ML19347F264
| ML19347F264 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 05/13/1981 |
| From: | Porter W DUKE POWER CO. |
| To: | Harold Denton Office of Nuclear Reactor Regulation |
| References | |
| NUDOCS 8105180131 | |
| Download: ML19347F264 (119) | |
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1 DUKE POWER GOMPANY I LEGAL DEPARTMENT P. O. Box M 33189 '
Grrinr.orTE, N. G. 2e242
. w. 64. ., .o .n , May 13, 1981 ,, ., ,,.. ..
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Mr. Harold R. Denton, Director ,~ g Office of Nuclear Reactor Regulation i V' U.S. Nuclear Regulatory Commission
) i 3 Washington, D. C. 20555 gB17
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Re: Duke Power Company s,wgsI kh Catawba Nuclear Station D/
Units 1 and 2 Q'? .-
N' (Dacket Nos. 50-413 and 50-414) N TIl
Dear Mr. Denton:
On April 8, 1981, Duke Power Company submitted to the NRC on behalf of itself and Piedmont Municipal Power Agency (PMPA) an Application to Amend Construction Permit No. CPPR-ll7 to have PMPA included as a co-owner and co-applicant for Unit 2 of Duke's Catawba Nuclear Station. Reference is made therein to Project Power Sales Agreements between PMPA and its ten (10) participating member municipalities, the forms of which were to be included in the Application. As oun records do not clearly indicate that such forms were included in the filing, enclosed please find twenty (20) copies of the form of the PMPA Project Power Sales Agreements and Supplemental Power Sales Agreement to be included as part of the original Application.
Also, as a clarification to several references in the original filing of thie. Application, PMPA currently represents eleven (11) municipal systems in South Carolina, ten (10) of which are participating in the purchase of the Catawba Project.
Very truly yours,
$//raQf h )
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William L. Porter g b i
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Mr. Harold R. Denton Page Two May 13, 1981 cc: Ellen T. Ruff, Esquire Duke Power Company Legal Department Post Office Box 33189 Charlotte, NC 28242 (704) 373 - 7102 O. Wayne Corley, Esquire McNair, Glenn, Konduros, Corley, Singletary, Porter & Dibble Attorneys and Counselors at Law Post Office Box 11390 Columbia, South Carolina 29211 (803) 799 - 9800 .
James N. Horwood, Esquire Spiegel and McDiarmid 312 Watergate Office Bldg.
2600 Virginia Avenue, N.W.
Washington, D. C. 20037 (202) 333 - 4500 t
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EXHIBIT A
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I FORM OF PIEDMONT MUNICIPAL POWER AGENCY CATAWBA PROJECT POWER SALES AGREEMENT f
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TABLE OF CONTENTS Section Page Recitals ............................................ 1 Definitions ......................................... 3 2 Term of Agreement ................................... 19 3 Financing, Acquisition, Construction, Operation and Maintenance of Catawba Project ................. 20 4 Sale and Purchase of Participant's Catawba Share .... 21 5 Ar "' Catawba Budget and Billing Statements; lyments by the Participant .................... 23 6 Source of Payments by the Participants; Certain Obligations of Participants .................... 30 7 Dispatch; Metering; Deliveries ...................... 36 .
8 Records; Accounts; Reports; Audits .................. 36 9 Information to be Made Available .................... 37 10 Insurance ........................................... 38 11 Sale of Excess Participant's Catawba Share .......... 39 12 Obligations in the Event of Default ................. 40 13 Rights of Duke Hereunder ............................ 43 14 Issuance of Bonds for Renewals, Etc., and for Refunding ......................................... 44 15 Consulting Engineer ................................. 46 16 Modification and Uniformity of Agreements . . . . . . . . . . . 48 17 Continuance and Enforcement of Agreement ............ 49 18 Relationship to Other Instruments ................... 50 19 Notices and Computations of Time .................... 50 20 Applicable Law; construction ........................ 51 21 Severability .......................'................. 51 22 As s i gnment o f Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 23 Entire Agreement .................................... 52 i
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PIEDMONT MUNICIPAL POWER AGENCY CATAWBA PROJECT POWER SALES AGREEMENT THIS AGREEMENT, dated as of the first day of August, 1980, by and between Piedmont Municipal Power Agency, a public body corporate and politic of the State of South Carolina ("PMPA"), and a municipalit** of the State of South Carolina which has executed this Agreement (the " Participant").
WHEREAS, PMPA has heretofore been duly organized as a public body corperste and politic in accordance with Act No. 473 of the General Assembly of the State of South Carolina, Regular lession of 1978, as amended and supplemented (Code of Laws of South Carolina 1976, Title 6, Sections 6-23-10 through 6-23-330, inclusive) (the "Act"), as a result of a determination by each of the members of PMPA, including the Participant, that it is in its, and its electric customers', best interest to create and participate in PMPA for the purpose of undertaking the planning, financing, development, acquisition, purchase, construction, recon-struction, improvement, enlargement, ownership, operation and maintenance of a project or projects to supply electric power and energy for its present and future needs as an alternative or supplemental method of obtaining the benefits and assuming the responsibilities of ownership in a project; and
WHEREAS, the Participant is a municipality created under the laws of the State of South Carolina, owning for at least ten (10) years c system or facilities for the generation, transmission or distribution of electric power and energy, is located within the area generally served by Duke Power Company (" Duke"), and is authorized by the Act to contract to buy from PMPA power and energy required for its present or future requirements; and WHEREAS, PMPA is authorized by the Act to acquire from an electric supplier not less than ten per cent (10%)
of the rated capacity of one or more projects under construction on the date of approval of the Act, or on which construction l will commence subsequent to the date of approval of the Act, either individually or jointly with one or more municipalities in any other state, owning electric generation, transmission or distribution facilities, or with any political subdivisions or agencies of any other state anc in connection with such acquisition, to study, plan, finance, cwn, operate, and maintain such project or projects and is authorized to issue its bonds for the purpose of providing funds for any of its corporate purposes, including financing of a project; and WHEREAS, PMPA proposes to finance, own, operate and maintain a twenty-five per cent (25%) undivided ownership interest in Unit 2 of the Catawba Nuclear Station (hereinafter defined) (the " Catawba ?roject") which was under construction on the date of approval of the Act, the remaining seventy-five per cent (75%) undivided ownership interest in Unit 2 of the l
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Catawba Nuclear Station being owned by North Cerolina Municipal Power Agency Number 1, a joint agency of the State of North Carolina (hereinafter defined); and WHEREAS, PMPA has determined that the Catawba Project is required to provide for a portion of the present and future needs for power and energy of its members, all of whom are located within the area generally served by Duke, as of the date of issuance of PMPA's corporate certificate as required by the Act; and WHEREAS, PMPA has entered into the Project Agree-ments (hereinafter defined) with respect to the purchase, construction, operation and fueling of the Catawba Project and interconnection of the Catawba Project with Duke's ,
system, including backstand and reliability exchange pro-visions and copies of the Project Agreements have been furnished to the Participant; and WHEREAS, PMFA propc.7es to sell, and the Participant proposes to purchase, the Participant's Catawba Share (herein-after defined) of Catawba Project Output (hcreinafter defined),
all as hereinafter provided, NOW, THEREFORE, the parties hereto mutually agree as followsc SECTION 1. Definitions. Unless the context shall clearly indicate some other meaning or may otherwise require, the terms defined in this Section shall, for all purposes of this agreement and of any agreement or other instrument amendatory hereof or supplemental hereto, have the meanings herein specified, with the following definitions to be l 1
equally applicable to both the singular and plural forms of any terms herein defined, unless otherwise specifically provided herein. Terms not defined herein shall have the meanings assigned ,thereto in the Project Agreements.
- "Act" means Act No. 473 of the General Assembly of the State of South Carolina, Regular Session of 1978, as amended and supplemented (Code of Laws of South Carolina 1976, Title 6, Sections 6-23-10 through 6-23-330, inclusive).
" Annual Catawba Budget" means the budget adopted by FMPA pursuant to Section 5(a) which itemizes the eetimated Monthly Catawba Project Power Costs during a Contract Year or, in the caos of an amended Annual Catawba Budget, during the remainder of a Contract Year.
" milling Statement" means the written statement prepared monthly by PMPA and delivered to the Participant pursuant to Section 5(b) which shows the amounts to be paid for such month to PMPA by the Participant as the Participant's Catawba Share of the Monthly Catawba Project Power Costs.
" Bond Resolution" means the resolution adopted by the Board of Directors of PMPA on August 14, 1980, entitled "A RESOLUTION AUTHORIZING AND PROVIDING FOR THE ISSUANCE OF ELECTRIC REVENUE BONDS OF PIEDMONT MUNICIPAL POWER AGENCY TO FINANCE THE ACQUISITION AND CONSTRUCTION OF PROJECTS, INCLUDING AN OWNERSHIP INTEREST IN A NUCLEAR FUELED GENERATING PLANT TO BE KNOWN AS CATAWBA NUCLEAR STATION UNIT 2, AND FOR OTHER PURPOSES RELATED THERETO; PRESCRIBING THE FORM OF ELECTRIC REVENUE BONDS ISSUED HEREUNDER; COVENANTING AS TO
THE REVENUES AND T5IE FIXING, ESTABLISHMENT AND COLLECTION OF RATES, TOLLS, RENTS AND CHARGES FOR THE CAPABILITY OF THE PROJECTS AND THE POWER AND ENERGY DERIVED DIRECTLY AND INDIRECTLY THEREFROM; PLEDGING SUCH REVENUES AND OTHER FUNDS TO THE PAYMENT OF THE PRINCIPAL OF AND INTEREST ON SUCH BONDS; PROVIDING FOR THE ISSUANCE OF ADDITIONAL PARITY BONDS; AND MAKING OTHER COVENANTS AND AGREEMENTS IN CONNECTION WITH THE I)REGOING", as the same may be amended or supplemented, pursuant to which the Bonds are te be issued.
" Bonds" mean the bonds issued from time to time pursuant to and under authority of the Bond Resolution which (a) PMPA has allocated on the basis of the application of the proceeds thereof (i) to pay Costs of Acquisition and Construction of the Catawba Project and (ii) for the purposes authorized by Section 14 or (b) PMPA has reallocated in accordance with Section 5(g) hereof to (i) or (ii) of (a) hereof on the basis of the application under the Bond Resolution of funds attributable to the Catawba Project or an Additional Project to the purchase or redemption of bonds attributable to another Project.
" Catawba Nuclear Station" means the nuclear fueled generation facilities consisting of two individual generating units, Unit 1 and Unit 2, and the support facilities all of which were under construction on the date of approval of the Act and which are presently being constructed near Lake i
Wylie in York County, South Carolina, as more particularly described in the Sales Agreement and defined therein as the
" Catawba Nuclear Station".
" Catawba Project" means PMPA's twenty-five per cent (25%) undivided ownership interest in Unit 2 of the Catawba Nuclear Station. .
" Catawba Project Output" means the amounts of electric power and energy, if any, to which PMPA is entitled at any particular time pursuant to the Interconnection Agreement associated with Retained Capacity and energy associated with Retained Capacity (taking into account sales of Purchased Capacity and Purchased Energy to Duke) and including any output derived from the Reliabi2ity Exchanges, less any sales of Surplus Energy from Retained Capacity and plus any Replacement Energy purchased from Duke, as such terms are defined in the Interconnection Agreement (including times when the Catawba Project or any unit with which power and energy from the Catawba Project is exchanged pursuant to the Interconnection Agreement is not completed, operable cr operating or is retired or the operation thereof is suspended, interrupted, interfered with, reduced or curtailed, in each ;
case in whole or in part for any reason whatsoever), less station use and losses, and shall be determined in accordance with the Interconnection Agreement.
" Catawba Project Power Sales Agreement" means this Agreement and each other agreement substantially identical to this Agreement relating to the Catawba Project.
" Combined Utility System" means the Electric System of the Participant and all other systems, functions, services, enterprises and undertakings with which the Electric l
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3 System has, prior to the date of execution of this Agreement by the Participant, been combined under the laws of South Carolina for purposes of financing.
" Consulting Engineer" means the consulting engineer or engineering firm or corporation appointed pursuant to Section 15 hereof.
" Contract Year" means the 12-month period commenc- l ing 12:01 A.M. local time on January 1 of each year during the term of this Agreement and ending midnight local time on the December 31 next following (or such other 12-month period as PMPA shall determine); provided, however, that the first Contract Year shall commence at 12:01 A.M. local time on the earliest of (i) the Date of Commercial Operation of Unit 2 of the Catawba Nucleat Station or (ii) the date on which supplemental Capacity is furnished to PMPA pursuant to the Interconnection Agreement or (iii) the date six months prior to the interest payment date on the Bonds as to which there will be insufficient Bond proceeds available to pay interest on the Bonds, but not later than one year prior to the date upon which a payment on account of principal first becomes due for the Bonds or (iv) the date six months prior to the date PMPA estimates there will be insufficient pro-ceeds from the sale of Bonds or other moneys available to pay when due the principal of or premium, if any, or interest on any notes or other evidences of indebtedness issued in anticipation of the issuance of Bonds for the payment of the Costs of Acquisition and Construction of the Catawba Project
or (v) the date one year after the date the decision is made in accordance with the Project Agreements to decommission the Catawba Project or the entire Catawba Nuclear Station; and provided further, however, that the last Contract Year shall end at midnight local time on the date of expirat of this Agreement as provided in Section 2 hereof.
" Costs of Acquisition and Construction of the Catawba Project" mean, to the extent permitted by the Act and not included in Monthly Catawba Project Power Costs, all costs of studying, planning, engineering, acquiring, con-structing, financing, carrying out and placing in operation the Catawba Project, including Initial Catawba Fueling, and giving effect to the arrangements provided for under the Project Agreements (after taking into account credits with respect thereto), whether heretofore or hereafter paid or incurred by PMPA, and shall include, but shall not be limited to, funds required for:
(1) all costs required to be borne by PMPA under the Sales Agreement and, where applicable, the Operating Agreement, all as affected by the exchange payment provisions of Article 14 of the Interconnection Agreement; (2) working capital and special reserves in such amounts as may be reasonably deemed necessary by PMPA l
and/or required by the Project Agreements; (3) interest accruing in whole or in part on Bonds prior to and during acquisition and construction
, and for such period of time thereafter as PMPA may ,
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(4) the deposit or deposits from the proceeds of
' Bonds in any fund or account established pursuant to the Bond Resolution to meet the Reserve Account Requirement (as defined in the Bond Resolution);
(5) the deposit or deposits from the proceeds of Bonds in any fund or account established pursuant to the Bond Resolution as reserves for renewals, replace-ments and contingencies with respect to the Catawba Project, and for retirement from service, decommission-ing or termination of the Catawba Project; (6) all federal, state and local taxes and payments in lieu of taxes legally required to be paid in connection with the acquisition and construction of the Catawba ,
Project; (7) the payment of the principal of and premium, if any, and interest on notes or other evidences of indebtedness issued in anticipation of the issuance of Bonds for the payment of the Costs of Acquisition and Construction of the Catawba Project; (8) the costs and expenses incurred in connection with the issuance and scle of Bonds fcf the Catawba ,
Project, including bond discounts and fees and expenses of trustees and paying agents with respect to such Bonds; (9) reimbursements of amounts advanced with respect to the Catawba Project by the Participants;
(10) all costs and expenses relating to injury and damage claims arising out of the acquisition and construction of the Catawba Project, including deferred premiums and the cost of maintaining any guarantee of payment thereof required pursuant to the Atomic Energy Act of 1954, as amended from time to time, or any successor statute; (11) preliminary survey, investigation and develop-ment costs, engineering fees, contractors' fees, costs of obtaining permits, licenses and approvals, costs of labor, materials, equipment, lands, rights-of-way, franchises, easements and other interests in land, repairs, betterments, utility services and supplies, payments to other public agencies, training and testing costs, insurance premiums, legal and financing costs and administrative and general costs incurred with respect to the Catawba Project; and (12) all costs incurred or associated with the salvage, discontinuance, decommissioning and disposition ,
or sale of properties required to be paid by PMPA in j accordance with the Project Agreements.
