ML20041B705
| ML20041B705 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 02/22/1982 |
| From: | Bouknight J, Roth A, Roth A FLORIDA CITIES (FLORIDA MUNICIPAL UTILITIES ASSOCIATE, FLORIDA POWER & LIGHT CO., FT. PIERCE, FL |
| To: | |
| Shared Package | |
| ML20041B701 | List: |
| References | |
| ISSUANCES-A, NUDOCS 8202250098 | |
| Download: ML20041B705 (88) | |
Text
I UNITED STATES OF AMERIdA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
y
)
FLORIDA POWER & LIGHT COMPANY
)
Docket No. 50-389A
)
(St. Lucie Plant, Unit No. 2)
)
STIPULATION The undersigned parties to NRC Docket No. 50-389A unconditionally stipulate and agree that the operating license a
for St. Lucie Unit No. 2 and any and all amendments thereto, or to the construction permit for said Unit, may issue at any time notwithstanding the pendency or status of the instant, or any other, antitrust proceeding with respect to the license of St.
Lucie Unit No.
2, or the licenses of any of Florida Power & Light Company's other nuclear units.
The undersigned parties further unconditionally agree and intend that this Stipulation shall be enforceable and binding upon them and their privies in all proceedings before the Nuclear Regulatory Commission and any other administrative agency, and in any court.
Lake Worth Utilities Authority, Florida Power & Light Company l
the Utilities Commission of the l
City of New Smyrna Beach, the r$
Sebring Utilities commission, M
and the Cities of Alachua, Bartow, By:
A-L r
Fort Meade, Homestead, Key West, IWs/ Counsel j
- l. /
Kissimmee, Leesbura, Mount Dora, n
Newberry, St. Cloud, Starke, Tallahassee and Vero Beach, Florida, and the Florida Municipal Utilities Association.
A a
n.
By:
)]h ('
\\ 9k' 1 e
Their Counsel 8202250098 820222 PDR ADOCK 050003G9 M
I Fort Pierce Utilities Authority
/
V
~j
~
By:
0-~- 4
'\\'V_u Its Counsel
m_.
e.
i APPENDlX 2 THE SETTLEMENT AGREEMENT This agreement is dated as of March 3, 1982 by and between Florida Power & Light Company ("FPL") and the following Florida cities, commissions or au,thorities:
The City of Alachua, The City of Ba(tow, The City of Fort Meade, The City of Homestead,
The Utility Board of the City of Key West, The City of Kissimmee, The Lake Worth Utilities Authority, The City of Leesburg, The City of Mount Dora, The City of Newberry, The New Smyrna Beach Utilities Commission City of New Smyrna Beach, The Sebring i
Utilities Commission, The City of Starke, The City of St.
Clo ud,
The City of Tallahassee, The City of Vero Beach, and the Florida Municipal Utilitie7 Association
(", Cities" or " Nuclear Intervenors Group").
WITNESSETH Whereas, FPL and Florida Municipal Power Agency ("FMPA") are entering into a Financing Contingency Agreement in the form attached hereto as Appendix A; Whereas, the parties to this Agreement are settling differences between them and establishing additional arrangements for their mutual benefit, NOW THEREFORE, the parties mutually agree as follows:
1.
(a)
This Agreement shall take ef fect only if it is t
executed by all of the parties by March 3, 1982, or by such later
execution deadline as FPL (which is promptly executing this Agreement subject to the Cities also timely executing it) may in its sole discretion specify.
(b)
This Settlement Agreement may be executed in separate identical copy by each party with the same effect as if all parties executed one copy of the Agreement, each of which identical copies shall be deemed to be an original and all such copies shall together constitute this Settlement Agreement.
2.
FPL shall afford those Cities named above which are not named in the St. Lucie Unit No. 2 License Conditions an opportunity to participate in the ownership of St. Lucie Unit No.
2 in the collective amount of 8 Mw of the estimated net output, by amending the St. Lucie Unit No. 2 Participation Agreement between FPL and Florida Municipal Power Agency ("FMPA"), dated February 11, 1982, to increase FMPA's Ownership Percentage to 8.806 percent.
3.
FPL shall, prior to St. Lucie Unit No. 2 first achieving Firm Operation, as defined in the St. Lucie Unit No. 2 Participa-tion Agreement, and at the request of a participant, offer to FMPA or to Cities individually participating in St. Lucie Unit No. 2 a reliability exchange involving output from St. Lucie Unit No. 2 and St. Lucie Unit No. 1, such exchange to become ef fective l
upon St. Luc ie Unit No. 2 first achieving commercial operation.
Such agreement shall be substantially in the form of Appendix B.
ww s
w.-
4
i s-,
Any share or interest subject to the exchange shall not be transferred except subject to the exchange.
4.1 During the period beginning with the effective date of this Agreement and ending 10 years plus 120 days thereaf ter, FPL will make available to FMPA 75 Mw of firm power, on and subject to the following terms and conditions:
(a)
Upon request made by FMPA at any time or times during such period, FPL shall enter into one or more firm power sales contracts with FMPA under which FPL shall sell and FMPA shall purchase an amount or amounts of firm power designated by FMPA for a term or terms designated by FMPA; provided that: (i) the total amount that FPL shall be required to sell to FMPA shall not at any time exceed 75 Mw (except as provided in Section 4.2 below), and (ii) the term provided in each such contract shall end on or before a date 10 years and 120 days after the effective date of this Agreement.
(b)
In each instance, FMPA shall provide FPL with notice of its intent to enter into a firm power saleb l
contract, together with notice of the amount of power desired and the requested contract term, no later than 120 days before the date on which FMPA requests that the sale commence.
e (c)
Unless the parties mutually agree to a dif ferent rate, each such firm power sales contract shall provide for FMPA to pay FPL for power sold under such contract the same rate as is ef fective from time to time for service provided under one of the following rate schedules designated by FMPA at the time of the notice provided in paragraph (b): (i)
Sale for Resale Partial Requirements Rate Schedule - PR-1, or any rate schedule that succeeds or is substituted for the same; (ii) Sale for Resale Full Requirements Rate Schedule
- FR, or any rate schedule that succeeds or is substituted for the same or (iii) Sale for Resale Time - Differentiated Partial Requirements Rate Schedule - PRT-1 or any rate schedule that succeeds or is substituted for the same.
