . . . . . . 25
2.11 Committees . . . . . . . . . . . . . . . . . . . . 25
2.12 Abstention . . . . . . . . . . . . . . . . . . . . 26
ARTICLE 3
RESPONSIBILITIES OF THE COMMON FACILITIES AGENT . . 26
ARTICLE 4
INFORMATION . . . . . . . . . . . 27
4.1 Information and Access . . . . . . . . . . . . . . 27
4.2 Information to be Provided to the Owners . . . . . 27
ARTICLE 5
VOTING ISSUES ADDRESSED BY CURRENT
PARTICIPATION AGREEMENTS . . . . . . . . 30
5.1 Capital Budgets and Operating Budgets for the
Plant Scherer Common Facilities . . . . . . . . . . 30
5.2 Damage or Destruction of the Plant Scherer Common
Facilities . . . . . . . . . . . . . . . . . . . . 33
5.3 Disposal (including Retirement and Salvage) of the
Plant Scherer Common Facilities . . . . . . . . . . 33
5.4 Removal of GPC as Common Facilities Agent . . . . . 34
ARTICLE 6
VOTING ISSUES CONCERNING FUEL MATTERS . . . . . 34
6.1 Separate Procurement . . . . . . . . . . . . . . . 34
6.2 Common Procurement . . . . . . . . . . . . . . . . 35
6.3 Switch to an Alternative Fuel Source; Physical
Separation of the Plant Scherer Coal Stockpile . . 37
6.4 Amendment, Modification, or Termination of
Existing Coal Contracts . . . . . . . . . . . . . . 38
6.5 Resolution of Incompatible Procurement Strategies . 38
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6.6 Qualifications of Parties Associated with Separate
Procurement . . . . . . . . . . . . . . . . . . . . 39
6.7 Coal Contract and Transportation Administration if
GPC is Removed as Agent for any Unit . . . . . . . 39
ARTICLE 7
OTHER ISSUES REQUIRING MANAGING BOARD APPROVAL . . 40
7.1 Resolution of Conflicting Contractual Obligations
for GPC as Agent . . . . . . . . . . . . . . . . . 40
7.2 Insurance Procurement by Owners . . . . . . . . . . 41
7.3 Allocation of Insurance Proceeds . . . . . . . . . 42
7.4 Managing Board Jurisdiction Over Additional
Matters . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE 8
UNIT AND UNIT COMMON FACILITIES ISSUES . . . . 44
8.1 Capital Budgets and Operating Budgets for the Unit
Common Facilities . . . . . . . . . . . . . . . . . 44
8.2 Damage or Destruction of the Unit Common
Facilities . . . . . . . . . . . . . . . . . . . . 47
8.3 Disposal (including Retirement and Salvage) of the
Unit Common Facilities . . . . . . . . . . . . . . 47
8.4 Separate Dispatch Procedures . . . . . . . . . . . 47
ARTICLE 9
ADDITIONAL UNIT COMMON FACILITIES ISSUES . . . . 49
9.1 Capital Budgets and Operating Budgets for the
Additional Unit Common Facilities . . . . . . . . . 49
9.2 Damage or Destruction of the Additional Unit
Common Facilities . . . . . . . . . . . . . . . . . 52
9.3 Disposal (including Retirement and Salvage) of the
Additional Unit Common Facilities . . . . . . . . . 52
9.4 Removal of GPC as Additional Unit Common
Facilities Agent . . . . . . . . . . . . . . . . . 52
9.5 Information to be provided to the Additional Unit
Participants . . . . . . . . . . . . . . . . . . . 52
ARTICLE 10
RECOVERY OF COSTS . . . . . . . . . . 53
ARTICLE 11
RELATION TO EXISTING AGREEMENTS . . . . . . 53
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ARTICLE 12
EFFECTIVE DATE AND TERMINATION . . . . . . 55
ARTICLE 13
MISCELLANEOUS . . . . . . . . . . . 55
13.1 Required Approvals . . . . . . . . . . . . . . . 55
13.2 Further Assurances . . . . . . . . . . . . . . . 55
13.3 Governing Law . . . . . . . . . . . . . . . . . . 55
13.4 Notice . . . . . . . . . . . . . . . . . . . . . 56
13.5 Section Headings Not To Affect Meaning . . . . . 58
13.6 Time of Essence . . . . . . . . . . . . . . . . . 58
13.7 Amendments . . . . . . . . . . . . . . . . . . . 58
13.8 Successors and Assigns . . . . . . . . . . . . . 58
13.9 Counterparts . . . . . . . . . . . . . . . . . . 58
13.10 Computation of Percentage Undivided Ownership
Interest . . . . . . . . . . . . . . . . . . . . . 58
13.11 Several Agreements . . . . . . . . . . . . . . . 59
13.12 Confidentiality . . . . . . . . . . . . . . . . . 59
APPENDICES
Appendix A Guidelines for Capital Budgets and Operating
Budgets for Plant Scherer
EXHIBITS
Exhibit A Existing Contracts
Exhibit B Joint Committee Procedures
Exhibit C Operating Costs Allocation
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PLANT SCHERER MANAGING BOARD AGREEMENT
THIS PLANT SCHERER MANAGING BOARD AGREEMENT ("Agreement") is
made and entered into as of December 31, 1990, among GEORGIA
POWER COMPANY, a corporation organized and existing under the
laws of the State of Georgia ("GPC" or "Georgia"); OGLETHORPE
POWER CORPORATION (AN ELECTRIC MEMBERSHIP GENERATION &
TRANSMISSION CORPORATION), an electric membership corporation
organized and existing under Title 46 of the Official Code of
Georgia Annotated ("OPC"); the MUNICIPAL ELECTRIC AUTHORITY OF
GEORGIA, a public corporation and an instrumentality of the State
of Georgia ("MEAG"); 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 ("Dalton");
GULF POWER COMPANY, a corporation organized and existing under
the laws of the State of Maine ("Gulf"); FLORIDA POWER & LIGHT
COMPANY, a corporation organized and existing under the laws of
the State of Florida ("FPL"); and JACKSONVILLE ELECTRIC
AUTHORITY, a body corporate and politic and an independent agency
of the City of Jacksonville, Florida, organized and existing
under the laws of the State of Florida ("JEA").
WITNESSETH:
WHEREAS, OPC, GPC, MEAG and Dalton have previously entered
into the Units Participation Agreements concerning the Units, the
Unit Common Facilities, the Plant Scherer Common Facilities and
the Plant Scherer Coal Stockpile pursuant and subject to which
OPC, MEAG and Dalton have irrevocably appointed GPC as their
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Agent in connection with the planning, licensing, design,
construction, acquisition, completion, management, control,
operation, maintenance, renewal, addition, replacement,
modification and disposal for the Units, the Unit Common
Facilities, the Plant Scherer Common Facilities and the Plant
Scherer Coal Stockpile;
WHEREAS, GPC and Gulf have previously entered into the Unit
Three Participation Agreements concerning Scherer Unit No. 3, the
Additional Unit Common Facilities, the Plant Scherer Common
Facilities and the Plant Scherer Coal Stockpile pursuant and
subject to which Gulf has irrevocably appointed GPC as its Agent
in connection with the planning, licensing, design, construction,
acquisition, completion, management, control, operation,
maintenance, renewal, addition, replacement, modification and
disposal of Scherer Unit No. 3, the Additional Unit Common
Facilities, the Plant Scherer Common Facilities and the Plant
Scherer Coal Stockpile;
WHEREAS, GPC, FPL and JEA have entered into the Unit Four
Participation Agreements dated as of the date hereof, concerning
Scherer Unit No. 4, the Additional Unit Common Facilities, the
Plant Scherer Common Facilities and the Plant Scherer Coal
Stockpile pursuant and subject to which FPL and JEA irrevocably
appoint GPC as their Agent in connection with the planning,
licensing, design, construction, acquisition, completion,
management, control, operation, maintenance, renewal, addition,
replacement, modification and disposal of Scherer Unit No. 4, the
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Additional Unit Common Facilities, the Plant Scherer Common
Facilities and the Plant Scherer Coal Stockpile; and
WHEREAS, the Participants and Additional Unit Participants
now desire to provide for and establish a Plant Scherer Managing
Board (i) to coordinate the implementation and administration of
the Agency Functions with respect to the Plant Scherer Common
Facilities, (ii) to establish standards, rules and policies for
fuel and fuel procurement, (iii) for the Participants to
coordinate the implementation and administration of the Agency
Functions with respect to the Units and the Unit Common
Facilities, (iv) for the Additional Unit Participants to
coordinate the implementation and administration of the Agency
Functions with respect to the Additional Units and the Additional
Unit Common Facilities and (v) to perform the functions
hereinafter provided.
NOW THEREFORE, in consideration of the promises and the
mutual undertakings stated herein, the parties hereto intending
to be legally bound do hereby agree as follows:
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ARTICLE 1
DEFINITIONS
As used herein, the following terms and phrases shall have,
respectively, the following meanings:
1.1 Additional Units. "Additional Units" shall consist of
Scherer Unit No. 3 and Scherer Unit No. 4, each of which is an
Additional Unit.
1.2 Additional Unit Common Facilities. "Additional Unit
Common Facilities" shall have the meaning assigned in the
relevant provisions of the respective Participation Agreements.
1.3 Additional Unit Participant. "Additional Unit
Participant" and "Additional Unit Participants" shall have the
meaning assigned in the relevant provisions of the respective
Participation Agreements.
1.4 Agency Functions. "Agency Functions" shall mean those
activities which the Agent shall undertake on behalf of the
Participants and Additional Unit Participants, as the case may
be, and which relate to the planning, licensing, design,
construction, acquisition, completion, management, control,
operation, maintenance, renewal, addition, replacement,
modification and disposal of the Units, the Unit Common
Facilities, the Additional Units, the Additional Unit Common
Facilities, the Plant Scherer Common Facilities, and the Plant
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Scherer Coal Stockpile, as the case may be, under the
Participation Agreements.
1.5 Agent. "Agent" shall mean GPC or its successors, with
respect to its rights and obligations in the performance of the
Agency Functions.
1.6 Business Day. "Business Day" shall be any Monday,
Tuesday, Wednesday, Thursday or Friday other than a day which has
been established by law or required by executive order as a
holiday for any commercial banking institution in the State of
Florida or the State of Georgia.
1.7 Capital Budget. "Capital Budget" shall have the
meaning assigned in the relevant provisions of the respective
Participation Agreements.
1.8 Common Facilities Agency Functions. "Common
Facilities Agency Functions" shall mean the Agency Functions with
respect to the Unit Common Facilities, the Additional Unit Common
Facilities, the Plant Scherer Common Facilities or the Plant
Scherer Coal Stockpile.
1.9 Common Facilities Agent. "Common Facilities Agent"
shall mean GPC or its successor, (i) acting on its own behalf for
so long as GPC (or its successor as Agent) continues to own an
undivided ownership interest in the Plant Scherer Common
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Facilities and (ii) as Agent for the other Owners in the
performance of the Common Facilities Agency Functions.