"Date of Commercial Operation" means with respect to either Unit 1 or Unit 2 of the Catawba Nuclear Station the date which is the day after one of the following conditions is met with respect to such Unit: (i) continuous operation for one hundred (100) hours at ninety-nine per cent (99%) or greater of licensed reactor power, (ii) continuous operation l
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for one hundred (100) hours within one perc;r.t (1%) of any lower reactor power level limited by regulatory or other operating restrictions expected to extend beyond thirty (30) days, or (iii) continuous operation for one hundred (100) hours at a point below licensed reactor power level as mutually agreed upon by the owners of the Catawba Nuclear Station in accordance with the Project Agreements.
" Duke" means Duke Power Company, a corporation organized and existing under the laws of the State of North Carolina with offices in Charlotte, North Carolina.
" Electric System" means all properties and assets, real and personal and tangible and intangible, of the Participant now or hereafter existing, used or pertaining to the generation, transmission, transformation, distribution and sale of electric power and energy, including all additions, extensions, expansions, improvements and betterments thereto and equippings thereof; provided, however, that to the ,
extent the Participant jointly owns an asset or property, only the Participant's interest in such asset or property shall be considered to be part of its Electric System.
" Initial Catawba Fueling" means the " Initial Core" ;
I as defined in the Sales Agreement, plus reload fuel for which PMPA is obligated to pay under the Project Agreements prior to the Date of Commercial Operation of Unit 1 or Unit 2 of the Catawba Nuclear Station, whichever is later, and !
for a period of up to one (1) year thereafter.
" Interconnection Agreement" means the agreement dated as of August 1, 1980, between PMPA and Duke known as the " Catawba Nuclear Station Interconnection Agreement",
providing for interconnection between the Duke system and the Catawba Nuclear Station, exchange of power between Unit 1 and Unit 2 of the Catawba Nuclear Station and between the Catawba Nuclear Station units and the McGuire Nuclear Station urits owned by Duke, backstand provisions, retained capacity from the Catawba Project, purchased capacity and energy and surplus energy sales from the Catawba Project, the purchase of supplemental capacity and energy, transmission service and other matters, as the same may be modified, amended or supplemented from time to time.
" Joint Agency Ownership Agreement" means the agreement dated as of August 1, 1980, between PMPA and North Carolina Municipal Power Agency Number 1 known as the " Catawba Nuclear Station Joint Agency Ownership Agreement" providing for the arrangements between PMPA and North Carolina Municipal Power Agency Number 1 as owners of their undivided ownership interests in Unit 2 of the Catawba Nuclear Station.
" Monthly Catawba Project Power Costs" mean, to the extent not included in the Costs of Acquisition and Con-struction of the Catawba Project or payable under the Supple-mental Power Sales Agreements, all of PMPA's costs that are paid or incurred by PMPA during each month of each Contract Year resulting from or attributable to the ownership, operation, l
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maintenance, termination, retirement from service and de-commissioning of, and necessary repairs, renewals, replace-ments, additions, improvements, betterments and modif.ications to, the Catawba Project and giving effect to the arrangements provided for under the Project Agreements (after taking into account credits with respect thereto), and the providing of reserves for such purposes, including, but not limited to, the following items of cost:
(1) the amount which may be required by PMPA during such month to pay costs pursuant to the Operating Agreement, as affected by the exchange payment provisions of Article 14 of the Interconnection Agreement, plus the payments required for the McGuire Reliability Exchange pursuant to Article 5 and Section 8.2, or Article 11, all of the Interconnection Agreement, plus the payments for Catawba Replacement Energy pursuant to Section 8.l(C) of the Interconnection Agreement, less revenues received from sales of Catawba Project Output to other than the Participants, including, but not limited to, payments received from Duke for Purchased Capacity, Purchased Energy and Surplus Energy pursuant to the Interconnection Agreement and for Duke's Exchange Entitlement from the Catawba Nuclear Station pursuant I to the McGuire Reliability Exchange as provided in Section 10.2(B) of the Interconnection Agreement;
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(2) the amount (calculated without reference tb any acceleration for default under the Bond Resolution) which PMPA is required under the Bond Resolution to pay I
or deposit during such month from the Revenue Fund into the Bond Fund established by the Band Resolution for the payment cf the principal of and premium, if any, and interest on the Bonds and for reserves with respect to such Bonds; (3) the amount required under the Bond Resolution with respect to the Catawba Project or the Bonds to be paid or deposited during such month into any fund or account established by the Bond Resolution, other than funds and accounts referred to in clause (2) above; (4) to the extent funds are not otherwise available, the payment of the principal of and premium, if any, and interest on notes or other evidences of indebtedness issued in anticipation of the issuance of Bonds; (5) all costs incurred or associated with the salvage, discontinuance, decommissioning and disposition or sale of properties required to be paid by PMPA in accordance with the Project Agreements, including, but not limited to, all of PMPA's accrued costs and liabilities resulting from PMPA's ownership, acquisition, construction, operation (including cost of fuel), maintenance and renewals and replacements of the Catawba Project; (6) all costs and expenses relating to injury and damage claims required to be paid by PMPA pursuant to the Project Agreements, including deferred premiums and the cost of maintaining any guarantee of payment thereof required pursuant to the Atomic Energy Act of 1954, as
amended from time to time, or any successor statute; provided, however, that in no event shall Monthly Catawba Project Power Costs include any public liability of PMPA for a nuclear incident in excess of that pro-vided under the Atomic Energy Act of 1954, as amended from time to time, or any successor statute; and ,
(7) any other costs incurred by PMPA during such month relating to the Bonds, the Catawba Project or the Project Agreements (including, but not limited to, operation, maintenance and repair costs and working capital and reserves deemed necessary for the Catawba Project by PMPA, the allocable portion of administrative and general expenses, taxes, insurance and overhead) ,
not included in the costs hereinbefore specified.
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" North Carolina Municipal Power Agency Number 1" means North Carolina Municipal Power Agency Number 1, a public body and a body corporate and politic of the State of North Carolina.
" Operating Agreement" means the agreement dated as of August 1, 1980, between PMPA and Duke known as the " Catawba Nuclear Station Operating and Fuel Agreement", providing for the operation, maintenance and fueling of the Catawba Nuclear Station, the making of renewals, capital additions and replacements therefor and the decommissioning thereof, as the same may be modified, amended or supplemented from time to time.
"PMPA" means Piedmont Municipal Power Agency, a public body corporate and politic of the State of South Carolina.
" Participant" means the (City of or Town of)
- which has entered into this Agreement with PMPA.
" Participants" mean those entities specified in Exhibit A as revised in accordance with Section 4 hereof to indicate the Participants' Cataw'oa Share.
" Participant's Catawba Share" mean the Participant's Preliminary Catawba Share adjusted as provided in Section 4, as the same may be adjusted as provided in Sections 6 and 12, of this Agreement.
" Participant's Preliminary Catawba Share" mean the percentage set opposite the name of the Participants in Exhibit A hereto.
" Project Agreements" mean, collectively, the Sales Agreement, the Operating Agreement, the Interconnection Agreement and the Joint Agency Ownership Agreement.
" Reliability Exchanges" mean those provisions of the Interconnection Agreement which provide for the exchange of capability and output from the Catawba Project for capability and output from Unit 1 of the Catawba Nuclear Station and the exchange of capability and output from the Catawba l Nuclear Station units for capability and output from the McGuire Nuclear Station.
" Revenues" mean all income, rents, receipts, rates, fees, charges and other moneys derived by the Participant from the ovnership or operation of its Electric System, including, without limiting the generality of the foregoing, (i) all income, rents, receipts, rates, fees, charges or other moneys derived from the sale, furnishing and supplying of the electric power and energy and other services, facilities and commodities sold, furnished or supplied through the facilities of the Electric System, (ii) the earnings on and income derived from the investment of such income, rents, rates, fees, charges or other moneys to the extent that the use of such earnings and income is limited by or pursrant to law to the Electric System and (iii) the proceeds derived by the Participant directly or indirectly from the sale, lease or other disposition of a part of the Electric System as permitted by clauses (1) and (2) of paragraph (d) of Section 6, but the term " Revenues" shall not include customers' deposits or any other deposits subject to refund until such deposits have become the property of the Participant.
" Sales Agreement" means the agreement dated as of August 1, 1980, between PMPA and Duke known as the " Purchase, Construction, and Ownership Agreement Relating to Twenty-Five Percent of Unit 2 of the Catawba Nuclear Station", providing for the construction, initial fueling and placing into commercial operation of the Catawba Nuclear Station and for the sale to PMPA of a twenty-five per cent (25%) undivided l
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ownership interest in Unit 2 of the Catawba Nuclear Station, as the same may be modified, amended or supplemented from time to time.
" Supplemental Power Sales Agreements" mean those agreements entered into by PMPA relating to providing that portion of All Requirement Bulk Power Supply (as defined therein) required by the Participant in excess of that supplied from Catawba Project Output and, as contemplated thereby, the output of any Additional Project or any project financed as a separate system, including any amendments thereto or subsequent supplemental power sales agreements as a result of the provisions of Sections 3(f) and 3(g) thereof.
" Usual Utility Practice" means, at a particular time, any of the practices, methods and acts which, in the exercise of reasonable judgment in the light of the facts (including but not limited to the practices, methods and acts engaged in or approved by a significant portion of the electrical utility industry prior thereto) known at the time the decision was made, would have been expected to accomplish the desired result at a reasonable cost consistent with reliability and safety. Usual Utility Practice is not intended to be limited to the optimum practice, method or ac;, to the exclusion of all others, but rather to be a number of possible practices, methods or acts. In evaluating ;
I whether any matter conforms to Usual Utility Practice as used in this agreement, the parties hereto shall take into account (i) the fact that PMPA and each Participant is a l
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public body corporate and politic organized under the laws of the State of South Carolina, with the statutory duties and responsibilities thereof, (ii) the objectives to integrate the Catawha Project Output with the other resources of the Participants, including such resources and electric capacity i and energy purchased under contract, to achieve optimum utilization of the resources and achieve efficient and economical operation of each system and (iii) the Project Agreements.
SECTION 2. Term of Agreement. This Agreement shall be effective upon execution and delivery of Catawba Project Power Sales Agreements by PMPA and the Participants whose Participants' Preliminary Catawba Shares total one hundred per cent (100.0%) or more and upon the execution and ,
j delivery by all such Participants of Supplemental Power Sales Agreements and upon the closing under the Sales Agree-ment. This Agreement shall expire on the later of (i)
January 1, 2022, or (ii) the date upon which the last unit at the Catawba Nuclear Station, whether Unit 1 or Unit 2, is retired, but not until (a) the principal of and premium, if any, and interest on all of the Bonds have been paid or funds are set aside for the payment or retirement thereof in accordance with the Bond Resolution and (b) all other obligations and liabilities hereunder have been paid or provided for and (c) all obligations and liabilities of PMPA under the Project Agreements have been paid or provided for; provided, however, that, in any event, this Agreement shall
expire no later than fifty (50) years from and after August 1, 1985, the estimated date the Catawba Project will be placed in normal continuous operation. Neither termination nor expiration of this Agreement shall affect any accrued liability or obligation hereunder, including, but not limited to, the cost of decommissioning the Catawba Project.
SECTION 3. Financing, Acquisition, Construction, Operation and Maintenance of the Catawba Project. (a)
PMPA, in good faith and in accordance with the provisions of the Project Agreements, shall use its best efforts in accor- i dance with Usual Utility Practice: (i) to undertake, or cause to be undertaken, the study, planning, e:igineering, design, financing, construction, acquisition, operation and maintenance of the Catawba Project; (ii) to obtain, or cause to be obtained 6 Federal, state and local permits, licenses and other rights and regulatory approvals necessary for the financing, construction, acquisition, operation and maintenance of the Catawba Project; and (iii) to issue and sell Bonds to finance the Costs of Acquisition and Construction of the Catawba Project, and to finance the costs referred to in Section 14 hereof, not otherwise provided for, which are permitted by the terms of the Bond Resolution provided that in each such case Bonds may then be legally issued and sold.
(b) The Participant hereby acknowledges receipt of the Preliminary Engineering Report dated August, 1980 of R. W. Beck and Associates relating to the Catawba Project, which report contains an estimace of the Costs of Acquisition l
I and Construction of the Catawba Project. PMPA shall deliver revised estimates of the Costs of Acquisition and Construction of the Catawba Project to the Participant from time to time to reflect substantial changes in construction schedules, plans, specifications or costs, as the same become available pursuant to the provisions of the Project Agreements.
SECTION 4. Sale and Purchase of Participant's Catawba Share. PMPA hereby sells, and Participant hereby purchases, its Participant's Catawba Share of Catawba Project Output. The Participant's Catawba Share shall be the Participant's Preliminary Catawba Share; provided, however, that if the sum of the Participants' Preliminary Catawba Shares of the Participants which have executed and delivered Catawba ,
Project Power Sales Agreements by November 15, 1980, (or by such later date as inay be prescribed by the Board of Directors of PMPA, written notice of which shall be delivered to each '
entity listed on Exhibit A hereto) is greater than one hundred per cent (100.0%), the Participant's Preliminary Catawba Share shall be automatically decreased, pro rata with other such Participants' Preliminary Catawba Shares, so that the total Participants' Catawba Shares shall equal one nundred per cent (100.0%). PMPA shall mail to each Participant, within a reasonable period of time after such adjustment, notification of each Participants' Catawba Shares. If the sum of the Participants' Preliminary Catawba Shares of the Participants which have executed and delivered Catawba Project Power Sales Agreements by November 15, 1980 or by 1
such later date as may be prescribed by the Board of Directors of PMPA as provided above, is less than one hundred per cent (100.0%), PMPA may agree with any Participant (s) to an l l
increase in its Participant's Preliminary Catawba Share, in i o order to bring the total of such shares to one hundred per cent (100.0%). In the event of any such change in any Participant's Preliminary Catawba Share pursuant to this paragraph, a new Exhibit A shall be prepared by PMPA and mailed within a reasonable period of time to the Participants and shall thereupon be deemed to be a part of the agreement made hereby.
The Participant covenants and agrees that it will not use or permit to be used any Catawba Project Output acquired hereunder in any manner or for any purpose which would cause any Bond which at the time of issuance thereof was not subject to treatment as an " industrial development bond", as defined in subsection (b)(2) of Section 103 of the Internal Revenue Code of 1954, as amended, of the United States of America as then in effect, to be subject to treat-ment under subsection (b)(1) of said Section 103 as an obligation not described in subsection (a)(1) of said Section 103. The Participant, prior to entering into any contract whereby a non-exempt person under said cubsection (b)(2) agrees to take, or to take or pay for, Catawba Project Output, shall notify PMPA of its intent to enter into such a contract, which notice shall describe such contract in reasonable detail. Al soon after receipt of such notice as ,
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is practicable, PHPA shall advise the Participant in writing as to whether in its opinion the entering into of such contract would result in the violation of the foregeing covenant, and the Participant agrees that if PM?A se advises the Participant that such a violation would result, it shall not enter into such contract.
It is expressly understood and agreed that PMPA does not hereby contract to furnish the Participant electric power for pumping water for extinguishing fires.
SECTION 5. Annual Catawba Budget and Billing Statements; Payments by the Participant. (a) Prior to each Contract Year, PMPA shall adopt and mail to the Participant an Annual Catawba Budget for such Contract Year. During each Contract Year, PMPA shall review at least quarterly, and at such other times as PMPA deems desirable, the Annual Catawba Budget for such Contract Year. In the event such review indicates that the Annual Catawba Budget does not or will not substantially correspond with actual receipts and expenditures, or if at sny time during such Contract Year there are or are expected to be extraordinary receipts, credits or costs substantially affecting the Monthly Catawba Project Power Costs, PMPA shall adopt and mail to the Participant an amended Annual Catawba Budget which shall supersede the Annual Catawba Budget or amended Annual Catawba Budget the.stofore provided as the basis for the determination of Monthly Catawba Project Power Costs for the remainder of such Contract Year.
(b) on or before the fifth (5th) day of each month of each contract Year (beginning with the first full month of the first Contract Year) or such other date not later than the tenth (10th) day of such month as PMPA shall establish from time to time, PMPA shall prepare, date and on such date mail to the Participant a Billing Statement showing (i) the amount payable by the Participant as the Participant's Catawba Share of the Monthly Catawba Project Power Costs for the preceding month, (ii) the amount, if any, to be credited against Monthly Catawba Project Power Costs pursuant to paragraph (g) of this Section and (iii) any amounts payable by or credited to the Participant pursuant to this Agreement and not payable or credited pursuant to clauses (i) and (ii) of this paragraph.
