ML19329E427
| ML19329E427 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 06/27/1972 |
| From: | Ross W, Watson K CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), WALD, HARKRADER & ROSS |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8006120798 | |
| Download: ML19329E427 (51) | |
Text
{{#Wiki_filter:-,- .- - - -
\ . -1:
cet .1 .
- , ,~, m s .
- _ C::ITED ST.iTCS OI' AMERICA g,y,M w ATO::IC E:URCY CJMMISSIO:1 In tne Mattcr.of )
) Docket Nos. 50-329A Consuners'Pc.ter Company ) and 50-330A (t'idland Unites, 1 and 2) )
Applicant's Response l 73 to Justice Department Reply "I a 'ig':'D'f
'll and Pc 'ritioners ' Statement Consumers Power Company (hereinafter "Applicent") hereby flies this response to Reply of the Department of Justice on Issues Other Than Disqualification Raised by Applicant's Answer of May 9, 1972 (hereinafter
" Justice reply") and the Statement of Petitioners in Reply to Applicant's Answer to Notice of Hearing (hereinafter
" Petitioners' Staten.ent") . On June 15, 1972, the Atonic Safety and Licensing Board in this proceeding granted Applicant leate to file this pleading no later than June 27, 1972.
A. The applicable Statute itself limits the scope of the Commission's antitrust review 1 1 The Justice reply and Petitioners' Statement i take issue with the Applicant's position that scope of j 7 THIS DOCUMENT CO .
.\ rq- P00R QUAUTY PAGES
,,, , .- e " c . . (e _ . 4_.La *
.4
- s. - c Il . ya s**
i;3 . h Tj A 1 N; ,, l khu w **j. di P ' d -[ 1 4 'u ; ;. -< . 1, .,
, l
'! l l
8006120 N I M l l
- .. . -. ~ . _. _ . . - __
^OIP~
E b D _ g. m the antitrust = scrutiny is limited by S'ection 105 (c) of the Atomic Energy Act, as amended, 42 U.S.C. 2135(c), to Basically, Justice activitics under the licensed units. and the Petitioners contend that because the Midland I unit will become a part of Applicant's electric utility. system, every facet of this system is subject to antitrust reviou in this proceeding. (Sec. Justice reply, p. 26-27; Petitioners' Statement, p. 22-23). Such contentions ignore the statutory standard set forth in Section 105(c) which governs this proceeding and misread the legislative history underlying this section. While the scope of the inquiry contemplated by the Justice Department and the Petitioners might arguably be appropriate in an antitrust action before a federal court, the inquiry in this proceeding arises in a completely different statutory context. The Atomic Energy Commission has no authority to conduct antitrust enforcement proceedings as.such, i e.,
. proceedings directly to compel compliance with'the antitrust laws. That power is reserved principally i
to the Department of Justice as prosecutor in civil or l criminal court. actions; 'to injured private parties suing in court'for damages or injuctions; and to the Federal l Trade Commission. Some federal administrative agencies ] i i i
.- 1 q
= t-1 are also authorized by Section 11(a) of the Clayton
'Act, 15 U.S.C. 521(a), to conduct enforcement proceedings with respect to the industries they regulate, but the Atomic Energy Commission is not one of those so authorized.
Ilost administrative agencies with licensing responsibilities are required by statute or judicial decision to take account of antitrust policy. Such licensing responsibilities, however, do not require, or permit, the agency to conduct an overall review of the license applicant's conduct in light of the antitrust laws. Rather, there must be "a reasonable nexus between the matters subject to its surveillance and those under attack on anti-cumpetitive grounds". City of Lafayette v. SEC, Slip Op. 27 (D.C. Cir. Nos. 24,764 and 24,963, 1971), cert. granted sub nom. Gulf States Utilities v. FPC, et al., __1/ 40 USLW 3565 (1972). In the Lafayette case, supra, the Court found an insufficient " nexus" between the SEC's approval of
. security issues under the Holding Company Act and the operation of the facilities for which the financing was l required, because "the agency, here the SEC, has not been i 1
given any regulatory jurisdiction over the operations l 1 of the company". Sli:- Op. at 27. The same restrictions l l
,Jf The Court _ granted certiorcri only in the conpanion
. case. to Lafayette, -supra, of L3ftyatte v FPC (D.C. Cir. L lio . 71-1041), .-:.ich 7.uld that th. raccraL Power Commission must consider antitruct issues relating to the issuance. of securities by a public utility.
D,
. t.
limit the Atomic Energy Commission's antitrust review. As the Court of Appeals said in Cities of Statesville v. Atomic Eneroy Commission, 441 F.2d 962, 975 (D.C.Cir.
~
1969) (en banc) , [w] hat-is unique about the instant situation, is the extreme narrowness of the Commission's jurisdiction in making licensing determinations. Un-like the Federal Power Commission, the Federal Communications Commission, and the-many other regulatory agencies, the Atomic Energy Commission is dealing with a sub]ect matter that is not, as yet, open to vast commercial exploita-
-tion. These atomic power plants are not like radio stations of proven technical and commercial feasibility which are coveted prizes of the elite; 4 instead, nuclear reactors are extremely speculative investments because of the many technical and financial imponderables. Unlike the other regulatory agencies, the Atomic Energy Commission concerns itself not with economic feasibility but with practical development and application of this wondrous source of energy. While the regulatory' agencies in most of the other fields concern themselves with establishing an efficient national allocation of resources in the area which they are administering, and base this goal on a "public interest" concept of free enterprise, the Atomic Energy Commission concerns itself with promoting technical innovation in a highly experimental field and implementing "public interest" concepts through pro-F tection of the health, safety, and security of the nation.
i r
-- , , , ,e-, -- - , . , , - . = - , , - - -
, o '
i
.- r- _ 5_
i Section 105(c) of the Atomic Energy Act, as amended, 42 U.S.C.-2135(c), requires the Atomic Energy' Commission to consider the antitrust laws in-its licensing process. But it does rot provide the Commission with general antitrust enforcement authority, or subject every facet of the license applicant's activities to antitrust review by the Commission. On the contrary, whenever antitrust issues have properly been raised in a licensing proceeding, the section only mandates the Commission-to "make a finding as to whether the activities under the license would create or maintain a situation inconsistent with the antitrust laws" (emphasis supplied). In attempting to subject all of I.pplicants'
. activities as an electric utility to an unlimited antitrust a
f review in this proceeding, the Justice Department and the Petitioners must construe Section 105(c) as if the words
" activities under the license" (emphasis supplied) had been
~
I deleted from the statute. Significantly, these words _ limiting-the Commission's antitrust review authority were
~ ~
added by the 11970 amendments- to the Act. By contrast, the previous version of Section 105(c) required only that the-Attorney General advise the Conmission as to-the anticompeti-tive' impact of the propoe,ed-license. The statute was-r e< , -
- - , , ,,-.--,--rr- ,r,-- r , , , - ,,-,,, -
-,e , , - , , , + , - - - , ,-r- -
~
silent as to what 'antitru.it principles or perimeters should guide the Commission in its consideration of license applications. See 68 Stat. 938. At the hearings which i considered the 1970 amendments, the Justice Department proposed a revision of Section 105(c) which again failed l, to set forth the perimeters or principles of the Commissi:n's antitrust review functions. Thus, the acting Assistant 4 Attorney General testified that under his proposal the Commissicn would not "have to make an express conclus:ry finding'that the license or the transaction upon which the license was based" might be inconsistent with the antitrus: law, but could condition the license -- in the light of the Attorney General's advice -- without limitations as to the area of antitrust scrutiny. prelicensing Antitrust
. Revicu of Nuclear Powerplants, Hearings before the Joint Committee on Atomic Enercy, 91st Cong., 1st Sess. (November, 1969 and April, 1970) 125 [Hereinaf ter cited as " Hearings"] .
Had.the~ Justice Department's proposal been 8 adopted by Congress, the contentions contained in its reply herein might be persuasive. But the proposed unlimited and open-ended scope of-review was rejected and the phrase
" activities under-the license" inserted in place of the pre-1970 standard in order to establish the principles and 1
d 4
-- - - , ,.n. , ..,n- - . . . - , , u ,
[ t - perimeters of the' review proceedings. This conclusively demonstrates that, not.only did Congress focus its attan-tion on the question of scope of the Commission's inqu.iry in antitrust proceedings, it explicitly restricted the inquiry to an applicant's activities under the license. B. Legislative history confirms Congressional intent to limit Commission's antitrust review
- 1. Prior Antitrust Review Standards The legislative history of the antitrust pro-visions of the Atomic Energy Act confirms the clear meaning of Section 105(c), i.e., that the Commission's antitrust inquiry must be confined to activities under the license. See Power Reactor Development Co. v.
International Union of Electrical Workers, 367 U.S. 396, 408-411 (1961). The original Atomic Energy Act of 1946 provided: Where activities under any license might serve to maintain or to foster the growth'of monopoly, restraint of. trade, unlawful competition, or other trade position inimical to the entry of new, freely competitive enter-prises in the fielck the Commission is authorized and directed to refuse to issue such license or to. establish such conditions to prevent these results as tl.2 Com.missicn, in consul-
.tation with the Attorncy General, may ,
determine. S7(c), 60 Stat. 764.
O 7 The Commission kas thus required by this Section-not.only to condition'every license so as tc prevent anticompetitive consequences, but also to dany 3
-a licenscLaltogether if it determined that conditioning
- would not be effective. The practical operation of such a requirement was never experienced, however, because nc licensing proceedings under the 1946 Act ever arose.
I A substantially different regime was establishad
~
by the Atomic Energy Act of 1954. The statutory redas'cn first proposed in that year by the oint Committee on Atomic Energy would have eliminated entirely the obligation j of the Commission to consider or apply antitrust policy i t/ } in licensing proceedings. Upca the protest.of several JCAE members-and the Department of Justice, an alternative proposal was advanced under which antitrust consideraticns would have continued to be controlling, but with the pc. tar to make the requisite antitrust determinations removed 3/ l from the AEC and given to the Federal Trade Commission 7 The version initially passed by the Senate was similar but would have mide the Attorney General the final antitrust S arbiter. I i jp/ H.R.'8862, 83d Cong.; S. 3323, 83d Cong. 3/ H.R. 9757, 83d~Cong.; S. 3690, 83d Cong. _ y , _
,, e - u --u,_ nw,-,-., ,n- . - - - , - - - -
9 _9-The common thread in all these proposals was extinguishment of the Commi: * . .m 's authority to decide antitruct issuca. But as fin;117 enacted the 1954 statute nevertheless preserved an ant.; trust role for the Ccamission. While climinating the prior prevision which made antitrust considerations dispositive, the nov statute recuired the Com:nission in commercial-lic: ..ing
- cases to obtain tha cieus of the Attorney General as to "' ether, insofar as as can determine, the proposed license culd tend to create or
~
maintain a situation inconsic. ant tith the antitrust laws, , , , 68 Stat. 938. However, as previcusly observed, the 1934 legislation established no pri.:ciples or perimeters to guide the Commission in its anti:rt : r2 view. Like the original 1946 statute establishing tr antitrust rule for licensin:; proc:.edings, however, the 1954 antitrust provision never care to be applied. All appl 1:a-tions filed under the 1954 Act ,ta r a for research and de? Slop-ment licenses rather than for cc::.arcial license, and, as the Court of Appeals held in he statesville case, the Com-mission was neither obligatcl ncr cormitted to consider antitrust issues when only a ror. :h license was sought. Cities of Statesville v. AEC, 4- F.2d 962 (D.C.Cir. 1969) (en banc).