1.10 Common Facility Cost of Construction. "Common
Facility Cost of Construction" shall have the meaning assigned
in the relevant provisions of the respective Participation
Agreements.
1.11 Common Procurement. "Common Procurement" shall have
the meaning assigned in the relevant provisions of the respective
Participation Agreements.
1.12 Common Procurement Participant. "Common Procurement
Participant" shall have the meaning assigned in the relevant
provisions of the respective Participation Agreements.
1.13 Co-Owners' Consents. "Co-Owners' Consents" shall mean
those certain Consents, Amendments, and Assumptions Nos. 1-4
dated December 30, 1985 among GPC, OPC, MEAG, Dalton, Gulf Power
Company, and Wilmington Trust Company and NationsBank of Georgia,
N.A. (as successor to William J. Wade) as Owner Trustees, and
those certain Amendment to Consents, Amendments, and Assumptions
Nos. 1-4 dated August 16, 1993 among GPC, OPC, MEAG, Dalton, Gulf
Power Company, Jacksonville Electric Authority and Florida Power
& Light Company and Wilmington Trust Company and NationsBank of
Georgia, as Owner Trustees.
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1.14 Cost of Construction. "Cost of Construction" shall
have the meaning assigned in the relevant provisions of the
respective Participation Agreements.
1.15 Each Unit. "Each Unit" shall mean and refer to,
respectively, the Units, the Unit Common Facilities, Scherer Unit
No. 3, Scherer Unit No. 4 and the Additional Unit Common
Facilities.
1.16 FERC. The "FERC" shall be defined as the Federal
Energy Regulatory Commission or any entity succeeding to the
powers and functions thereof.
1.17 Governmental Authority. "Governmental Authority"
shall mean any local, state, regional or federal administrative,
legal, judicial, or executive agency, court, commission,
department or other entity, but excluding any agency, commission,
department or other such entity acting in its capacity as lender,
guarantor, mortgagee and excluding any Participant or Additional
Unit Participant.
1.18 Legal Requirements. "Legal Requirements" shall mean
all laws, codes, ordinances, orders, judgments, decrees,
injunctions, licenses, rules, permits, approvals, regulations and
requirements of every Governmental Authority having jurisdiction
over the matter in question, whether federal, state or local,
which may be applicable to any Agent or any of the Participants
or Additional Unit Participants, as required by the context in
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which used, or to Each Unit, the Plant Scherer Common Facilities
or the Plant Scherer Coal Stockpile, or to the use, manner of
use, occupancy, possession, operation, maintenance, management,
control, construction, acquisition, installation, alteration,
improvement, addition, renewal, modification, replacement,
repair, reconstruction or disposal of Each Unit, the Plant
Scherer Common Facilities, the Plant Scherer Coal Stockpile, or
any part thereof.
1.19 Operating Budget. "Operating Budget" shall have the
meaning assigned in the relevant provisions of the respective
Participation Agreements.
1.20 Operating Costs. "Operating Costs" shall have the
meaning assigned in the relevant provisions of the respective
Participation Agreements. Operating Costs shall be allocated
among and between the Units, the Unit Common Facilities, the
Additional Units, the Additional Unit Common Facilities and the
Plant Scherer Common Facilities as described in Exhibit C
attached hereto and incorporated herein by reference.
1.21 Owner. "Owner" shall mean, individually, any owner of
an undivided ownership interest in Plant Scherer; and "Owners"
shall mean all of them.
1.22 Participant. "Participant" and "Participants" shall
refer individually or collectively, as the case may be, to GPC,
OPC, MEAG, and Dalton (in their capacities as Owners of the
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Units) and to any transferee or assignee of any of them of an
interest in the Units pursuant to the Units Participation
Agreements, provided, however, such references shall only refer
to an entity for so long as said entity is an owner of any of the
Units.
1.23 Participation Agreements. "Participation Agreements"
shall mean collectively the Units Participation Agreements, the
Unit Three Participation Agreements and the Unit Four
Participation Agreements.
1.24 Plant Scherer. "Plant Scherer" shall have the meaning
assigned in the relevant provisions of the respective
Participation Agreements.
1.25 Plant Scherer Coal Stockpile. "Plant Scherer Coal
Stockpile" shall have the meaning assigned in the relevant
provisions of the respective Participation Agreements.
1.26 Plant Scherer Common Facilities. "Plant Scherer
Common Facilities" shall have the meaning assigned in the
relevant provisions of the Participation Agreements.
1.27 Plant Scherer Common Facilities Site. "Plant Scherer
Common Facilities Site" shall have the meaning assigned in the
relevant provisions of the respective Participation Agreements.
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1.28 Plant Scherer Managing Board. "Plant Scherer Managing
Board", "Managing Board" or "Board" shall mean the board
established pursuant to Section 2.1 of this Agreement.
1.29 Pro Forma Ownership Interest in Plant Scherer. "Pro
Forma Ownership Interest in Plant Scherer" shall mean for each
Participant and Additional Unit Participant the percentage
obtained by dividing by four (i) the sum of (A) such
Participant's or Additional Unit Participant's percentage
undivided ownership interest, if any, in Scherer Unit No. 1, plus
(B) its percentage undivided ownership interest, if any, in
Scherer Unit No. 2, plus (C) its percentage undivided ownership
interest, if any, in Scherer Unit No. 3, plus (D) its percentage
undivided ownership interest, if any, in Scherer Unit No. 4.
1.30 Prudent Utility Practice. "Prudent Utility Practice"
at a particular time shall mean 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
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requirements of Governmental Authorities of competent
jurisdiction and the requirements of the Participation
Agreements.
1.31 Requisite Additional Units Owner Approval. "Requisite
Additional Units Owner Approval" shall mean the written approval
or consent by those Owners who collectively own at least an
aggregate 51% of the undivided ownership interest in the
Additional Unit Common Facilities, which written approval or
consent may be signified by the signatures of the members of the
Plant Scherer Managing Board who represent such Owners and are
not precluded in participating or taking action pursuant to
Section 13.10 hereof respecting any resolution or motion acted
upon by the Board pursuant to this Agreement or the approval of
the minutes of any Board meeting.
1.32 Requisite Owner Approval. "Requisite Owner Approval"
shall mean the written approval or consent by those Owners who
collectively hold at least 76% of the undivided ownership
interest in the Units and Additional Units, which written
approval or consent may be signified by the signatures of the
members of the Plant Scherer Managing Board who represent such
Owners and are not precluded in participating or taking action
pursuant to Section 13.10 hereof respecting any resolution or
motion acted upon by the Board pursuant to this Agreement or the
approval of the minutes of any Board meeting.
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1.33 Requisite Owner Fuel Approval. "Requisite Owner Fuel
Approval" shall mean the written approval or consent by those
Owners who collectively hold at least 85% of the undivided
ownership interest in the Units and Additional Units, which
written approval or consent may be signified by the signatures of
the members of the Plant Scherer Managing Board who represent
such Owners and are not precluded in participating or taking
action pursuant to Section 13.10 hereof respecting any resolution
or motion acted upon by the Board pursuant to this Agreement or
the approval of the minutes of any Board meeting.
1.34 Requisite Units Owner Approval. "Requisite Units
Owner Approval" shall mean the written approval or consent by
those Owners who collectively hold at least an aggregate 75% of
the undivided ownership interest in the Units, including MEAG so
long as MEAG owns at least a 15.1% undivided ownership interest
in the Plant Scherer Common Facilities, which written approval or
consent may be signified by the signatures of the members of the
Plant Scherer Managing Board who represent such Owners and are
not precluded in participating or taking action pursuant to
Section 13.10 hereof respecting any resolution or motion acted
upon by the Board pursuant to this Agreement or the approval of
the minutes of any Board meeting.
1.35 Scherer Unit No. 1. "Scherer Unit No. 1" shall have
the meaning assigned in the relevant provisions of the respective
Participation Agreements.
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1.36 Scherer Unit No. 2. "Scherer Unit No. 2" shall have
the meaning assigned in the relevant provisions of the respective
Participation Agreements.
1.37 Scherer Unit No. 3. "Scherer Unit No. 3" shall have
the meaning assigned in the relevant provisions of the respective
Participation Agreements.
1.38 Scherer Unit No. 4. "Scherer Unit No. 4" shall have
the meaning assigned in the relevant provisions of the respective
Participation Agreements.
1.39 Separate Coal Procurement. "Separate Coal
Procurement" shall have the meaning assigned in the relevant
provisions of the respective Participation Agreements.
1.40 Separate Coal Stockpile. "Separate Coal Stockpile"
shall have the meaning assigned in the relevant provisions of the
respective Participation Agreements.
1.41 Separate Coal Stockpile Participants. "Separate Coal
Stockpile Participants" shall have the meaning assigned in the
relevant provisions of the respective Participation Agreements.
1.42 Separate Procurement Participants. "Separate
Procurement Participants" shall have the meaning assigned in the
relevant provisions of the respective Participation Agreements.
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1.43 Spot Coal. "Spot Coal" shall mean all coal purchased
for the Common Coal Stockpile and the Separate Coal Stockpiles
which is acquired under an arrangement of acquisition for a
period of less than one year, or some other period agreed to by
Requisite Owner Approval pursuant to this Agreement.
1.44 Uniform System of Accounts. The "Uniform System of
Accounts" shall mean the FERC Uniform System of Accounts
prescribed for Public Utilities and Licensees subject to the
provisions of the Federal Power Act, as the same now exist or may
be hereafter amended by the FERC.
1.45 Unit Common Facilities. "Unit Common Facilities"
shall have the meaning assigned in the relevant provisions of the
respective Participation Agreements.
1.46 Unit Four Participation Agreements. "Unit Four
Participation Agreements" shall mean the following purchase and
ownership and operating contracts concerning Scherer Unit No. 4:
Plant Robert W. Scherer Unit Number Four Amended and
Restated Purchase and Ownership Participation Agreement
among GPC, FPL and JEA, dated as of December 31, 1990,
as amended;
Plant Robert W. Scherer Unit Number Four Substation
Purchase Agreement among GPC, FPL and JEA, dated
December 31, 1990; and
Plant Robert W. Scherer Unit Number Four Operating
Agreement among GPC, FPL and JEA, dated as of December
31, 1990, as amended.
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1.47 Unit Three Participation Agreements. "Unit Three
Participation Agreements" shall mean the following purchase and
ownership and operating contracts concerning Scherer Unit No. 3:
Amended and Restated Plant Robert W. Scherer Unit
Number Three Purchase and Ownership Participation
Agreement among GPC and Gulf, dated as of December 31,
1990; and
Amended and Restated Plant Robert W. Scherer Unit
Number Three Operating Agreement among GPC and Gulf,
dated as of December 31, 1990;
1.48 Units. "Units" shall consist of Scherer Unit No. 1
and Scherer Unit No. 2, each of which is a Unit.