(c) The amounts shown in the Billing Statement to be paid to PMPA by the Participant shall be due and payable ten (10) days after the date of the Billing Statement and any amounts due and not paid by the Participant within fifteen (15) days after the date of the Billing Statement shall accrue a late penalty charge from the due date until paid computed at the rate of one per cent (1%) per month.
Remittances received by mail will be accepted without assesscent of said charges, provided that the postmark of the United States Postal Service clearly indicates that the payment was l mailed on or before such fifteenth (15th) day.
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(d) In each Contract Year the Participant sh6]l pay to PMPA, for the Participant's Catawba Share of Catawba Project Output, the Participant's Catawba Share of the Monthly Catawba Project Power Costs for such contract Year.
Such payments shall be made to PMPA under this Agreement whether the Catawba Project is completed, operable or operating notwithstanding the suspension, interruption, interference, reduction or curtailment of Catawba Project Output, or the power and energy contracted for, in whole or in part, for any reason whatsoever. Such payments under this Agreement shall not be subject to any reduction by offset or otherwise and shall not be conditioned upon the performance or non-performance by PMPA or any other Participant under this or any other agreement or instrument, the remedy for any non-performance being limited to mandamus, specific performance or other legal or equitable remedy.
(e) In the event of any dispute as to any portion of any Billing Statement, the Participant shall nevertheless pay the full amount of the disputed charges when due and shall give written notice of the dispute to PMPA not later than the end of the Contract Year in which such payment is due, but in any event the Participant shall have sixty (60) days to so give such notice. Such notice shall identify the disputed bill, state the amount in dispute and set forth a full statement of the grounds on which such dispute is based. No adjustment shall be considered or made for disputed l l
charges unless notice is given as aforesaid. PMPA shall l l
l give consideration to such dispute and shall advise the Participant with regard to its position relative thereto within thirty (30) days following receipt of such written notice. Upon final determination (whether by agreement, arbitration, adjudication or otherwise) of the correct amount, there shall ba made an appropriate adjustment to the Billing Statement next submitted to the Participant after such determination.
(f) On or before the day four (4) calendar months after the end of each Contract Year, PMPA shall prepare and deliver to the Participant a detailed statement of the aggregate Monthly Catawba Project Power Costs and the Participant's Catawba Share thereof and any adjustment of or credit to Monthly Catawba Project Power Costs and the Participant's Catawba Share thereof pursuant to paragraph (g) of this Section 5 or under the Bond Resolution and other amounts payable by or credited to the Participant pursuant hereto for all of the months of such Contract Year, and adjustments of the aggregate Monthly Catawba Project Power Costs, if any, for any prior Contract Year and the Participant's Catawba Share thereof and any adjustment of or credit to the Participant's Catawba Share thereof pursuant to paragraph (g) of this Section 5, based on the annual audit of accounts l
provided for in Section 8 hereof. If, on the basis of the l statement submitted as provided in this paragraph (f), the actual aggregate Monthly Catawba Project Power Costs and the Participant's Catawba Share thereof and any adjustment of or l
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credit to the Participant's Catawba Share thereof pursuant to paragraph (g) of this Section 5 or under the Bond Resolution and other amounts payable for any Contract Year exceed the estimais thereof on the basis of which the Participant has been billed, PMPA shall add any such amounts to the Participant's next Billing Statement pursuant to this Section 5. Participant
- shall pay PMPA promptly the amount to which PMPA is entitled.
If, on the basis of the statement submitted pursuant to this paragraph (f), the actual aggregate Monthly Catawba Project Power Costs and the Participant's Catawba Share thereof and any adjustment of or credit to the Participant'c Catawba Share thereof pursuant to paragraph (g) of this section 5 or under the Bond Resolution and other amounts payable for any ,
Contract Year are less than the estimate therefor on the basis of which the Participant has been billed, PMPA shall credit such excess against the Participant's next Billing Statement pursuant to this Section 5.
(g) To the extent not credited or to be credited against the Cost of Acquisition and Construction of the Catawba Project and to the extent not reflected as an offset to any charge made by Duke to PMPA for costs included in Monthly Catawba Project Power Costs, all receipts, revenues
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and other moneys received by or credited to PMPA under the Project Agreements and from insurance proceeds, condemnation awards and damages in connection w1La the construction of the Catawba Project collected from contractors, subcontractors or others and proceeds from the sale or other disposition of l
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assets (including surplus property), all related to the Catawba Project, shall, unless the Bond Resolution or the Project Agreements make contrary provision, be credited against Monthly Catawba Project Power Costs. Additionally
. credits or adjustments as between Projects (as defined in the Bond Resolution) shall be made by PMPA to monthly project power costs of such Projec.ts, including Monthly Catawba Project Power Costs, in order to reflect the application and use of the " Revenues" under the Bond Resolution with respect i to such Projects. In the event that PMPA wishes to apply any funds allocable to the Catawba Project which by the terms of the Bond Resolution are to be applied to the purchase or retirement of Bonds issued thereunder or may be applied to the payment of the Costs of Acquisition and Construction
~f a Project (as defined in the Bond Resolution) to the purchase or retirement of bonds cther than Bonds or to the Costs of Acquisition and Construction of a Project other than the Catawba Project then in such event PMPA shall give the Participant written notice thereof setting forth the amount of such funds, their intended application ar.d the proposed method of reallocating the Bonds to such other Project. If PMPA does not receive written objection to such plan within fifteen (15) days after the mailing thereof it may proceed with such plan. If any Participant objects PMPA shall apply such funds solely to the purchase or retirement of Bonds or to pay Costs of Acquisition and Construction of the Catawba Project in accordance with the Bond Resolution.
l This procedure shall also be followed in the event PMPA wishes to apply funds allocable to an Additional Project to the purchase or retirement of Bonds or to the payment of Costs of Acquisition and Construction of the Catawba Project where such application will result in the reallocation of bonds under the Bond Resolution as Bonds for purposes of this Agreement.
(h) At the earliest reasonable time after the termination of this Agreement, PMPA shall preparc, date and on such date mail to the Participant a final accounting :
statement showing the remaining obligations and liabilities for which PMPA is responsible with respect to the Bonds and the Catawba Pro]ect under the Bond Resolution and the Projact Agreements and the costs to PMPA of discharging snd satisfying the same. The final accounting statement shall credit to the Participants, and deduct from any amount otherwise chargeable tci them, the fair market value of any assets related to the Catawba Project then retained by PMPA. If the final accounting statement shows that such obligations and liabilities exceed such credits after application by PMPA of all other funds available for such purpose, the Participant shall pay PMPA a sum determined by multiplying the amount shown to be due in such acccunting statement by the Participant's Catawba Share. If the final accounting statement shows that such obligations and liabilities are less than such credits after application by PMPA of all i other funds available for such purpose, PMPA shall pay the Participant a sum determined by multiplying the amount of
the excess credit by the Participant's Catawba Share, unless otherwise directed by the Participant with respect to the application thereof. The final accounting statement shall be mailed, and amounts due thereunder shall be paid, in the same manner and under the same terms and conditions as is provided herein with respect to Billing Statements.
SECTION 6. Source of Payments by the Participants; Certain Obligations of Participants. (a) The obligations of the Participant to make the payments under Section 5 shall be an operating expense of its Electric Systen and be payable solely from the Revenues of its Electric System.
The Participant shall not be required to make any payments to PMPA under this Agreement except from the Revenues of its Electric System.
(b) The Participant covenants and agrees that it will fix, charge and collect rents, rates, fees and charges for electric power and energy and other services, facilities and commodities sold, furnished or supplied through the facilities of its Electric System at least sufficient to provide Revenues adequate to meet its obligations under this Agreement and under its Supplemental Power Sales Agreement, and to pay, together with any other funds or moneys available therefor, any and all other amounts payable from or con- ,
i stituting a charge or lien upon the Revenues, including, but not limited to, the principa: of and interest on any bonds, notes or other evidences of indebtedness heretofore or I hereafter issued which are secured in any manner by a pledge of the Revenues. l 1
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(c) The Participant covenants and agrees that in accordance with Usual Utility Practice it (i) shall at all 1 times operate the properties of its Electric System and the business in connection therewith in an efficient manner and at reasonable cost, (ii) shall maintain its Electric System in good repair, working order and condition, and (iii) shall from time to time make all necessary and proper repairs, renewals, replacements, additions, betterments, equippings and furnishings to its Electric System so that at a]' times the business carried on in connection therewith shall be properly and advantageously conducted. I (d) The Participant further covenants and agrees that it shall not abandon, sell, mortgage, lease or otherwise dispose of or encumber its Electric System or any part thereof except as permitted by the following provisions of paragraph (d) and (e) of this Section 6:
(1) The Participant may, in the ordinary course of the business of operating and maintaining its Electric System, abandon, scrap, trade-in, sell or otherwise dispose of any property or equipment if 7.he Participant determines that (i) such property or equipment is surplus, obsolete or otherwise not required for the operation and maintenance of its Electric System and (ii) the original cost of all property and equipment disposed of pursuant to this clause (1) in any fiscal j year of the Participant is less than the greater of
$5,000 or two per cent (2%) of the gross plant investment I
1
of the Electric System as reported on the books for the Electric System as of the end of the most recent fiscal year of the Participant for which such figure is available.
(2) The Participant may abandon, sell, lease, mortgage or otherwise dispose of or encumber any property and e quipment if the Participant determines, with the written concurrence of PMPA, that, taking into account past and current operating results of its Electric System and any replacements or intended replacements for such property and equipment to be disposed of, the proposed action will not have a materially adverse affect on the Revenues or the operations of its Electric System, or materially increase the operation and main-tenance expenses of its Electric Systen.
(3) The Participant may abandon, sell, mortgage, lease or otherwise dispose of or encumber its Electric System but only if (i) the Participant has assigned and transferred this Agreement and all interests herein (including Catawba Project Output) to one or more other Participants who have assumed all of the transferor Participant's du'.ies and obligations hereunder, in which case the transferor Participant shall be relieved from all such duties and obligations, and (ii) there shall have been filed with PMPA and all Participants an )
opinion of the Consulting Engineer to the effect that the Participant's Catawba Share of Catawba Project Output so assigned and transferred to each Participant
can be reasonably utilized by such Participant to meet the power and energy requirements of the customers of its Electric System or that, to the extent then permitted by law, there is a market for any surplus power and energy at reasonable rates in comparison to alternative power and energy sources anticipated to be available for a reasonable time thereafter; provided, however, that no such assignment or transfer shall be made at any time if the same would cause the aggregate Participants' Catawba Shares assigned or transferred pursuant to the provisions of clause (i) above to exceed twenty-five per cent (25%) of Catawba Project Output. .
(4) The Participant may merge or consolidate its Electric System with, or such Electric System may be merged or consolidated into, the Electric System or Systems or Combined Utility System or Systems of one or more other Participants.
(5) In the event of a disposition or encumbrance i permitted by clause (3) or a merger or consolidation 1
permitted by clause (4) of this paragraph (d), the l Participant shall provide to PMPA a counsel's opinion satisfactory in form and substance to counsel to PMPA, (i) that, in the event of such a disposition or encumbrance, the transferee Participan- .as assumed and l
become liable for the duties and obligatione of the transferor Participant to the extent of the transferor
Participant's Catawba Share obtained or (ii) in the evcat of such a merger or consolidation, that following such merger or consolidation the Electric System surviving such merger or consolidation shall remain, or shall
- have become subject to this Agreement and liable for the duties and obligations of the Participant hereunder, to the same extent that such Electric System had been so subject prior to such merger or consolidation.
The provisions of paragraphs (b) and (c) of this Section shall be subject to the provisions of clauses (3) and (4) of this paragraph (d).
(e) The Participant covenants and agrees not to issue, after the effect date of this Agreement, any bonds, notes or other evidences of indebtedness payable from the Revenues on a parity with or superior to the payment of its obligations under this Agreement for any purpose or combination of purposes other than to fund the cost of additions, replace-ments or improvements to its Electric System or its Combined Utility System or to refund outstanding obligations issued solely for the purpose of funding the cost of additions, replacements or improvements to its Electric System or its Combined Utility System. The Participant covenants and agrees not to issue bonds, notes or other evidences of indebtedness, or enter into any contract or agreement to take or to take or pay for power and energy, other than a power sales agreement with PMPA, payable from the Revenues en a parity with or superior to the payment of its obligations under this Agreement unless an independent
- 1 consulting engineer or engineering firm or corporation
- having a national and favorable reputation for special skill, knowledge and experience in analyzing the operations of utility systems shall render and file with PMPA a written l
opinion that the facilities for the financing of which the i bonds, notes or other evidences of indebtedness are being issued or with respect to which such agreement is being entered into are (or were when the Participant committed itself to them by contract or financing) reasonably expected to properly and advantageously contribute to the conduct of the business of its Electric System or Combined Utility System in an efficient and economical manner consistent with Usual Utility Practice and will not impair the ability of !
the Participant to raise Revenues sufficient to meet its l
obligations under Section 6(b) hereof. The Participant l further covenants and agrees not to combine with its Electric l i
i System or Combined Utility System, as the case may be, any additional system, function, service, enterprise or undertaking. l 1
(f) The Participant shall take no action the effect of which would be to prevent, hinder or delay PMPA from the timely fulfillment of its obligations under this Agreement, its Supplemental Power Sales Agreement, the Project Agreements, the Bond Resolution, the Bonds and other securities or evidences of indebtedness issued to provide the amounts due and payable by PMPA under the Sales Agreement, any agreements between PMPA and Duke or between PMPA and any
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Participant relating to Distribution Delivery Stations (as defined in the Interconnection Agreement) or any other ,
agreement between PMPA and any Participant. l SECTION 7. Dispatch; Metering; Deliveries. The j Catawba Project Output will be dispatched, metered and delivered in accordance with the Interconnection Agreement at the point in the Ca'tawba Nuclear Station switchyard where the Catawba Project interconnects with the facilities of Duke as specified and defined in the Interconnection Agreement.
SECTION 8. Records; Accounts; Reports; Audits.
PMPA shall keep accurate records and accounts relating to the Catawba Project and Catawba Project Output, separate and distinct from its other records and accounts and shall also keep accurate records and accounts relating to each " Additional Project" under the Bond Resolution other than an " Additional Project" described in Section 14 hereof which may for purposes of this Agreement be treated as part of the Catawba Project.
Such records and accounts shall contain information supporting the allocation and application of " Revenues" under the Bond Resolution with respect to the Projects so as to be able to accurately distinguish Monthly Catawba Project Power Costs and supporting the allocation of PMPA's indirect costs associated with the Catawba Project and Catawba Project Output. Such records and accounts shall be audited annually by a firm of independent certified public accountants, experienced in electric utility accounting and of national 1
reputation, to be employed by PMPA. Such records and accounts 1
and such annual audit, including all written comments and l
recommendations of such accountants, shall be made available for inspection by the Participant at any reasonable time at the principal office of PMPA.
The Participant shall keep accurate records and 1
accounts for its Electric System, separate and distinct from its other records and accounts. Such records and accounts shall be audited annually by a certified public accountant or a firm of certified public accountants who have no personal interest, direct or indirect, in the fiscal affairs of the municipal government or any of its officers which audit may be part of the annual audit of the accounts of the Participant.
Such records and accounts shall be made available for inspection by PMPA at any reasonable time, and a copy of such annual audit, including all written comments and recommendations of such accountants, shall be furnished to PMPA not later than one hundred twenty (120) days after the close of the Participant's fiscal year.
PMPA shall, following the close of each fiscal year thereof, submit an annual report of its activities for the preceding fiscal year to the Participant. Each such report shall set forth a complete operating and financial statement covering the operations of PMPA.
SECTION 9. Information to be Made Available. (a)
Subject to the provisions of the Project Agreements and the By-Laws of PMPA, there shall be available for inspr.ction at any reasonable time by the Participant the following:
o (1) drawings, plans, specifications and terms of contracts relating to the acquisition, construction and operation of the Catawba Project; (2) agreements and data relating to the financing of the Catawba Project; (3) operating and financial records and reports relating to the Catawba Project; and (4) policies of insurance carried pursuant to Section 10 hereof.
(b) Subject to the provisions of the Project Agreements, the Participant's representatives shall at all times be given reasonable access to the Catawba Project.