It is understood that the rate applicable to sales under any such contract shall change from time to time to correspond with changes in the designated Sale for Resale Rate Schedule, and FPL may ef fect such changes by unilateral filings with the Federal Energy Regulatory Commission ("FERC") (or its successor) or otherwise.
(d)
FPL shall deliver firm power contracted by FMPA to l
l a delivery point or points on FPL's system or to one or more j
points of interconnection between FPL's system and the system or systems of one or more other. utilities, as designated by l
FMPA; provided that FMPA's discretion to designate such deliveries is subject to the availability of adequate
5-transmission, delivery point and interconnection capacity.
4.2 FPL shall make available to FMPA 75 Mw of firm power in addition to the 75 Mw provided in Section 4.1, during the period and subject to the terms and conditions provided in Section 4.1, if and to the extent that FPL anticipates, at the time that any request for such additional firm power is received, that it will have suf ficient capacity resources available to provide such firm power for the term requested by FMPA.
For purposes of this section, FPL's capacity resources shall be deemed to be sufficient if, and only if, af ter taking into account the
.equested additional amount of firm power, the capacity resources reported in the Ten Year Power Plant Site Plan most recently submitted by FPL to the State of Florida as available to meet estimated peak demand at the time of the peak for each summer and winter season during the time period for which such additional amounts of firm power are requested equal, in each instance, at least 118 percent of the demand forecasted at the time of such peak (as reported in such Ten Year Power Plant Site Plan).
4.3 During the period beginning with the ef fective date of this Agreement and ending 10 years plus 120 days thereaf ter, Cities will not contend, claim or assert, or lend their support to any contention, claim or assertion, before any court or agency or department of any government that FPL has any obligation to supply firm power to any electric utility or other person except for those obligations specified in Section IX of the License
. Conditions made effective in NRC Docket No. 50-389A by order dated April 24, 1981, or in its Sale for Resale tariff on file at the Federal Energy Regulatory Commission ("FERC") and the obligations undertaken in this section; provided that if FPL voluntarily provides firm power to other utilities other than as is required pursuant to the obligations referenced here, this provision shall not operate to prevent Cities from claiming that denial of such additional or different service to them constitutes unlawful discrimination.
The Cities will not contest the discon-tinuance of any of the obligations provided in this Section 4 and the termination of contracts entered into pursuant to this Section 4, at time or times provided in this Section and in such contracts.
5.
Within a reasona,ble time af ter the execution of this Agreement, FPL will tender to the FERC for filing Sale for Resale Time - Dif ferentiated Partial Requiremencs Rate Schedule - PRT-1 (Appendix C).
Cities shall not oppose the filing of such rate schedule or at that time seek, or lend their support to any effort to seek, any modification thereof.
6.
Cities will consider in good faith, and will negotiate without commitment but in good faith with FPL with respect to, any proposal made by FPL for arrangements relevant to the exchange of economy energy which it believes are consistent with the objec-tive of maximizing the ef ficiency of overall power production in Florida.
l l
7.
FPL agrees to cooperate, by providing transmission data available to FPL, in any study proposed to the Florida Electric
7-Power Coordinating Group ("FCG") within one year after the date of this Settlement Agreement of lawf ul alternative arrangements for transmission service in Florida.
At the time any such study is insti tuted, FPL shall determine whether it will pay any of the expected cost of the study and shall promptly advise FCG of its determination.
At the conclusion of the study, FPL and each other utility will determine independently whether to accept any recom-mendation made on the basis of matters studied by FCG.
If FPL determines not to accept any such recommendation, FPL agrees not to oppose consideration by the Florida Public Service Commission i
I,
("FPSC") of the recommendation, if any, made on the basis of mat-I' ters studied by FCG, but FPL reserves the right to take any posi-tion it deems appropriate before the FPSC on the merits of such recommendation, and to exercise its legal rights with respect to any determination made by the FPSC.
8.
(a)
FPL agrees that it will provide transmission service to FMPA for 77 Mw of power from a point or points of interconnec-tion between FPL and Georgia Power Company (or Southern Companies) l to FMPA members whose systems are directly interconnected or con-3 nected with FPL's system, provided that FPL shall be required to l
deliver such power only to those points of interconnection or delivery as to which sufficient capacity is available to accommodate the transaction.
Except as provided below, this service shall be available only for e
9
--,,3
~
,,.,.e
. transmission of the output of an interest that FMPA acquircs in the Vogtle plants.
FMPA may accept such service by entering, before June 1, 1983, into a contract with FPL that provides the rate and terms and conditions for such service and commits FMPA to pay for such service, whether or not it is used, for the term of the contract, which term may be designated by FMPA.
Such 4
contract shall not provide for service to commence earlier than one year after the effective date of the contract.
If FMPA has not, by June 1, 1983, contracted for an interest in the Vogtle plant, it may receive such transmission service for power from another source designated by it if it enters into such a contract before June 1, 1984.
~
(b)
FPL agrees that, beginning with the date of completion of its two 500 KV lines from the Duval substation to l'
the Martin Plant (currently estimated to be January 1, 1986), it will make available to FMPA transmission service for up to 300 Mw of power (in addition to the 77 Mw provided in Section 8(a)),
with such amount to be determined by FMPA, from the Duval I
substation to points of interconnection or delivery on FPL's system south of the Duval substation designated by FMPA, provided that FPL shall be required to deliver such power only to those points of interconnection or delivery as to which sufficient capacity is available to accomodate the transaction.
FMPA may accept such service by entering, before January 1, 1986, into a 9
contract with'FPL that provides the rate and terms and conditions for such service and commits FMPA to pay for such service, whether or not it is used, for the term of the contract, which term may be designated by FMPA.
Such contract shall not provide for service to commence earlier than one year af ter the effective date of the contract.