1.49 Units Participation Agreements. "Units Participation
Agreements" shall mean the following purchase and ownership and
operating contracts concerning the Units:
Plant Robert W. Scherer Units Numbers One and Two
Purchase and Ownership Participation Agreement among
GPC, OPC, MEAG and Dalton, dated as of May 15, 1980;
Plant Robert W. Scherer Units Numbers One and Two
Operating Agreement among Georgia, OPC, MEAG and
Dalton, dated as of May 15, 1980;
Amendment to Plant Robert W. Scherer Units Numbers One
and Two Purchase and Ownership Participation Agreement
among GPC, OPC, MEAG and Dalton, dated as of December
30, 1985;
Amendment to Plant Robert W. Scherer Units One and Two
Operating Agreement among GPC, OPC, MEAG and Dalton,
dated as of December 30, 1985;
Amendment Number Two to the Plant Robert W. Scherer
Units Numbers One and Two Purchase and Ownership
Participation Agreement and Amendment Number One to
Plant Robert W. Scherer Unit Number Three Purchase and
Ownership Participation Agreement, dated as of July 1,
1986;
Amendment Number Three to the Plant Robert W. Scherer
Units Numbers One and Two Purchase and Ownership
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Participation Agreement and Amendment Number Two to
Plant Robert W. Scherer Unit Number Three Purchase and
Ownership Participation Agreement, dated as of August
1, 1988;
Amendment Number Four to the Plant Robert W. Scherer
Units Numbers One and Two Purchase and Ownership
Participation Agreement, dated as of December 31, 1990;
Amendment Number Two to the Plant Robert W. Scherer
Units Numbers One and Two Operating Agreement dated as
of December 31, 1990; and
The Consents, Amendments and Assumptions Nos. 1-4,
dated December 30, 1985 among GPC, OPC, MEAG, Dalton,
Gulf Power Company and Wilmington Trust Company and
NationsBank of Georgia, N.A. (as successor to
William J. Wade) as Owner Trustees.
Amendment to Consents, Amendments and Assumptions Nos.
1-4 dated August 16, 1993, among, GPC, OPC, MEAG,
Dalton, Gulf Power Company, Jacksonville Electric
Authority and Florida Power & Light Company and
Wilmington Trust Company and NationsBank of Georgia,
N.A., as Owner Trustees.
ARTICLE 2
PLANT SCHERER MANAGING BOARD
2.1 Establishment and Members of the Plant Scherer Managing
Board. As of the effective date of this Agreement there shall be
established a Plant Scherer Managing Board, which shall consist
of a member and an alternate designated by each Owner. The Board
shall have the authorities, powers, and functions hereinafter
provided. Each Owner shall within 30 days after the effective
date of this Agreement give written notice of its designated
member and alternate to the Common Facilities Agent which shall
distribute a consolidated list of such members and alternates to
all Owners, within five Business Days thereafter. Each Owner may
change its designated member or alternate by giving written
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notice of the change to the Common Facilities Agent which shall
promptly distribute a revised consolidated list to all Owners.
Each member of the Board shall be authorized to represent
the Owners which appointed him or her and shall have the
authority to obligate such Owner. 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 Owner
which such member represents or if any member is to represent
another Owner, he shall provide an affidavit to such effect
stating the scope and term of such representation.
If an Owner has contracted with a third party to transfer
one or more undivided ownership interests in one or more of the
Units, the Additional Units, or both, such Owner may also
contract with such third party that it will not vote under this
Agreement with respect to the undivided ownership interest or
interests contracted to be transferred in a manner with which
such third party disagrees or such Owner will vote as directed by
such third party with respect to the undivided ownership interest
or interests to be transferred. Such Owner may otherwise vote as
it chooses with respect to its undivided ownership interests not
contracted to be transferred. Provided, however, such Owner
contracting with such third party shall notify the other Owners
when such Owner votes or does not vote at the direction of such
third party.
2.2 Authority of the Board. The Plant Scherer Managing
Board shall have all authority and power necessary to perform the
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functions delegated to it by Section 2.3 hereof and any other
functions explicitly delegated to it by this Agreement or the
Participation Agreements. Such authority and power shall be
exercised by the Board in the manner as hereinafter provided in
this Agreement. Those functions that solely relate to the Units
or the Unit Common Facilities, on the one hand, or to the
Additional Units or the Additional Unit Common Facilities, on the
other, shall be voted by Requisite Units Owner Approval or
Requisite Additional Units Owner Approval, respectively.
2.3 Functions of the Board. The Plant Scherer Managing
Board shall perform the following functions:
2.3.1 By Requisite Owner Approval, conduct or
undertake such studies, investigations or audits which the
Board determines are appropriate or useful in carrying out
its responsibilities or functions. By Requisite Owner
Approval, the Board may employ independent consultants or
utilize the personnel or other resources of the Common
Facilities Agent or any Owner for such studies,
investigations or audits. The costs of such studies,
investigations or audits shall be borne by the Owners in the
proportion of their respective undivided ownership interest
in the Plant Scherer Common Facilities.
2.3.2 By Requisite Owner Approval, review and
approve, disapprove or revise and approve the Capital
Budgets and Operating Budgets with respect to the Plant
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Scherer Common Facilities to be submitted annually (or more
often upon revision by the Common Facilities Agent) by the
Common Facilities Agent, all pursuant to Article 5.1 hereof.
2.3.3 Perform those functions described in Articles
4, 5, 6, 7, 8 and 9 hereof by such percentage votes as are
set forth therein.
2.4 Chairman of the Board. So long as GPC is an Owner and
is the Common Facilities Agent, the member of the Plant Scherer
Managing Board representing GPC shall be the Chairman of the
Board. In the event GPC is not an Owner and the Common Facilities
Agent, then the Chairman of the Board shall be a member of the
Board elected, by members of the Board representing in the
aggregate at least a majority of the undivided ownership
interests in the Units and Additional Units, for a term of twelve
consecutive months or until his successor is elected. In the
event of the death, disability, or resignation of the Chairman of
the Board prior to the expiration of such term or on the
expiration of such term, the succeeding Chairman of the Board
shall be a member of the Board elected, by members representing
in the aggregate at least a majority of the undivided ownership
interests in the Units and Additional Units, for a term of twelve
consecutive months or until his successor is elected. There
shall be no restriction upon the number of terms to which any
member of the Board may be elected to serve as Chairman of the
Board.
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2.5 Duties of the Chairman of the Board. The Chairman of
the Managing Board shall have the following duties:
2.5.1 Schedule meetings of the Board at such time
and place as the Chairman of the Board may determine but (1)
not less frequently than once every three months unless all
members of the Board shall otherwise agree and (2) not less
frequently than reasonably required to consider and vote on
any alternative proposal pursuant to Articles 5, 6, 7, 8 or
9 of this Agreement within the required time period for such
vote if requested by any member in writing to the Chairman.
Any meeting of the Board may be conducted by telephone
conference and any members of the Board may participate in
any meeting by telephone. All members of the Board shall
have the right to vote on all resolutions and motions by
proxy.
2.5.2 Provide notice to all other members of the
Board of each scheduled Board meeting at least 30 calendar
days in advance of such meeting except (1) in emergencies,
(2) as required for meetings under clause (2) of Section
2.5.1 or (3) unless all members consent to a shorter notice.
The attendance of a member of the Board at a Board meeting
is a waiver of such notice, unless such member's attendance
is to protest the holding of the meeting.
2.5.3 Provide all other members of the Board with a
copy of each resolution or motion which the Chairman of the
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Board or any other member proposes to submit to the Board
for action at any Board meeting at least five Business Days
prior to such meeting or such shorter time as may be
reasonably required for any meeting called pursuant to
clauses (1), (2) or (3) under Section 2.5.2; provided such
time requirement may be waived by Requisite Owner Approval.
2.5.4 Preside at each Board meeting and conduct all
Board meetings in accordance with the procedures and rules
established in accordance with Section 2.8 hereof.
2.5.5 Establish the agenda for each Board meeting,
including such items or matters as the Chairman of the Board
shall deem appropriate and such items or matters as may be
requested by any other member of the Board.
2.5.6 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.
2.5.7 Appoint a secretary for the Board who need
not be a member of the Board and who shall (i) prepare a
draft of the minutes for each Board meeting and deliver or
mail a copy of such draft minutes to each member of the
Board within five Business Days after the close of each
Board meeting and (ii) take custody of and maintain the
records of all Board meetings.
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2.6 Minutes of Meetings. The minutes of each Board meeting
shall record the following:
2.6.1 The date, time and place of the meeting;
2.6.2 The agenda of the meeting and the items or
matters discussed;
2.6.3 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; and
2.6.4 The date, time and place of the next meeting
of the Board to be scheduled;
provided, however, that (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 (2) the effectiveness of any action taken by the
Board to approve any matter shall be immediate upon such action
being taken (unless a specific effective date is part of the
approved resolution) and shall not be deferred until approval of
the minutes reflecting such action or approval. At the next
succeeding regular meeting at which each Owner has an opportunity
to be represented, the members of the Board in attendance shall
consider the minutes of the preceding regular or called meeting
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and if they are found in order, shall signify approval of the
minutes by affixing their signatures to same.
The minutes of each Board Meeting shall be kept in a
central, permanent repository. The secretary shall give notice
to all members of the Board of the location of such repository
and provide all members of the Board access to the minutes of all
meetings and shall provide copies of such minutes to each of the
Owners.
2.7 Expenses. Each Owner shall be responsible for the
personal expenses of its member and alternate of the Managing
Board at any Board meeting. General meeting expenses and all
other expenses necessary in the performance of the Board
functions shall be allocated and paid as determined by the Board.
2.8 Procedures. By Requisite Owner Approval, the Managing
Board shall develop and adopt and, from time to time, modify
procedures as may be appropriate for the conduct of its meetings
and the performance of its functions, including any general
procedures for allocating Board expenses pursuant to Section 2.7.
2.9 Attendees at Meetings. Attendance at meetings of the
Managing Board shall not be limited to members of the Board, but
the Owners recognize the practical necessity of 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 of the Board, on his own motion or at the request of any
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member may conduct any portion of any meeting in executive
session at which attendance may be restricted to members or their
respective alternates (including their counsel) and persons
invited by the Chairman of the Board.
2.10 Delegation of Authority. The Managing Board shall not
delegate its authority to others.
2.11 Committees. The Managing Board shall have the
authority to appoint and charge committees to study and make
recommendations on any subject concerning the (1) Plant Scherer
Common Facilities by Requisite Owner Approval, (2) the Unit
Common Facilities by Requisite Units Owner Approval, (3) the
Additional Unit Common Facilities by Requisite Additional Units
Owner Approval or (4) the Plant Scherer Coal Stockpile by
Requisite Owner Approval. The purpose, charge and duty of each
committee so appointed shall not exist for more than one year
unless reappointed by the Board by the same approval set forth in
this Section 2.11.