- _ ~ _ _ _
. 3 O 3
)
_ 1a _
- 2. The 1970 Amendmenta Following the Statasville case, supra, increasing dissatisfaction with the research-commercial dichotomy,'and with the lack of any role for antitrust in research licens-ing, eventually resulted in the 1970 amendments to Section 103(c).
These amendments were enacted only after numercus committee hearings and conferences in which interested parties, including the Antitrust Division of the Justice Department, participated extensively. The legislative process began in late 1969, when the JCAE Committee initiated hearings to cca-sider three bills which proposed changes in the Atomic Energy Commission's antitrust review procedures: S. 212 (the Anderson-Aiken bill); H.R. 8289 (the Holifield-Price bill) ; and the Atomic Energy Commission's bill, H.R. 9647 (also introducai in the Senate as S. 1883). Each of these bills proposed changes to the language of Section 105(c) concerning the scope of the antitrust review by the Attorney General and the Commission in nuclear facility 4/ licensing proceedings- But, H.R. 9647 failed to set forth principles or perimeters to guide the Ccamission in its antitrust review functions. S. 212 and H.R. 8289 authorized the Attorney General to
-4/
advise and the Commission consider whether " activities under any license would tend to create a situation inconsistent uith the antitrust laws". H.R. 9647, the Commission's bill, provided that the Attorney General vc uld advis . the Commission whether " issuance of such i:ense or activities for which the license is sought
.iould tend.to create or maintain a situation inconsistent with the antitrust laws".
, -e . n. -
r . m , .- - - -
-e y -.,
N m q - m 11 4 . Despite, or perhaps because of, such lack of guidance, the Antitrust Division of the Justice Department-endorsed-H.R. 9647, since the bill "would assure the applicability i
'of the antitrust standard to all.significant-nuclear utilization and production facilities", including supply
- t. arrangements for'the proposed licensed units. Hearinas, 119; ' 121. (Testimony of acting Assistant Attorney General) .
I a The lack of guidance.to the Commission in the proposed legislation troubled the Committee. One member s of the Committee staff warned:
"[T]here apparently are no other statutes, and no court decisions based thereon, to i which the AEC could look for guidance in i implementing and interpreting Section 105 j (c). The only analogous statute as far as
- I am aware, is the one you [the acting Assistant Attorney General]. mentioned, the Federal Property and Administrative Services Act. For the reasons indicated earlier, it probably would not afford much guidance." Hearings, p.125.
The Association of the Bar of the City of New I . York expressed a similar concern. Commenting upon the proposed bills - not - (as the Justice reply states , pp. 21-22) upon the markedly different bill which was later enacted - the Association warncd that:
"Unless Concress establishes some erimeters
*** presumably the Commission will" feel obligated to pursue at least the following questions as to the following activities of :
each license applicant: , j r
- T, m , ' * " Activities of atplicant in disposing of electrical energy from the facility.
Is the facility part of a pool which is inconsistent tith the antitrust laws? Are there improper agreements between the applicant and others as to the parties to whom and the areas in which the applicant will sell the electricity? Is'there a joint venture from which other parties have been improperly excluded? Even if there is no joint venture or joint under-standing, does the applicant occupy such a position of dominance that he is akin to a monopolist? If so, is his refusal to sell to some parties inconsistent with the antitrust laws? Does the applicant charge discrimin-atory prices, utilize deceptive ad-vertising, or engage in unfair sales practices which are inconsistent with the antitrust laws?" Hearings, 595, 612, 613. One of the " perimeters" recommended by the Bar Association was that the supply industry be entirely excluded from consideration. It also proposed that "[t]he [ antitrust] review should also be limited to the activities of the applicant directly associated with activities under the proposed license in order to preclude the possibility of Commission investigations into unrelated matters ***". Id. at 625. This concern was also reflected in the
Tv m A
. L'i
?
/ -
testimony of Donald G. Allen, Prcsident of the Yankee _.5/ Atomic Electric Co., who concluded that:
"***the AEC will need guidance in deter-mining what antitrust issues can appro-priately be resolved in licensing pro-ccedings, and should be given express authority to exclude issucs which are not directly related to the proposed project, which it cannot dispose of because all necessary parties are not before it, or which for other reasons can more appropriately be resolved in another forum". Hearings, p. 532.
The hearings on the bills concluded in April, 1970, but discussions continued in other forums, including informal conferences between interested parties and the Committee members and staff. In June, 1970, the question of the scope of antitrust review in the proposed legislation arose during hearings before the Senate Antitrust & Moncpoly Subcommittee. There, the acting Assistant Attorney General testified that while:
" antitrust review would consider the contractual arrangements and other factors governing how the proposed plant would be cwned and its-output used *** [, n]o broader scope of review is contemplated, *** .
We do not considor such a licensing proceedings as an appropriate forum for wide-ranging scrutiny of general I industry affairs essentially unconnected with the plant under review.' gearings, p. 366. _1/ To the extent that the c: c ts from Allen's testimony contained in Petitioncr.' . banent (pp. 16-17), imply , that' Allen supported bn. . 'el antitrust review by ' the Cor.uaission, that i. . . ..;ot i: cletrly misleading and inaccurate.
_ _ . ~ _ . ._ n ~n'
.)
This testimony was put into the JCAE hearing l
. record by-the American Public Power Association, as part of its written response to questions propounded by the JCAE. Hearings, 366. It is of value not merely as evidence of what the JCAE was led to believe the Justice Department's interpretation of the Act should be, but
'also as a contemporaneous opinion of a principal parti-cipant in the development of the legislation.
The bill, H.R. 18679, which finally emerged from the Committee and was enacted as PL 91-560 in December 1970, clearly took account of the concerns of certain Committee members and other parties, such as the New York City Bar Association, that the scope of the Commission's antitrust review as proposed was too vague and open-ended. The final Committee report which accompanied PL 91-560 emphasized that the new antitrust standard to be applied by the Commission did not encompass industries supplying the construction and operation of the proposed unit "unless the license applicant is culpably involved in activities of others that fall within the ambit of the standard". House Report 91-1470, Joint Committee on Atomic Energy to Accompany H.R. 18679, p.31. In addition, the new Act itse]f explicitly restricted the Commission's _ _ . ~ . _ . _ . - . _ .. , . . . , ._ - - - _ _ . , _ - . - .
O ') - inquiry to "activitics under :he license" - a much more defined and limited standard than originally found in the proposed legislation of the Atomic Energy Commission and the Justice Department. Even Senator Aiken, an advocate of broad review authority, conceded that the effort "to cut back on the scope of the AEC consideration of antitrust issues . . . is reflected to scre extent in this bill" (emphasis in the original). Dissenting views on H.R. 18679, as reprinted in Justice reply, Appendix A, p.2. The clearest indication of the Congressional decision to define and limit the Commission's antitrust authority is contained in the Committee Report, supra, at 14, which states:
"The committee is recommending the enactment of prelicensing review provisicns which -- as in the proposed Atomic Energy Act of 1954 that the Jcint Committee originally reported out, and as is in the version of subsection 105c, that the Senate passed en July 27, 1954 -- do not stop at the point of the Attorney General's advice, but go on to describe the role of the Commission with respect to potential antitrust situations.
". . . It is intended that, in effect, the Commission will conc _uuo whetner, in its judcment, it is reas;ncnly pro;able that the activities uncer :::2 license rould, wnen the license is issued or thereafter, be inconsistcnt with any of tne anni;r;s laws or tne policies clearly uncerlying :.70:e la.s." (emphasis acied)
The positions set forth in the Justice reply (pp. 11, 16-24), and the Petiti:ncrs' Statement (pp. 16-17) n*' extensively on the fac: tha - coveral industry spokes-a troposed an even narrower cn_ttrust standard than the one enacted and that Senator I.i?e.- proposed a broader
6
.**w .- .
.e
~
standard in his threatened dissent to the Committee report ] (see Justice reply,= Appendix A) . That some preferred a more narrow standard, while others sought a broader scope of review, merely confirms that'the legislation ultimately enacted was a compromise. As Senator Pastore, the ficor manager of the bill in the Senate, told his colleagues:
"The committee and its staff spent many, many hours on this [ antitrust] aspect of the bill, and I can assure the Senate that we consider very carefully the considerable-testimony, comments and opinions we received from interested 4 ' agencies, associations, companies and individuals, including representatives from the Antitrust Division of the Justice Department, from privately owned utilities, and from public and cooperative power interests. The end l
product, as delineated in H.R. 18679, is a carefully perfected compromise i by the committee itself; I want to emp.asize that it does not represent the position, the preference or the input of any of the special pleaders inside or outside of the Government. In the committee's judgment, revised subsection 105(c), which the committee carefully put together to'the satis-faction of all of its members, con-stitutes a balanced, moderate frame-work for a reasonable licensing review procedure." Congressional Record, S. 19253 (December 2, 1970). I The " balanced,icoderate" approach is reflected in the bill and in :he Committee report. which adopted it.
'For example, the Committee report, supra, stated: ,
"Of course, the committee is intensely aware that around the subject of prelicensing review and the provisions of subsection 1050, hover opinions and emotions ranging from one extreme to the other pole. 1.t one extrenity is the view t.ut no prelic..naing .ntitrust
~
'O l '
- 17.-
review is either necessary or advisable and that the-first twe subsections of section 105 concerned vith violation of the antitrust laws and the 'nformation which the Commission is obligea to report to the Attorney General are wholly adequate to deal with antitrust considerations. Additionally, there are those who point out that it is unreasonable and unwise to inflict on the construction or operation of nuclear powerplants and the AEC licensing process any antitrust review mechanism that is not required in connection with other types of generating facilities. At the opposite pole is the view that the licensing process should be used not only to nip in the bud any incipient antitrust situation but also to further such competitive postures, outside of the ambit of the provisions and established policies of the antitrust laws, as the Commission might consider beneficial to the free enterprise system. The Joint Committee does not favor, and the bill does not satisfy, either extreme view." Commission Report, supra, p. 14. It is well settled that where the language of an act in its final form represents a compromise, the views of those who sought different wording, "cannot control ~ interpretation of the compromise version." Hardin v. Kentucky Utilities Co., 390 U.S. 1, 11 (1968). Similarly, the " legislative history of a bill that was not adopted cannot be resorted to to construe a bill that was". Interstate ::atural Gas Co. v. FPC, 156 F.2d 949, 952 (5th Cir. 1946); aff'd, 331 U.S. 682 (1947). Thus, Senator Aiken's threatened dissent and the failure of Congress to enact the abortive Aiken-Kenn dy bill (S. 2564 and H.R. 13828) contribute nothing to the intc';pretation of the 1970 amendments of the Atomic Energy Act.
c .