If construction by FPL is necessary for transmission service requested by FMPA, FPL may require reasonable financial arrangements in the manner provided by License Condition X(d).
FMPA shall be responsible for arrangements to deliver any such power to FPL at the Duval substation.
(c)
The contracts for transmission service described in Sections 8(a) and 8(b) shall contain terms that are consistent with the terms of this Section 8(c).
FPL and FMPA will negotiate and attempt to agree on the rates and other terms and conditions to be included in the contracts.
In the event of a disagreement, j
the rates and such terms and conditions proposed by FPL will be i
in.cluded in any such contract, and the contract will provide that (i) FMPA may contest such rates and terms and conditions, and (ii) to the extent that the rates provided in the contract ultimately found, by an order of the FERC no longer subject are to appeal, to be excessive, FPL will refund the excess toge ther with interest at the rate specified for refunds by the FERC's regulations.
FPL shall have the right unilaterally to make
-m n,
,,,,_,.,,n
,m
--en.
,,,m.
~
application to the FERC, or other regulatory aurhority having jurisdiction, for a change in the rates and terms and conditions provided in the contracts except for the terms and conditions specified in this Section 8(c).
All rights provided to FMPA by this Section 8(c) shall terminate if, and to *.he extent that, FMPA fails to enter into the contracts described above by the dates specified above.
This Section 8(c) shall not be construed to restrict the ability of FMPA otherwise to seek transmisJion service from FPL, or to commit FPL to provide such service other than as specified herein.
9.
FPL agrees to offer, to each City with which it is party to a transmission service agreement that applies to transactions, such as emergency interchange, short-term firm interchange, economy interchange, and firm interchange, under one or more interchange agreements (and to FMPA, at such time as FMPA and FPL enter into any such transmission service agreement), the oppor-tunity to pay for such service on a dollars per megawatt-hour basis, as contrasted with a rate expressed in dollars per megawatt-day, dollars per megawatt-month or dollars per megawatt-year.
It is contemplated that the rate per megawatt-hour would be determined by dividing the applicable rate, expressed in terms of dollars per megawatt-year, by 8,760.
Customers under such agreements may reserve transmission capacity for interchange tran-sactions by committing to pay the per megawatt-hour transmission rate for each hour of the period so reserved, provided FPL commits, in accordance wi h the effective
transmission service agreement, to the availability of such services for such period.
Where a City has notified FPL that it has a need for transmission service during a designated period by reason of entering into a power transaction agreement with another utility for such period, which agreement shall have been delivered to FPL prior to the commencement of such pe.iod, but such City does not wish to reserve transmission capacity during such period, but contracts with FPL for service on a per i
megawatt-hour basis, then if FPL receives a request from another customer for firm transmission service, which service cannot be reliably provided without risk of interruption of service to such I
City, FPL shall notify such City and offer it the right of first refusal to reserve the transmission capacity necessary for the interchange transaction for which it has contracted on a per megawatt-hour basis.
The per megawatt-hour rate shall not apply to any transaction the term of which is longer than three years.
Nothing contained in this Section 9 shall be construed as affecting in any way the right of FPL to unilaterally make application to the FERC, or other regulatory authority having jurisdiction, for a change in any rate schedule for transmission service under Section 205 of the Federal Power Act and pursuant to the FERC's Rules and Regulations promulgated thereunder; provided that FPL will not, prior to January 1, 1987, put into effect any change that eliminates the per megawatt-hour pricing 0
m.
..,c
, - ~,
- - - - =..
concept described herein, until the FERC has first issued an effective order approving FPL's application to eliminate this pricing concept.
10.
FPL shall af ford FMPA an opportunity to participate in the next two major coal-fired units which FPL undertakes to construct and which are certified as to need by the Florida Public Service Commission by July 1, 1992.
FPL shall offer a participation opportunity to FMPA in an amount aggregating about 7 percent of the capacity of each unit.
If and when FPL puts each of these units on a normal project schedule, notice 4
(including cost and technical information) will be given to FMPA.
Within 120 days, FMPA shall, if it desires to participate, advance a deposit equal to 10 percent of FPL's costs to that date attributable to the share available to FMPA.
The parries will then, within 180 days, negotiate and execute a Participation Agreement, which shall be substantially in accord with the St.
Lucie Unit No. 2 Participation Agreement, except that the Agreement shall provide for FPL to receive a reasonable management fee and shall be modified to refleet the fact that the units will be coal-fired, not nuclear powered.
If the two units are certified as to need at the same time and are of similar size and design, FMPA may elect to participate (or increase their participation) in one of the units to the extent of 14 percent of its capacity, but then FMPA may not participate in the other
a 13 -
unit.
FPL may offer, but is not obligated to offer, a reliability exchange between the two units.
11.
(a)
FPL agrees to pay to the Lake Worth Utilities Authority (" Lake Worth"), as a contribution in aid cf construction, 41 percent (that is, $766,669 subject to correction) of the cost of the FPL-Lake Worth interconnection.
The payment to Lake Worth shall be made in five equal annual installments, with the first installment to be paid at the time FPL makes the payment called for under Section 12 of this Settlement Agreement.
When each of the next four installments is paid, FPL shall also pay interest on the unpaid balance due Lake Worth at the annual rate for 13-week Treasury Bills established and' qu'ote'd 'id'~financiai~ publications nearest in time to the date when each of the installment payments is due.
At any time, FPL shall have the option to pay'in full the unpaid balance due Lake
~
Worth plus accrued interest.
(b)
FPL agrees to' pay to the City of Homestead, as a contributioninaidofbonstruction, 13 percent (thatks,
$434,000 subject to correction).of the cost of the. FPL-Homestead interconnection.
The payment to the City of Homestead shall be made at the time FPL makes the payment called for under Section 12 of this Settlement Agreement,-
O e
-y
O 3
S g'
14 -
t t
_4 t
(c)
FPL's and New Smyrna Beach's agreement to this Settlement Agreement is contingent upon both approving a separate settlement of the territorial dispute.