2.12 Abstention. Any Owner, in its sole discretion, may
abstain from voting on any issue presented to the Managing Board.
ARTICLE 3
RESPONSIBILITIES OF THE COMMON FACILITIES AGENT
GPC shall continue to be the Common Facilities Agent and
shall continue to perform the Common Facilities Agency Functions
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subject to the provisions of the Participation Agreements and
pursuant to the provisions of this Agreement.
ARTICLE 4
INFORMATION
4.1 Information and Access. The Common Facilities Agent
shall furnish or cause to be furnished information, access to
information and access to Plant Scherer and the offices of the
Common Facilities Agent in accordance with this Article 4.
4.2 Information to be Provided to the Owners. The Common
Facilities Agent shall provide information to each member of the
Managing Board in the manner indicated below:
4.2.1 Formal Routine Information. In addition to
the Capital Budget and Operating Budget provided routinely
pursuant to Articles 5, 8 and 9, the Common Facilities Agent
will also furnish:
4.2.1.1 Plant Budget Reports. The Common
Facilities Agent will furnish to each member of the
Managing Board monthly information showing actual
Operating Costs and Cost of Construction for each month
with comparisons to the respective Operating Budget and
Capital Budget. This report will normally be provided
by the end of the succeeding month.
4.2.1.2 Audit Reports. The Common Facilities
Agent will make available for review by the Owners
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copies of financial or accounting reports concerning
the Plant Scherer Common Facilities and the Plant
Scherer Coal Stockpile containing the results of audits
which are otherwise in the public domain.
4.2.1.3 Meetings with the Board. In order to
assure that the members of the Board are informed as to
the status of operations at Plant Scherer, a management
employee of the Common Facilities Agent responsible for
the operation of Plant Scherer shall meet with the
Board at its request. At such meetings the Common
Facilities Agent shall present information concerning
plant performance and the status and condition of the
Plant Scherer Common Facilities, and the Plant Scherer
Coal Stockpile, including review of any problems,
status reports and new capital property, and shall
present an overview of Plant Scherer and its operations
and address items on the agenda for the meeting of the
Board. The Common Facilities Agent will inform the
Board of material events and conditions which are
affecting or may reasonably be expected to affect the
availability, status and condition or which would
result in a material increase in costs associated with
the Plant Scherer Common Facilities or the Plant
Scherer Coal Stockpile, and of changes in the senior
management of Plant Scherer.
4.2.1.4 Responses to Owner Inquiries. In
addition to the obligations of the Common Facilities
Agent to provide the information and access as
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explicitly required herein, the Common Facilities Agent
will respond to reasonable written requests from any
Owner for information not otherwise provided pursuant
to this Agreement regarding the Plant Scherer Common
Facilities, and, any additional costs associated with
the gathering and furnishing of such information shall
be paid by the Owner(s) requesting the same. The
Common Facilities Agent shall within 30 days after the
effective date hereof designate a person to be
responsible for being responsive and providing
reasonably adequate and complete information to
inquiries from the Owners.
4.2.2 Formal Non-routine Information. Information
which is time sensitive, including information on plant
trips, power reductions, work disruptions or stoppages,
deratings of any Unit or Additional Unit, failures of major
equipment, and emergencies at Plant Scherer shall be
provided as soon as practicable by the Common Facilities
Agent to the Owners. Information in this category also
includes informal reports concerning events which the Common
Facilities Agent believes may result in public interest or
may lead to inquiries to Owners by members of the public,
and news releases with respect to Plant Scherer issued by
the Common Facilities Agent.
4.2.3 Informal Information. The Common Facilities
Agent shall provide the authorized representatives of each
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Owner with reasonable access to the Common Facilities
Agent's Plant Scherer management employees for informal
communications of a general nature and with access to
routine reports and records on plant operations and
conditions that are normally readily available.
ARTICLE 5
VOTING ISSUES ADDRESSED BY CURRENT
PARTICIPATION AGREEMENTS
5.1 Capital Budgets and Operating Budgets for the Plant
Scherer Common Facilities. By the date set forth therefor in
Appendix A of each year, each Owner may provide the Common
Facilities Agent information to be used in the formulation of the
subsequent year's Capital Budget and Operating Budget for the
Plant Scherer Common Facilities. Such budgets shall conform to
the requirements and guidelines stated in Appendix A attached
hereto and any revisions of such appendix as may be approved by
the Board by Requisite Owner Approval and agreed to by the Common
Facilities Agent. By the date set forth therefor in Appendix A
of each year, the Capital Budget and the Operating Budget shall
be approved or disapproved, each in its entirety, by the Board by
Requisite Owner Approval, which shall include MEAG so long as
MEAG owns at least a 15.1% undivided ownership interest in the
Plant Scherer Common Facilities. If the Capital Budget or
Operating Budget is disapproved, the Board shall then have until
the date set forth therefor in Appendix A to adopt by Requisite
Owner Approval, which shall include MEAG so long as MEAG owns at
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least a 15.1% undivided ownership interest in the Plant Scherer
Common Facilities, a revised Capital Budget or Operating Budget
which shall comply with Prudent Utility Practice and Legal
Requirements. In the event that the Board is unable to approve
any budget by Requisite Owner Approval, which shall include MEAG
so long as MEAG owns at least a 15.1% undivided ownership
interest in the Plant Scherer Common Facilities, by the date set
forth therefor in Appendix A, then the budget to be utilized
shall be the one submitted by the Common Facilities Agent, and
such budget shall be deemed approved by the Board and binding on
the Owners.
The Operating Budget, the Capital Budget, or both, for each
calendar year shall be revised as deemed necessary by the Common
Facilities Agent to reflect changed conditions in such calendar
year, and promptly upon any such revision, the Common Facilities
Agent shall provide to each of the other Owners a revised
Operating Budget, Capital Budget, or both, as the case may be.
Each revised Operating Budget, Capital Budget, or both, shall
include Operating Costs, Cost of Construction, or both, as the
case may be, incurred by the Common Facilities Agent in the
operation and maintenance or replacement, modification, addition,
renewal, completion or disposal of the Plant Scherer Common
Facilities prior to the time such revised Operating Budget or
Capital Budget becomes effective but not included in prior
Operating Budgets or Capital Budgets, as the case may be, and
shall be supported by detail reasonably adequate for the purpose
of each Owner's reasonable review thereof, as described in
Appendix A. Any such revised Operating Budget, Capital Budget,
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or both, shall be approved or disapproved, and if disapproved, an
alternative revised Operating Budget, Capital Budget, or both,
adopted or otherwise chosen for utilization, all in accordance
with the procedure set forth in this Section 5.1, except that
such approval or disapproval and submission of alternative
revisions must be completed by the Board by Requisite Owner
Approval, which shall include MEAG so long as MEAG owns at least
a 15.1% undivided ownership interest in the Plant Scherer Common
Facilities, within 15 days of the Owners' receipt of the proposed
revisions from the Common Facilities Agent.
All budgets for Plant Scherer and each component thereof
shall be established and approved so as to permit each
Participant and each Additional Unit Participant to obtain its
desired energy output entitlement from its owned capacity at
Plant Scherer. The Common Facilities Agent shall attempt to
manage, control, operate and maintain the Plant Scherer Common
Facilities in accordance with the then current Operating Budget
and attempt to replace, modify, add, renew, complete and dispose
of the Plant Scherer Common Facilities in accordance with the
then current Capital Budget and the schedules of expenditures
contained therein. Notwithstanding the foregoing, the Common
Facilities Agent makes no representation, warranty or promise of
any kind as to the accuracy of any estimate contained in an
Operating Budget or Capital Budget or in a revised Operating
Budget or revised Capital Budget or that any such attempt
referred to in the preceding sentence will be successful, and in
no event shall the Common Facilities Agent have any liability to
any of the Owners in these regards.
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5.2 Damage or Destruction of the Plant Scherer Common
Facilities. Determinations concerning damage and destruction of
the Plant Scherer Common Facilities shall be made by the
Participants and Additional Unit Participants who are members of
the Plant Scherer Managing Board in accordance with the relevant
provisions of the respective Participation Agreements.
5.3 Disposal (including Retirement and Salvage) of the
Plant Scherer Common Facilities. The Common Facilities Agent
shall have sole authority and responsibility with respect to the
disposal (including retirement and salvaging) of all or any part
of the Plant Scherer Common Facilities and the Plant Scherer Coal
Stockpile; provided, however, that any action taken with respect
thereto shall require the consent of the Managing Board by
Requisite Owner Approval, including MEAG, so long as MEAG owns at
least a 15.1% undivided ownership interest in the Plant Scherer
Common Facilities.
5.4 Removal of GPC as Common Facilities Agent. The removal
of GPC as Common Facilities Agent and the appointment of a
successor for the Common Facilities Agency Functions shall
require Requisite Owner Approval of the Managing Board, including
MEAG, so long as MEAG owns at least a 15.1% undivided ownership
interest in the Plant Scherer Common Facilities, and the same
shall be carried out only for the violations set forth in and in
accordance with all of the applicable provisions of the
Participation Agreements.
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ARTICLE 6
VOTING ISSUES CONCERNING FUEL MATTERS
6.1 Separate Procurement. The Participation Agreements
provide that each Separate Coal Stockpile Participant may become
a Separate Procurement Participant and make its own arrangements
for coal procurement in accordance with the applicable provisions
of the Participation Agreements. The Owners recognize that coal
procured by any Owner will affect the Plant Scherer Coal
Stockpile. Accordingly, by and pursuant to the terms established
by the Participation Agreements, the Common Facilities Agent
shall prepare and submit to the Plant Scherer Managing Board coal
procurement policies, coal quality standards, and coal accounting
procedures governing separate procurement of coal for Plant
Scherer ("Separate Procurement Procedures"). The Separate
Procurement Procedures shall be approved or revised and approved
by Requisite Owner Fuel Approval within 60 days after such
Separate Procurement Procedures have been submitted to the Plant
Scherer Managing Board by the Common Facilities Agent. In the
absence of such adoption or approval of revisions within such 60
day period, the Separate Procurement Procedures proposed by the
Common Facilities Agent shall immediately go into effect as the
Separate Procurement Procedures of the Plant Scherer Managing
Board and may be revised thereafter only by approval of such
revisions by Requisite Owner Approval.
6.2 Common Procurement. The Participation Agreements
provide that the Common Facilities Agent shall procure coal for
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such Owners as are, from time to time, Common Procurement
Participants and Spot Coal for all Owners. The Owners recognize
that such coal will affect the Plant Scherer Coal Stockpile.