', 1
^
9
- 1.8 -
What emerges from the foregoing review of the legislative history of the 1970 amendments is the desire of Congress to give the Atomic Energy Commission some power of antitrust review, but to limit the scope of that review. Congress made clear that the Act does not foreclose Justice Department enforcement of the antitrust laws in federal court. See Section 105 (a) and Remarks of Representative Price, Congressional Record, H. 9449 (September 30, 1970). Thus, the narrow scope of the Commission's antitrust review does not leave the public unprotected against allegedly unlawful conduct since enforcement of antitrust violations unrelated to an applicant's proposed activities under the license is left to the traditional forums. During consideration of the legislation, spokesmen for the public power interests, the Atomic Energy Commission, and the Justice Department recognized thc; the Commission's antitrust review should be limited and that general antitrust enforcement should be left to the courts. A representative for the American Public Power Association wrote the JCAE and quoted with approval the testimony of the Itomic Energy Commission's General Counsel that "the antitrust authority of [ sic] Commission will be an appropriate complement to the Authority of the Attorney General,
?
and, it would seem, should not be used by the Commission to duplicate authority already held by the Attorney General". IIearings , 365-366. In addition, a restrictive interpretation of the scope of the Commission's review comports with the Justice Department's testimony that the fortuity of a' nuclear license application should not be used to initiate a " wide-ranging scrutiny of general industry affairs essentially unconnected with the plant . under review". See supra, at 13. . Despite such assurances, the Justice reply and the Petitioners' Statement contemplate in this proceeding just such a " wide-ranging" review of every facet of applicant's past and present conduct as an electric utility. We have shown that the Act governing the proceeding, particularly as it must be interpreted in light of its legislative history, proscribes such extensive scrutiny. C. Issues Raised by Justice and Petitioners are Beyond the Scope of Review Provided in the Act Applicant's view of the Act is entirely consis-tent with the standard applied by the Justice Department in reviewing the disposal of property under Section 207 of the Federal Property and Administrative Services Act of l
. '. b 1949, 40 U.S.C. 488, whose applicable statutory language was adopted by the 1970 amendments. According to the Justice Department reply (pp. 7-8) , the analysis under the Property Act is "whether an anticompetitive ' situation' would be created or maintained'as a result of the contemp-lated disposal of government property". (Emphasis supplied).
By analogy, therefore, the test here should be whether an anticompetitive situation would be created or maintained as a result of Applicant's construction or operation of the Midland units. Limiting this proceeding to issues proximately related to the construction and operation of the Midland units in this instance precludes inquiry into the nature and use of Applicant's transmission system, interconnec-tion arrangements, and other areas of Applicant's conduct which relate to its system-wide operations as an electric utility. The Justice reply and Petitioners' Statement claim that such general activities should be subject to review because they are necessary to the operation of the Midland units. But such an analysis turns the applicable standard on its head: the test is not whether the overall system has an impact on the Midland units, but rather whether an anticompetitive impact will result from.the i l
)
n
)
construction and operation of the Midland units. The Midland units plainly will not " create" a situation inconsistent with the antitrust laws, and we do not understand the Justice Department so to assert. The only question therefore is "whether the activities under the license would . . . maintain" such a situation. The Midland units will merely provide Applicant with additional generation capacity at approximately system-wide average costs. Applicant's transmission system, interconnection arrangements, pooling arrange-ments and the like are in no way dependent upon, and only remotely affected by, the construction and operation of the Midland units. Consequently, the licensing of these units is irrelevant to these facets of Applicant's activities and could not possibly cause the maintenance of an allegedly anticompetitive situation. This can be seen most clearly by considering the impact on the system by assuming that the Midland units were not to be constructed, and that the increased power needs of Applicant's system were to be supplied by firm power purchases at approximately system average costs. It is submitted that the competitive " situation" in Applicant's service area could not be significantly affected by ,such a s
w A~ p l ) x variation in the method of supplying a part of Applicant's bulk power supply. Hence, the " activity" of generating power in the Midland station could not rationally be
- said to " maintain" a situation inconsistent with the antitrust laws, and hence is not the sort of event calling for antitrust scrutiny by this Commission as a precondition to a license.
Such an interpretation of Section 105 (c) in no way precludes Commission review of the kind of activities under a power reactor license which did concern the JCAE Committee and the Department of Justice. Commenting upon " issues which are of parti-cular concern to the electric utility industry at this time," the acting Assistant Attorney General testified:
"Specifically, the industry is now going through a considerable controversy over the extent to which, and the means by which, small systems should have access to large new generation and transmission facilities. As to this, I think anti- '
trust law provides some general guidance. Companies acting together to create or control a unique facility may be required by application of the rule of reason, to grant access on equal and nondiscrimina-tory terms to others who lack a practical alternative." Hearings, 127-128. Similarly, when tl.e Justice Department was asked to comment on the bill which was enacted, the Assistant
~
l ] s - -- Attorney General endorsed the bill and observed that it would enable the Commission to condition licensed for a
" joint venture" nuclear power plant -- that is, one owned by two or more companies. Congr'essional Record, S. 19254 (December 2, 1970).--6/
Thus, it is clear that the 1970 amendments sought principally to deal with the exclusion of small utilities from joint ventures owning and operating nuclear power reactors. The ownership and operation of such
^
reactors would raise questions directly and immediately under Section 1 of the Sherman Act without need for appraisal of an entire utility system operation, and thus are appropriate for AEC review under the statutory standard. There is no suggestion in the legislative history that where, as here,.the proposed units will be owned by a single utility, Section 105(c) was intended to trigger an antitrust review of an applicant's general activities as an electric utility.
~-6/ The acting Assistant Attorney General made clear in his JCAE testimorv that if the licensed unit were owned by a single utility which was a member of a pool, such membership per se would not cau'se i the unit to be considered a joint venture. Hearings,
- p. 134.
)
l
1
. - 2.4 -
Finally, even assuming arguendo that there could be shown a sufficient nexus between une Commission activity in licensing the Midland units according to health and safety standards and the competitive " situation" in Applicant's service area, that nexus could not extend to the wide range of demands and issues raised by the Antitrust Division and the Petitioners. While questions regarding Petitioners' participation in the licensed facilities might be considered arguendo within the statutory ambit, issues as to monopoly, joint ventures, interconnection, wheeling and pooling arrangements, (all posed on a system-wide basis) are plainly too remote to the Midland plant operation to require scrutiny in this licensing proceeding. Rather, if the overall competitive condition of Applicant's system is to be examined, it can only be done in antitrust enforcement proceedings, the availability of which is carefully preserved by the 1970 amendments to the Atomic Energy Act. k
)
It is significant that following passage of the final version of the 1970 amendments in the House, the Antitrust Division of the Justice Department wrote several letters offering the same expansive interpret-ation of the antitrust provisions of the bill which it here argues. After'these letters were introduced into the Congressional Record during the Senate debate by Senator Aiken and other proponents of a broader scope of antitrust review than enacted, Representative Hosmer, co-author of the bill, rose on the House floor to set the record straight. He noted that the language of the legislation was a compromise and warned: "Thus, the views and opinions expressed in the letters from the Antitrust Division of the Department of Justice are not necessarily authoritative, and may or may not accurately represent the intent" of the bill. Congressional Record, H. 11087 (December 7, 1970). In this proceeding, the Justice Department and the Petitioners basically seek to achieve what Congress refused to sanction, i.e., an unlimited antitrust review of every facet of Applicant's activities as an electric utility. Section 105 (c) does not permit such review. I i , l
~
] - 26'- ]
N D. Applicant Denies that Wholesale Contracts Restrict Service to Large Use Customers In the only specific reference to Applicant's 9/ conduct 7 the Petitioners allege that the wholesale contracts between Applicant and the Cities of Holland and Coldwater "are comparable in effect" to a supplier's foreclosure of service to large use customers (Petitioners' Statement, pp. 13-14). hpplicant denies this allegation. The cited clauses in the Holland and Coldwater agreements merely preclude the wholesale purchaser (1) selling to a third party electric utility or (2) inter-connecting with any entity which would result in either party to the agreement becoming engaged in interstate commerce. These clauses were not intended, and did not have the effect of, restricting sales to any resale customers. As Applicant publicly declared in this proceeding more 11/ than fifteen months ago, it has long been uninterested in such provisions, does not intend to enforce them, and is removing them from particular wholesale contracts as they are amended or renewed. To date, such provisions 9/ In the course of Petitioners' generalized and highly theoretical discussion concerning the generation and transmission of the nation's bulk power supply, passages from the National Power Survey and other services are frequvntly quoted inaccurately and out-of-context. With the exception of the Holland and Coldwater contracts, Petitioners' dissertation fails to focus upon Applicant's service area and fails to explain the relevance of its conclusions to the Midland units or to this proceeding. 10/ Amendment No. 19 to Applicant's Applica ion herein, filed March 22, 1971, 514(a), pp. 12, 14, 15.
O have been deleted from virtually all of Applicant's wholesale contract. With specific reference to the Holland and Coldwater agreements, Petitioners' allegations are particularly misleading since the cited provisions ' were deleted from.the Holland agreement nearly two years ago -- long prior to this proceeding. See Supplement No. 3 to Consumers-Holland agreement, 7/ October 21, 1970, cl. 47 Similar provisions in the Coldwater agreement also were deleted when that contract was amended. See Supplemental Agreement No. 1 to Consumers-Coldwater agreement, February 7, 1972, 8/ cl. 47 Therefore, not only are the cited provisions of the agreements irrelevant to the Midland units, they also do not preclude Applicant's wholesale customers from serving large use, or any other, customers. CONCLUSION Wherefore, Applicant opposes the effort of 7/ A copy of the original Holland agreement and Supplement No. 3 are attached hereto as Attach-ments A-1 and A-2, respectively, 8/ A copy of the original Coldwater ag eement and Supplement No. 1 are attached hereto as Attach-ments B-1 and B-2, respectively. 1 i I
)
the Justice Department a:Id the Petitioners to subject Applicant's activities which are unrelated to the Midland units to review in this proceeding. Applicant i also denies that its wholcsale contracts preclude purchasers serving large use customers. Respectfully sub ait ed, I l10 [N1 /kW K@.' Wh'rfield Ross N - Keith 's. Watson Attorneys for Consumers Power Company WALD, HARKRADER & ROSS 1320 Nineteenth Street, N. W. Washington, D. C. 20036 _. (202) 296-2121 Of Counsel: Harold P. Graves, Esq. Consumers Power Company 212 West Michigan Avenue Jackson, Michigan 49201 June 27, 1972 e, --
sie, ATTACID'ENT A-1 AGHCINE:."r PO7 EI"C?1IC 3ERVICE B'JNEEN I CONSU:C!G l'C'.c CaiTANY Al;D Til?. CITY OF HofLU.3, MICIIIGA*! ACHEl't!E .~T, made and entered into this 15th day of November , 190'/, between CO::3UG3 PCT.CR COMPANY, a corporation authori::ed to trann-act business in :tichigan and havir4; its principal office therein at y Jackson, !!ichiscn, heroin termed "Conaucers Power," and the CITY OF ' HOI3,1' Q, MICUIGAU, e itichigan municipal corporation, by its BOARD OF'rU3HC" Scal: herein temed " Holland." WITNES.iETH: 'Ihat, in connideration of the mutual agreements herein to be kept and performed by the parties hereto, it is agreed as folleva:
- 1. E"ERGE:!CY C/.PACITY AID EUERGY TO DS WRNISHED Sub,1ect to the provicion hereof, each of the parties hereto recoz-nizes a nutual interent ar.d adycntage in naintaining a centinuouc and un-interrupted ::upply of electric power and energy available to custcmers of both the parties hereto. In cach event of em c=crconey on either party's electric cysten, the other party shall cake available to the party suffer-ing the energency all of it:: cicetric generating capability in excess of its requirenento for its cwn cyctes load and ita prior obligations to sup-ply fim and escrgency capacity to third parties purnuant to agreements in effect on Docenber 1,1967, up to the linit of the rated capacity of the existing interconnection batueen the parties horcto at the tice of the c":er-gency. 'Ihe present rated capacity of the aforcanid interconnection is
*14,000 kv. Dy -:utual agreement in writing, the rated capacity of the afore-said interconnection cay be increased during the term of this Agrec ent to a capacity 1cvel and at a cost that is equitable to both parties. Except as otherviae provided herein, either party =cy enter into future intercon-nection acrectent: with third parties. As uned in this Agreenent, the ter.