FPL agrees that, with respect to New Smyrna Beach, FPL will waive the limitation on increases in contract demand under Sale for Resale Rate Schedule
- PR-1 to the extent necessary to permit New Smyrna Beach to assume the obligation of serving customer loads that it will acquire if FPL and New Smyrna Beach are successful in reaching a settlement of their pending territorial dispute.
12.
Florida Cities shall provide to FPL a reasonable accounting and documentation setting forth the litigation expenses, including legal fees and fees' of consultants, incurred by them through January 31, 1982 in connection with the litigation and proceedings identified in Section 13(a) of this Settlement Agreement.
On March 4, 1982 or within 10 business days af ter the receipt of such accounting and documentation, whichever is later, FPL will pay to Florida Cities an amount equal to 27.5 percent of such expenses, but such payment shall not be more than S700,000.
Such payment shall be by check l
payable to the order of Clem Corn, treasurer of the Nuclear Intervenors Group.
l l
13.
(a)
Concurrently with the payment provided for in Section 12, (1) FPL and those Cities which are parties to Lake Horth Utilities Authority et al. v. FPL, S. D.
Fla., No.
79-5101-Civ-JLK, shall' enter into a stipulation, in the form attached hereto as Exhibit A, dismissing such litigation with prejudice and requesting that the Court vacate as moot its " Order Denying Motions for Summary Judgment on Plaintif f's Gas Claim and Granting Defendant's Summary Judgment Motion on Plaintif f's Nuclear Access Claim," dated October 9, 1981, (2) each of the Florida Cities shall provide to FPL an executed covenant not to sue, in the form attached hereto as Exhibit B, (3) FPL shall provide to the Florida Cities an executed covenant not to sue, in the form attached hereto as Exnibit C, and (4) Florida Cities shall withdraw their request for a Section 105c hearing before the NRC in Docket Nos. 50-250A, 50-251A, 50-335A, and 50-389A, and dismiss their appeal in the Section 105a matter before the United States Court of Appeals for the District of Columbia Circuit (No. 80-1099) in the form of the documents attached hereto as Exhibit D, and (5) a motion shall be filed, in the form attached hereto as Exhibit E, in which (i) Florida Cities advise the Nuclear Regulatory Commission that they accept the settlement License Conditions which became effective April 27, 1981, in NRC Docke t Nos. 50-389 and 50-389A, and request that they be permitted to withdraw from those proceedings, and (ii) Florida Cities and FPL request that those proceedings be terminated
- lo -
Without further litigation or other action and that the
" Memorandum and Order Concerning Florida Cities Motion for Summary Disposition on the Merits," issued by the Atomic Safety and Licensing Board in NRC Docket No. 50-389A on December 11, 1981, be vacated as moot.
(b)
Each of the Floridc. Cities agrees (1) not to seek directly or indirectly or take advantage of any relief (other than enforcement of the License Conditions) from the NRC and (2) not to assert or continue to maintain before any forum any matters alleged by any of the Florida Cities in any of the litigation and proceedings identified in subsection (a) above.
14.
Florida Cities and FPL shall cooperate in attempting to sbcure the consent of the FERC and any other party in order to vacate the judgment in Florida Power & Light Company v.
FERC, 660 F. 2d 668 (5th Cir. 1931), and the FERC order that was the subject of that judgment on the grounds that the controversy among the parties to those proceedings with respect to the filing of a transmission tariff has been mooted.
Subject to Florida Cities' obligations under Section 13 of this Settlement Agreement and the covenants not to sue referred to in such section, Florida Cities reserve the right to litigate matters relating to FPL's rates for transmission service, except that Florida Cities may not seek any order in any pending FERC proceeding requiring FPL to file a tariff for transmission service.
15.
Each of the signatories which is an authority, board or commission separate from the city in Florida in which it operates an electric utility system (e.g.,
the Lake Worth Utilities
f Authority, the Utilities Commission of New Smyrna Beach, the Sebring Utilities Commission, and the Utilities Board of the City of Key West) represents and covenants that its approval of the Settlement Agreement will bar that City f rom asserting against FPL any claim or matter that (a) said authority, board or com--
mission may not assert by reason of the Settlement Agreement and i
the Appendices and Exhibits thereto and/or (b) the City could not, after the Settlement Agreement, assert against FPL were it a party to the Settlement Agreement and the Appendices and Exhibits thereto.
- ATTESTj FLORIDA POWER & LIGHT COMPANY O
/
d
.h..
(/7
/
f,.
L Ad/dl Y s
y /
E 'N ~ D ZES:5!! LIT'SZCnETARY
- " IE k. g Date
/
j There follow 17 signature pages, one for each of the City parties to this Settlement Agreement.
.w
-,-r n,
- - - + - -,,
)
. ATTEST:
CITY OF ALACHUA
Title:
Date
,m.,
. ATTEST:
CITY OF BARTOW
Title:
Date 4
.m m..
>=
~
e.a
ATTEST:
CITY OF FORT MEADE
Title:
Date
.9
.+
---m-,
-u ATTEST:
CITY OF HOMES W
Title:
Da te
e
. ATTEST:
UTILITY BOARD OF THE CITY OF KEY WEST
Title:
Da te l
i
{
l I
.- ATTEST:
CITY OF KISSIMMEE
Title:
Date O
a
. ATTEST:
LAKE WORTH UTILITIES AUTHORITY
Title:
Da te 9
. ATTEST:
CITY OF LEESBURG it'itle :
Date h
I l
f i
I
---.,4,
.c-,-.,,..
-7,,,
g,,-
--,,- - -,.---,w---,
Y ATTEST:
CITY OF MOUNT DORA h
l l
Title:
Da te f
ATTEST:
CITY OF NEWBERRY
Title:
Date i
i I:.