Accordingly, by and pursuant to the terms established by the
Participation Agreements, the Common Facilities Agent shall
prepare and submit to the Plant Scherer Managing Board coal
procurement policies, coal quality standards, and coal accounting
procedures governing common procurement of coal for Plant Scherer
("Common Procurement Procedures"). The Common Procurement
Procedures shall be approved or revised and approved by Requisite
Owner Fuel Approval, within 60 days after such Common Procurement
Procedures have been submitted to the Plant Scherer Managing
Board by the Common Facilities Agent. In the absence of such
adoption or approval of revisions within such 60 day period, the
Common Procurement Procedures proposed by the Common Facilities
Agent shall immediately go into effect as the Common Procurement
Procedures of the Plant Scherer Managing Board and may be revised
thereafter only by approval of such revisions by Requisite Owner
Approval. Upon (i) exercise by any Separate Coal Stockpile
Participant of a Separate Coal Procurement or (ii) violation by
any Separate Coal Stockpile Participant, which has been found by
the then remaining Common Procurement Participants owning in the
aggregate more than 50% Pro Forma Ownership Interest in Plant
Scherer out of the total Pro Forma Ownership Interest in Plant
Scherer of the then remaining Common Procurement Participants
(without taking into account for such purpose in either the
numerator or the denominator the Pro Forma Ownership Interest in
Plant Scherer of the Owner under consideration) of any of the
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Common Procurement Procedures, such Owner shall immediately cease
to be a Common Procurement Participant, and GPC, as Common
Facilities Agent, shall have no obligation to procure coal or
transportation on behalf of such Owner, other than for Spot Coal.
The remaining Common Procurement Participants owning in the
aggregate more than 50% Pro Forma Ownership Interest in Plant
Scherer of the then remaining Common Procurement Participants may
vote to reestablish such Owner's status as a Common Procurement
Participant. The Separate Procurement Procedures and Common
Procurement Procedures shall be generally consistent and to the
extent possible shall contain the same coal quality standards and
coal accounting procedures.
6.3 Switch to an Alternative Fuel Source; Physical
Separation of the Plant Scherer Coal Stockpile. Notwithstanding
the foregoing, any Owner may submit to the Plant Scherer Managing
Board a request to change the Separate Procurement Procedures and
the Common Procurement Procedures to provide for the change from
an existing coal source to a type of coal which under Prudent
Utility Practice should not be commingled with the coal
comprising the Plant Scherer Coal Stockpile or to physically
separate the Plant Scherer Coal Stockpile to accommodate both
such coal sources at Plant Scherer. Such a request shall be
subject to approval by the Plant Scherer Managing Board by
Requisite Owner Fuel Approval and upon such terms and conditions
as may be approved by Requisite Owner Fuel Approval.
In the event that any Owner brings a proposal to the
Managing Board with respect to a complete switch from an existing
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coal source to a type of coal which under Prudent Utility
Practice should not be commingled with the coal comprising the
Plant Scherer Coal Stockpile so that only the new coal source is
to be used in the Plant Scherer Coal Stockpile and, as a result,
"buy-out" costs would be incurred by the Owners in connection
with existing coal contracts, then such proposed action would
require approval of the Managing Board by Requisite Owner Fuel
Approval.
6.4 Amendment, Modification, or Termination of Existing
Coal Contracts. The Plant Scherer Managing Board shall approve
or disapprove any amendment, modification (including, without
limitation, deliveries of additional quantities of coal), or
termination of coal contracts identified in Exhibit A hereto (the
"EXISTING CONTRACTS") by Requisite Owner Fuel Approval.
6.5 Resolution of Incompatible Procurement Strategies. In
the event that a procurement strategy submitted to GPC by a
Separate Coal Stockpile Participant for its Separate Coal
Stockpile is incompatible with the procurement strategy desired
by the Common Procurement Participants initiating a Common
Procurement, GPC as Common Facilities Agent shall notify the
Plant Scherer Managing Board of the conflict and of GPC's
proposed action to resolve it. The Managing Board shall approve
or disapprove such action by Requisite Owner Approval. In the
absence of such approval within 30 days from the date GPC's
proposal was submitted to the Plant Scherer Managing Board, GPC
as Common Facilities Agent shall be authorized to take the action
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it proposed to resolve the reported conflict, and such action may
be repeated as necessary until such time as GPC as Common
Facilities Agent proposes a different action to the Managing
Board or the Managing Board approves an alternative action
consistent with the procedures set forth in this Section 6.5.
6.6 Qualifications of Parties Associated with Separate
Procurement. In the event of a disagreement between GPC as
Common Facilities Agent and any Separate Procurement Participant
as to whether any party associated with a proposed separate
procurement (including, without limitation, the vendor, broker,
mine operator and transporter) is reliable and technically and
financially qualified, GPC as Common Facilities Agent or such
Separate Procurement Participant may submit such dispute to the
Plant Scherer Managing Board. Such party shall not be considered
reliable and technically and financially qualified unless the
Plant Scherer Managing Board, by Requisite Owner Approval,
determines that such party is reliable and technically and
financially qualified. The standards employed to determine
whether such party is reliable, and technically and financially
qualified shall be no stricter in regards to the parties
associated with Separate Coal Procurement than in regards to
parties associated with Common Procurement.
6.7 Coal Contract and Transportation Administration if GPC
is Removed as Agent for any Unit. In the event that GPC is
removed as Agent for any Unit, GPC will continue to procure coal
and administer transportation for the Plant Scherer Coal
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Stockpile as Common Facilities Agent. GPC will perform the
Common Facilities Agency Functions of coal procurement and fuel
transportation unless removed as Common Facilities Agent, for one
or more of the reasons set forth in the Participation Agreements,
by Requisite Owner Approval, including MEAG, so long as MEAG owns
at least a 15.1% undivided ownership interest in the Plant
Scherer Common Facilities, such removal to be in accordance with
all of the applicable provisions of the Participation Agreements.
ARTICLE 7
OTHER ISSUES REQUIRING MANAGING BOARD APPROVAL
7.1 Resolution of Conflicting Contractual Obligations for
GPC as Agent. The Owners recognize that GPC, as Agent for the
Participants and Additional Unit Participants, has various
contractual obligations under the Participation Agreements
respecting GPC's performance of the Agency Functions for Plant
Scherer and the various components thereof. The Participants and
Additional Unit Participants agree that, in discharging its
contractual obligations, GPC may take reasonable actions to
resolve conflicts involving its various contractual obligations.
In circumstances where GPC becomes aware of a conflict in its
contractual obligations under the Participation Agreements and
GPC in its capacity as Agent reasonably believes the conflict is
material and is likely to have a significant, on-going impact on
one or more Participants or Additional Unit Participants, GPC
shall notify the Plant Scherer Managing Board of the conflict and
of GPC's proposed action to resolve the conflict. The Plant
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Scherer Managing Board shall approve such action by Requisite
Owner Approval. In the absence of such approval within 30 days
from the date GPC's proposal was submitted to the Plant Scherer
Managing Board, GPC shall be authorized to take the action it
proposed to resolve the reported conflict, and such action may be
repeated as necessary until such time as GPC proposes a different
action to the Managing Board or the Managing Board approves an
alternative action consistent with the procedures set forth in
this Section 7.1. Insofar as practicable, the Participation
Agreements and this Agreement shall be construed and interpreted
to be harmonious and consistent each with the other and among all
of them.
7.2 Insurance Procurement by Owners. In the event that any
Owner can procure insurance for Plant Scherer with substantially
the same coverage, policy limits and deductibles with a
financially sound insurer as that maintained by GPC as Agent for
the Owners, but at significantly less cost to the Owners, the
Owner may submit a request to the Managing Board to allow such
Owner to procure insurance on behalf of all Owners. The Owners
may procure such insurance and no longer pay any cost of
insurance maintained by GPC with respect to Plant Scherer if such
request is approved by written approval or consent of those
Owners who collectively hold at least an 85% undivided ownership
interest in the Plant Scherer Common Facilities.
7.3 Allocation of Insurance Proceeds. The Plant Scherer
Managing Board may adopt rules, policies and procedures, by
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written approval or consent of those Owners who collectively hold
at least an 85% undivided ownership interest in the Plant Scherer
Common Facilities, for allocation of insurance proceeds among
Owners in those situations where deductible amounts and available
proceeds do not fully cover a casualty or loss with respect to
more than one of the Units, the Additional Units, the Unit Common
Facilities, the Additional Unit Common Facilities, the Plant
Scherer Common Facilities and the Plant Scherer Coal Stockpile or
to any other third party claim; provided, however, that the Plant
Scherer Managing Board shall not adopt any rules, policies and
procedures which would deprive any Owner of insurance proceeds to
which it would otherwise have been entitled, without that Owner's
specific consent to such rules, policies and procedures. In the
event the Plant Scherer Managing Board does not adopt rules,
policies or procedures pursuant to the first sentence of this
Section 7.3, then insurance proceeds shall be allocated among the
Owners in proportion to their undivided ownership interest in the
property suffering the casualty or loss for which the insurance
proceeds were received.
7.4 Managing Board Jurisdiction Over Additional Matters.
The Plant Scherer Managing Board shall have jurisdiction over the
matters expressly granted to it by this Agreement. The Common
Facilities Agent or any Owner may submit a request that the Plant
Scherer Managing Board be granted jurisdiction over other matters
concerning Plant Scherer (other than matters that relate solely
to a specific unit), and the Plant Scherer Managing Board shall
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gain jurisdiction over such matters which are approved by
Requisite Owner Approval.
Additional matters not expressly provided for in this
Agreement which the Plant Scherer Managing Board has gained
jurisdiction over as provided for in this section shall be
governed by the following requisite approvals:
(i) With respect to additional matters affecting the Plant
Scherer Common Facilities and the Plant Scherer Coal
Stockpile, Requisite Owner Approval shall be required;
and
(ii) With respect to additional matters that solely relate
to Unit Common Facilities or Additional Unit Common
Facilities, a Requisite Units Owner Approval or a
Requisite Additional Units Owner Approval, as the case
may be, shall be required.
Notwithstanding the foregoing paragraphs of this Section
7.4, (A) in no event shall the Plant Scherer Managing Board take
any action or make any determination which could increase the
obligations, duties or responsibilities of GPC as Agent or as
Common Facilities Agent for the Owners (or any of them), which
could limit or impair the authority of GPC as Agent or as Common
Facilities Agent for the Owners (or any of them) under any of the
Participation Agreements or which could add to the risks or
liability of or the costs and expenses (unless reimbursed by the
Participants and Additional Unit Participants) to be incurred by
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GPC as Agent or as Common Facilities Agent for the Owners (or any
of them) without GPC's prior written consent in each instance;
and (B) in no event shall the Plant Scherer Managing Board assert
jurisdiction over additional matters under this Section 7.4 or
take action with respect to any such additional matter in a
manner which would adversely impair any Owner's voting rights
under any Participation Agreement to which it is a party without
such Owner's prior written consent in each instance.