" third party" refers to any person, firm, corporation, goverrcent c4;ency, or other entity fulfilling clectric utility responsibility in its power supply activities.
- 2. CHARAC'T3 07 SERVIC~
All electric enercy to be furniched by either party hereunder ch111 be alternsting current, three phase, 60 cycles per necend, at approxinately 46,000 volts. 3 POI:.*:' 0? DELI'.'E3Y 3e point of deliver'/ of all electric enercy to be furnished by either party hercorder chall be at the Holland *:ide of Consu:.er:: Power's h6 kv air-break avitch located in Holland's h6/12.5 kv cub:tation which is located at Holland's J:mes DcYouny, Plant at Bird Street and Pine Avenue, Hollaa.d, fli chican.
2 n i
- k. MT*frJtI*rG The electric enart:y to ba fumiched by eithat party ta the other Cono=ero power hereunder chn11 he riotered at 7,P.)3/12,T/) volta vye.
obstil farninh, inntall c.nd naintain tuitabic and adequate ceters and meterit:.; equip.nent far the t easure:-at of maxi = s denands and kilevstt-houru delivered by Hollcnd to Cencu.cro Pcuer csc. by Consunero Pcver *w IloHond. A location for Conat=cra Pover's notern cad caterinc equip ont, cuitable to Concuenra rever, chn'1 be provid.sd by Ifonand and adequate protectinn afford-d to cvoid dn: c.ce thereto, tc=pering or interference with nucl. notorn t=d r.aterin;; equips?nt. Const=ero Pover ch 111 inspo:t and tent its natcrs turs,11y, and oh.sil hecp the:1 vithin accepted st2n?- ards of necuracy. If !! 11r.nd da91rco t-cre frequent tents, it cMH bear onn half of tha er. pence thereof. Esch party chall have acccos tr. and the richt to participato in the irt3T> ction cad testing of such Detera by its proper reprenentativco. Ecch party shnu edco have the richt tr. rend any of unid noterc at all reasennble tires. Corintr'oro Pcger cha'.1 fumich to IIolland the kilevatt-hour and demand data each conth which reflect the bcsin for dater =ination of charcco cado pur. mat to tha previsions of Section 7 harcof. 5 FJCILITE.3,. TO TC r*yR*TISO (a) DJy_Cennuv.ers Pcv?r In addition to its caid =2ters and meterinc equip =ent, Consace a
- Pover nhall farrtich cnd =sinte.in, at its expen c, all trensnicolon linen and other equipacnt on the Conct= ors Pover cida of the point of delivery des:ribed in Section 3 hereof.
(b) Pg !!ol.lt.nd
!!ollcad chall furnich cad ncintcin, at its expenne, its caid h6/12 5 kv cutotation c a an othsr equipnent on tha nonand side of the point of delivery deceribed in Section 3 hemf. In addition, Boucnd shall provide Conct= crc Power with the necccoar'y richts of vay over flo11and's otreetc cad property for Concu=ars Pcr*or's trnn:..ission linen fro:s IIollend's corporato linits to said point of dal.ivery.
'Ioither party shall hevo cny oblication to inspect the other party's facilitico nor c .y reopensibility with respo:t to the instn119-tion, trpair, enintene.nco, replccc : cut, relocation, re:aoval or operation of the ottor party'o fccilitica.
- 6. PL..AT.I.I*iG A'.!.D 07: RN"I'fG CC *T.71'*rl (a) Plannini Cc=1ttoo Thre in hereby created a Plunning Cec.ittcc cc::poacd of tus n r. h of the ptirtico 1.oreto .shn c::sirpato, in n writtan
g 3
)
enex:uniention to the other party, one of the menbers of said Pinnning Car.nitteo (md an alternate who chc11 oct in hic otood whenever nuch cen-bor in unable to net. :'ither party may chango its donignated reprerent - tive or alterncta at any time by written ce==unication to the other per y. The dutica of onid plcaning Cr---4 ttee chall include: (1) Exchanc;o of cata on load foreccst at:i planned cen-eration enpabilitics on thu respective cyni,s.s .-? the par-tico for a perica et all tices extending four yccra into th.*, futuro. (2) Votemin tion and redator=instion of mutual emer-cency capacity as conta-plated in Section 7 horeof. (3) Conaidoration of any enci:nerins = tters cc =ay, free time to tice, crica in connection vith thic Acreccent. (b) peratinT Cc.aittco , There is hereby created nn Operatird Cer=rittee ec=poced of t'.co ucobers . Fnch of the parties hereto chall d.ccicnnte, in a vritten ec=:u-nicatica to the other party, one of the ce=bero of ccid Operatinc Co: .ittee and r . citernate who chall cet in his atecd whenever such =c=bor ic unsbic to act. Either party cay ch.:'4c its deci;c.nted reprocontctive or alternate at any ti.:a by critten ec.:.: 7.mientica to tho other pnrty. The duties of oaid Operating Cc=. Lttee chcl1 includa: (1) All :nttero reinted to the dcy-to-day oporntion of the intorco= ction betucon the two partico, incluiing develop-ment of cperating procedurco co conte = plated in Section 10 hereof. (2) Corputation of all "cillings. , (3) All nattero relatin; to operating conditions durinc emorCency situctions. i (b) The accrediting of Rollend's uni:r.ct not de .onstrated capability after revicvins field testa of two-hour dur:tior.. (c) Txcencco The crpenses for the co+.sblich: Ont cnd esintnining of tb plan- ! ning and Operatin3 Cc=ittees c.;atl be the rt aponsibility of ccch party an Irgardo its ova personnel. /Jiy orpanace jointly incurred by either of said ec:wittees in carryin3 out thir recpcetivo dutica, other thun fo. 1 the partica' personnel, chall be chored conlly by the partica hercto. j l (d) Authority t.o f. :e.nd or Gu.micn._en.t / r*rmsent.
'foither of oaid ec:aitt'.on crR ' h:r. - tc ori n :s cc..mA cr f uuppleno:st this ti,-~;went in cny racpect, it ca ng tha ia ,ent harvof l l
l
.j
. . to
.T that any n: .,sn&.ont or ott;.ple.. ant to this Agree =ent chan be cade only by the partico hereto.
*( . c:U f.C. ri TCT C APACIY A"D c"*J.GY .70.-.E..- MWICIC D (a) F..o..r..:.'.u.t.u .1. .n. arr.en.:>V Ccoccity and n,ar.r.en0".1:n..a.r!',y
-A.. . . . - - 'io. 22 ru-ri.n.v=.d Five (5) nacavatta of =Jtuc1 e :orconey ecpecity shall be in offcet hereunbr curina 23 period fr== Decenber 1,1967 to P:>:c b.:r 1, 2
196' . Ou er about July 1,1%S, e.d on or cbaut July 1 of ccch y: the.mnfter e.trint; the tem hereof, ths Plcnning Cc=ittee shall deter-nine tho tenni cr.arscacy ecp: city to bo in effect hereunder durirc n.' tvelve. con
- h ;criod ccc.==in.; on the lot dry of Decc=bor cert folisvinc cach cuch dete=iiution. In the event of any cddition to, or retircut of, Ifonand'c elect:-ic ce=ratin ; ccpability, the P1:= ins Cc=10tes chall imediately rr.datemice the mutual caerce=y capccity to b3 in offcet hE'a-under during the rc.ninder of the paried in thich cuch addition or r: ti. 2-ment occura. T.cch date=inctica cnd redetcr.11nntion of the tratu:1 carmt.cy capacity in effect horcuncer chan be cada by the Pin =inc Co:.it*: 0 in ::-
cordnuce with Supplcnent A hereto and chan ba reflected in this f.;racrant by neana of cn c.prcpricto cupplc=nt heroto. No cepncity ch:.rca chall c, ply to the eutual ocerce=y : pccity in effect et c ty tir.a hem = car nor to cny electric cncrcy daliver d cy either party to th: other beccuno of c=:rcencios (herein called "c-arc:.. y encrcy") to the er. tent th:t the c=rco=y en:rcy in daliverad at a rt.t? Of
' deliver / not la e=cca of the tratual c= crc ncy cepccity in effect at the tine of its delivery. Any c-. crc:::=y enarcy, which in d211vered :: a rat.2 of deliver / not in c=cca of ths natual cnarcancy cep: city in affa:t at the time of its dalivery, cw be (1) reture.2d in kind end in a nanner saticfcetorj to the party which delivered the c=ercency encrcy to the end that auch e .arcency encrr,y deliverica cad retara energy deliverico win approxinately equali c &arinc ccch calcudar conth or (ii) ct the deliver-inc party's option, be paid for ct the rato of ci.x =1110 per hilevatt-Mur.
(b) Fo..r._.W.- -.o.r.- n..c. r. .ee._nc--y.C..:.e
. - - t.eit.y
{artenyf p.y"flL'.'o Le Furn4..end
!:ntd Any e .orcency encrcy which in delivered by either party to tl.e other at a rate of doEvory in excess cf the =utual c=ercancy ecpcity in offcet at tho tina of its delivery chan be paid for by the receivin, party in accordar.cc vith the folleving rate, to vit:
Cep=ity Ch'ir :
$1.W per conth per hva for the first 2, M kva of bini:u derand,
.'l.77 per renth per } ta for an over 2,m.1 1:/a of binice oc..r.d.