(c) The Participant shall, upon request, furnish to PMPA all such information, certificates, engineering reports, feasibility reports, financial statements, opinions of counsel and other documents as shall be reasonably necessary in connection with the financing of the Catawba Project.
The reasonable costs of producing or obtaining the same shall be a part of the Costs of Acquisition and Construction of the Catawba Project reimbursable to the Participant.
SECTION 10. Insurance. Subject to the provisions of the Project Agreements and the Bond Resolution, PMPA shall maintain, or cause to be maintained, in force, as part of the Costs of Acquisition and Construction of the Catawba Project or Monthly Catawba Project Pcwer Costs, as appropriate, insurance with responsible insurers with policies payable to PMPA, against risk of direct physical 3oss, damage or destruction
o of the Catawba Project, at least to the extent that similar insurance is usually carried by utilities constructing and operating electric generation and related facilities of the nature of the electric generation and related facilities of the Catawba Project, including liability insurance and employers' liability, all to the extent available at reasonable cost but in no case less than will satisfy all applicable regulatory requirements and conform to Usual Utility Practice.
SECTION 11. Sale of Excess Participant's Catawba Share. Subject to the Project Agreements, in the event that the Participant shall determine that all or any part of the Participant's Catawba Share of Catawba Project Output is in excess of the requirements of the Participant, the Participant ,
shall notify PMPA of such determination and PMFA shall use its best efforts to sell and transfer for any period of time all or part of su'ch excess. The other Participants shall have the first right to accept each such disposal pro rata among those exercising such right. To the extent not then required by any of the Participants, PMPA shall use its best efforts to dispose of such excess in accordance with the Act and the Prcject Agreements. If all or any portion of such excess of the Participant's Catawba Share of Catawba Project Output is sold pursuant to this Section, the Participant's Catawba Share shall not be reduced and the Participant shall remain liable to PMPA to pay the full amount of its Participant's Catawba Share of Monthly Catawba Project Power Costs as if I l
such sale had not been made; provided, however, that such
e liability shall be discharged to the extent that PMPA shall receive payment for such excess Catawba Project Output from the purchaser or purchasers thereof.
SECTION 12. Obligations in the Event of Defaulc.
, (a) Upon failure of the Participant to make any payment in full when due under this Agreement or its Supplemental Power Sales Agreement or to perform any other obligation herein, ,
PMPA shall make demand upon the Participant, and if said failure is not cured within fifteen (15) days from the date of such demand it shall constitute a default at the expiration ,
l of such period. Notice of such demand shall be provided to the other Participants by PMPA.
(b) If the Participant shall fail to pay any l amounts due to PMPA under this Agreement or its Supplemental Power Sales Agreement, or to perform any other obligation j hereunder which failure constitutes a default under this i Agreement, PMPA may, and, if such default shall have caused an " Event of Default" (as defined in the Operating Agreement) with respect to PMPA to have occurred and be continuing for a period of one (1) year, at the request of Duke, shall, i
terminate the provisions of this Agreement insofar as the same entitle the Participant to its Participant's Catawba i Share of Catawba Project Output. Except for such termination, the obligations of the Participant under this Agreement shall continue in full force and effect. For purposes of applying the other provisions of this Section, such a terminstion shall be considered to be a default under this Agreement.
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(c) Upon the failure of the Participant to make l l
any payment which failure constitutes a default under this Agreement, or upon termination as provided in paragraph (b) of this Section, PMPA shall use its best efforts to sell and transfer all or a portion of the Participant's Catawba Share l l
of Catawba Project Output for all or a portion of the remainder l of the term of this Agreement in accordance with the Act.
l The other Participants shal, have the first right to accept each such disposal pro rata among those exercising such right. If all or any portion of the Participant's Catawba Share of Catawba Project Output is transferred pursuant to this paragraph, the Participant's Catawba Share shall not be reduced, and the Participant shall remain liable to PMPA to pay the full amount of its Participant's Catawba Share of Monthly Catawba Project Power Costs as if such sale had not been made, except that such liability shall be discharged to the extent that PMPA shall receive payment from the purchaser or purchasers thereof.
(d) Upon the failure of any other Participant to make any payment which failure constitutes a default under this Agreement, or upon termination as provided in paragraph (b) of this Section, and except as transfers are made pursuant to paragraph (c) of this Section, the Participant's Catawba Share of each nondefaulting Participant shall be automatically increased for the remaining term of this Agreement pro rata with that of the other nondefaulting Participants and the defaulting Participant's(s') Catawba Share (s) shall be l
reduced correspondingly; provided, however, that no such reduction shall reduce the defaulting Participant's(s')
obligations under paragraph (e) of this Section, and provided further, however, that the sum of such increases for any i
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nondefaulting Participant pursuant to this paragraph shall not exceed, without consent of the nondefaulting Participant, an accumulated maximum of twenty-five per cent (25%) of the nondefaulting Participant's Catawba Share prior to any such increases.
(e) If the Participant shall fail or refuse to pay any amounts due to PMPA hereunder, the fact that other
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Participants have assumed the obligation to make such payments shall not relieve the defaulting Participant of its liability for such payments, and any Participants assuming such obligation, either individually or as a member of a group, shall have a right of recovery from the defaulting Participant. PMPA or any Participants as their interests may appear, jointly or severally, may commence such suits, actions or proceedings, at law or in equity, including suits for specific performance, as may be necessary or appropriate to enforce the obligations of this Agreement against the defaulting Participant.
(f) In the evant of any default by PMPA under any covenant, agreement or obligation of this Agreement, the Participant may, upon fifteen (15) days written notice to PMPA, bring any suit, action or proceeding, in law or in equity, includin, mandamus, injunction and action for specific l
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performance, as may be necessary or appropriate to enforce any covenant, agreement or obligation of this Agreement against PMPA.
(g) No remedy conferred upon or reserved to the parties hereto is intended to be exclusive of any other remedy or remedies available hereunder or now or hereafter existing at law, in equity, by statute or otherwise, but each and every such remedy shall be cumulative and shall be in addition to every other such remedy. The pursuit by either party of any specific remedy shall not be deemed to be an election of that remedy to the exclusion of any other or others, whether provided hereunder or by law, equity or statute.
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(h) Any waiver at any time by either party to this Agreement of its rights with respect to any default of the other party hereto, or with respect to any other matter arising in connection with this Agreement, shall not be considered a waiver with respect to any subsequent default, right or matter.
J SECTION 13. Rights of Duke Hereunder. In addition to the rights described in paragraph (b) of Section 12, Duke shall have the right, as a third party beneficiary, to maintain suit to enforce this Agreement whenever any " Event of Default" by PMPA as defined in the Operating Agreement shall have occurred and shall not have been fully cured and in such enforcement Duke shall have the same rights as PMPA to enforce this Agreement. It is recognized that the exercise
of any of such rights by Duke shall not affect any rights of Duke against PMPA whether arising under the Project Agreements, at law, in equity, provided by statute, or otherwise.
SECTION 14. Issuance of Bonds for Renewals, Etc.,
and for Refunding. In addition to the issuance of Bonds to pay the Costs of Acquisition and Construction of the Catawba Project as provided in Section 3 hereof, PMPA may issue Bonds in accordance with the provisions of the Bond Resolution at any time and from time to time in the event funds are required to provide for:
(1) renewals, extraordinary repairs, replace-ments, modifications, capital additions and betterments for the Catawba Project (a) which are required by any governmental agency or authority with authority to issue or make and enforce an order or decision requiring the same or (b) which in the opinion of the Consulting Engineer are necessary or desirable to achieve design capability, to improve operating reliability, to reduce unit power costs or for safety, public health or environmental purposes; (2) acquisition of fuel for the Catawba Project, including land, rights, leases, options, working capital, equipment, structures, facilities, advances or prepayments and reserves therefor, including any fuel costs which PMPA is responsible for under the Project Agreements; I
(3) retirement from service, decommissioning or termination of the Catawba Project;
(4) renewals, extraordinary repairs, replacements, modifications, capital additions and betterments to, and retirement from service, decommissioning or termination of, the Catawba Project for which PMPA is responsible under the Project Agreements including, but not limited to, any costs incurred under the exchange payment provisions of Article 14 of the Interconnection Agreement; provided, however, that PMPA 1 hall not voluntarily consent to any such renewal, extraordinary repair, replacement, modification, capital addition or betterment (a) unless the same are required by any governmental agency or authority with authority to issue or make and enforce an order or decision requiring the same or (b) ,
unless in the opl.aion of the Consulting Engineer the same are necessary or desirable to achieve design capability, to improve operating reliability, to reduce unit power costs or for safety, public health or en-vironmental purposes;
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(S) refunding any Bonds; (6) the deposit or deposits required to be made under the Bond Resolution from the proceeds of Bonds into any fund or account established pursuant to the Bond Resolution; and (7) refunding any note or other evidence of indebtedness issued in anticipation of the issuance of Bonds the proceeds of which have been or are to be f applied to one or more of the purposes specified in clauses (1) through (6) of this Section.
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Bonds shall be issued for the purposes specified l l
in clauses (1) through (4) of this Section only to the i
extent that PMPA is not reimbursed for the payment of the costs set forth in such clauses from the proceeds of insurance
. or funds for such payment are not available to PMPA for the Catawba Project from any funds set aside in any fund or i
account established under the Bond Resolution.
SECTION 15. Consulting Engineer. PMPA will retain on a continuous basis, as Consulting Engineer, an independent consulting engineer or engineering firm or 4 , corporation having a national and favorable reputation for special skill, knowledge and experience in analyzing the operations of electric utility systems, preparing rate analyses, forecasting the loads and revenues of electric utility systems and in the marketing of power and energy therefrom (which Consulting Engineer shall be the consulting engineer appointed and retained by PMPA under the Bond Resolution) to advise PMPA upon request and render opinions to PMPA upon request on matters relating to electric power generation, transmission, power supply, electric utility operations, rates and charges, electric utility economics i and financing, and budgets. PMPA shall cause the Consulting Engineer to prepare within one hundred sixty (160) days following the close of each Contract Year an annual engineering report with respect to the Catawba Project and Catawba Project Output as affected by the Project Agreements for the 4
immediately preceding Contract Year, which report shall contain a copy of the annual audit and shall include, to the extent then applicable:
(1) a report on the operations of PMPA with respect to the Catawba Project and Catawba Project Output as affected by the Project Agreements; (2) a report on the management of the Catawba Project; (3) a report on the sufficiency of rates and charges for services relating to the Catawba Project; x and (4) conclusions as to changes in operation of the Catawba Project and the making of repairs, renewals, replacements, extensions, betterments and improvements to the Catawba Project.
I f, in the performance of its duties, the Consulting Engineer becomes aware of the fact that PMPA in any material way shall have failed to perform or comply with the covenants and agreements contained in the Bond Resolution, or PMPA or l
any other party in any material way shall have failed to perform or comply with the covenants and agreements contained in the Project Agreements, the Catawba Project Power Sales Agreements or the Supplemental Power Sales Agreements, such report shall specify the details of such failure. In the making of such report, the Consulting Engineer may rely, unless the Consulting Engineer has reason to believe that 1
any of the reports or findings is not accurate, upon the i
o audit report of the independent certified public accountants to PMPA, reports of Duke with respect to the Catawba Project and the Catawba Nuclear Station and the reports and findings of qualified independent consultants to PMPA having special skill, knowledge and experience with respect to the matters relied upon.
(b) PMPA shall cause a copy of said engineering report to be_ furnished to the Participant.
(c) A report containing the information required in subsection (a) of this Section may be combined with or prepared as a part of the Consulting Engineer's Report required by Section 10 of the Supplemental Power Sales Agreements and Section 7.9 of the Bond Resolution.
SECTION 16. Modification and Uniformity of Agree-ments. (a) This Agreement shall not be subject to termination by any party under any circumstances, whether based upon the default of any other party under this Agreement, or any other instrument, or otherwise, except as specifically provided in this Agreement.
(b) This Agreement shall not be amended, modified or otherwise changed, or rescinded, by agreement of the parties (i) in any manner that will have a material adverse 1
effect on the security afforded by the provisions of this Agreement for the payment of the principal of and premium, if any, and interest on the Bonds as they respectively become payable, so long as any of the Bonds are outstanding and unpaid or funds are not set aside for the payment or
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retirement thereof in accordance with the Bond Resolution, (ii) in any manner that would limit or reduce the obligation of the Participant to make payments pursuant to paragraph !
(d) of Section 5 hereof or (iii) with respect to the following p;ovisions of this Agreement without the prior written consent of Duke: paragraphs (b) and (f) of Section 6, paragraph (b) of Section 12, Section 13, clause (iii) of paragraph (b) of this Section 16 and paragraph (a) of Section 17.
(c) If any other Catawba Project Power Sales Agreement is amended or replaced so that it contains terms and conditions different from those contained in this Agreement, PMPA shall notify tiie Participant and upon timely request by the Participant shall amend this Agreement to include similar terms and conditions.
SECTION 17. Continuance and Enforcement of Agreement.
(a) Except as provided in paragraph (b) of Section 12, PMPA shall continue this Agreement in full force and effect and shall enforce this Agreement in accordance with its terms to the extent permitted by law.
(b) The failure of a party to enforce at any time any of the provisions of this Agreement or to require at any time per ormance by the other party of any of the provisions hereof shall in no way be construed to be a waiver of such provisions, nor in any way to affect the validity of this Agreement or any part hereof, or the right of such party ;
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thereafter to enforce each and every such provision.
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SECTION 18. Relationship to Other Instruments.
It is recognized by the parties hereto that PMPA in the ownership, construction, acquisition and operation of the Catawba Project must comply with the requirements of the Project Agreements, the Bond Resolution and all licenses, permits and regulatory approvals necessary for such ownership, construction, acquisition and operation, and it is therefore agreed that this Agreement is made subject to the terms and provisions of the Project Agreements, the Bond Resolution and all such licenses, permits and regulatory approvals.
FECTION 19. Notices and Computations of Time.
Any notice or de;&nd given by the Participant to PMPA under this Agreement shall be deemed properly given if mailed postage prepaid and addressed to the chief executive officer of PMPA at its principal office designated in writing as filed with the Participant by PMPA. Any notice, demand, budget or statement given or rendered by PMPA to the Participant under this Agreement shall be deemed properly given or rendered if mailed postage prepaid and addressed to the person and at the address as designated in writing filed with PMPA by the Participant. The designations of the name and cddress to which any such notice or demand is directed may be changed at any time and from time to time by either party giving written notice as above provided.
In computing any period of time prescribed or alloaed under this Agreement, the day of the act or event after which the designated period of time begins to run is
not to be included. The last day of the period so computed is to be included, unless it is a Saturday, a Sunday, or a legal hcliday in South Carolina, in which event the period runs until the end of the next day which is not a Saturday, a Sunday or a legal holiday in South Carolina.
SECTION 20. Applicable !?w; Construction. This Agreement is made under and shall be governed by the laws of the State of South Carolina. Headings herein are for con-venience only and shall not influence the construction hereof.
SECTION 21. Severability. If any section, para-graph, clause or provision of this Agreement shall be finally adjudicated by a court of competent jurisdiction to be ,
invalid, the remainder of this Agreement shall be unaffected by such adjudication and all of the remaining provisions of this Agreement shall remain in full force and effect as though such section, paragraph, clause or provision or any part thereof so adjudicated to be invalid had not been included herein. In the event of any such invalidity, the parties hereto shall promptly negotiate in good faith valid i new provisions to restore the agreement to its original l intent and effect.
SECTION 22. Assignment of Agreement. This Agree-ment shall inure to the benefit of, and shall be binding upon, the respective successors and assigns of the parties l
to this Agreement; provided, however, that neither this Agreement nor any interest herein (including Catawba Project
. _ _ _ - - _ _ __ _ _ _ _ . - _ _ _ _ _ _ _ _ . . _ _ _ _ _ _ _ _ . ~ _ _ . _ _ _ . _ . _ _ _ _ _ . . _ _ - . . _ _ _ .
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output) shall be assigned or transferred or sold by the Participant without the written consent of PMPA, except as expressly permitted by Sections 6 and 12 hereof, or if in the opinion of counsel to PMPA such assignment or transfer
, or sale would adversely affect the exemption from Federal income taxation of the interest on the Bonds or would be unlawful or violate any provision of the Project Agreements.
Except as expressly provided in Section 6 hereof, no such assignment or transfer or sale shall relieve the Participhnt of any obligation hereunder.