ATTEST:
NEW SMYRNA BEACH UTILITIES COMMISSION CITY OF NEW SMYRNA SEACH
Title:
Date d
0
9 L
O*
e e ATTEST
- SEBRING UTILITIES COMMISSION
Title:
Date O
ATTEST:
CITY OF STARKE
Title:
Da te
.. ATTEST:
CITY OF ST. CLOUD
Title:
Da te l
l l
e e-n--+
,-->-e-se
ATTEST:
CITY OF TALLAHASSEE
Title:
Da te 1
1 l
o ATTEST:
CITY OF VERO BEACH
Title:
Mte 1
i M
0 l
- -. _. - - -. - ~
r-se ATTEST:
FLORIDA MUNICIPAL UTILITIES ASSOCIATION
Title:
Da te y
EXHIBIT A IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA LAKE WORTH UTILITIES AUTHORITY,
)
et al.,
)
Plaintiffs,
)
Civil Action No.
v.
)
79-5101-Civ-JLK
)
FLORIDA POWER & LIGHT COMPANY,
)
Defendant.
)
STIPULATION Plaintiffs and defendant hereby stipulate, consent, and agree, without admission by any party as to any issue of law or fact herein, as follows:
1.
Pursuant to Rule 41(a) (1) of the Federal Rules of Civil Procedure, this action shall be dismissed with prejudice, with each party to bear its own costs.
2.
The Court is request 2d to vacate as moot, in light of the settlement of this matter, its " Order Denying Motions for Summary Judgment on Plaintiff's Gas Claim and Granting Defendant's Summary Judgment Motion on Plaintiff's Nuclear Access Claim," dated October 9, 1981.
See United States v. Munsingwear, 340 U.S.
36, 39 (1950).
For Plaintiffs:
For Defendant:
A-1
o EXHIBIT B COVENANT NOT TO SUE KNOW ALL MEN BY THESE PRESENTS THAT [name of City]
on behalf of itself and all persons claiming under it and its predecessors, successors, and assigns, and all of their past, present, and future officers, agents and employees, and their respective heirs and legal representatives, for good and valuable consideration from Florida Power & Light Company ("FPL"), a corporation incorporated under the laws of the State of Florida, the receipt of which is hereby acknowledged, does hereby covenant and agree to forever refrain from instituting, maintaining, procuring, or in any way voluntarily aiding any suit, cause of action, claim or proceeding of any kind against FPL, FPL's past, present and future parents, subsidiaries, and successors, and the of-ficers, directors, partners, agents, and employees of FPL and such parents, subsidiaries, and successdrs, and the heirs and legal representatives of such officers, directors, employees, partners,- and agents, arising out of all, and all manner of, actions and causes of actions, suits, claims, contentions, judgments or defenses (1) under or based or grounded upon (a) the antitrust laws of the United States, as defined in 15 U.S.C.
S 12 (a) as amended, together with the Federal Trade Commission Act, 15 U.S.C.
S 45, as amended, B-1 u
(b) the antitrust laws of the State of Florida, Fla. Stat.
SS 501.204, 501.211, 542.05, 542.10 and 542.12, (c) the Atomic Energy Act of 1954, 42 U.S.C.
SS 2011 et seq., (d)
Sections 4, 5, and 7 of the Natural Gas Act, 15 U.S.C.
SS 717c, 717 (d) and 717f, or (e) Sections 205 and 206 of the Federal Power Act, 16 U.S.C.
SS 824d and 824e, to include without limitation those causes of actions, suits, claims, contentions, judgments and defenses which could be asserted under those Acts in any court or administrative forum, pro-ceedings, or hearing of the United States or any state, and/or (2) under or based or grounded upon the matters alleged in Civil Action No. 79-5101-Civ-JLK in the United States District Court for the Southern District of Florida, whether they be presently known or unknown or suspected or unsuspected, and whether they be related or unrelated to the litigation referred to above as to law or facts or both, which against FPL (name of City] ever had, now has or which its heirs, executors, administrators, successors, or assigns, or any of them, hereafter can, shall or may have, for, or by reason of any cause, matter or thing whatsoever, from the beginning of the world to the date of this Covenant Not To Sue, except for enforcement of the Settlement Agreement entered into between (name of City] and FPL as of March 3, 1982, and the NRC License Conditions for St. Lucie Unit No.
2 and except for payments that may be due (name of Cityl from FPL for sales or purchases of power or transmission services.
B-2
o.
o
[Name of City] expressly reserves all rights to institute, maintain, procure, or aid in any suit, cause of action, claim or proceeding of any kind arising out of any matter or thing against any person, party or entity other than FPL.
IN WITNESS WHERECF, pursuant to a vote of the
[ appropriate authority of the City] duly taken on [date] I hereunto subscribe on behalf of the [name of City] and affix the ceal of the [name of City] this day of 1982.
[Name of City]
[ Title]
(
ATTEST:
l (Title]
B-3
?
o
EXHIBIT C COVENANT NOT TO SUE KNOW ALL MEN BY THESE PRESENTS THAT Florida Power
& Light Company ("FPL"), a corporation ircorporated under the laws of the State of Florida, on behalf of itself and all persons claiming under it and its predecessors, successors, and assigns, and all of their past, present and future officers, agents and employees, and their respective heirs and legal representatives, for good and valuable consideration from City of Alachua, City of Bartow, City of Fort Meade, City of Homestead, Utility Board of the City of Key West, City of Kissimmee, Lake Worth Utilities Authority, City of Leesburg,
City of Mount Dora, City of Newberry, New Smyrna Beach Utilites Commission City of New Smyrna Beach, Sebring Utilities Commis-sion, City of Starke, City of St. Cloud, City of Tallahassee, City of Vero Beach, and Florida Municipal Utilities Association
(" Florida Cities") the receipt of which is hereby acxnowledged, does hereby covenant and agree to forever refrain from insti-tuting, maintaining, procuring or in any way voluntarily aiding any suit, cause of action, claim or proceeding of any kind against any of the Florida Cities, any of their past, present and future parents, subsidiaries, and successors, and the of fi-cers, directors, partners, agents, and employees of each of the Florida Cities and such parents, subsidiaries, and i
C-1
successors, and the heirs and legal representatives of such officers, directors, employees, partners, and agents, arising out of all, and all manner of, actions and causes of actions, suits, claims, contentions, judgments or defenses (1) under or based or grounded upon (a) the antitrust laws of the United States as defined in 15 U.S.C.