Entrt;y nnrre
.7f per 'rwh for the first 6,C X),000 kwh of such emerr.er.cy encer;/ uned per c anth,
.6/ per kwh for all over 6,C<0,000 kvh of auch cmerGency enerCy us.:d per month.
Deter .in .ti cn of Billira Der /md A billina demand chall be established only if the kilovolt-ce: peres supplied during the one-heur period of r:axir.an use in the billing month is in ex-cess of the mtual c=crccncy capacity then in effect, and such billin;; demand chall be the highest avern;;e one-hour done.nd created durine.; cuch conth in excess of the mutut.1 cmcrgency capacity then in effect. Tax C.inuce In the event Ifollar.d levios special tcxes, excise taxca, inca.e taxes, licen:e fees, or rentals against Consumers rover's electric property, or its electric operations, er the production and/cr sale of electric enercy, cens=crs Percr's bills for electric service to llollar.d che.11 he increased to cover such cpecial charge: .:hich are attribut:bic to this intercennection with the liol]c.nd ::unicipal electric system. In the event of c.ny ne;r er incroa:ed specific tax or excise impo:cd by Covermental authority upon Censu=2rs Power's Generatien er cal of cicetric ener s , Consu.crs Pever's
. . bills for electric cervice to llollcnd sh2.11 be increased to cover the portion of such increased costs which is allocable to the cloctric service furniched by Cons =er:
Power to Holland hereunder. (c) For Incidental I'nernv Delivered Any incidental energy which is delivered by either party to the other chall be returned in hir.d er paid for at the rate of six mills per kilevatt-hour, at the option of the delivering party, as is provided for emergency enorcy = dor Subsection (a) of this Section 7.
- 8. BILLI::0 (a) Promptly after the beginning of ecch calendar month, each of the parties hereto chall rsnder a bill to the other party for a .y chtrge:
which rtre prqable by such other farty for cervices rendered during the preceding nonth under the terns of this Agrc=:ent. (b) All bil3 ch111 be raid within tuenty (20) days fraa the dste of renderin;.;. If any bill is not p.114 within said twenty (20) day 70r191, two percent (21.) of the e.?.oint therecf shall be added to such bill as a
- d. ' cred y m.ent ch arc,e .
. . 0 9 pARALCL 0"W'g" It in conteuplated by the partioc hereto that their respcetive cy0-tema will nornauy be operated in rarallol. Each party agrecs to in:: tall and proTerly naintain a'titable approved protective appliances and devicca and to provido sufficient trained parcennel to protect ite equipe.cnt and e service frcn in,)nry er interruption which night be ecused by a flev c lb-current to or frms the linas of either pc.rty, and to assune any loc.4, bility or der.ngo canced by a lack of such protection.
- 10. OpzRATIm FRCC~'WRm Operating procedures for i=plee.entatica of day-to-day croratienn will be developed by the Oparating Connittes to cover the follevinc re-quirenents:
30 (a) Each party vill endeavor to centrol the supply of k'.icvaa that the (rtantity paa::ing frca cither systcq to the other vili, under nor.nal operatira conditiona, be na close to zero as practical. (b) Crinning reserve require =ents vill be maintained by each party on an couitable basia.
- 11. C0""incTIOD 1.Tr:! 05.9S It is agreed that the electric cncrcy to be supplied by Censuner:
Pruer to Holland here'inder ch:11 be uced colely to :ncet a part of the requircuents of Ilollcnd in the operatien of its clectrical systen leccted in and near the City of liolland, !11chicnn, and shall in no event bc charci
'with er tran: itted er rc::cid to any third party as defined in Section 1 hereof. It in thrther acreed that without the written cen::ent cf Con:r2rer:
Power, Holland shall n ho no interconnection with any percen, fim, corpora-tien, coverr ent cGency or other entity which nicht result in either party hereto bocc: sin; encaged, dircetly er indirectly, in the tran icsion er sale at wholosale of electric oncrcy in interstato cc=nerco. If Holland violates any of the previsions of thia Section n, Censuncra Pcver nay, at its option, teminato thic Acrec=cnt forthwith by giving written notice of its intention so to do.
- 12. LIADILITY Except as to the capacity cnd enorcy charges payable under Section 7 hereof, neither party shall be litble to the ether for der.cces for any act, cnicsion er circu . stance occasioned by or in consequcnce of any act of God, labor disturbance, act of the public ene-//, var, insurrection, rict, fire, storn or f1 col, explosion, brechem e er accident to nachinery er oc lipsent, or by any other cause or can::c:: beyond auch party's control, includin cny curta11=cnt, order, regulatien or restrictica imposed by g:nernnental, mili-tary or lawfully c tablished civilien natheritier., er by the n:hin;; cf nee-canary repairn upon the prcycrty er equip .ent of either party here';o.
7 3 O Notwit.hatanding tha provinions of the foref;oing pc.rocrnph or any other pmvicien of this Acrec=ent to tne contrary, each party chcil at all tinco anctee an liability for, and chall indc=nify and ouve the other party humit an fmn cny and all d=te:o, lo:nos, clcins, de:2nds, culto, recoverien, coots,1cc:1 reco, and c::penses for injury to or doct. . of any parcon or peroon; vh3=;c=Ver, or for n' y Lo:c, dact :ctica of er dsnatc to cny property of third porcona, fir ::c, corporations, or other entitica, nricina cut of or resultirg*, fro =, either directly or indirectl,/, its own faailitien, or nricing out of or resulting from, either directly or indirectly, any cle:tric caercy feir.tinhad by it h:reunder after such encrcy has been delivered by it to the other party. 13 'PJTM Thic fareement chall be in effect for a tem of nine (9) years +4-ce=-
+%
. nencins on Mec=ber 1,1957; provid:d, hmtever, that if at any mutual coercancy ecpt. city, es datc=in:d or redetemined by the Pla.uirc C=::ittee pursucnt to 5: tion 7 hereof, oball equel cro or less, this Acreement chall thereupon cute .stically tominato vithout Parther c:tice by either party. '*hi: /.cr:cacnt nay be ccacelled at cny time by :r.:tuci acmenant of the parties in writin3 lh. CANCI'?.4t,"'IC ! C7 FT.*~/IC'E CC T
, Pf.C7 Thin /cycen:nt cupercedeo end cancelo, no of the effective date hereof, the ai;reccent bet'. eca Consumero INr. cr and Holland with relt.tica tn the supply of cicetric onarcy dated October 6,1955 LS. EQ.}Gr.TAL NTf'?C'TfT this Agrecaent in cubject to valid icva, ordarc, r'1hs e. i re--u-tions er daly constituted authoritiec having fari: diction :ner the cJt.-
je: natter of this /,4; rec =ent.
- 16. n_'t:CT:'33r, NED t:S:C~.3 This A;;cecont ch 11 inaro to the berefit of and be bindinc upon the aaccecnors and acoit;na of the recpective pc.rtion hereto. This t e e-no :t chcil not be transferred or othervice c.11cnuted by either party '
l l
6
)
without the other party's written connent, which consent shall not unrea-oonably be withheld. Iti WITETS W!ETC.07, the partica hereto have exe:uted thin At; rec.wat on the day and year firnt above written. CO:? SIDE PC11FR CCfGA*TY l Dy _
<hAWA Vice Preside.w CITY OF H0!LV.T Apptuved: DY ITS BOARD OF PfBT!C k'0EG C1' 7 VT ItOLLX."D r [, '
BY .0: Ld h d'E.. j - .. .$.'.?' ~ R
-. .- sv.a. c.. . .+
%~ ~ 7' B7 G h.'.*;.c w * 'L $diff.;:h<v By_.eis.e g .. .f I [ [3y;.2f,[ ,_,
/ Its !!ayor
.- i
& c k> J
- w}4
,Q ,,.f},g~
ItaTfeEM proved:
/
. , . . , , .f,.
,.Z,,j fl( t f - U ^ j
,- t/ City Attorn: v /
, g StJPPLL*T C A TO Au.use Toa TL"CTRIC im* ICE IC"*'ITT CO'UTCP.1 IOTJL CG9A:iY A::D TIC CITY CF 7:nver.ber 15 , 196'T noLIx D IV.T D _
Ao specified in Section 7 of the Acrec=ent, the =cthod for detor-ni.d ::- cad redeteminini; the :.o'-=vatt u value of t utual ccercency capecity in as fonct.in:
- 1. !!onend'n reserve vill bo dete=ined and redatemined in accord-ance with the fomula:
R'- C - L vhere: R ' Itoucnd's msc:vo. C " fronnnd'c ce 1=u-2 nat de.cnstrated ccpcbility. L ' Ito11 cad'c cotinated peak hourly C =and for the appropricto period.
- 2. Ito11and'c rencrve recponsibility vill to detemined and rel?ter-mi tod in necordance vith the fomula:
C1 i o.5Cg - o.15L RR = 2
+ 0.15L vhem:
RR = Holland'c renerto recponsibility. C1 " !!axinua not demonstrated ccpcbility of Holland'o larcest unit. C2 ' !!ax1=um r.et deconstrated capt.bility of IIolland'c occond larcast unit. L " llolland'c estincted pech hourly 6.:::cnd for the appropriate period. (Sn _a e.n in 1 chove. ) 3 The rntual e ercency ecprity chcIl ba detemined cad redeter-nined by cabtrcotin- IIoH md's rece: te responsibility (RR as co tputed in P obove) frcc Honund's roscrec (R as es:.puted in 1 above). The veluc or
- tatual cr.crcency cepccity .o be utilized for the opp cpriate period cef 11 be ww:ded to the nearcot togcut '.t. ,
.RESCUffIO*l TG ',0LVrp, that it
- i hereby dec::cd sh-icable to enter into a ec'itract with the Consumero
~ .. . Cc=pany, of Jc:kcon, !!ichican, for the iatorehs . e of cicctric nervice bet.:cen Concunero Pover Ceepeny and the City cf !!allac:d for a period of nine (9) years in accordance with the ter:a of the contro.ct heretofore cut =ittnd to cnd cor.oidered by thia Council; and RmCLVrp, further, thet the Bocrd of Public Works in hemby cuCm ized and dirc:ted to exocate cuch contreet on behalf of the City, cnd the '/a:ra:-
and Clerk nre likevico authorized and directed to affi:: their signatures t: cuch contreet on behalf of the City. GTATE (F 'GCICCNT )
) as Corfir:T C7 OTTAVA )
I, ~ D. W. Schioper , Clcrk of the Ci*;y a
!!n11nad, da hereby cert 117 that tac forcGoicG recolution van duly adopted by the Ccuncil of ccid cunicipality, at the tectinG held therein on the 15th day of ':ovember _, 1967 I ,
.l kh'<
Dated:
?!ovenbor 16 , 1967
. . ATTAcn::r::T A-2 3l ,,
>..L ...v .n . Q re.3. . s,--..=.y r\p r..
J.).;.. 7 ,*7.. SIWLh . . . . . ss n TO
/w.ppe.,
r .t r... .&* M. F..