SECTION 23. Entire Agreement. This Agreement shall constitute the entire understanding among the parties hereto, superseding any and all previous understandings, oral or written, pertaining to the subject matter contained herein. No party hereto has relied, or will rely, upon any oral or written representation or oral or written information made or given to such party oy any representative of the other party or anyone on its behalf.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement all by authority of their respective governing bodies duly given.
Executed this day of _ , 1980.
(Name of Participant)
By_
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Title:
[ Seal Here)
Executed this day of , 1980. ;
PIEDMONT MUNICIPAL POWER AGENCY P
i By Chairman Attest: i t
Secretary i
[ Seal Here)
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EXHIBIT A PARTICIPANTS AND PARTICIPANTS' CATAWEA SHARES Participant's Preliminary Catawba Share City of Abbeville 2.3546%
City of Clinton 6.8952 City of Easley 11.6411 City of Gaffney 8.8317 City of Greenwood 14.2598 City of Greer 8.2119 City of Laurens 5.7032 City of Newberry 9.2058 Town of Prosperity 0.4988 City of Rock Hill 24.6465 City of Seneca 7.3353 City of Union 8.8023 -
Town of Westminster 1.6138 Total 110.0000
< >91< ,$l// IMAGE EVALUATION 4.
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L FORM OF
! PIEDMONT MUNICIPAL POWER AGENCY
, SUPPLEMENTAL POWER SALES AGREEMENT i
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1 TABLE OF CONTENTS Section Page 1 Definitions.......................................... 3 2 Term of Agreement.................................... 9 3 Sale and Purchase of All Requirements Bulk Power Supply and Supplemental Bulk Power Supply.......... 10 4 Rates and Charges....... ............................ 17 5 Total Annual Budget and Monthly Bills Payments by the Participant.................................... 18 6 Rate Review; Payment Sources and Certain Obligations of Participants.................................... 22 7 Obligations in the Event of De fault. . . . . . . . . . . . . . . . . . 26 8 Rights of Duke and Others Hereunder.................. 28 .
9 Dispatch; Deliveries; Distribution Delivery Station Costs; Load Forecasts; System Reliability.......... 29 10 Consulting Engineer.................................. 34 11 Participant Planning and Operations.................. 35 12 Miscellaneous General Provisions..................... 37 13 Future Projects; Supplemental Projects and Future Participants....................................... 43 14 Records; Accounts; Reports; Audits................... 45 15 Modification and Uniformity of Agreements............ 46 16 Assignment of Agreement.............................. 47 17 Severability......................................... 48 18 Applicable Law; Construction......................... 48 19 Survivorship of Obligations.......................... .49 20 No Delay............................................. 49 21 Further Documentation................................ 50
f Section Page .
22 Incorporation of Exhibits............................ 50 23 Continuance and Enforcement of Agreement............. 50 3 24 Relationship to Other Instruments.................... 51 ;
- 25 Entire Agreement..................................... 51 i I
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PIEDMONT MUNICIPAL POWER AGENCY SUPPLEMENTAL POWER SALES AGREEMENT THIS AGREEMENT, dated as of the first day of August, 1980, by and between Piedmont Municipal Power Agency, a public body corporate and politic of the State of South Carolina ("PMPA"), and , the !
municipality of the State of South Carolina which has executed this agreement (the " Participant").
WHEREAS, PMPA has heretofore been duly organized .
as a public body corporate and politic in accordance with the Act No. 473 of the General Assembly of the State of South Carolina, Regular Session of 1978, as amended (Code of Laws of South Carolina 1976, Title 6, Sections 6-23-10 i
through 6-23-330, inclusive) (the "Act"), and, among other i things, is authorized to sell for resale electric power and energy; and WHEREAS, the Participant is a municipality created under the laws of the State of South Carolina, owning for at least ten (10) years a system or facilities for the generatien, transmission or distribution of electric power and energy, ;
i is located within the area generally served by Duke Power Company (" Duke") and is authorized by said laws to contract to buy from PMPA some or all of the power and energy required for its present or future requirements; and
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WHEREAS, the Participt.nt has need of an economical i
and reliable source of electric power and energy to meet the ;
growing demands of its customers and has determined to !
I purchase such electric power and energy from resources ,
owned, controlled, or purchased by PMPA; and t WHEREAS, PMPA proposes to finance, own, operate, I and maintain a twenty-five per cent (25%) undivided owner- l ship interest in Unit 2 of the Catawba Nuclear Station (hereinafter defined) (the " Catawba Project") which was i
under construction at the time of approval of the Act, the f
remaining seventy-five per cent (75%) undivided ownership ,
interest in Unit 2 of the Catawba Nuclear Station being owned by North Carolina Ls..iicipal Power Agency Number 1, a joint agency of the State of North Carolina; and WHEREAS, PMPA has entered into the Project Agreements (hereinafter defined) with respect to the purchase, construction, ,
operation and fueling of the Catawba Project, and interconnection of the Catawba Project with Duke's system, including backstand l and reliability exchange provisions and copies of the Project Agreements have been furnished to the Participant; and WHEREAS, PMPA proposes to sell, and the Participant proposes to purchase, Catawba Project Output pursuant to a Catawba Project Power Sales Agreement and the balance of its All Requirements Bulk Power Supply (hereinafter defined) !
pursuant to the terms of this Agreement; l
NOW, THEREFORE, the parties hereto mutually agree as follows:
SECTION 1. De finitions . Unless the context shall clearly indicate some other meaning or may otherwise require, the terms defined in this Section shall, for all purposes of this Agreement and of any agreement or other instrument amendatory hereof or supplemental hereto, have the meanings herein specified, with the following definitions to be equally applicable to both the singular and plural forms of any terms herein defined. Terms not defined herein shall have the meanings assigned thereto by the Catawba Project Power Sales Agreements and the Project Agreaments.
"Act" means Act No. 473 of the General Assembly of the State of South Carolina, Regvirar Session of 1978, as amended and supplemented (Code of Laws of South Carolina 1976, Title 6, Sections 6-23-10 through 6-23-330, inclusive).
" Additional Project" shall have the same meaning assigneel thereto in Article I of the Bond Resolution.
"All Requirements Sulk Power Supply" means, with respect to the Participant, all electric power and energy required by the Particips.nt at its Delivery Point (s) (as defined in the Interconnection Agreement), exclusive of any purchases of power and energy by the Participant from the
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Southeastern Power Administration ("SEPA") and power and energy derived from the existing generating capacity of the Participant, if any.
" Bond Resolution" means the resolution adopted by the Board of Directors of PMPA on August 14, 1980 entitled, "A RESOLUTION AUTHORIZING AND PROVIDING FOR THE ISSUANCE OF ELECTRIC REVENUE BONDS OF PIEDMONT MUNICIPAL POWER AGENCY TO FINANCE THE ACQUISITION AND CONSTRUCTION OF PROJECTS, INCLUDING AN OWNERSHIP INTEREST IN A NUCLEAR FUELED GENERATING PLANT TO BE KNOWN AS CATAWBA NUCLEAR STATION UNIT 2, AND FOR OTHER PURPOSES RELATED THERETO; PRESCRIBING THE FORM OF ELECTRIC REVENUE BONDS ISSUED HE?EUNDER; COVENANTING AS TO THE REVENUES .
AND THE FIXING, ESTABrISHMENT AND COLLECTION OF RATES, TOLLS, RENTS AND CHARGES FOR THE CAPABILITY OF THE PROJECTS AND THE POWER AND ENERGY DERIVED DIRECTLY AND INDIRECTLY THEREFROM; PLEDGING SUCH REVENUES AND OTHER FUNDS TO THE PAYMENT OF THE PRINCIPAL OF AND INTEREST ON SUCH BONDS; PROVIDING FOR THE ISSUANCE OF ADDITIONAL PARITY BONDS; AND MAKING OTHER COVENANTS AND AGREEMENTS IN CONNECTION WITH THE FOREGOING," as the same may be amended or supplemented, pursuant to which the Bonds are to be issued.
" Bonds" means bonds issued from time to time pursuant to and under authority of the Bond Resolution.
" Catawba Project" means PMPA's twent, ,1ve per cent (25%) undivided ownership interest in Unit 2 of the Catawba Nuclear Station.
" Catawba Project Power Sales Agreement" means the Piedmont Municipal Power Agency Catawba Project Power Sales Agreen. ant dated as of the date hereof entered into by the Participant and each other agreement substantially identical thereto entered into by the Participants with respect to the purchase and sale of Catawba Project Output.
" Contract Year" means the 12-month period commencing 12:01 a.m. local time on January 1 of each year during the ,
term of this Agreement and ending midnight local time on the December 31 next following (or such other 12-month period as PMPA shall determine); provided, however, that the first Contract Year shall commence at 12:01 a.m. local time on the i
date on which supplemental Capacity (as defined in the l
Interconnection Agreement) is furnished to PMPA pursuant to the Interconnection Agreement; and provided further, however, that the last Contract Year shall end at midnight local time on the date of termination of this Agreement as provided in Section 2 herein.
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" General Facilities Projects" means any load ]
l management or administrative facilities and any studies of a !
general nature, including, but not limited to, studies
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relating tn Distribution Delivery Stations required to serve the Participants, the financing of which is projected by the Consulting Engineer to be economically beneficial to the Participants over the life of such facility taken as a whole
= when compared to any alternative method of meeting such ,
obligation or reEponsibility of PMPA other than the financing thereof as contemplated by Section 13(a) hereof.
" Monthly Bill" meant the written statement prepared ;
monthly by PMPA and delivered to the Participant pursuant to Section 5 hereof.
" Participant" means the (City of or Town of)
, which has entered into with this Agreement with PMPA.
" Participants" mean any of the folowing entities which now or hereafter enter into Supplemental Power Sales Agreements:
City of Abbeville City of Laurens City of Clinton City of Newberry Town of Due 5iest Town of Prosperity City of Easley City of Rock Hill City of Gaffney City of Seneca City of Greenwood City of Union City of Greer Town of Westminster and any other entity which Duke and PMPA shall agree to include as a " Municipal System" under the Project Agreements which shall now or hereafter enter into a Supplemental Power Sales Agreement.
. SP *
" Project" shall have the same meaning assigned thereto in Article I of the Bond Resolution.
" Project Agreements" mean the agreements defined in the Catawba Project Power Sales Agreements as follows:
(i) Sales Agreement (ii) Operating Agreement (iii) Interconnection Agreement (iv) Joint Agency Ownership Agreement.
" Project Power Sales Agreementr" shall have the same meaning assigned thereto in Article I of the Bond Resolution.
" Supplemental Bulk Power Supply" means, with respect to a Participant, that portion of All Requirements Bulk Power Supply required by such Participant in excess of that supplied to such Participant from (1) Catawba Project Output pursuant to the Catawba Project Power Sales Agreem'ent,
. (2) any project output from a project financed as an Additional Project under the Bond Resolution from which such Participant receives electric power and energy pursuant to its Project Power Sales Agreement with respect to such Additional Project, and (3) from any future projects cuned or controlled by PMPA not financed as a Project under the Bond Resolution but instead financed as a separate system from which such Participant separately contracts with PMPA to purchase
I electric power and energy. Since Catawba Project Output is sold to the Participants in the Catawba Project at the point i
of electrical connection of the Catawba Project with the ,
transmission facilities required to deliver Catawba Project Output to the Participants in the Catawba Project pursuant ,
to the Catawba Project Power Sales Agreements, Supplemental i
Bulk Power Supply shall include all transmission service to deliver All Requirements Bulk Power Supply to the Participant's i
Delivery Point (s) and provision of all reserves and other I i
backstand services, supplemental capacity and energy, and ,
all other types of purchases and interchange service necessary to integrate Catawba Project Output into PMPA's overall bulk f power supply arrangement and deliver All Requirements Bulk Power Supply to the Participants. To the extent not otherwise provided in any project power sales agreement with respect to a project described in (2) or (3) above the servi'ces ,
specified in the immediately preceding sentence with respect to such project shall also be included in Supplemental Bulk Power Supply. ,
" Supplemental Power Sales Agreement" means this Agreement and each other Agreement substantially identical i
to this Agreement, except as provided in Section 4 hereof, entered into by PMPA and any Participant with respect to the purchase and sale of Supplemental Bulk Power Supply, including any snendments thereto and any subsequent supplemental power sales agreement entered into by PMPA and a Participant as a result of the provisions of Sections 3(f) and 3(g) hereof and thereof.
" Supplemental Power Costs" for any period shall mean all costs associated with or incidental to All Require-ments Bulk Power Supply for such period less (1) Monthly ,
Catawba Project Power Costs e (2) mont hly project power costs with respect to any project financed as : Additional Project under the Bond Resolution and (3) the monthly project power costs with respect to any future projects owned or controlled by PMPA, not financed as a Project under the Bond Resolution, bat instead financed as a separate system from which the Participant separately contracts with PMPA to purchase electric power and energy.
" Total Annual Budget" means the budget adopted by PMPA pursuant to Section 5 hereof.
SECTION 2. Term of Agreement. This Agreement shall be effective upon due execution and delivery of Catawba Project Power Sales Agreements and Supplemental Power Sales Agreements by PMPA and the Participants whose Participants' Preliminary Catawba Shares total one hundred per cent (100.0%)
or more and upon closing under the Sales Agreement or, if this Agreement shall be executed on or after the occurrence of such events, on the date of due execution and delivery thereof. -The term of this Agreement shall be thirty (30) years from and after the closing under the Sales Agreement; provided, however, that the term shall be automatically extended for one additional term of twenty (20) years unless ;
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the Participant shall have notified PMPA in writing at least ten (10) years prior to the expiration of the original term. ;
This Agreement may be terminated by PMPA: (i) upon the l termination or expiration of all of the Participant's l Project Power Sales Agreements or (ii) as provided in ,
Sections 3(f) and 7(b) of this Agreement. This Agreement may be terminated by the Participant at the end of any Contract Year upon ten (10) years' written notice to PMPA.
Termination of this Agreement shall in no way modify the terms and conditions of the Catawba Project Power Sales Agreement between PMPA and the Participant, the terms and conditions of any other powe2 sales agreement entered into between the Participant and PMPA for a portion of All Requirements Bulk Power Supply other than Supplemental Bulk Power Supply, or the Participant's obligations pursuant to Section 3(g) of this Agreement.
This Agreement shall not be subject to termination by any party under any circumstances, whether based upon the default of any other party under this Agreement or any other instrument or otherwise, except as specifically provided in this Agreement.
Termination or expiration of this Agreement shall not affect any accrued liability or obligation hereunder.
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8 SECTION 3. Sale and Purchase of All Requirements Bulk Power Supply and Supplemental Bulk Power Supply.
(a) Commencing with the first day of the first Contract Year, PMPA shall provide or cause to be provided and sell, and the Participant shall purchase from PMPA, the All Requirements Bulk Power Supply requ.tements of the Participant. PMPA will be responsible in accordance with the provisions of this Agreement for planning, negotiating, l designing, financing, acquiring or constructing, contracting for, administering, operating, and maintaining all generation l and transmission arrangements and facilities and power purchases necessary to effect the delivery and sale of All ,
Requirements Bulk Power Supply to the Participant during the term of this Agreement. In furtherance of PMPA's obligations to sell and the Participant's obligations to purchase hereunder, All Requirements Bulk Power Supply shall be initially supplied in the following manner: Catawba Project Output shall be sold and purchased pursuant to the provisions of Section 5(d) of the Catawba Project Power Sales Agreement (which provisions may be characterized as an obligation to pay Monthly Catawba Project Power Costs on a take or pay basis whether or not Catawba Project Output is delivered or provided) and Supplemental Bulk Power Supply shall be sold and purchased pursuant to the provisions of this Agreement (whien provisions may be characterized as an obligation to pay for power and energy and other services on a take and pay basis to the extent delivered or provided).
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(b) Supplemental Bulk Power Supply shall be obtained or furnished and delivered or caused to be delivered by PMPA in the manner it determines to be most economical, dependable, and otherwise feasible. PMPA has determined
- that initially Supplemental Bulk Power Supply shall be obtained and furnished to all Participants in accordance with the Interconnection Agreement between PMPA and Duke.