S 12 (a) as amended, together with the Federal Trade Commission Act, 15 U.S.C.
S 45, as amended, (b) the antitrust laws of the State of Florida, Fla. Stat. SS 501.204, 501.211, 542.05, 542.10 and 542.12, (c) the Atomic Energy Act of 1954, 42 U.S.C.
SS 2011 et seq.,
(d) Sections 4, 5 and 7 of the Natural Gas Act, 15 U.S.C.
SS 717c, 717 (d) and 717f, or (e) Sections 205 and 206 of the Federal Power Act, 16 U.S.C.
SS 824d and 824e, to include without limitation those causes of actions, suits, claims, contentions, judgments and defenses which could be asserted under those acts in any court or administrative forum, proceedings, or hearing of the United States or any state, and/or (2) under or based or grounded upon the matters alleged by FPL in its counterclaim in Civil Action No. 79-5101-Civ-JLK in the United States District Court for the Southern District of Florida, whether they be presently known or unknown or suspected or unsuspected, and whether they be related or unrelated to the litigation referred to above as to law or facts or both, which against any of the Florida Cities FpL ever had, now has, or which its heirs, executors, administrators, successors, or assigns, or any of them, hereafter can, shall or may have, for, or by reason of C-2
4 any cause, matter or thing whatsoever, from the beginning of the world to the date of this Covenant Not To Sue, except for enforcement of the Settlement Agreement entered into between Florida Cities and FPL as of March 3, 1982, and except for payments that may be due FPL from any of the Florida Cities for sales or purchases of power or trans-mission services.
FPL expressly reserves all rights to institute, maintain, procure, or aid in any suit, cause of action, claim or proceeding of any kind arising out of any matter or thing against any person, party or entity other than Florida Cities.
i i
IN WITNESS WHERIOF, on behalf of Florida Power &
Light Company I have hereunto set my hand and affix the seal of the Company this day of 1982.
ATTEST:
[ Title)
C-3 l
- l. -
o g.
EXHIBIT D UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of
)
)
FLORIDA POWER & LIGHT COMPANY
)
Docket Nos. 50-389A
)
50-335A (St. Lucie Plant, Unit Nos. 1& 2;
)
50-250A Turkey Point Plant, Unit Nos. 3& 4)
)
50-251A WITHDRAWAL OF REQUEST FOR HEARING The Lake Worth Utilities Authority, the Utilities Commission of the City of New Smyrna Beach, the Sebring i
Utilities Commission, the Cities of Alachua, Bartow, Fort Meade, Homestead, Key West, Kissimmee, Mt. Dora, Newberry, St. Cloud, Starks and Tallahassee, Florida, and the Florida Municipal Utilitier Association (collectively " Florida b! the Commission Cities"), on August 28, 1978, requested to institute a proceeding against licenses held by Florida Power & Light Company (FPL) under Section 105a of the Atomic Energy Act of 1954, as amended, based on a decision of the Fifth Circuit.
Gainesville Utilities Dept. v.
l Florida Power & Light Co.,
573 F.2d 292, cert. denied, 439 U.S. 966 (1973).
The Commission, by order of December 21, 1979, declined to institute such a proceeding.
Florida Cities petitioned for review of that order in the United States Court of Appeals for the District of Columbia i
i 1/
The Cities of Homestead, Kissimmee, and Starke, Florida,
^
were not listed in the initial request for a proceeding, but subsequently joined in Florida Cities' request.
D-1
.7 Circuit (No. 80-1099).
That Court is holding proceedings in abeyance pending the outcome of further proceedings before this Commission.
Florida Cities have settled their differences with FPL in this matter.
Pursuant to that settlement, Florida Cities hereby withdraw their request that the Commission institute a proceeding under Section 105a against FPL.
In addition, all parties to the review of the Conmission's order in the D.C. Circuit have signed a Stipulation for Dismissal with Prejudice which has been filed with that Court.
Respectfully submitted, Robert A. Jablon Alan J.
Roth Attorneys for the Lake Worth Utilities Authority, the Utilities Commission of the City of New Smyrna Beach, the Sebring Utilities Com-mission, the Cities of Alachua, Bartow, Fort Meade, Homestead, Key West, Kissimmee, Mt. Dora, New-berry, St. Cloud, Starke and Tallahassee, Florida, and the Florida Municipal Utilities Association D-2
/
. ",. p.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA Ft. Pierce Utilities Authority of the
)
City of Ft. Pierce, et al.
)
)
v.
)
No. 80-1099
)
Nuclear Regulatory Commission
)
and United States of America
)
JOINT STIPULATION TO DISMISS WITH PREJUDICE Pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure, and in light of a settlement among the Petitioners and Intervenors, the undersigned parties to the above-captioned proceeding jointly move, anconditionally stipulate and agree, that this proceeding be dismissed with prejudice, in all regards, with each party to bear its own costs.
Respectfully submitted, Robert B.
Nicolson Robert A. Jablon U.S. Department of Justice Alan J.
Roth Leonard Bickwit U.S. Nuclear Regulatory Attorneys for Petitioners and Commission for Intervenors Homestead, Kissimmee, and Starke, Attorneys for the United Florida States of America and the Nuclear Regulatory Commission J.A.
Bouknight, Jr.
Attorney for Intervenor Florida Power & Light Company D-3 1
1
e O
EXHIBIT E UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
Florida Power & Light Company )
Docket No. 50-389A
)
(St. Lucie Plant, Unit No. 2) )
(DATE]
JOINT MOTION TO WITHDRAW INTERVENTIONS, DISMISS AND TERMINATE PROCEEDINGS, AND VACATE MEMORANDUM AND ORDER Florida Power & Light Company ["FPL], the Florida Cities, and the NRC Staff hereby respectfully submit this joint motion to withdraw the Florida Cities' interventions, dismiss and terminate this proceeding, and vacate the Board's December 11, 1981 Memorandum and Order.
The grounds for this motion are set forth below.