- w= 3 = t*
, ..- .e. r a i .T -.==.'t A Lt _
- ':. 6: :..
C0..e. ,a. e, ,..s.
. .:.: a. 6 n : :f. C .... . . is .s.
n..D n. v..: .
.u ~.. ,. ..a .. , *T
- r. a r. . ..
..n....
CT.r., C:
. . P..2 2. - . ..ew n se.
S or
. ..:.- .c. . ...
. ...~ . 3 , ..c,,.c . -h a. . //
d d .,.,. c ,. Oc ./ . M/0, betwen CC::SW.dR.: PC'.CR CC. PA'.*Y, a *:ichir,an corpcration, havinc . t.- p r ; .'. - v E ch;t * - cipal effice nt Jachen, ::ichigan, ani the CITY OF HG!.* AI.'D, !:ICiGA:i,1 municipal corimratic.n, by it: 2 CARD C;' '. U2!.:C h",RY3. h"EP2/S, the parties hereto have entered into a centract dated :: oven:er - 15, l@7, for the interchtnge of electric cervice, which contract has been acended by Supplenental Arreenents !!os.1 and 2 there' lated !.:ay 7,1%"f and September 3, l'69, respectively, and b"dSREAS, the Planning Cen=ittee created under said centract ha: :eter-mined, in acccrdance 9:t.. Subcection (a) cf Section 7 cf said centract, the mutual esercency capacity to be in effect thereunder during the pericd frc: December 1,1'f7~; to Occenber 1, lifil, and the parties hereto desire to refleet such determination in said centract by means of this Supplemental Asreenen:, 2n: . h"EPZAS, the parties hereto desire to acend certain prc.isions ef said contract as hereinafter ce forth.
!!0'4, THEFITCF2, it is agreed as follevs:
- 1. Fifteen (15) cegawatts of mutual emer6cncy ca p eity chall 'ce in effect under said contract during the pericd frc Cecenter 1, l'?70 to December 1, 1971. A verk sheet sheving the Planning Ccr.~.ittee's determination of the mutual energency capacity for said peried is annexed heret: as Exnibit A.
- 2. Effective as cf Dece ber 1,1970, the words "six cill: per r.ilc-watt-hour" in the last line cf the second paragraph of Subsection (a) cf Section 7 of said contract are hereby changed to read "eight mills per kilcwatt-hour".
3 Effective as of Cecember 1,1970, the words "six nills per r.ilc-Vatt hour" in the second and third lines of Subsecticn (c) of Section 7 of za.; contract are hereby changed te read "eight mills per kilevatt-hour". 4 Effective cs of the day c.nd year first above written, Section 11 of said contract is hereby deleted in its entirety. I
- 5. Effective a: cf Decenber 1,1%7, 'he last two lir.es of the cecen:
paragraph of Section 12 of raid contract, reading a fcllevs:
"cr indirec,1y, any electri: ener.~_,,/ furniched by it here.;nder after
- c"a energy hns been delive.ed by it to the cther party."
I 1 1 I i
,. -- - ...-,c , - - ,- -
7 3 are hereby changed to read as follova: f "or indirectly, nny electric energy furnished to it hereunder a te " such energy has been delivered to it by such other party. 14 Except a herein otherwise provided, said contract dated :::.'cd _ber Ma:: 15,1%7, as ec.cnded by Supplemental /.greenents ::cs.1 and 2 there 7,1%f) and September 3,1%), respectively, shall renain unchan force and effect. II: WIT":ES3 Z-2RECF, the parties hereto have ' executed " this Su ACreer.ent en the day cnd year first above written. - CO::SC2RS IC;ER CC:G/C:Y Approved: / s Wyd /r e l 's By
,# s i * /p/
CITY OF HOLUJQ V1cc Eres' enz
< emo CITY CF F.0LUJD 37 - -.
3Y ITS 30ARD OF FU3LIC WORy3 F Its Mayor A -
/ ~
, -{} - -/(VAqy,] ~
/< "
By K.- -
~ts Clyp lienry S. Maente , Preside Appro:/ d:
/ ,E.,;_ , ,e w - By 0s JY City A;;crney ~ G. E. Bell, superintender.
DATA A!Q CALCITIJ,T!C : FOR F"Jit:AL D'ERGE!;CY CAPACITY _ feriod Decencer 1,1Sfic to Lecccber 1,17/1
- 1. Capabi1ity Maxinun !!c*,
Maximu Cross Deconstr_ted Deconstrated Station Pcwer kW Carabilit y C'tpability kW 500 7703 Unit i 8200 500 7c00 Unit 2 7500 11 M 12000 700 Unit 3 1500 2450: Unit L 26000 310C0 Unit 5 32300 1]OO_ 86000 4500 81500
- 2. Load The City of Holland's peak hourly demand for the period Deceder _,
1970 to rececber 1, 1971 is esticated at 42,000 kW. 3 Reserve Capability 81500 kW Peak Lead 42000 Reserve 395CC kW 4 Reserve Resm nsibility Reserve Responsibility = Cy + 0.5C2 - 0.15L + 0.15L 2
= 31000 + 12250 - 0.15 x h2000 + 0.15 x L2C00 2
= 2k775 kW
- 5. Mutual Exercency Caracity Reserve 39500 kW Reserve Resmensibili'.y 2L77f.
Mutual E c.mency Capacity = 14725 kW or 15 cegawatts when rourded to the nearest cegawat I e
a
/
REGritT:'TC'i RESOUv'ED, that it 1: hereby deemed advicable to enter into an agree-cent with con::u ers Fever Ccepany, of Jackcon, Michigan, atending the c r.trr.ct between Ccne'=cr Itwer Ccepany and the City of Holland dated !icved er 15, 1:07, for the interchange cf electric cervice, in accorder.cc with the ters cf Jap-pienental Agreement lio. 3 heretofore submitted to and censidered by this cc;ncil; and RESOUED, further, that the Scard of Pablic *a*orks is hereby authorized and directed to execute said agreement on behalf cf the City, and the Msycr and Clerk are likewiec authorized and directed to affix their signatures tc rai a6reement on behalf of the City. STATE OF !GCICGA ; )
) sc
.COLUTY OF CA*n'A )
I, M.8dM/M5b , Clerk of the City of Holland, do hereby certiry tnt: tne rcrescing resciution was duly adopted by th Council org
-tid municipality, at the tecting held therein en the J/#-9 day af d/CTO B Ed. ,1970.
84 ) City Clida Dated:
/0 , 1970 0 I
l
n a m . . . .. .. . .
~
?
CO::SI"'ERS ICE.R CmPAf.7 CONTRACT F03 ELECTd!C SERVICE Arril , 1966, AGRED!E;;T, mide and entered into this hth day of between CO::SU!'ERS TCT:.R cmp /J.T, a corporation authorized to transact business in twnigan, and having its principal office therein at Jackson, Michigaa., here ' . termed the Company, and the CITY OF.{COI5.TATEF a .a nunicipal corperatien located in Eranch County, Michiga herein er:Ied the City. 7 WITi; ESSE'Pd: That, in consideration of the mutual agreements herein to be kept and performed by the parties hereto, it is agreed as follevs:
- 1. Et ERGY TO EE FURFISEED:
Subject to the terns and conditions hereof, the City agrees to pur-chase and accept fro: the Cc=pany, and the Company agrees to supply ani. sell to the City, electric energy as auxiliary or standby to the City's elec:ric generating plant located in said City of Coldwater, Michigan, and which is used by the City to supply electric energy to its distribution sy: ten, but not in excess of 5000 kilovolt-amperes, being the capacity reserved by the Company for the City's use. The Company will, at the written recuest of the City made at least thirty (30) dt.ys in advance, permit an increase in such reserved capacity provided the Company has power available.
- 2. CHARACTER C? SERVICE:
We supply of electric energy to be furnished by the Cc:pany to the City shall be alternating current, three phase, 60 cycles per second, at approxinately 8320 volts. 3 POI!T OF DELIVERY: The point of delivery for all electric energy to be supplied here-under shall be at the 8320 volt side of the Company's 46,000/8320 volt trans-former substaticn located en the east side of Bennett Street adlacent to the south end of the Municipal Steam Plant in the City of Coldwater. 4 METERI? G:
'Ihe Cc=pany shall furnish, instill and maintain suite.ble and aiecuate meters and meterin':; eculp .ent fcr the teasurement of taximum derar.ds ar.d kiltva-hours delivered. Metering taall be at 6320 volts at the point cf delivery des-cribed in Section 3 hereof. The Ccep1ny shall periodically inspe:t and test its raetern an1 keep the a within accepted standards of accuracy. The City chill have access to and the right to participate in the inspection ar.d testing of such te*ers by its yrcper representatives. It shall also have the right to rt
' d : aid teter: at all re;nciable titt'. Said neters chall be tentei ru v G.a Cepny, 7tnd i f the ity desi:e nore f ccuent tents, it 2nall b u.t c. <..alf of the expen.e thereof.
- U
- s
)
e 9 EC:JIHiciT TO BE MI! CTG!ED: (a) By the Cemrtny: the C: pany In addition to its said meters and metering equipment, shall furnich and maintain all tran:mi:sien lines and other equipeent for the delivery of energy to the point of delivery described in Section 3 hereof. The Co:spany, its rtgentn ami employees shall have full right and auth:rit" cf ingrens and egrecs at all times on act across the premises of the City fcr the purpoce r f conatructing, operating, maintaining, replacing, relocating, r?- Said pairing, moving and removing its said trancaission lines and equipment. right of ingrese and egrecs, however, shall not unreasonably interfere with the uce of the premisen of the City. (b) By the City: The City shall furnish, without ccst to the C::pany, a suitable site on the City's property for the Company's said h6,000/8320 volt substati:n to-gether with all necessary rights of way over the City's streets and prcperty for the Company'c tran::ission lines frcm the City's corporate limits to said substation site. The City shall alco furnish and The maintain, at its ex;ense, Company shall have no cbli-all facilitica beyond said point of delivery. gation to inspect the City's said facilities ner have any responsibility with respect to the installatien, repair, =aintenance, replacement, relecati:n, removal or operation of said facilitie:.
- 6. RATE:
The City agrees to pay for such electric energy delivered to it here-under in acccrdance with the following rate, to-vit: Capacity Charce:
$2.00 per month per kva for the first 2200 kva of billing demand,
$1.80 per tenth per kva for all over 2200 kva of billing demand.
Eherry Charge: 7d per kwh for the first 6,000,000 kwh used per month,
.6p per kwh for all over 6,000,000 kwh used per month.
Fuel Ccst Adjustment Charc?: When the vei hted averace ccat of all fuel in stcrage at the Company's interennnected electric generating stations, at the end of each of the ;hree cenths itsediately preceding the ncnth covered by the City'c bil], is more or less thsr. 33 0 cents per millicn Btu, there shall be a correspondir.; increase or decrease of .C012 cent per kilevatt-hour in the charEe for all kilevatt-hours included in cuch bill, for each full 0.1 cent per millien B'.u incresne above or decresse below 33 0 cent per millic: stu.