ARTICLE 8
UNIT AND UNIT COMMON FACILITIES ISSUES
8.1 Capital Budgets and Operating Budgets for the Unit
Common Facilities. By the date set forth therefor in Appendix A
of each year, each Participant may provide the Common Facilities
Agent information to be used in the formulation of the subsequent
year's Capital Budget and Operating Budget for the Unit Common
Facilities. Such budgets shall conform to the requirements and
guidelines stated in Appendix A attached hereto and any revisions
of such appendix as it applies to the Unit Common Facilities as
may be approved by the Board by Requisite Units Owner Approval
and agreed to by the Common Facilities Agent. By the date set
forth therefor in Appendix A of each year, the Capital Budget and
the Operating Budget for the Unit Common Facilities shall be
approved or disapproved, each in its entirety, by the Board by
Requisite Units Owner Approval. If the Capital Budget or
Operating Budget is disapproved, the Board shall then have until
the date set forth therefor in Appendix A to adopt by Requisite
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Units Owner Approval a revised Capital Budget or Operating Budget
which shall comply with Prudent Utility Practice and Legal
Requirements. In the event that the Board is unable to approve
any budget by Requisite Units Owner Approval by the date set
forth therefor in Appendix A, then the budget to be utilized
shall be the one submitted by the Common Facilities Agent, and
such budget shall be deemed approved by the Board and binding on
the Participants.
The Operating Budget, the Capital Budget, or both, with
respect to Unit Common Facilities, for each calendar year shall
be revised as deemed necessary by the Common Facilities Agent to
reflect changed conditions in such calendar year, and promptly
upon any such revision, the Common Facilities Agent shall provide
to each of the other Participants a revised Operating Budget,
Capital Budget, or both, as the case may be. Each revised
Operating Budget, Capital Budget, or both, shall include
Operating Costs, Cost of Construction, or both, as the case may
be, incurred by the Common Facilities Agent in the operation and
maintenance or replacement, modification, addition, renewal,
completion or disposal of the Unit Common Facilities prior to the
time such revised Operating Budget or Capital Budget becomes
effective but not included in prior Operating Budgets or Capital
Budgets, as the case may be, and shall be supported by detail
reasonably adequate for the purpose of each Participant's
reasonable review thereof, as described in Appendix A. Any such
revised Operating Budget, Capital Budget, or both, shall be
approved or disapproved, and if disapproved, an alternative
revised Operating Budget, Capital Budget, or both, adopted or
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otherwise chosen for utilization, all in accordance with the
procedure set forth in this Section 8.1, except that such
approval or disapproval and submission of alternative revisions
must be completed by the board by Requisite Units Owner Approval
within 15 business days of the Participants' receipt of the
proposed revisions from the Common Facilities Agent.
All budgets for Plant Scherer and each component thereof
shall be established and approved so as to permit each
Participant and each Additional Unit Participant to obtain its
desired energy output entitlement from its owned capacity at
Plant Scherer. The Common Facilities Agent shall attempt to
manage, control, operate and maintain the Unit Common Facilities
in accordance with the then current Operating Budget and attempt
to replace, modify, add, renew, complete and dispose of the Unit
Common Facilities in accordance with the then current Capital
Budget and the schedules of expenditures contained therein.
Notwithstanding the foregoing, the Common Facilities Agent makes
no representation, warranty or promise of any kind as to the
accuracy of any estimate contained in an Operating Budget or
Capital Budget or in a revised Operating Budget or revised
Capital Budget or that any such attempt referred to in the
preceding sentence will be successful, and in no event shall the
Common Facilities Agent have any liability to any of the other
Participants in these regards.
8.2 Damage or Destruction of the Unit Common Facilities.
The Participants who are members of the Plant Scherer
Managing Board shall vote in accordance with the relevant
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provisions of the respective Participation Agreements concerning
the damage and destruction of the Unit Common Facilities.
8.3 Disposal (including Retirement and Salvage) of the Unit
Common Facilities. The Common Facilities Agent shall have sole
authority and responsibility with respect to the disposal
(including retirement and salvaging) of all or any part of the
Unit Common Facilities; provided, however, that any action taken
with respect thereto shall require the consent of the Managing
Board by Requisite Units Owner Approval.
8.4 Separate Dispatch Procedures. The Units Participation
Agreements provide that certain Separate Coal Stockpile
Participants may become Separate Dispatch Participants and that
GPC will use its reasonable best efforts to dispatch the
undivided ownership interests of each Separate Dispatch
Participant in Scherer Unit No. 1 and Scherer Unit No. 2 to match
the schedules provided by such Separate Dispatch Participant.
Accordingly, by and pursuant to the terms established by the
Units Participation Agreements, GPC shall prepare and submit to
the Plant Scherer Managing Board startup and shutdown notice,
operating and accounting procedures governing the separate
dispatch of undivided ownership interests in Scherer Unit No. 1
and Scherer Unit No. 2 ("Unit No. 1 and Unit No. 2 Separate
Dispatch Procedures"). The Unit No. 1 and Unit No. 2 Separate
Dispatch Procedures shall be approved or revised and approved by
Requisite Units Owner Approval within 60 days after such Unit No.
1 and Unit No. 2 Separate Dispatch Procedures have been submitted
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to the Plant Scherer Managing Board by GPC. In the absence of
such adoption or approval of revisions within such 60 day period,
the Unit No. 1 and Unit No. 2 Separate Dispatch Procedures
proposed by GPC shall immediately go into effect as the Unit No.
1 and Unit No. 2 Separate Dispatch Procedures of the Plant
Scherer Managing Board and may be revised thereafter only by
approval of such revisions by Requisite Units Owner Approval."
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ARTICLE 9
ADDITIONAL UNIT COMMON FACILITIES ISSUES
9.1 Capital Budgets and Operating Budgets for the
Additional Unit Common Facilities. By the date set forth
therefor in Appendix A of each year, each Additional Unit
Participant may provide the Common Facilities Agent information
to be used in the formulation of the subsequent year's Capital
Budget and Operating Budget for the Additional Unit Common
Facilities. Such budgets shall conform to the requirements and
guidelines stated in Appendix A attached hereto and any revisions
of such appendix as it applies to the Additional Unit Common
Facilities, as may be approved by the Board by Requisite
Additional Units Owner Approval and agreed to by the Common
Facilities Agent. By the date set forth therefor in Appendix A
of each year, the Capital Budget and the Operating Budget for the
Additional Unit Common Facilities shall be approved or
disapproved, each in its entirety, by the Board by Requisite
Additional Units Owner Approval. If the Capital Budget or
Operating Budget is disapproved, the Board, shall then have until
the date set forth therefor in Appendix A to adopt by Requisite
Additional Units Owner Approval a revised Capital Budget or
Operating Budget which shall comply with Prudent Utility Practice
and Legal Requirements. In the event that the Board is unable to
approve any budget by Requisite Additional Units Owner Approval
by the date set forth therefor in Appendix A, then the budget to
be utilized shall be the one submitted by the Common Facilities
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Agent, and such budget shall be deemed approved by the Board, and
binding on the Additional Unit Participants.
The Operating Budget, the Capital Budget, or both, with
respect to Additional Unit Common Facilities for each calendar
year shall be revised as deemed necessary by the Common
Facilities Agent to reflect changed conditions in such calendar
year, and promptly upon any such revision, the Common Facilities
Agent shall provide to each of the other Additional Unit
Participants a revised Operating Budget, Capital Budget, or both,
as the case may be. Each revised Operating Budget, Capital
Budget, or both, shall include Operating Costs, Cost of
Construction, or both, as the case may be, incurred by the Common
Facilities Agent in the operation and maintenance or replacement,
modification, addition, renewal, completion or disposal of the
Additional Unit Common Facilities prior to the time such revised
Operating Budget or Capital Budget becomes effective but not
included in prior Operating Budgets or Capital Budgets, as the
case may be, and shall be supported by detail reasonably adequate
for the purpose of each Additional Unit Participant's reasonable
review thereof, as described in Appendix A. Any such revised
Operating Budget, Capital Budget, or both, shall be approved or
disapproved, and if disapproved, an alternative revised Operating
Budget, Capital Budget, or both, adopted or otherwise chosen for
utilization, all in accordance with the procedure set forth in
this Section 9.1, except that such approval or disapproval and
submission of alternative revisions must be completed by the
Board by Requisite Additional Units Owner Approval within 15 days
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of the Additional Unit Participants' receipt of the proposed
revisions from the Common Facilities Agent.
All budgets for Plant Scherer and each component thereof
shall be established and approved so as to permit each
Participant and each Additional Unit Participant to obtain its
desired energy output entitlement from its owned capacity at
Plant Scherer. The Common Facilities Agent shall attempt to
manage, control, operate and maintain the Additional Unit Common
Facilities in accordance with the then current Operating Budget
and attempt to replace, modify, add, renew, complete and dispose
of the Additional Unit Common Facilities in accordance with the
then current Capital Budget and the schedules of expenditures
contained therein. Notwithstanding the foregoing, the Common
Facilities Agent makes no representation, warranty or promise of
any kind as to the accuracy of any estimate contained in an
Operating Budget or Capital Budget or in a revised Operating
Budget or revised Capital Budget or that any such attempt
referred to in the preceding sentence will be successful, and
subject to the provisions of the Unit Four Participation
Agreements with respect to the Unit No. 4 Owners, in no event
shall the Common Facilities Agent have any liability to any of
the other Additional Unit Participants in these regards.
9.2 Damage or Destruction of the Additional Unit Common
Facilities. The Additional Unit Participants who are members of
the Plant Scherer Managing Board shall vote in accordance with
the relevant provisions of the respective Participation
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Agreements concerning the damage and destruction of the
Additional Unit Common Facilities.
9.3 Disposal (including Retirement and Salvage) of the
Additional Unit Common Facilities. The Common Facilities Agent
shall have sole authority and responsibility with respect to the
disposal (including retirement and salvaging) of all or any part
of the Additional Unit Common Facilities; provided, however, that
any action taken with respect thereto shall require the consent
of the Managing Board by Requisite Additional Units Owner
Approval.
9.4 Removal of GPC as Additional Unit Common Facilities
Agent. The removal of GPC as Agent for the Additional Unit
Common Facilities shall require approval by the Board by vote of
all Additional Unit Participants other than GPC. The appointment
of a successor to GPC as agent for the Agency Functions as it
pertains to the Additional Unit Common Facilities shall require
approval by vote of Requisite Additional Units Owner Approval.
9.5 Information to be provided to the Additional Unit
Participants. The information provided to the Owners pursuant to
Sections 4.2.1.2, 4.2.1.3 and 4.2.1.4 of this Agreement shall
also be provided to the Additional Unit Participants with respect
to the Additional Unit Common Facilities.
ARTICLE 10
RECOVERY OF COSTS
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Any costs incurred hereunder by the Common Facilities Agent
in accordance with the Participation Agreements shall be
recoverable from the Owners under the Participation Agreements as
may be applicable and all remedies provided therein shall be
available in the event any Owner shall default in the payment of
such costs; provided, however, that an Owner which is not in
default shall not be obligated to pay for any costs which should
have been paid by an Owner in default.