FPL and the Florida Cities have now reached a comprehensive settlement resolving all of the matters in dispute between them in this proceeding and in several other proceedings.-*/
Pursuant to the Settlement Agreement, appended hereto as Exhibit A, the parties to this Joint Motion hereby advise the Board that they accept the license conditions agreed to by FPL, the Department of Justice, and the NRC Staff and approved
-*/
In addition to this proceeding, the settlement covers the Miami civil antitrust litigation, both Cities' claims and FPL's counterclaim; Cities' request for a S105a anti-l trust hearing; several commercial disputes; a proceeding before the Florida Public Service Commission which is now pending before the Florida Supreme Court; and portions of several FERC proceedings.
k 2-by the Board on April 24, 1981.
Accordingly, Florida Cities withdraw their request for a hearing, and request leave to withdraw from this proceeding.
All of the intervenors to this proceeding have now with-drawn their requests for a hearing and have accepted
/
the license conditions approved by the Board, which have also been The accepted by the Department of Justice and the NRC Staff.
law is clear that where, as here, none of the parties to a matter is requesting further proceedings or relief, and there is no controversy among them, the proceeding should be termi-nated.
In the Matter of Georgia Power Company (Edwin I. Hatch (19 7 4 ).-- /
Nuclear Plant, Unit No. 2), LBP-74-52, AEC Accordingly, the parties jointly request the Board to dismiss and terminate the instant proceedings.
- /
The Orlando Utilities Commission moved to withdraw from the proceeding on
, prior to the imposition of the April 24, 1981 license conditions, and that motion is still in effect.
The Gainesville Utilitics Under l
Department moved to withdraw on l
the Settlement Agreement, the license conditions have also been accepted by all the remaining Cities which have sought to intervene, namely:
The Lake Worth Utilities Authority, the Utilities Commission of New Smyrna Beach, the Fort Pierce Municipal Utilities Association, the Sebring Utilities Commission, the Cities of Alachua, Fort Meade, Homestead, Key West, Mt. Dora, Newberry,
- Bartow, Cloud, Starke, Tallahassee, and Vero Beach, Florida, St.
and the Florida Municipal Utilities Association.
license proceed-
- /
The same rule applies in operatin s In the Matter of Baltimore ings.
Id; see, e.c.,
Gas & Electric Co. (Calvert Clif f s Nuclear Power Plant, Units 1 & 2), AEC Dkt. Nos. 50-317 & 50-318, (footnote continued) l l
dI!
a
. Lastly, the parties jointly move the Board to vacate its Memorandum and Order Concerning Florida Cities' Motion i
for Summary Disposition on the Merits, dated December 11, 1981
(" Memorandum and Order").
The settlement between FPL and Florida Cities resolves and extingu.shes all matte.rs in d
controvajesy between them in this proceeding.
The Settlement Agreement and the covenants entered into pursuant to that Agree-ment would bar the further prosecution of this case as between ITL and Florida Cities. /
The effect of such settlement is to moot the dispute between FPL and the Florida Cities, and thus the roard's Memorandum and Order concerning that dispute.
- See, e.a.,
Black v. Amen, 355 U.S.
600 (1958) (Frankfurter, J.,
concurring); Amalgamated Clothing and Textile Workers U ion v.
J.P.
Stevens & Co.,
Inc., 638 F.2d 7, 8 (2d Cir. 1980).
(footnote continued)
Order dated May 10, 1973; In the Matter of Wisconsin Public Service Corporation,et al (Kewaunee Nuclear Power Plant), AEC Dkt.
No. 50-305, order dated October 23, 1972; In the Matter of Metropolitan Edison Company, et al (Three Mile Island Nuclear Station, Unit 1), AEC Dkt.
No. 50-289, Order issued November 16, 1973; In the Matter of Sacramento Municipal District (Rancho Seco Unit 1), AEC Dkt.
No. 50-312, Order dated December 11, 1973; Petition for Derating of Certain Boiling Water Reactors, AEC Dkt. Nos. 50-219, 50-237, 50-249, 50-254, 50-265, 50-220, 50-245, 50-263, 50-293, Order Issued January 9, 1974,; In the Matter of Vermont Yankee Nuclear Power Corporation (Vermont Yakee Nuclear Power Station), AEC Dkt. No. 50-271, Order issued January 22, 1974.
- /
Settlement Agreement at S__; Covenants Not to Sue at l
The established practice in dealing with a civil case that has become moot pending the decision on an appeal is to reverse or vacate the judgment below and remand with a direction to dismiss.
United States v. Munsinawear, 340 U.S.
36, 39 (1950); Amalgamated Clothing and Textile Workers Union v.
J.P.
Stevens & Co.,
Inc., supra, 638 F.2d at 8.
The same practice has been held applicable to unreviewed administrative orders that have become moot.
Mechling Barge Lines v. United States, 368 U.S.
325, 329 (1961); Tennessee GP.s Pipeline Co. v. Federal Pcwer Commission, 606 F.2d 1373, 1382 (D.C. Cir. 1979).
The parties submit that, having become moot, the Board's Memorandum and Order, dated December 11, 1981, should be vacated.
For the foregoing reasons, the Board should give leave for the withdrawal of the Florida Cities from the proceeding l
and should enter an order terminating the proceedings, and I
vacating its Memorandum and Order of December 11, 1981, as moot.
Respectfully submitted, l
1 l
t -
APPENDIX A FORM FINANCING CONTINGENCY AGREEMENT BETWEEN FLOR 1DA MUNICIPAL POWER AGENCY AND FLORIDA POWER & LIGHT COMPANY This Financing Contingency Agreement (" Agreement") is made this lith day of February, 1982 between Florida Municipal Power Agency ("FMPA") and Florida Power & Light Company ("FPL").
Section 1 - Premises 1.1 Whereas, pursuant to certain conditions to the St. Lucie Unit No. 2 license (NRC Docket No. 50-389A) FPL offered to
~
certain members of FMPA ownership interests in St. Lucie Unit No.