- _ 4 1 -
/
Mi nimun Chr.rre: 1 The capaci ty charger inc luded in the rate, but in no enne Jenn than $50C0 per month. Delayed Pn:.&nt Charce: Two' per cent (2%) of the total conthly bill if not paid within twenty (20) days from date rendered. Tax Cla :ne: In the event the City levies special taxes, excise taxes, inecue taxes, license fees or rentals against the Company's electric property, or its electric operations, or the produ: tion and/cr cale of electric energy, bill: for electric cervice to the City shall be increased to offset such special charges, and thereby prevent other custoners fr:m being compelled to chare such local in-creases. Bills chall also be increased to offset any new or increaced specific tax or excise imposed by any Eovernment al authcrity upon the Company's generation er sale of electric energy. Deterninitien of Maxinun Demand: The maximum demand or rate of use of electric energy for each month shall be the greatest averaEe lead in kilovelt-amperes during any fifteen-ninute period of such centh as registered by cuitable instruments installed by the Cc pany to make such determinatien. Determif atien of Billinc Denand: The billing demand for each menth chall be the naxi== demand for such month but not less than 60% of the highest billing demand for the preceding eleven conths, nor less than 2000 kilovolt-a peres. 7 LOAD BAIX CE A"D LGE Op SERVICE: The City chall so arrange it circuits and operatiens as to avoid a current unbalance between the three phases of more than 15% between the high and 1cv pha:es. The City and its custoners shall so u e the service as not to disturb er interfere with the Cenpany'c service to its other cust::ers. No type of electrically operated device which ceuld cause objecticnable Opera-ting conditions on the Ccmpany's cysten shall be attached by the City without the concent of the Ccapany.
- 8. PARALLEL OFEPATIC:::
Pernincion in hereby given by the Conpany to the City to cperate the City'c electric cencrating plant in parallel with the C::;any's cy:ter. The 7re. to inctall and prcre.-17 :.aintain suitable approved appli-f.nr :r./ ices and to provide nufficient trained personnel to prctent o
- I \
ita equirwnt and nervice nn-1 the end pr.cnt and nervice of the Company from in. jury or interrupticn which mir! t be cauced by a flow of curre:.t from the Cenpany's linen to the City'n connections er from a ficv of current frem the City'c p] ant to the Cc pany's lines, and to accu =e any Ices, lia-bility or damage cauced by a lack of such protection. The c3cetric measuring incttunent: frce which informatien it taken for billing purpaaen vill be equipped with ratchets or attachments to pre.ent a credit to the City for any current which its plant may generate and send back into the Cc=pany's lines. 9 Co:w.CTIC:3 WIr.4 owns: It is agreed that the electric energy to be cupplied by the Cc:pany to the City hereunder shall be used solely to meet a part of the recuirements of the City in the operation of its electrical cystem located in the State of Michigan. It 5. ibrther agreed that without the written consent of the Ce - pany, the City chall make no interconnection with any person, firm, ccrporation, government agcLey or other entity which might re ult in either party hereto becoming ent; aged, directly or indirectly, in the transnicsien or sale at wholesale of electric energy in interstate or foreign cc erce. If the Ci;y makes nuch an interconnection without such written concent, the Cc:pany may, at its option, terminate this agreement forthwith by giving written notice of its intention 30 to do.
- 10. LIABILITY:
Except as to the capacity and =inimun charge: payable by the City, prescribed in said rate, neither party shall be liable to the other fer damages for any act, caiscion or circumstance cecasioned by or in concecuence
, of any act of God, labor disturbance, act of the public enemy, var, instr-rection, riot, fire, stors or ricod, explosion, breakage er accident to machinery or ecuipment, or by any other cause or causes beyond such party's control, including any curtailment, order, regulation er restriction 1:p0 sed by governmental, military or lawfully established civilian authorities, cr by the making of necescary repairs upon the property er equip =ent of either party hereto.
Notwithstanding the provisions of the foregoing paragraph or any other provicion of this agreement to the contrary, the City chall at all times assure all liability for, and chall indemnify and save the Cc pany har=less frc: any and all datages, losses, claims, derands, suits, recoverier, costs and expence: for injury to er death of any person or person: whe::cever, or for any loss, destruction of cr danage to any property of third persons, firm:, corp: rations, or other entities, aricing out of or resultir.c frem, either directly Or indirectly, the City's facilitics, or aricing cut of cr re ulting frem, either directly or indirectly, the electric energy ccid here-under after it has been delivered by the Ccapany to the City.
- 11. BILLI::G:
The Cc pany shall render to the City, within a reasonable time af.er the first of each conth, prcpor billing for electric energy furnished during th . 'h e month. Such accounts thall he p id by the City within twenty (2 u cr date renlere:1. i _4 ! l 1 l
-mW m.-
\
- 12. 'n:10!:
This ag:ccment will extend for an initial ter= of three (3) years from the 1 t day cf July, ISd6, and f. cm year to year thercafter until termi-nated by mutual concent or by either party givi:t3 the other at least twenty-four ($) renths' vritten n0tice of its decire to terninnte the same at the expirntien of said iMtial tern or at the expiration of any yearly PeriCd thereaf te r. 13 cuCCECCorts t."o Assic::S: This agreenent chall inure to the benefit of and te bindin:; upcn the cuecessors and assicna of the respective parties hereto. This agru n.:nt chall net be transfer ed by the City or othe: ice niienated with:ut the Cen-pany's written consent.
~
114 C/J;CCIllCICN CF PRE'.' CUS CC: "".ACT: This agreenent curersedes and cancels, as of the effective datt hereof, the aCreenent betveen the Ccepany and the City with relation to the supply of electric enercy dated as of January 12, 1953 In UI'IESS 'JEEPZOF, this agrec=2nt has been executed on behalf of said City, by its F.ayor and City Clerk, actins under authority of resolutien :f the City Council, and has been executed on behalf of said Cc=;cny by its duly authorized official, as of the day and year first above written. AFFtoVD A3 70 003 CO:?SU:CRS PC7JZR CC:?/dTf N5"~ f~~ By f
/8M,.,) M7. -{ff';h
. cc.ssu-ess co.na coe*rm s t e. ;~. -to w w Vice Preciiient CIT'l CF OL74NIER By & /, t /
Its F or Attest: s jhM" .r2 \ ll4' Cit,y Cler4
. 4 . . m
.)
3 RF00UtTIO:t - IGE 0I/."i.D, Tnat it in hereby deemed advisable to enter into a cen ruc with the Connumern Power Ccapany, of Jacknen, Michigan, fc- ^~~'"' ni; a"2-iliary or standby electric service to the City of Coldwater, fcr a pri:d of three (3) years and thereafter fren year to year, in accordance wid. the teren of the centract heretofore submitted to and considered by this C0nneil; and RIDOL*.D, ihrther, That the thycr and City Clerk be and are au h:rinei an.1 directed to execute cuch centract on behalf of the City. f STATE OF MICHIG!di)
) ss.
COUI*TY OF BR/d.*CH ) I, Eurde'.to Harris ~
, Clerk of the City of
- Coldwater, do hercey certi 'y that the foregoins resolutien was duly cir.;;ci by the Council of caid r..unicipality, at the neeting held therein on the 28' h day of March , 1966.
4 j- _, y/ , yr,? r ( /GMM City Clerk Dated: 1 March 29 ,cu
, AswWe i
4 1 1 c , -
, ,, . . - - . , 7
. ~ . . .
.s4..m..... .. .)
y *
- b , -\
!I
. e .
....+.
... .i. . ,..:.... .
.q , j - ; . .g .. .
,.y......r.. ..s. 9. 3 . ... ",* g . *
- . . .....6.. . . . ...
. ...-.e....
...s
*%sg. ..
. .d 4 *. . ....,s.
.e...
, PO.*; C t,li t: . rd ; day cf..W. . - . . .....,
.A. ,b , , lit t '. *. N a' n t " ,"." .} P . l .', G ' e. . , '; V. ,
- p. '84. 1.i ....
. n.. p. p. . ... .p. . t., .. 4
. I. , O .. . t u. .,. . ' . ' . .
e f... .. J . . .... ,
- e. s , ... .. ..... 6., .. .. 1 . e? s ... . . .
.w,. .. ( ~ ..v, . . .;). , . . .. . -.. e }6 1,., :' { ."1' Q .: ..*pn ;. .".".*. .. .. )
. .. . p. . , . .? .- .".
. . , . . . . - s
. . . g %.. { s. } , s. ' c .. ., . . . ... .. s .. ..
..o..t.,.-. . ... { :.. . . ... . . f 4 gC n.. .. .. ... .f , a.*.4',4...., .. . . . , , . . . .
s . t. ... C . .4.. [,...,. . i;, .: .- .". .i : th0 ,v .. ..- + . .
. b. t . .- a. *. C ... +4 . a. . -( . J .< 1) *u .-
, n . ..e, . . r n - . n 4, . .* '.. L. . . ' . . ' . .; ,
) t,.,'[. n .b
.g . . e. .., ..4.. c..-. a... C ;. 4. .
. .,...c.,.,..: gp ,, .. . ...n.. .. ., . C n..f.l 3 0 r.C. .'.t ! I C..- '..b..* ' , ' , - . ' . ' ' . , * , . . ' . . .. i
.e....'..-
Cc z e r.,. r. - v.u . : e. .~. ~,. . , 4. ..
... . s .. e p. ' <., . . ."a. C L ', ,~, , c.'. e '. '.. .~ . . n < 1"s.~, .s. . . . . .."
Ot e.nlhy to the " :. ' : . R. . : le cc.wr . tine pl .nt Ic'ated in : aid City c.' !c'. m. r,.
} m.h .i r. i , . . ". . . '. . i . ' . t. . . .: t . ,,-
. . . . s.s. a. r. .d. *. , - '..c
*- -u ,-,1a" C 1' a r.*. .1 C C...s . gv '.c "...i . ". ..'.-
but ion ny - t c~. , t.n.. t ,v ..
,- . . .".1 t '. . , .. t ' .' c - h. . '. . C '. c *.~.i '. "....V.. ", t' c~~. " r e 'o c . . n .' . . ~.~.-'m~.'.-.
. . 3 ..~ ~..'.
3A% ,.., n.c .41
.4 s. ..
- y. . , ). . a. h e. . C .4 . .. ~. e. .- . e t *.'o '.h .
. 4 .
n ncW. , .2. .x.. w ~.v. r. .>. .=. , i t
. 4. s .a.
,. c n. 2 a.e. .rO .,1 ~.s. v . ..
- 1. ' n u" .. a t :. n C O f a o~,.t 4 0. d g,.^ a. '. . .'. , '. h O
. p .- ~. . ~ a p .b hCn'E.' ". .. .- ". .
Cyay e" 1 p L . t C...,. .t.... . , Q e n. ,.*. 4 n
- 4. A. . n. .. . H.. . . C *.,, ..s C ,,a .4.