Pursuant to the terms of the Interconnection Agreement, while fully effective, and subsequent to any termination thereof by PMPA as provided therein, PMPA may provide for Supplemental Bulk Power Supply by any additional or alternative means, including, but not limited to, one or more of the following methods: (1) purchase by PMPA of power generated by one or more other power suppliers and transmission thereof over the facilities of one or more other power suppliers, either solely or in combination with PMPA's transmission facilities, if any; (2) acquisition or construction by PMPA of generation or transmission facilities in addition to the Catawba Project or any other project supplying a portion of All Requirements Bulk Power Supply other than Supplemental Bulk Power Supply; (3) acquisition or construction by PMPA of such additional generation faSilities and transmission of the power and energy generated thereby over the facilities of one or more other power suppliers, either solely or in combinr4 tion with PMPA transmission facilities, if any; or (4) generation, transmission and delivery by one or more 1
)
other power suppliers, pursuant to a contract arrangement
therefor obtained or approved by, or assigned to, PMPA for and on behalf of Participant as its agent for that purpose.
In the event that any such method or any combination of such methods is such that Participant makes payment for any part I
of such power supply service directly to one or more other power suppliers, such payments stall nevertheless be accounted '
for as though the same were paid by PMPA, and Participant shall be credited therewith as an offset to PMPA's rates and charges to Participant with respect to the same billing period, accordingly.
(c) The Participant shall (1) at such time or times as PMPA shall specify, transfer and assign to PMPA, in whole or in part, such of any then existing contracts between Participant and Duke as may be necessary or desirable to enable PMPA to exercise its rights and to perform its obligations set forth in this Agreement and the other Supplemental Power Sales Agreements, such transfer and assignment to become effective on the first day of the first Contract Year; (2) enter into such supplemental contract or contracts with PMPA or any other bulk power supplier, the terms and provisions of which shall not be inconsistent with this Agreement, as
.nay be necessary or desirable to enable PMPA and Participant fairly, reasonably, and equitably to exercise and perform their respective rights and obligations under this Agreement; and (3) not enter into any modification or amendment of a contract, with any other bulk power supplier,
except SEPA, without the prior written consent and approval of PMPA which consent and approval shall not be withheld by PMPA if such new contract, or modification or amendment of a contract, is not inconsistent with the provisions of this Agreement.
(d) From and after the effective date of this Agreement, neither PMPA nor Participant shall enter into any new contract or permit any then or thereafter existing contract to be renewed or extended, however such renewal or extension may be effectuated, including failure of a party thereto timely to cancel and terminate the same upon any anniversary date when such is possible, or enter into any amendment to or modification to such a contract, with any other bulk power supplier which shall preclude or impair the ability of PMPA or Participant to exercise and perform its rights and obligations under this Agreement. !
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(e) PMPA, for the purpose of carrying out its rights and obligations under this Agreement, shall be, and Participant hereby designates and appoints PMPA as, Participant's sole agent to the fullest legal extent that such agency may be established for such purposes.
(f) Nothing in this Agreement shall preclude or impair the right or ability of PMPA and the Participant or other Participants to enter into a separate or additional
contract for the furnishing by PMPA of all or any portion of such Participant's Supplemental Bulk Power Supply requirements from one or more facilitiec that may be acquired or con-structed by PMPA in addition to the Catawba Project, or PMPA's right or ability to contract to obtain power and energy from, or to utilize in any lawful manner the generation or transmission facilities of, Participant or any other Participant. Notwithstanding any other provision of this Agreement, PMPA's obligation to provide Supplemental Bulk Power Supply to the Participant from and after any date, current or future, as may be fixed by the Board of Directors of PMPA shall, if PMPA determines that to provide such Supplemental Bulk Power Supply it is necessary or desirable that it acquire or construct additional generation or trans-mission facilities or enter into power purchase agreements or interconnection agreements and for the Participant to enter into an additional agreement with PMPA in respect thereto similar to the Participant's Catawba Project Power Sales Agreement, be conditioned upon the Participant's entering into such additional project power tales agreement.
If the Participant fails to enter into such additional project power sales agreement, such failure shall automa-tically, effective from and after such fixed date, terminate this Agreement and PMPA and the Participant shall negotiate in gooc faith to enter into a new supplemental power sales agreement having suc. additional terms and conditions as PMPA may reasonably require. Participant shall not undertake
s e
i any additional self-generation capacity or enter into any new contract to supply any portion of its pcwer and energy requirements from any source other than PMPA or SEPA, with-out the prior written consent and approval of PMPA. In determining whether to grant such consent and approval PMPA shall con.1 der the best interests of PMPA and the other Participants and such determination shall be conclusive.
PMPA, at its sole option, may condition such consent and ;
approval on termination of this Agreement and acceptance by ,
the Participant of a new supplemental power sales agreement containing such terms and conditions as PMPA may require.
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b (g) From and after the effective date of any termination Of this Agreement pursuant to Section 2, the Participant shall be solely responsible for providing its ,
Supplemental Bulk Power Supply, including the delivery of ;
its Participant's Catawba Share of Catawba Project Output and the output of any additional project of PMPA, unless otherwise provided in the agreement between PMPA and the Participant with respect to such adoitional project, to the Participant's Delivery Point (s); provided, however, that such Participant shall be obligated to PMPA under this Agreement for any costs incurred by PMPA pursuant to the Project Agreements or any other agreements with a bulk power supplier associated with the backstand or delivery to the ,
Participant's Delivery Point (s) of the Participant's Catawba Share of Project Output and the output of any additional project to the extent provided under this Agreement, services from General Facilities Projects, or Supplemental Bulk Power Supply or any delivery facilities, or any other cost not included in Monthly Catawba Project Power Costs under the Catawba Project Power Sales Agreement or not included in the costs payable by the Participant under any other project ,
power sales agreement with PMPA, including, but not limited to costs of Reserve Capacity and Energy, Deficiency Energy, Spinning Reserves; any wheeling or Supplemental Capacity cht ges, Leased Facilities charges; debt service on obligations issued for General Facilities Projects; costs of administration, operation, maintenance, renewals, replacements, or capital i
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additions required for the Participant's Delivery Points; costs associated with Distribution Delivery Stations, Protection Stations, metering, transmission extensions, capacitors, t reactive charges, changes in Duke-owned equipment, or loss
- due to early retirement of Duke-owned equipment. The Participant shall sWbsequently be entitled to purchase the balance of its Supplemental Bulk Power Supply requirements from PMPA only if PMPA and the Participant shall enter into a new supplemental power sales agreement, containing such additional terms and conditions, if any, as PMPA may reasonably require.
SECTION 4. Rates and Charges. PMPA shall establish appropriate rates and charges for All Requirements Bulk Power Supply, including minimum payment provisions, a fuel adjustment clause, and other terms and conditions, sufficient at all times to pay all Monthly Catawba Project Power Costs, the monthly project power costs for any Project financed as an Additional Project under the Bond Resolution.- the monthly project power costs for any project not financed as a Project under the Bond Resolution but instead financed as a separate system and all Supplemental Power Costs of PMPA. Amounts shown on the Monthly Bill as Billing Statements for Monthly Catawba Project Power Costs, calculated as provided for in the Catawba Project Power Sales Agreements, monthly project power costs for any project financed as an Additional Project under the Bond Resolution and monthly project power costs
for any project financied as a aeparate system shall be deducted from the monthly payments required under such schedule of rates and charges, and the balance shall be the amount due and payable in such month for Supplemental Bulk Power Supply to the Participants. PMPA shall furnish to the Participants the basis for any changes in such rates and charges. PMPA will provide as much reasonable notice as possible for such changes in light of the circumstances requiring the revisions and will respond to inquiries of the Participants concerning such revisions.
PMPA may frcm time to time establish different rates and charges for all requirements, supplemental power, or other types of service to entities other than the Catawba Participants and with respect to the Catawba Participants (i) as contemplated by Sections 3(f) and 3(g) hereof or (ii) to reflect the participation of the Catawba Participants in one or more projects whether financied as Additional Projects or as a separate system.
SECTION 5. Total Annual Budget and Monthly Bills Payments by the Participant.
(a) Prior to each Contract Year, PMPA shall mail to the Participant a Total Annual Budget for the Contract Year. During each Contract Year, PMPA shall review at least quarterly, and at such other times as PMPA deems desirable, the Total Annual Budget for the Contract Year. In the event such reviev indicates that the Total Annual Budget does not
or will not substantially correspond with actual receipts and expenditures, or if at any time during such Contract l Year there are or are expected to be extraordinary receipts, credits, or costs substantially affecting the Monthly Catawba Project Power Costs, the monthly project power costs with respect to any project financed as an Additional Project under the Bond Resolution, the monthly project power costs for any project financed as a separate system or the supple-mental Power Costs, PMPA shall adopt and mail to the Partic-ipant an amended Total Annual Budget which shall supersede for the remainder of such Contract Year the Total Annual Budget or amended Total Annual Budget theretofore provided as the basis for the determination of Monthly Catawba Project Powe.- Costs, the monthly project power costs with respect to any project financed as an Additional Project under the Bond Rcsolution, the monthly project power costs for any project financed as a separate system and Supplemental Power Costs.
(b) On or before the fifth (5th) day of each month of each Contract Year (beginning with the first full month of the Contract Year), or such other date not later than the tenth (10th) day of such month as PMPA shall establish from time to time, PMPA shall prepare, date, and on such date mail to the Participant a Monthly Bill showing (i) the amount of kilowatts and kilowatthours of All Requirements Bulk Powe" '?pply, delivered to the Participant in the preceding nonth at the Participant's Delivery Point (s) and the total amount payable by the Participant therefor at
PMPA's rates and charges estr,blished pursuant to Section 4 hareof, (ii) the amount payable by the Participant under the Billing Statement pursuant to the Catawba Project Power Sales Agreement for the preceding month; (iii) the amount payable for the preceding month by the Participant under the billing statement pursuant to the Project Power Sales Agreement for a project financed as an Additional Project under the Bond Resolution; (iv) the annount payable for the preceding month by the Participant under the billing statement pursuant to the project power sales agreement for a project financed as a separate system; (v) the amount payable by the Participant for Supplemental Power Costs for the preceding month, which shall be the amount billed in (i) above less the amounts billed in (ii), (iii) and (iv) above; and (vi) any amounts payable by the Participant to PMPA for Leased Facilities Fees, Distribution Delive y Station costs or Early Retirement charges as described in Section 9 hereof, and any other charges for service other than for the provision of All Requirements Bulk Power Supply, for the preceding month.
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(c) The amounts shown in the Monthly Bill to be paid to PMPA by the Participant shall be due and payable ten (10) days after the date of the Monthly Bill, and any e. mounts due and not paid by the Participant within fiftaen (15) days after the date of the Monthly Bill shall accrue a late l
payment change computed at the rate of one per cent (1%) per l month. Remittances received by mail will be accepted without 1
assessment of said charges, provided that the postmark of the United States Postal Service indicates that the payment was mailed on or before such fifteenth (15th) day.
(d) All monies received by PMPA es payment from the Participant of any Monthly Bill (whether in full or partial payment thereof) shall be applied by PMPA pro rata to the separate monthly charges shown on the Monthly Bill in i the ratio that each separate charge as set forth in (ii) through (vi) of part (b) of this section 5 bears to the total Monthly Bill rendered, and the resulting amounts shall be credited to the appropriate accounts on the books of PMPA. The resulting amounts shall be applied solely to such obligations which were the basis for the separate charges on the Monthly Bill, subject to the provisions of the Bond Resolution with respact to the application of Revenues.
1 (e) In the event of any dispute as to any portion i of any Monthly Bill, the Participant shall nevertheless pay the full amount of the disputed charges when due and shall give written notice of the dispute to PMPA r.ot later than the end of the Contract Year in which such payment is due, but in any event the Participant shall have sixty (60) days to so give such notice. Such notice shall identify the disputed bill, state the amount in dispute, and set forth a full statement of the grounds on which such dispute is based. No adjustment shall be considered or made for disputed charges unless notice is given as aforesaid. PMPA shall
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Participant with regard to its position relative thereto within thirty (30) days following receipt of such written notice. Upon final determination (whether by agreement, arbitration, adjudication, or otherwise) of the correct amount, an appropriate adjustment shall be made on the Monthly Bill next submitted to the Participant after such determination.
SECTION 6. Rate Review; Payment Sources and Certain Obligations of Participants.
i (a) PMPA, at such intervals as it shall deem , ,
appropriate, but in any event not less frequently than once each Contract Year, shall review its rates and charges hereunder and, if necessary, shall revise such rates and charges so that the revenues collected hereunder shall be at least sufficient to comply with the provisions of Section 4.
PMPA shall cause a notice in writing to be given to the Participant and the other Participants which shall set out all the proposed revisions of the rates and the date upon which such revised rates shall become effective. The effective date shall not be less than forty (40) days after the date of the notice except when required to assure compliance with the provisions of Section 4 hereof, and shall set forth the basis upon which the rates are proposed to be adjusted and established. Monthly changes in amounts billed pursuant to ;
the fuel or other automatic adjustment clauses included in the rates and charges shall not require notice, but changes in such clauses chall be subject to the foregoing notice ,
t provisions. '
s (b) The obligations of the Participant to make i payments under Section 5 for its Supplemental Bulk Power Supply shall be an operating expense of its Electric System.
(c) The Participant shall not be required to make any payments to PMPA under this Agreement except from the Revenues of its Electric System. The Participant covenants and agrees that it will fix, charge, and collect rents, rates, fees, and charges for electric power and energy and other services, facilities, and commodities sold, furnished, or supplied through the facilities of its Electric System at least sufficient to provide Revenues adequate to meet its obligations under this Agreement, its Catawba Project Power Sal 3s Agreement, any additional agreement relating to supplying All Requirements Bulk Power Supply by and between PMPA and the Participant, and to pay any and all other amounts payable from or constituting a charge or lien upon such Revenues, including, but not limited to, the principal of and interest on any bonds, notes or other evidences of indebtedness heretofore or hereafter issued which are secured in any manner by a pledge of the Revenues.
(d) The Participant covenants and agrees that in l accordance with Usual Utility Practice it (i) shall at alj :
times operate the properties of its Electric System and the t
business in conr.ection therewith in an efficient manner and at reasonable cost, (ii) shall maintain its Electric System in good repair, working order and condition, and (iii) shall j from time to time make all necessary and proper repairs, l renewals, replacements, additions, betterments, equippings and furnishings to its Electric System so that at all times the business carried on in connection therewith shall be i
properly and advantageously conducted.
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i (e) The Participant covenants and agrees not to issue, after the effective date of this Agreement, any i
bonds, notes or other evidences of indebtedness payable from the Revenues on a parity with or superior to the payment of its obligations under this Agreement for any purpose or combination of purposes other than to fund the cost of additions, replacements or improvements to its Electric System or Combined Utility System or to refund outstanding obligations issued solely for the purpose of funding the '
cost of additions, replacements or improvements to its Electric System or Combined Utility System. The Participant covenants and agrees not to issue its bonds, notes or other evidences of indebtedness, or enter into an agreement or contract to take or to take or pay for electric power and energy, other than a power sales agreement with PMPA, payable from the Revenues on a parity with or supericr to
the payment of its obligations under this Agreement unless ,
an independent consulting engineer or engineering firm or corporation having a national and favorable reputation for ,
special skill, knowledge and experience in analyzing the l 1
operations of utility systems shall render and file with PMPA a written opinion that the facilities for the financing l of which the bonds, notes or other evidences of indebtedness are being issued or with respect to which such agreement is being entered into are (or were when the Participant committed I itself to them by contract or financing) reasonably expected f to properly and advantageously contribute to the conduct of !
the business of its Electric System or Combined Utility j System in an efficient and economical manner consistent with !
Usual Utility Practice and will not impair the ability of the Participant to raise Revenues sufficient to meet its obligations under Section 6(c) hereof. The Participant further covenants and agrees not to combine with its Electric System or Combined Utility System, as the case may be, any additional system, function, service, enterprise or undertaking.
(f) The Participant shall take no action the effect of which would be to prevel , hinder, or delay PMPA from the timely fulfillment of its obligations under this Agreement, the Catawba Project Power Sales Agreements, any project power sales agreement with respect to a project financed as an Additional Project under the Bond Resolution or as a separate system, the ownership Agreements, the Bond
Resolution and the Bonds issued thereunder or other securities or evidences of indebtedness issued to provide the amounts due and payable by PMPA under the Sales Agreement or any agreements between FMPA and Duke or between PMPA and the Participant relating to Distribution Delivery Stations, or any other agreement entered into between PMPA and any Participant.