ARTICLE 11
RELATION TO EXISTING AGREEMENTS
This Agreement is not intended to nor does it modify, amend,
or terminate any of the Participation Agreements and does not
otherwise alter or impact rights and obligations of the Agent,
the Common Facilities Agent, Participants and Additional Unit
Participants under any such agreements, including, without
limitation, the obligations to make payments; the remedies for
defaults; the authority and obligation to insure Each Unit; the
authority to establish levels of output and to schedule and meter
output; entitlement to output; authority to establish retirement
dates for Each Unit; authority to repair (following substantial
damage or destruction), replace or make additions to Each Unit;
the authority to salvage and dispose of Each Unit; the property
rights established by the applicable Participation Agreements;
and GPC's responsibility, liability and authority as Agent and
Common Facilities Agent under such agreements. No Participation
Agreement shall be amended without 30 days prior written notice
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to the other Owners and no Participation Agreement shall be
amended in a manner materially adverse to other Owners without
such other Owners' consent. The Agent shall not be impaired in
its capacity to carry out its Agency Functions, nor shall this
Agreement diminish or add to (i) the liabilities of GPC or (ii)
the remedies of OPC, MEAG, Dalton, Gulf, FPL and JEA or any of
their successors established by any of the several Participation
Agreements. Further, the provisions of this Agreement shall
supersede the provisions concerning the Joint Committee
established by the Units Participation Agreements; provided,
however, the procedures heretofore adopted by the Joint Committee
set forth in Exhibit B attached hereto and made a part hereof
shall remain in full force and effect unless modified, terminated
or superseded by the Plant Scherer Managing Board by vote of such
percentage of Owners as is required under this Agreement.
ARTICLE 12
EFFECTIVE DATE AND TERMINATION
This Agreement shall become effective upon the execution and
delivery of this Agreement by all undersigned parties and shall
terminate upon the final decommissioning of Plant Scherer and
each component thereof.
ARTICLE 13
MISCELLANEOUS
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13.1 Required Approvals. 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;
(ii) it is approved by the Trustee under each MEAG bond
resolution pursuant to which MEAG's interests in the Units has
been financed.
13.2 Further Assurances. From time to time the Owners
will execute such instruments, upon the request of the Common
Facilities Agent or another Owner, as may be necessary or
appropriate to carry out the intent of this Agreement.
13.3 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.
13.4 Notice. Any notice, request, consent or other
communication permitted or required by this Agreement shall be in
writing and shall be deemed given when sent by registered or
certified mail. All notices pertaining to or affecting the
provisions of this Agreement shall be addressed to:
GPC: (in its capacity as an Owner and as Common Facilities
Agent)
Georgia Power Company
333 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
Attention: President
Telephone Number: 404-526-6000
Telecopy Number: 404-526-7407
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OPC:
Oglethorpe Power Corporation
2100 East Exchange Place
P.O. Box 1349
Tucker, Georgia 30085-1349
Attention: President and Chief Executive Officer
Telephone Number: 404-270-7900
Telecopy Number: 404-270-7872
MEAG:
Municipal Electric Authority of Georgia
1470 Riveredge Parkway, N.W.
Atlanta, Georgia 30328
Attention: President and General Manager
Telephone Number: 404-952-5445
Telecopy Number: 404-953-3141
Dalton:
The City of Dalton, Georgia
P.O. Box 869
Dalton, Georgia 30720
Attention: Chairman, Utilities Commission
Telephone Number: 404-278-1313
Telecopy Number: 404-278-7230
Gulf:
Gulf Power Company
500 Bayfront Parkway
Pensacola, Florida 32501
Attention: Earl B. Parsons, Jr.
Telephone Number: 904-444-6383
Telecopy Number: 904-444-6744
FPL:
Florida Power and Light Company
700 Universe Blvd.
Juno Beach, Florida 33408
Attention: Senior Vice President - Power
Generation
Telephone Number: 407-694-3838
Telecopy Number: 407-694-4999
with a courtesy copy (which shall not be required for effective
notice to be given to FPL) to :
Director of Bulk Power Markets
Florida Power & Light Company
9250 West Flagler Street
Miami, Florida 33174
Telephone Number: 305-522-3847
Telecopy Number: 305-552-2905
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JEA:
Jacksonville Electric Authority
21 West Church Street
Jacksonville, Florida 32202
Attention: Managing Director
Telephone Number: 904-632-6441
Telecopy Number: 904-632-7366
unless a different address, phone number or telecopy number shall
have been designated by the respective Owner by notice in
writing.
13.5 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.
13.6 Time of Essence. Time is of the essence of this
Agreement.
13.7 Amendments. This Agreement may be amended by and
only by a written instrument duly executed by each of the Owners.
13.8 Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon each of the Owners and its
respective successors and assigns. Each such successor and
assign shall assume all rights and obligations established by
this Agreement.
13.9 Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall
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be deemed an original but all of which together shall constitute
one and the same instrument.
13.10 Computation of Percentage Undivided Ownership
Interest. Except as may be provided by any Participation
Agreement and except as otherwise specifically provided in this
Agreement, whenever, pursuant to any provision of this Agreement,
any action is required to be agreed to or taken by the Managing
Board or the Owners (i) only those Owners 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) the computation of the aggregate
percentage undivided ownership interest in the Units, the
Additional Units, or the Additional Unit Common Facilities by
Owners agreeing to or taking any such action shall be based
solely upon the respective undivided ownership interests in the
Units, the Additional Units, or the Additional Unit Common
Facilities owned by Owners not so in default.
13.11 Several Agreements. Notwithstanding anything to the
contrary set forth herein, the agreements and obligations of the
Participants and Additional Unit Participants set forth in this
Agreement shall be the several, and not joint, agreements and
obligations of the Participants and Additional Unit Participants.
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13.12 Confidentiality. Realizing that publication of
information furnished hereunder by the Common Facilities Agent to
the Owners or by one Owner to the other Owners may detrimentally
affect the furnishing Common Facilities Agent or Owner, the
Common Facilities Agent and the Owners pledge to each other to
comply with the confidentiality provisions of the Participation
Agreements to which they are a party. Any party desiring JEA to
maintain such information as confidential shall mark such
information as "proprietary confidential business information" at
the time it is furnished to JEA.
[This space intentionally left blank]
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IN WITNESS WHEREOF, the undersigned parties hereto have duly
executed this Managing Board Agreement under seal as of the date
first above written.
"GPC"
GEORGIA POWER COMPANY
Signed, sealed and delivered By:___________________________
in the presence of:
Name:_________________________
____________________________ Its:__________________________
____________________________ Attest:_______________________
Notary Public
Name:_________________________
Its:__________________________
[CORPORATE SEAL]
"OPC"
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP
GENERATION & TRANSMISSION
CORPORATION)
Signed, sealed and delivered By:___________________________
in the presence of:
Name:_________________________
____________________________ Its:__________________________
____________________________ Attest:_______________________
Notary Public
Name:_________________________
Its:__________________________
[CORPORATE SEAL]
[Signatures continued on next page]
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[Signatures continued from previous page]
"MEAG"
MUNICIPAL ELECTRIC AUTHORITY
OF GEORGIA
Signed, sealed and delivered By:___________________________
in the presence of:
Name:_________________________
____________________________ Its:__________________________
____________________________ Attest:_______________________
Notary Public
Name:_________________________
Its:__________________________
[OFFICIAL SEAL]
"Dalton"
CITY OF DALTON, GEORGIA
Signed, sealed and delivered By:___________________________
in the presence of:
Name:_________________________
____________________________ Its:__________________________
____________________________ Attest:_______________________
Notary Public
Name:_________________________
Its:__________________________
[OFFICIAL SEAL]
BOARD OF WATER, LIGHT AND
SINKING FUND COMMISSIONERS
Signed, sealed and delivered By:___________________________
in the presence of:
Name:_________________________
____________________________ Its:__________________________
____________________________ Attest:_______________________
Notary Public
Name:_________________________
Its:__________________________
[OFFICIAL SEAL]
[Signatures continued on next page]
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[Signatures continued from previous page]
"Gulf"
GULF POWER CORPORATION
Signed, sealed and delivered By:___________________________
in the presence of:
Name:_________________________
____________________________ Its:__________________________
____________________________ Attest:_______________________
Notary Public
Name:_________________________
Its:__________________________
[CORPORATE SEAL]
"FPL"
FLORIDA POWER & LIGHT COMPANY
Signed, sealed and delivered By:___________________________
in the presence of:
Name:_________________________
____________________________ Its:__________________________
____________________________ Attest:_______________________
Notary Public
Name:_________________________
Its:__________________________
[CORPORATE SEAL]
"JEA"
JACKSONVILLE ELECTRIC
AUTHORITY
Signed, sealed and delivered By:___________________________
in the presence of:
Name:_________________________
____________________________ Its:__________________________
____________________________ Attest:_______________________
Notary Public
Name:_________________________
Its:__________________________
Approved as to Form:
______________________________
[OFFICIAL SEAL]
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APPENDIX A
GUIDELINES FOR CAPITAL BUDGETS AND OPERATING BUDGETS
FOR PLANT SCHERER
Prior to August 15 of each year, each Owner may provide the
Common Facilities Agent with such information (whether in person
or in writing as determined by the respective Owner) as such
Owner wishes to be utilized in formulation of Budgets for the
following calendar year. By August 15 of each calendar year, GPC
shall attempt to prepare and submit to each Owner a written
budget estimate of Operating Costs and Cost of Construction for
the Plant Scherer Common Facilities, the Unit Common Facilities,
and the Additional Unit Common Facilities anticipated to be
incurred for the following year and in summary form for the
ensuing four calendar years. Each budget estimate to be
submitted under this subsection shall be based on information
reasonably available. The Budget estimates submitted and the
Budgets approved under the Managing Board Agreement, consistent
with this Appendix A, shall be in a format that reflects the
amounts GPC would expect to bill each Owner pursuant to the
underlying Participation Agreements.
Each budget estimate shall be supported by detail reasonably
adequate for the purpose of each Owner's review thereof and shall
be formatted such that for the next calendar year each month's
estimated costs are listed by reference to applicable Uniform
System of Accounts account numbers.
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By September 15 of each year, the Capital Budget and the
Operating Budget for the following calendar year shall be
approved or disapproved, each in its entirety, by the Board by
Requisite Owner Approval, Requisite Units Owner Approval, or
Requisite Additional Units Owner Approval, as the case may be as
is set forth in the Managing Board Agreement. If the Capital
Budget or the Operating Budget is disapproved, the Board, by
approval of such majority, shall then have until October 15 to
submit an alternative revised Capital Budget or Operating Budget
which shall comply with Prudent Utility Practice, Legal
Requirements and all other requirements set forth in the Managing
Board Agreements and the applicable Participation Agreements, in
the failure of which, the Budget to be used, shall be the one
submitted by the Common Facilities Agent, and such Budget be
deemed approved by the Board and binding on all of the Owners to
which such Budget applies.