. n. c. Ol.i.cao.; n,e nny f mo s. .
. . . 4 .e h o.r eq... ow.u.
..... t ....,.,.1
. . . . . in 4 + 6.oe p. . ae. n .. .
. " T...,,- r . C;,, ..s. .. ..e .. e ,. y .,. . n. . :. ,
" . OS.t J' 01. 4. o ..1 4 .. Sh. .oi. . ,e. (, , C an
*.1
. v , Cvn0 1. .$.,. U S C .a. n.
w A. ., w,c. n. D' , rW^ , C .C .v.*..ra . , e .~. f ,. . F......" 72,a. T w. l.* ,
. . . . eC ,.
. . wo ,.
- 2. y n .e..C+..tCn n / Ce .e~ . 4 4 .%. .. c . ,. .....3 . + + 1.v4 n. f , ...c~ta . y.h. h 6.n a.. n. .a. N. . .. .c... .*
a
.r..'.-
A.a,ju t .. c.* cy.. . .,n i s.cre. v t a n. ., c +. ,.a. .
...i~ c+.. w4r n. a.n, e .,.a su.e fel.,c~4. ..., .~. ~.
,gn,. t,,.7, 5. 4e .... s,,.e /. ,, . 4. .,a n. a 4 . 3 4 .. .. 1.,. . c .
v . . . . .
" Pu a .l. Cc e. . .f 1 i".. . e. '. " c . '. C.b
. 4 . .-
- n. *.
"When the vai-hted avera:;c delivered ccet of all fo ,.d1 .
fuei. bu,.nn,4 . o <.e +. h n. C,._.,. - . . . ...,,'
., e, c e ..4 . 7 ., A. .,.e..
- s.. .a c.mC 4 . ic. .. n ,.,..., .6.. 4. .,.
p 1 m, . . ,. , d. .r .4.,. .. . r. n. ..
. . ., no. .,. m .n. L 4
. e ..,,. e .3 .,. p n.Cn..u.. . .%
*...n. .. .. .. .. .. ... , . .
ered by the City's bill, is nore Or less thsn M..O cante pC.. Tiill.4On - t.u, tw.L,,n. . w..n.. ,, w0 v .,. CO .. n.ay. e .... a..t..3 <
.n ..
n e
.t,...
d c a r c a." e T ~..~ P.i ' r. ". . . .h. *v". - i =. . . . '..".a Chu. oO 'A C . .S l .'. w. . . ' . . c.- *. *.. ". . .. . . inel"ded i. .. .. " ew. . ks.' .' .1 <- . . C".. a. . '. O . C O.' . .' .. c .*. '. ' . .. a. .s '. v.. a. . " . . ^ . *..' "... . the ne'. k 1 ' C ".. . . .*. ". .'. - " - .. s'. . . a. . a
- a. 4 yw ~ %. . . . r.e ,. . ./. ' a. e. <.. .e .. 4 .' . a. .u. e. '. .. . .
e 1 c e ' t.' c e ,n. . .s 4 c** .. .., t.1.~.~. .'. .. '" r .4 . .~y **a
... ~ . . " . . .'....='.'e....,~r.~..~'.'..
.e g .ah. . e ,4 .b. y E. .g, o. +..t, =. f. 0
. .e. n. .. .'r. { .'.g . n { a. *.e.,-w g... ... p. o.sa.t* . n.6.p
. .- J. *n.7 . . . . .. . .....
O'. ..". l c .' ". C ..t * * *.- t e. .+. '*- . . . . 9 . . * . * . - 6" . .' .,,., .h c .- ' . .e t . *. .*. . .h .'- - *. * . .. full O .1 c c .*. ",... . . .i.l .i c . . .^. s'. '..... e mae c"c..'a. c.. - d a. .. . a.e n. .... -<'~.- Q . Q e C- .. .<-. e. n. . a...,
- a. C 1 .. . . 1. **
. h c aaa .. 4+. n. ,. . 46... . . .
c.,,..e..,. ... .e., .n..n , MiI. e a . . . . s .1 %. C .......a.
,w
. . . . . . 4 r., t w. 3 . .,.. .C .
4
.,.n. *s.s.e...u. . . . r.a....b. . e. e.., ...
( . c c J1.e. ,1 w C t. o . 4. ... .n.1. . .n. .;. .,. , J. C. .. ,, . c o, .. w h .,.11
.e........ . . . .: n. . a. . .f . .. s. . . n.
i t e . .. c d' . e.c t c". .. .~a.. .W. . . . . o e*. . .C. - ". .t '. c) l c. " ". . +.v". ..' '. . w . .'" .- ". . . Of Is e. Cc... . . .. .. . *. ...n. . u... n. Le .. ...J. 5 C...n..e . C. .,. p.,.. . . .. c.,.e. ...u. n. 1. p. ,. - s.. . ,
- e. ..'
f a.,. .: l i .. .4 ., .. e. ... .. t. . C .,....,.r...,.4.. .. . .Cn v.e. .. 4 4+ .: . . 41 .A n..i , ..c
. ..- .n. 3*-' . -~ 2 .;
r .. ,. . y. a. 6.sr ~ a .... .. . . .. .... . . e. e. . . e. .e..e, . a 3 . a n.n e. v. . , .- n. . . .. a.. ,e. .s
. ,,,...:. . . .t .
p, ., . .. . . . a..,.p.... ... ., .. . ., ,. . .. ,. . .. 4....,,,4
. . . . ... .. .e..,
a ,ge.g34 .. c .. x
. .. .. . e . . c. .. . f. ..
e ., 4. . w.
] c :.s.'.. " .~. ~.,. . V .- .* . . , , - . *. *
- 4. r. . .. *c . .' .1 4 '. .* c. . , , . c ". 4 .'. n.. .'.. *. > ' .. **^ . . . .r.e...'..
i n .. v *. ' . .. ~ . . " ...w; o. . . *. - .v.. . ^ c1 C c o *. h , C O ~. . . wl *. ' ... . .* - .o. ' *" v . . . .- " . - 1(4+,,. y c.".t. .L.. ,.. 4. .... s . '- D
' i 12.- 1 tra;*rr1 h br t h'.1 "Ch:cr e Aprroved by fc;: .. . r:
3 Th.' fr. E Auths r; ti e::" i t; i.arr+y t.;ic ! at the c .I cf Section 6 of said :.:: rec .cnL:
"Ch o. . e Ar c rc.v..i by IPule.tery la:ti o'riti c "The Tc rc::ein , trevicions of th! rntc are cut,1c:t t:' n::h futum re vi:icn: tr.1 <r..en? .e r.t: therecf, curplenent: thetet' cr cubstit : tic n:: tr.erc fc r as r.ay be approved frc7 tir.e tc ti.c 'r:-
any revern-ental reiul .te: / a tthority cr authoritics hr.v' nc ;'uris-diction in the pre:.' ices." .
- 4. Section 4 cf said acrec~.ent is hereby deleted in its entirety and the fellcting r.W Se: tion 9 in herer / cubstituted in its placc:
n
~....,..
C O.. :.: - . ... us y.
.,,,.,s
. .n.:a s. s. .:n z. u, v. ., -u.,u. .,
"Ihis c: reement i :;.cde cub.icet to the juri::licticn Of ar.y F,cVerr. .cntal re; .:latory authority or authorities having juris-I dicticn in the preniace."
5 The chan; ce cet forth in Items 1 through 4 abcve chall be effe:- tive an of Septe:';cr 1,1971.
- 6. F.xecyt as herein ethe nise specifically provided, said ag.ccment dated April 4, 1955, chall rer.ain unchanged and in full force and effect.
s.e par tl e: s..creto have c:.:ccuted this cu;.p.crant;'. I,,o hI ...,,,,
. . r. , .3 ,as.
. ..: v: , .. _
Asrecnent :;o. 1 on the day and year first above written. C0!!STGS PCUI:R CC:GALT 2 s c ,. (. n;;.i-
.= . s . .g , -x ',
.........J.-,.r
..r . . ..
- d. , ..
-/
a .;c. : c;.,n r; .- By - -
~
. Senior Vice Prc ident CITY OF COI.DUATI'o, I (
By . O . < /> d__ .- b' . .. s.. . [#j Its Mayor Atte:t: r
.ffsf4 b. .s,.
V CDA" City Clcr?.
3
- g ...
.I.rs .. *. 9. .... ! ;. . ,t.t. .' .
1.
.t 'e . . . . t .? * .g. a. t. ..a .! g. a. . -t. . , . I.s. ,.}. . . . . ..ss
. ,. ,} s.. , ! .. h. } p.
6 .} ... 4C O P. #=-. ". 4. I'. . .' - .~~L.". .''*.- I' t , !,. e. 1:..s. s..
. . . . , . . . ,. t... ,
. (. .. . ,. i...
' . c .. ) , i.f. } p g. t. f ...., .
, .. ..n.. e.
. a. 4
- . . n. s . . . , . .
. . .o. .
nent 1,..:. :a . .. 1 . .- - - : ur, vn t h e C I '.:, oi' Cc hi . :.: c - d a t e d /,; -i ' , p .. ,., , .
- . . ...,.... . t.,..., .c .i,, vi...
. e.
,.. r. .,a...a.,,..,
. . ...... . . . . . ... ,..+..
.- . . . . . .. . . . . s .. .. _.
t 1.t.
..,..,.<..,,......3
. . . . . . . . . .u. .c i ,
. . t,. c. c t. -,...s.- - v . . . 4 .i. ,., .a +.
.. ...a by cid :: W .ir'.'.: :t:.1
- p. c .. .. .- .. . ,. .....-..,.i.,...s..n.
. .. .. . , . . . - n ". . d Ci'", v",' e.. - i. '.. a ."...d ... a. .. " . . . . .. ' " ' . . . . ' '-
nn i dire te ! to c :ce .:;e t id Lt:- plc .': ital /q recuer.t en behe.lf ef the Ci;;c. caL,es L s) a.e.. Ce. . , #.T. C.: .*. ..u*.
. ... * * >\
ce u .o o C O.J .,.m.. ai. C: . 1.: . ..n.. . .. :.g I, p._..,a
. i : .. ,. ,, < -
Cle, . t. . . e C. +. %. . . v . 4.. . sa CO) (1.... .,4. C , a. i .h.e.-.(.. ,. /.
, . n ,. 4 .s,. .,,. -,
v...., . . . . . * * . .. .cC.C,Ol -,. ..e ,. Ci l. u. 3
. + < C .. ... -. . e. A . 1. .
...ca b.v tho. C c. . -1 .. '. .' c.'.",'*^~."_..'.c.'~,."_
. - . _ .,, , a'. t'.c.
~...cr a* *. 3
.'.a... . '.%...-a..'~.
. . r.. -. %. . .
10 tite./ of T e ;" . >
, 1971:2 .
~
1 t ({s.'s!,t c < ___4.W /v u-s.* t.s / City Cleri: Dated:
. T :, n . .- . .- 9 e lo-.M.. . .
.)}}