SECTION 7. Obligations in the Event of Default.
(a) Upon failure of the Participant to make any
'yment in full when due under this Agreement, its Catawba Project Power Sales Agreement, any project power sales agreement with respect to a project financed as an Additional Project under the Bond Resolution or as a separate system or to perform any obligation herein, PMPA shall make demand upon the Participant; and if said failure is not remedied within fifteen (15) days from the date of such demand, it shall constitute a default at the expiration of such period.
Notice of such demand shall be provided to the other Participants by PMPA.
(b) If the Participant shall fail to pay any amounts due to PMPA under this Agreement or its Catawba Project Power Sales Agreement, or to perform any other obligation hereunder which failure constitutes a default under this Agreement, PMPA may and, if such default shall
have caused an " Event of Default" (as defined in the Inter-connection Agreement) with respect to PMPA to have occurred and be continuing for a period of one (1) year, at the r request of Duke, shall terminate this Agreement. Except for such termination, the obligations of the Participant under this Agreement shall continue in full force and effect. For purposes of applying the other provisions of this section, such termination shall be considered to be a default under this Agreement.
(c) In the event this Agreement is terminated pursuant to this Section 7, under the Interconnection Agree-ment Duke agrees to serve the defaulting Participant if requested to do so by such Participant. Such service shall be at Duke's wholesale rate in effect at the time of the termination if there is such a rate then on file with the appropriate regulatory agency which is applicable by its terms to the defaulting Participant or, if there is no such rate on file, at the rate being charged the Participant by PMPA immediately prior to the termination of this Agreement.
Duke may at any time and from time to time thereafter, if it so elects, file and place into effect pursuant to Section 205 of the Federal Power Act any superseding rate, charge, fee or any other term or condition, for service to such Participant.
4 (d) Any waiver at any time by either party to this Agreement of its rights with respect to any default of the other party hereto, or with respect to any other matter arising in connection with such Agreement, shall not be considered a waiver with respect to any subsequent default, right, or matter.
i (e) In the event of any default by PMPA under any covenant, agreement, or obligation of this Agreement, the Participant may, upon fifteen (15) days' prior written notice, bring any suit, action, or proceeding in law or in e quity , including mandamus, injuction, and action for specific performance as may be necessary or appropriate to enforce ,
any covenant, agreement, or obligation of this Agreement against PMPA.
(f) No remedy conferred upon or reserved to the parties herato is intended to be exclusive of any other remedy or remedies ave.ilable hereunder or now or hereafter existing at law, in equity, or by statute or otherwise, but each and every such remedy shall be cumulative and shall be in addition to every other such remedy. The pursuit by either party of any specific remedy shall not be deemed to be an election of that remedy to the exclusion of any other or others, whether provided hereunder or by law, equity, or statute.
SECTION 8. Rights of Duke and Others liereunder.
In addition to Duke's rights under Section 7(b) hereof, Duke shall have the right, as a third party beneficiary, to I maintain suit to enforce this Agreement whenever any " Event (
- of Default" by PMPA as defined in the Interconnection Agreement shall have occurred and shall not have been fully cured and in such enforcement Duke shall have the same rights as PMPA to enforce this Agreement. PMPA may permit any other entity ,
which may become a third party beneficiary of this Agreement to join with PMPA in enforcing this Agreement. It is recognized that the exercise of any such rights by Duke shall not affect any rights of Duke against PMPA whether arising under the Project Agreements, at law, in equity, provided by statute, or otherwise.
SECTION 9. Dispat,ch; Deliveries: Distribution Delivery Station Costs; Load Forecasts; System Reliability.
(a) The Catawba Project will be dispatched, operated, and maintained pursuant to the terms and conditions of the Catawba Project Power Sales Agreements and the Project Agreements. Provisions for dispatching, operating and l maintainence with respect to any additicnal project will be contained in the project power sales agreements with respect thereto.
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(b) All Requirements Bulk Power Supply shall be delivered to the high voltage side of the Participant's Delivery Point (s).
(c) In addition to the other obligations of the Participant pursuant to this Agreement, the Participant i
shall be responsible hereunder for all costs of Distribution l Delivery Stations required to sapply the Participant's All j Requirements Eulk Power Supply at the Participant's Delivery Point (s) and any costs incurred by PMPA associated therewith, including but not limited to payments to Duke for Protection Station costs, Leased Facilities charges, and Early Retirement charges, all pursuant to the Interconnection Agreement. The Participant shall fulfill such cost responsibility by: (i) payment to PMPA of any costs to PMPA under the Interconnection Agreement relating to delivery of All Requirements Bulk Power Supply to the Participant's Delivery Point (s) and not included in the rates and charges of FMPA for delivery of All Requirements Bulk Power Supply, incP1 ding but not limited to, Leased Facilities charges and payments or Early Retirement charges; (ii) payment of any and all costs of ownership, operation, maintenance, renewals, replacements, and adcitions to Distribution Delivery Station (s) owned by PMPA but required to deliver All Requirements Bulk Power Supply to the Participant pursuant to a Distributier. Delivery Station Use Agreement between PMPA and Participant as provided for in Exhibit A; 1
(iii) payment of any and all costs of operation and maintenance, l l
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exclusive of renewals, replacements, and additions of Dis-tribution Delivery Station (s) owned by Participant and operated by PMPA pursuant to a Distribution Delivery Station !
Operating and Maintensnce Agreement as provided for in Exhibit B; and (iv) payment by any combination of the foregoing.
r (d) Delivery Point Data Sheets in the form attached hereto as Exhibit C, shall be completed for Delivery Point (s) of the Participant. No revisions or modifications (other than necessary maintenance of the facilities at a Delivery Point or Points) shall be undertaken for the purpose of l modifying the characteristics of delivery from transmission facilities of Duke and/or PMPA set out on the Delivery Point Data Sheet (s) unless prior agreement is obtained from PMPA and Duke and revised Delivery Point Data Sheet (s) are first executed. PMPA and the Participant shall agree, subject to the provisions of the Interconnection Agreement, on the amount of firm capacity required at each such Delivery Point, taking into account the continuous load expected to be served at such Delivery Point (s). A reasonable allowance will be included if growth is anticipated. The Participant shall not place loads on Delivery Point (s) in excess of the firm capacity amount (s) so agreed and recorded on the Delivery Point Data Sheet (s) without PMPA and Participant first negotiating a new Delivery Point Data Sheet. Pursuant to the Interconnection Agreement, Duke has agreed it shall not unreasonably withhold its agreement for an increase in the firm capacity amount.
(e) Should the Participant want more capacity at at Delivery Point than is reasonably necessary to serve the continuous load at that point for the purpose of switching load between Delivery Points, such capability will be provided by PMPA pursuant to the Interconnection Agreement with Duke upon the Participant's written agreement to pay an additional charge to cover the investment in any required additional transmission or other facilities.
(f) The Participant shall assist PMPA with develop-ment of projected capacity requirements at each Delivery Point of the Participant in order for PMPA to fulfill in a timely manner its responsibilities to Duke under the Inter-connection Agreement and its responsibilities to the Participant hereunder. The projected capacity requirement shall be for the load reasonably expected to exist in the area served by each such Delivery Point. The proposed location, delivery voltage, and estimated capacity requirements of any new delivery point desire . by the Participant for the next eight (8) calendar years shall also be delineated.
For Delivery Points on, or extensions from, the 100 kV transmission lines of Duke, load shall be 5000 kW or greater. No Delivery Point shall be connected to a Duke i transmission line with a nominal voltage of more than 100kV, whether a new extension or a then existing line, unless the I
proposed arrangement is technically and economically sound
I and feasible ~and is in accordance with Duke's normal practice in serving retail load at the time of the request.
Transmission line extensions shall be made to new Delivery Points from a transmission line of the voltage requested which has adequate capacity to serve the additional load involved. The routing of such extensions shall be determined in such manner as will minimize the investment ,
required. Such transmission line extension shall be made in the area served by Duke.
(g) The Participant shall avoid and refrain from, any acts or transactions, or the use of any equipment, appliance, or device, which would have a significant adverse effect upon the reliability or operating characteristics of the Duke system, of the interconnected facilities of PMPA or of its other Participants.
(h) It is exprecsly understood and agreed that PMPA does not hereby contract to furnish Participant electric power for pumping water for extinguishing fires.
(i) The Participant shall install, maintain, and operate such protective equipment and switching, voltage control, load shedding, and emergency facilities as shall be required in order to meet the requirements specified in the Interconnection AgJeement and to assure continuity and
adequacy of service and the stability of the interconnected facilities of Duke and PMPA and the other Participants.
i SECTION 10. Consulting Engineer.
(a) PMPA will retain on a continuous basis, as ,
Consulting Engineer, an independent consulting engineer or engineering firm or corporation having a national and favorable reputation for special skill, knowledge, and experience in analyzing the operations of electric utility systems, preparing rate analyses, forecasting the loads and revenues of electric utility systems, and advising on the operation of electric generating facilities and the marketing of power and energy ,
therefrom (which Consulting Engineer shall be the consulting engineer appointed and retained by PMPA under the Bond Resolution) to advise and render opinions to PMPA on matters relating to electric power generation, transmission, power supply, electric utility operations, rates and charges, electric utility economics and financing, and budgets. PMPA shall cause the Consulting Engineer to prepare within one hundred sixty (160) days following the close of each Contract Year, an annual engineering report with respect to PMPA for the immediately preceding Contract Year, which report shall contain a copy of the annual audit and shall include, to the extent then applicable: .
(1) a report on the operations of PMPA; (2) a report on the management of the Catawba Project and all other projects of PMPA pursuant to which the All Requirements Bulk Power Supply are or may be supplied; (3) a report on the sufficiency of rates and charges for services; (4) a report on requirements for future bulk power supply; (5) conclusions as to changes in operation and the making of repairs, renewals, replacements, extensions, betterments, and improvements to the Catawba Project or any other projects of PMPA; and (6) a projection for a reasonable period of time of PMPA's costs of providing All Requirements Bulk Power Supply to all Participants.
(b) PMPA shall cause a copy of said engineering report to be delivered to the Participant.
(c) The report required by subsection (a) of this Section may contain such additional information as requested by PMPA or as is necessary in order to meet the requirements of Section 16 of the Catawba Project Power Sales Agreements or any other project power sales agreements and Section 7.9 of the Bond Resolution.
9 SECTION 11. Participant Planning and Operations.
(a) Power Supply Planning. The Participant will keep PMPA advised on matters relating to the Participant's power supply planning, including but not limited to, load ,
forecasts, proposed transmission additions, and new Delivery Points.
(b) Diligence. The Participant will exercise diligence in the operation of its Electric System with the view of securing efficiency in keeping with Usual Utility Practice, will construct its facilities in accordance with specifications at least equal to those prescribed by the National Electric Safety Code of the United States Bureau of Standards, will maintain its lines at all times in a safe operating condition, and will operate said lines in con-formity with Section 9(g) of this Agreement. The Participant will use electric service equally from the three phases as nearly as possible. The Participant will maintain a power factor of at least eighty-five per cent (85%) at .1ach Delivery Point through which its All Requirements Bulk Power Supply is delivered and will maintain a number of kilovars of capacitors on its Electric System as recommended by PMPA in accordance with Art cle 18 of the Interconnection Agreement, or will be responsible for the costs to PMPA under the Interconnection Agreement of not so doing.
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(c) Access. Participant will give necessary per-mission to enable PMPA to carry out this Agreement and will otherwise be subject to applicable terms and conditions set forth in those tariffs, rate schedules, and contracts which affect PMPA and the Participant. PMPA and the Participant each will give the other the right to enter the premises of +
the other at all reasonable times for the purpose of repairing or removing facilities, reading meters, or performing work incidental to delivery and receipt of All Requirements Bulk l 1
Power Supply.
SECTION 12. Miscellaneous General Provisions.
(a) Character and Continuity of Service. PMPA shall use its reasonable best efforts to enforce the terms and conditions of the Interconnection Agreement with Duke and the terms and conditions of any other sihillar agreement (s) with other parties for Supplemental Bulk Power Supply.
PMPA may temporarily interrupt or reduce deliveries of electric energy to the Participant if PMPA determines that such interruption or reduction is necessary in case of emergencies or in order to install equipment in or make repairs to or replacements, investigations, and inspections of or to perform other maintenance work on its generation or j transmission facilities and related apparatuses. After informing the Participant regarding any such planned 1
interruption or reduction, giving the reason therefor, and stating the probable duration thereof, PMPA will, to the best of its ability, schedule such interruption or reduction at a time which will cause the least interference with the operations of the Participants.
PMPA shall not be required to provide and shall not be liable for failure to provide, service under this Agreement when such failure or the cessation or curtailment of or interference with the service is caused by Force Majeure or, with respect to the services to be provided for supple-mental Bulk Power Supply, is caused by the failure or refusal of any other bulk power supplier to enter into reasonable contracts with PMPA or hy the inability of PMPA to obtain any required governmental approvals to enable PMPA to acquire or construct any facilities.
(b) Metering. PMPA reserves the right to provide for installation of meters and will provide or cause to be provided all necessary metering equipment for determining the quantity and conditions of the supply of electric pcwer and energy delivered by PMPA under this Agreement; provided, however, that the Participant may at its own cost install additional metering equipment to provide a check on metering equipment of PMPA. The Participant chall supply without cost to PMPA a suitable place for installing PMPA's metering equipment. Under the Project Agreements, Duke shall own,
maintain and replace recording meters and metering equipment at or adjacent tio all existing Delivery Points serving PMFA or its Participants and shall install, own, maintain, and replace such meters and metering equipment at or adjacent to future Delivery Points which may be established.
Tests shall be made or caused to be made by PMPA at appropriate intervals but not less than once every forty-eight (48) months. If any such regular test of metering equipmenc discloses an inaccuracy exceeding two (2) per cent, the inaccuracy shall be corrected forthwith and the accounts among the parties for service theretofore delivered shall be adjusted to correct for the inaccuracy discl.aed over the shorter of the following two periods: (a) for the thirty (30) day period immediately preceding the date of the last Monthly Bill rendered prior to the date of the test plus the time, if any, required for correction or (b) for the period that such inaccuracy may be determined to have existed. Under the Project Agreements testing of meters owned by Duke shall be performed by Duke.
On the written request of the Participant, a special test shall be made to determine the accuracy of any meter. The costs therefor c, hall be borne by the Participant unless the test discloses in inaccuracy exceeding two (2) percent. PMPA shall notify the Participant of any such requested test which PMPA intends to have Made on any
P neter, and the Participant may have representation at such test. If any such special test of metering equipment dis-closes an inaccuracy exceeding two (2) per cent, the in-accuracy shall be corrected forthwith and the accounts ;
between the parties for service theretofore delivered shall be adjusted to correct for the inaccuracy disclosed over the shorter of the following two periods: (a) for the thirty (30) day period immediately preceding the date of the request for th test plus the time, if any, required for correction or (b) for the period that such inaccuracy may be determined to have existed.
Should regular meters or metering equipment at any ,
time fail to register, PMPA's check meters, if any, shall be used. If no PMPA check meters exist, PMPA shall determine the electric power and energy delivered using the best available data, including a Participant's check meters, if any.
(c) Power Deliveries. Power and energy furnished to the Participant under this Agreement shall be in the form of three phase current, alternating at a frequency of approximately 60 Hertz.
(d) Liability of Parties. Neither PMPA nor the Participant shall be responsible for the transmission, control, use or application of electric power provided under
this Agreement on the other side of the Delivery Point therefor and shall not, in any event be liable for damage or injury to any person or property whatsoever arising, accruing, or resulting from, in any manner, the receiving, transmission, :
- control, use, application, or distribution by PMPA or the Participant of said electric power.
PMPA and the Participant shall indemnify, hold and save each other harmless from any and all loss or damage sustained, and from any and all liability to my person or property incurred by the other by reason of at.; act or performance, or failure to act or perform, on the part of the other or its officers, agents, or employees, in con-structing, maintaining or operating the other's apparatus, appliances or other property, or in the trancmission, control, or application, redistribution, delivery, or sale of said power and energy on the other side of said Delivery Point.