Compliance by the Common Facilities Agent with the
provisions of any Capital Budget or Operating Budget which has
been altered by the Participants, the Additional Unit
Participants or any of them from any such estimate submitted by
the Common Facilities Agent, shall not, in and of itself,
constitute a breach by the Common Facilities Agent of its
obligations to discharge its responsibilities as Common
Facilities Agent for the Participants and Additional Unit
Participants in accordance with Prudent Utility Practice.
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EXHIBIT A
EXISTING CONTRACTS
The following is a listing of the coal purchase contracts in
existence on September 1, 1990.
1. That certain contract effective on March 31, 1977 among Shell
Mining Company, A.T. Massey Coal Company, Inc., Marrowbone
Development Company and Georgia Power Company as amended on
January 3, 1977, September 25, 1979, March 23, 1982, January 28,
1983, December 6, 1983, January 12, 1984, February 19, 1985,
September 9, 1985, December 11, 1985, December 18, 1985,
March 10, 1987, April 16, 1987, October 30, 1987, November 10,
1987, January 31, 1989, April 18, 1989, April 23, 1990, May 30,
1990, and the undated "Agreement To Provide For The Extension Of
Negotiations Between GPC and Shell Mining Company."
2. That certain contract effective December 1, 1987 among Delta
Coals Equity Company, Inc., Humphreys Enterprises, Inc., Greater
Wise, Inc., Red River Coal Company, Inc., Pardee Coal Company,
Inc., Delta Coals, Inc., and Georgia Power Company as amended on
November 6, 1987 (Notice of Assignment), November 6, 1987 (Notice
of Designation of Agent), November 23, 1987 (Response to Notice
of Assignment), June 17, 1988, April 7, 1989, and July 24, 1990.
3. That certain contract effective July 1, 1989 between Mingo
Logan Coal Company and Georgia Power Company as amended on
August 21, 1990.
EXHIBIT B
JOINT COMMITTEE PROCEDURES
1. The revisions to depository account procedures presented to
the Joint Subcommittee for Finance and Accounting on
February 2, 1981 and April 2, 1982.
2. The General Operating Guidelines concerning the 180-day
audit provisions approved by the Joint Subcommittee for
Finance and Accounting on April 1, 1985.
3. The Joint Subcommittee for Power Generation Document
Distribution Form as revised on September 18, 1991.
- 2 -
EXHIBIT C
OPERATING COSTS ALLOCATION
The Owners agree that Operating Cost shall be allocated
among and between the Units, the Unit Common Facilities, the
Additional Units, the Additional Unit Common Facilities and the
Plant Scherer Common Facilities as described in this EXHIBIT C,
as the same may be revised from time to time by Agreement:
(1) with respect to Operating Costs incurred in connection with
any one or more of Scherer Unit No. 1, Scherer Unit No. 2 and the
Unit Common Facilities, by approval of all of the Participants
(2) with respect to Operating Costs incurred in connection with
any one or more of Scherer Unit No. 3, Scherer Unit No. 4 and the
Additional Unit Common Facilities, by approval of all of the
Additional Unit Participants, and (3) with respect to Operating
Cost incurred in connection with the Plant Scherer Common
Facilities, by approval of all of the Owners.
OPERATIONS AND MAINTENANCE COSTS
Operation and Maintenance costs at Plant Scherer are
accumulated by Location Code by FERC account. The Location
Codes, what they represent and the allocation basis are:
Location 8010 - General to Steam - 25% to Location 8100
(as such percentage may change from time to time based on the
nameplate capacity of GPC's total fossil steam)
Location 8100 - General to Scherer - 25% to each Unit
Location 8101 - Unit 1 Specific - 100% to Unit 1
Location 8102 - Unit 2 Specific - 100% to Unit 2
Location 8103 - Unit 3 Specific - 100% to Unit 3
Location 8104 - Unit 4 Specific - 100% to Unit 4
50% to Unit 2
Location 8107 - Unique to Units 1&2 - 50% to Unit 1
50% to Unit 2
Location 8108 - Unique to Units 3&4 - 50% to Unit 3
50% to Unit 4
Location 8109 - Common Facilities - allocation to Units
based on 12-month generation
The component systems that make up each of these location codes
are listed in Pages 4 through 9 of this Appendix C. The source
document for this listing was the 1989 Plant Scherer Continuing
Property Records (CPR). The CPR can be tied back to the Plant
Scherer Retirement Unit Manual. When construction is complete,
the various work orders are unitized into retirement units and
then grouped into schedule numbers. The schedule numbers which
compose a larger system are grouped to a major system for purposes
of this listing. This listing is intended to be a high level
summary of the items included in each location.
Within each Location Code are the various FERC Accounts:
Steam Power Generation - operation
FERC 500 - Operations Supervision and Engineering
FERC 501 - Fuel Handling
FERC 502 - Steam Expenses (Boiler)
FERC 505 - Electric Expenses (Turbine)
FERC 506 - Miscellaneous Steam Power Expenses
FERC 507 - Steam Power Generation Rents
Steam Power Generation - Maintenance
FERC 510 - Maintenance Supervision and Engineering
FERC 511 - Maintenance of Structures
FERC 512 - Maintenance of Boiler Plant
FERC 513 - Maintenance of Electric Plant (Turbine)
FERC 514 - Maintenance of Miscellaneous Steam Plant
After the allocation process is complete, all operations and
maintenance costs become a part of the Unit Specific Locations,
but still retain their FERC account identity.
-2-
For the purposes of allocating costs between Scherer Units 1
and 2, all FERC accounts other than Operations and Maintenance on
the Boiler and Turbine (FERC's 502, 505, 512, and 513) are
designated as fixed costs to be allocated based upon the
respective undivided ownership interests in Scherer Units 1 and 2.
The Operations and Maintenance on Boiler and Turbine costs shall
be between labor and nonlabor. All labor, both straight time and
overtime, shall be designated as fixed costs. All other costs
charged to these FERC Accounts (502, 505, 512, 513) shall be
considered variable, and allocated to Owner based on relative
generation during the "applicable accounting period". A flow
chart of this information is attached hereto.
-3-
Plant Scherer Common Facilities
These facilities are classified as part of Plant Scherer
Common Facilities and their O&M costs vary with generation. O&M
costs incurred in the operation and maintenance of these
facilities shall be allocated to the individual units based on the
most recent 12-month generation or in appropriate cases, a
different applicable accounting period generation of the unit as a
percent of the total Plant Scherer generation for the same period.
Permanent Railroad System
Chemical Waste Treatment Control House
Coal Handling Equipment Buildings and System
Treated Water System
Ash Handling System
-4-
Plant Scherer Common Facilities
These facilities are classified as part of Plant Scherer
common Facilities, but their O&M costs do not vary with
generation. Therefore, O&M costs incurred in the operation and
maintenance of these facilities shall be allocated to the
individual units based on the nameplate capacity of 818 MW per
unit (1/4 to each unit).
Raceway Systems - Equipment and Buildings
Site Grounding System
Plant Welding System
Hydrogen House
River Pumping System
Well Pump House
Lifting System - Turbine Room Cranes
Lube Oil Building Storage and Transfer Facilities
Potable Water System
Fire Protection System and Tanks
Distribution System - To Header
Auxiliary Boiler System Startup
Site Improvements
Service Bay
Maintenance Building
Warehouse
Service Water System
Visitors Center
Security Building
Sewage Treatment Facility
Environmental Monitoring Facility
Utility Trench
Nitrogen Storage Building
Nitrogen System
Lake Juliette
Retention and Ash Disposal Pond
Recreation Facilities
Intrasite Communication
Settling and Storage Pond
Plant Service Facilities
Service Building
Fee Simple Land
500kv Switchyard Facilities
-5-
Facilities Common to Units 1 and 2
These facilities are classified as common to Scherer Units
No. 1 and No. 2, or "Cost Unique to 1 and 2" and their O&M costs
do not vary with generation. O&M costs incurred in the operation
and maintenance of these facilities shall be allocated to Scherer
Unit No. 1 and No. 2 based on nameplate capacity of 818 MW per
unit (1/2 to each unit).
Waste Water Treatment Facilities
Scherer Unit No. 1 and No. 2 Coal Handling-Building Equipment
and System
Treated Water System
Filtered Water System
Chemical Wash System Chemical Cleaning Header
Site Maintenance and Improvements
Emergency Generating Building
Raceway System Site
Collection System
Ground System
Fee Simple Land
Scherer Unit No. 1 and No. 2 Railroad System
Scherer Unit No. 1 and No. 2 Fire Protection System
Scherer Unit No. 1 and No. 2 Ash Handling Facility
Scherer Unit No. 1 and No. 2 Service Water System
Cooling Water Chlorination House and System
Fuel Oil Facilities
Fuel Storage Facilities
Stack
-6-
Facilities Common to Units 3 and 4
These facilities are classified as common to Scherer Units
No. 3 and No. 4, or "Cost Unique to 3 and 4" and their O&M costs
do not vary with generation. O&M costs incurred in the operation
and maintenance of these facilities shall be allocated to Scherer
Unit No. 3 and No. 4 based on nameplate capacity of 818 NW per
unit (1/2 to each unit).
Waste Water Treatment Facilities
Scherer Unit No. 3 and No. 4 Coal Handling-Building Equipment
and System
Treated Water System
Filtered Water System
Chemical Wash System Chemical Cleaning Header
Site Maintenance and Improvements
Emergency Generating Building
Raceway System Site
Collection System
Ground System
Fee Simple Land
Scherer Unit No. 3 and No. 4 Railroad System
Scherer Unit No. 3 and No. 4 Fire Protection System
Scherer Unit No. 3 and No. 4 Ash Handling Facility
Scherer Unit No. 3 and No. 4 Service Water System
Cooling Water Chlorination House and System
Fuel Oil Facilities
Fuel Storage Facilities
Stack
-7-
Plant Scherer Unit Specific Facilities
These facilities are classified as specific to the particular
unit. O&M costs associated with these facilities are charged
directly to the specific unit.
Site Fire Protection System
Roof Pressurizing System
Boiler Duct System
Boiler Water Circulating
System
Pulverizes
Oil Handling and Firing
System
Plant Welding System
Draft System
Induced Draft
Main Turbine Steam System
Extraction Steam System
Vent and Drain System
Condensate System
Turbine Generator System
Cooling Water Passageways
Cooling Water Pumps and
Drives
Cooling Water Chlorination
System
Cooling Tower
Storage Tanks Distribution
System
Raceway System
Ground System
Generator Bus System
Cathodic Protection System
Sluice Water System
Site Improvements
Service Air Systems
Sewage Treatment Facilities
Coal Handling System
Instrument/Control System
Turbine Building
Water Analysis System
Chemical Wash System
Metering Control System
Computer Systems-Electrical
Local Racks and Panels
DC Power Systems
Emergency Generator Systems
-8-
AC Distribution Systems
Intrasite Communications
Plant Service Facilities
Steam Generator Building
Service Water System
Fee Simple Land
Control House
Precipitator Control House
Boiler Enclosure
Air Heaters
Step-up Substation
500kv Switchyard Facilities
-9-