Such indemnification shall hold harmless the one indemnified, its agents, servants and employees, from and against any and all liability and any and all losses, damages, injuries, costs and expenses, including expenses incurred by one indemnified, its agents, servants or employees.. in connection with investigating any claim or defending any action, and including reasonable attorneys' fees incurred or suffered by the one indemnified, its agents, servants er employees, by reason of the assertion of any such claim against the one indemnified, its agents, servants or employees. PMPA and.
the Participant may assume on behalf of the other, its agents, servants and employees, at their option after written notification by the other, the defense of any action at law ;
or in equity which may be brought against the other, its agents, servants or employees, upon any such claim. PMPA -
and the Participant, regardless of whether one assumes the defense of any action or the other defends such action, will l
pay on behalf of the other, its agents, servants or employees, the amount of any judgment that may be entered against the other, its agents, servants or employees, in any such action.
(e) No Adverse Distinction. PMPA agrees that there shall be no pattern of adverse distinction and no pattern of undue discrimination in carrying out its obligations under this Agreement relating to the Participant as compared to the other Participants.
(f) Other Terms and Conditiong. Service hereunder shall be in accordance with such other terms and conditions as are establialed as part of PMPA's service rules and regulations, which shall not be inconsistent with the provisions of this Agreement.
(g) Notices and Computation of Time. Any notice or demand given by the Participant to PMPA under this Agreement shall be deemed properly given if mailed postage prepaid and addressed to the chief executive officer of PMPA at its
I principal office designated in writing filed with the Participant by PMPA. Any notice, demand, budget, or statement given or rendered by PMPA to the Participant under this Agreement shall be deemed properly given or rendered if mailed postage prepaid and addressed to the person and at the address designated in writing filed with PMPA by the Participant. The designations of the name and address to which any such notice or demand is directed may be changed at any time and from time to time by either party giving notice as above provided.
i In ecmputing any period of time prescribed or allowed under this Agreement, the day of the act or event after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, a Sunday, or a legal holiday in South Carolina, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday in South Carolina.
SECTION 13. Future Projects; General Facilities Projects and Future Participants.
(a) PMPA may at the direction of its Board of ;
Directors from time to time conduct studies and negotiations with respect to planning, designing, financing, constructing, administering, operating, and maintaining or otherwise i
acquiring future generation and transmission facilities or rights to the output thereof in addition to those contemplated l for the Catawba Project, and may make recommendations to the Participant that such future facilities be undertaken by e PMPA, either as an Additional Project under the Bond Resolution l or as a separate system, specifying the proposed project share of each Participant with respect thereto. The costs i
of such studies and negotiations shall be Supplemental Power costs which will be reimbursed to the Participant by PMPA from the first proceeds of any bonds or other obligations, if any, for such projc.ct. Subject to Section 3(f), if the Participant wishes to participate in and PMPA wishes to undertake any such future project, the Participant shall execute a project power sales agreement therefor with PMPA l
substantially identical in form and substance, with respect to the duties and obligations of PMPA and the Participant, to the Catawba Project Power Sales Agreement with such other changes as the factual situation with resp 2ct to such project and its financing warrants.
(b) The Participant recognizes that during the term of this Agreement PMPA may determine that in fulfilling its obligations under the Supplemental Power Sales Agreements it is economically advantageous to PMPA and its Participants for PMPA to finance General Facilities Projects. The Participant hereby agrees that the obligations of PMPA with respect to indebtedness issued for General Facilities Projects shall be
Supplemental Power Costs under this Agreement; provided, however, that the debt service on all General Facilities Projects in any year may not exceed five per cent (5%) of the supplemental Power Costs for the immediately preceding ;
Contract Year. In the alternative PMPA may determine to finance any General Facilities Project as an Additional l Project under the Bond Resolution or as a separate system in which event the provisions of Section 3(f) and Section 13(a) shall apply.
(c) It is expressly understood that nothing herein shall preclude other future participants from contracting with PMPA for planning, procuring, and providing such other future participants' bulk power supply, including participation in other projects undertaken by PMPA.
SECTION 14. Records; Accounts; Reports; Audits.
PMPA shall keep accurate records and accounts for the Catawba Project, any other projects owned or controlled by PMPA including General Facilities Projects, and for Supplemental Bulk Power Supply, separate and distinct from its other records and accounts. Such records and accounts shall contain information supporting the allocation of PMPA's indirect costs associated with the Catawba Project, any 1
other projects owned or controlled by PMPA including General i Facilities Projects, and with Supplemental Bulk Power Supply.
Such records and accounts shall be audited annually by a
firm of independent certified public accountants, experienced in electric utility accounting and of national reputation, to be employed by PMPA. Such records and accounts and such annual audit, including all written comments and recommendations -
of such accountants, shall be made availab.le for inspection '
at any reasonable time by the Participant at the principal office of PMPA. i l
The Participant shall keep accurate records and accounts for its Electric System, separate and distinct from i its other records and accounts. Such records and accounts I shall be audited annually by a certified public accountant or a firm of certified public accountants who have no personal interest, direct or indirect, in the fiscal affairs of the municipal government of the Participant or any of its officers, which audit may be part of the annual audit of the accounts of the Participant. Such records and accounts shall be made available for inspection by PMPA at any reasonable time, and a copy of such annual audit, including all written comments and recommendations of such accounts, shall be furnished to PMPA not later than one hundred twenty (120) days after the close of the Participant's fiscal year.
PMPA shall, following the close of each fiscal year, submit an annual report of its activities for the preceding year to the Participant. Each such report shall set forth a complete operating and financial statement covering the operations of PMPA.
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SECTION 15. Modification and Uniformity of Agree-ments.
(a) This Agreement shall not be subject to termination by any party under any circumstances whether based upon the default of any other party under this Agreement, or any other instrument, or otherwise, except as specifically provided in this Agreement.
(b) This Agreement shall not be amended, modified, or otherwise changed, or rescinded, by agreement of the parties with respect to the following provisions of this Agreement without the prior written consent of Duke when required by the Interconnection Agreement; paragraphs (c) and (d) of Section 6, paragraph (b) of Section 7, Section 8, paragraph (b) of Section 15, paragraph (a) of Section 23 and Section 24.
(c) If any other Supplemental Power Sales Agree-ment is amended or replaced, other than pursuant to the provisions of Section 3(f) hereof, so that it contains terms and conditions differenc from those contained in this Agree-ment, PMPA shall notify the Participant and, at the option of the Participant and upon timely request, PMPA shall amend this Agreement to include similar terms and conditions.
SECTION 16. Assignment of Agreement. This Agree-ment shall inure to the benefit of, and shall be binding
upon, the respective successors and assigns of the Parties to this Agreement; provided, however, that neither this Agreement nor any interest herein shall be assigned or transferred by the Participant, if in the opinion of counsel to PMPA such assignment or transfer would adversely affect the exemption from Federal income taxation of the interest on the bonds issued pursuant to the Bond Resolution or the exemption from Federal income taxation of the interest on any obligstion of PMPA issued to finance a project or would be unlawful or violate any provision of the ownership Agreements (as defined in the Bond Resolution), or if PMPA determines, in its sole discretion, that it will not have sufficient resources to meet its obligations under this Agreement to the assignee or successor or that to meet such obligations would have a material adverse effect on the interests of the other Participants.
SECTION 17. Severability. If any section, para-graph, clause, or provision of this Agreement shall be finally adjudicated by a court of competent jurisdiction to be invalid, the remainder of this Agreement shall be un-affected by such adjudication and all of the remaining provisions of this Agreement shall remain in full force and effect as though such section, paragraph, clause or provision or any part thereof so adjudicated to be invalid had not been included herein. In the event of any such invalidity, l
the parties hereto shall promptly negotiate in good faith valid new provisions to restore the Agreement to its original l
intent and effect.
SECTION 18. Applicable Law; construction. This Agreement is made under and shall be governed by the laws of the State of South Carolina. Headings herein are for con-venience only and shall not influence the constructicn hereof.
SECTION 19. Survivorship of Obligations. The termination of this Agreement shall not discharge any party hereto from any obligation it owes to the other party under this Agreement by reason of any transaction, loss, cost, damage, expense, or liability which shall occur or arise (or the circumstances, events, or basis of which shall occur or arise) prior to such termination. It is the intent of the ,
parties hereby that any such obligation owed (whether the same shall be known or unknown at the termination of this Agreement or whether the circumstances, events, or basis of the same shall be known or unknown at the termination of this Agreement) shall survive the termination of this Agree-ment.
SECTION 20. No Delay. No disagreement or dispute of any kind between the parties to this Agreement or between any party and any other entity, concerning any matter including without limitation, the amount of any payment due from snid party or the correctness of any billing made to the party, shall permit the said party or either of them, to delay or withhold any payment or the performance by any party of any
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other obligation pursuant to this Agreement. Each party shal.'. promptly and diligently undertake to resolve such disagreement and dispute without undue delay.
- SECTION 21. Further Documentation. From time to ,
r time after the execution of this Agreement, the parties hereto shall within their legal authority execute other documents as may be necessary, helpful, or appropriate to carry out the terms of this Agreement. ,
SECTION 22. Incorporation of Exhibits. All Exhibits attached to this Agreement shall be incorporated ,
into and be a part of this Agreement.
SECTION 23. Continuance and Enforcement of Agreement.
(a) Except as provided in paragraph (b) of Section 7 and paragraph (f) of Section 3, PMPA shall continue this Agreement in full force and effect and shall enforce this Agreement in accordance with its terms to the extent permitted by law.
(b) The failure of a party to enforce at any time any of the provisions of this Agreement or to require at any time performance by the other party of any of the provisions hereof shall in no way be construed to be a waiver of such provisions, nor in any way to affect the validity of this
Agreement or any part thereof, or the right of such party thereafter to enforce each and every such provision.
SECTION 24. Relationship to Other Instruments.
It is recognized by the parties hereto that PMPA in the ownership, construction, acquisition and operation of the Catawba Project and any Additional Project must comply with the requirements of the applicable ownership Agreements (as defined in the Bond Resolution), the Bond Resolution, and f
all licenses, permits and regulatory approvals necessary for such ownership, constructien, acquisition and operation of such Projects, and it is therefore agreed that this Agreement is made subject to the terms and provisions of the ownership Agreements, the Bond Resolution, and all such licenses, I
permits and regulatory approvals.
SECTION 25. Entire Agreement. This Agreement shall constitute the entire understanding snong the parties hereto, superseding any and all previous understandings, oral or written, pertaining to the subject matter contained herein. No party hereto has relied, or will rely, upon any oral or written representation or oral or written information made or given to such party by any representative of the other party or anyone on its behalf.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement all by authority of their respective governing bodies duly given.
Executed this day of , 1980.
[NAME OF PARTICIPANT)
By
Title:
By
Title:
Attest:
Title:
(SEAL)
Executed this day of , 1980.
PIEDMONT MUNICIPAL POWER AGENCY By Chairman Attest:
Secretary (SEAL)
EXHIBIT A PRINCIPAL TERMS, CONDITIONS, AND REQUIREMENTS FOR DISTRIBUTION DELIVERY STATION USE AGREEMENT
- 1. Participant shall notify PMPA not later than January 1, 1982, if the Participant desires to purchase any or all of the Distribution Delivery Stations required to deliver All Requirements Bulk Power Supply to such Participant which are eligible for purchase from Duke pursuant to Article 15 of the Interconnection Agreement. If the Participant decides not to purchase any Distribution Delivery Station PMPA may, at its sole discretion, own or lease from Duke on behalf of such Participant or lease from Duke and assign such lease to the Participant any of such Distribution Delivery Stations not purchased by the Participant. Such notice shall specify the requested arrangements for all of such Participant's Delivery Points. The Participant agrees that it will provide PMPA with said notice at the earliest possible date prior to such deadline.
- 2. Should the Participant desire to purchase any of its Distribution Delivery Stations, PMPA will use its best efforts to assign the provisions of Section 15.5 and Exhibit IC-VII of the Interconnection Agreement relating to such purchase to the Participant.
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- 3. Should the Participant decide not to purchase a Distribution Delivery Station and (i) PMPA decides to lease such facilities from Duke, on behalf of the Partic-ipant, the Participant shall make monthly payments to PMPA !
of all of PMPA's costs associated therewith pursuant to the terms and conditions of the Supplemental Power Sales Agreement; or (ii) PMPA decides to lease from Duke and assign such lease to the Participant, the Participant shall be respon- !
sible for and shall make all payment required directly to Duke.
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- 4. Should the Participant decide not to purchase a Distribution Delivery Station and PMPA decides to own and lease to the Participant any of its Distribution Delivery Stations, the Participant and PMPA shall execute a Dis-tribution Delivery Station Use Agreement ("Use Agreement")
not later than July 1, 1982 which shall provide for payment of all costs of PMPA's ownership or lease of such facilities.
If PMPA's ownership of such facilities is effected through financing revenue bonds, the Agreement will contain provisions as PMPA may reasonably require 231ating to the term of the Use Agreement and the Participant's obligation to pay the lease payments from Revenue of the Participant's Electric System in order to provide security for PMPA's financing of such facilities. PMPA and any Participants desiring such lease arrangement agree to negotiate in good faith the terms and conditions of the Use Agreement which shall be substantially the same for all Participants.
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- 5. For all new Delivery Points required by the l
l Participant after the beginning of the first Contract Year the Interconnection Agreement requires that new Distribution Delivery Stations be owned and financed by PMPA or the l Participants. When a Participant requires a new Delivery Point after the beginning of the first Contract Year it shall notify PMPA designating the proposed location, the required capacity and the voltage desired. Subject to the ,
provisions of Section 15.6 of the Interconnection Agreement Duke is obligated to provide such new Delivery Point on its i then existing transmission system and subject to l Sections 15.6(b)5 and 15.6(c) thereof shall extend its transmission system if necessary to provide the Delivery ,
Point requested and the investment for such transmission line extension shall be treated in the manner set forth in Section 15.6(B) thereof. Upon a determination by PMPA that the provision of such new Delivery Point will unduly dis-crimminate against the other Participants, the Participant agrees to make such payments to PMPA, under its Supplemental Power Sales Agreement for the benefit of all the other Participants, that will eliminate such undue discrimination.
At the time the Participant notifies PMPA that it requires a new Delivery Point it shall state whether it intends to own, construct and finance the new Distribution Delivery Station required or whether it requests that PMPA own, construct and finance such Distribution Delivery Station. If requested by the Participant, PMPA will use its best efforts to own, A-3
l i
4 construct and finance such Distribution Delivery Statics i provided that the Participant and PMPA enter into a Use Agreement as described in 4 above. !
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EXHIBIT B PRINCIPAL TERMS, CONDITIONS, AND REQUIREMENTS FOR !
DISTRIBUTION DELIVERY STATION OPERATING AND MAINTENANCE AGREEMENT
- 1. Participant shall notify PMPA not later than July 1, 1982, whether (i) the Participant desires to operate and maintain any or all of the Distribution Delivery Stations required to deliver All Requirements Bulk Power Supply to 6 such Participant which are to be owned by the Participant or owned by PMPA and leased to the Participant pursuant to Exhibit A herewith or (ii) the Participant requests PMPA to operate and maintain any of the Distribution Delivery Stations described in (i) above. Such notice shall specify the requested arrangements for all of such Participant's Delivery Points. The Participant agrees that it will provide PMPA with such notice at the earliest possible date prior to such deadline.
- 2. For any Distribution Delivery Stations that ,
PMPA is requested to operate and maintain pursuant to 1, above, PMPA will use its best efforts to comply with such request provided that the Participant shall execute a Dis- I tribution Delivery Station Operating and Maintenance Agree-ment ("O&M Agreement") which shall provide for payment of l all costs of PMPA's operation and maintenance of such facilities.
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- 3. PMPA and any Participant desiring to execute an O&M Agreement agree to negotiate in good faith the terms and conditions of the O&M Agreement which shall be sub-stantially the same for all Participants. ,
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EXHIBIT C SHEET NUMBER SUPERSEDING SHEET SIGNED ON DELIVERY POINT DATA SHEET
- 1. PARTICIPANT
- 2. LOCATION
- 3. DELIVERY POINT KNOWN AS e
- 4. DELIVERY POINT NUMBER 5.
(at a minimum of)
KILOWATTS FIRM CAPACITY (85% power factor) 6.
DISTRIBUTION DELIVERY STATION LEASE VALUE
- 7. EFFECTIVE DATE
- 8. DELIVERY VOLTAGE CLASS 3-PHASE WIRES
- 9. DELIVERY POINT (Physical location)
- 10. LOCATION OF LEASED METER i
Date Signed: By Accepted Date: By:
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