2 equal to 7.80825 percent; and 1.2 Whereas, such members of FMPA assigned to FMPA their rights with respect to FPL's offer; and 1.3 Whereas, FPL and FMPA have agreed to increase the ownership interest that is offered to FMPA to 8.806 percent if FPL and other parties settle differences between them; and 1.4 Whereas, FPL and FMPA have negotiated the St. Lucie Unit No. 2 Participation Agreement between FPL and FMPA
(" Participation Agreement") which is being executed contemporaneous 1y with execution of this Agreement; and 9
.-(,,
.,1.5 Whereas, the Participation Agreement contains provisions regarding closing and provides that certain conditions must be met by FMPA as conditions precedent to closing; and 1.6 Whereas, FMPA and FPL desire to provide for the contingency that, due to circumstances beyond its control, FMPA may be unable to meet one or more of the conditions precedent to closing.
Now, therefore, in consideration of the premises and the mutual covenants herein contained, FMPA and FPL agree as follows:
Section 2 - Right of Assignment 2.1 If FMPA is unable to obtain judicial validation of its bonds by the tire provided in the Participation Agreement or to meet any of the conditions specified in Section 8.2 of the Farticipation Agreement (other than payment of the purchase price), and if FMPA has asserted its best ef forts to remove Luch disability, FPL agrees that the time provided in the Participation Agreement for closing shall be extended for 60 days, during which time FMPA may assign its interest in and under the Participation Agreement to one or more of its Pa rticipa ting Members (as that term is defined in the Participation Agreement) listed on Exhibit 1 attached hereto; provided that if FMPA's disnbility results from any inability to provide one or more of the opinions of the counsel required by Section 8.2(B) of the l
. Participation Agreement, FMPA agrees that it will, at its expense, seek an opinion from other counsel satisf actory to both FMPA and FPL as ondition precedent to exercise of any of the rights provided in this Agreement.
FMPA will assert its best ef forts to assign its interests to Participating Members who it believes are able to finance and accept ownership interests in St. Luc ie Unit No.
2.
If, after making its best efforts to do so, all or a portion of its interest remains unassigned, FMPA may avail itself of the opportunity to purchase unit power provided in Section 3, pursuant to a unit power purchase contract as provided therein, if it gives notice to FPL, within such 60 day period, of its decision to do so.
2.2 Within such 60 day period each Participating Member shall notify FPL that it accepts said assignment and assumes the obligations of FMPA under the Participation Agreement to the extent of the Participating Member's interest, as if the Participating Member were an original signatory to the Participation Agreement, whereupon the closing date provided in the Participation Agreement chall be further extended from the date of such notice to permit NRC approval of and bond validation proceedings by the Participating Member in the manner as provided in the Participation Agreement.
Failure to provide such notice shall constitute a waiver of the Participating Member's rights to participate in the ownership c output of St. Lucie Unit No.
2,
.. and no person other than FPL shall have any rights with respect to the ownership percentage of St. Lucie Unit No. 2 as to which such waiver applies, in which event the right of FMPA or of any such Participating Member, to the extent of the interest assigned to such Participating Member (s), to a refund of the payment made to FPL on August 26, 1981 shall not be affected by this Agreement.
Section 3 - Unit Power Sale 3.1 Any Participating Member that accepts an assignment pursuant to Section 2 shall extend its best efforts to comply with the closing conditions provided in Section 8.2 of the Participation Agreement.
If any such Participating Member is unable to meet any of the conditions and provides FPL with notice of its inability supported by reasonable evidence of such inability, at least 30 days prior to the date that such Partici-pating Member would be required to close pursuant to Section 8.2 I
of the Participation Agreement, after extension as provided in Section 2.2 hereof such Participating Member shall, if it so requests in its notice, have the opportunity to purchase unit power from St. Lucie Unit No. 2 as provided in this Section 3.
3.2 Within 60 days after receipt of FPL's proposed contract, FPL and the Participating Member providing such notice shall enter into a contract (the " Unit Power Contract") that provides
~. _ _ _ _
- s. for the Participating Member to purchase from FPL a percentage of the capacity and energy of St. Lucie Unit No. 2 equal to the percentage assigned to it by FMPA.
The Unit Power Contract shall contain terms and conditions substantially the same as tr ums and conditions of the Participation Agreement, including, without limi:ation, provisions for allocation of capital and other costs, management and control of the project by FPL, and limitations on FPL's liability to the purchaser.
In addition, the Unit Power Contract shall contain provisions for purchase of replacement power in circumstances where prior to the time of retirement of St. Lucie Unit No.
2, FPL ceases to operate or reduces output from St. Lucie Unit No. 2 (i) because the cost of energy that could have been generated by St. Lucie Unit No. 2 would have been more expensive to FPL than the cost of energy available to FPL from sources other than St. Lucie Unit No.
2, or (ii) because of valley load situations, in either of which events FPL will make available to the Participating Members replacement power and energy in each hour equal to the amount thereof reasonably anticipated to have been available to the Participating Members from St. Lucie Unit No. 2 at a cost equal to the estimated variable cost of pro-ducing such power and energy from St. Lucie Unit No. 2 that would have oeen incurred if St. Lucie Unit No. 2 were continued in opera-tion without such cessation or reduction of output, with appropriate adjustments being made for reasonably determinable changes in operating conditions.
FPL shall make available such replacement power and energy, in accordance with this Section, until such time as St. Lucie Unit No. 2 is permanently retired i
l I
~. from FPL service.
It is recognized that, because of the struc-tural differences between and ownership arrangement and a power purchase arrangement, the Unit Power Contract must contain cer-tain terms that are different from or additional to the terms of the Participation Agreement; these include the following:
a.
Beginning with the earlier of (i) the date of Firm Operation of St. Lucie Unit No. 2 (as defined in the Partici-pation Agreement) or (ii) May 1, 1984 the purchaser will make the payments provided in the Unit Power Contract for the full term provided therein, which term shall be as long as required to amortize fully FPL's total capital investment allocable to St.
Lucie Unit No.
2, whether or not St. Lucie Unit No. 2 is completed, cperable or operating, and no such payment shall be excused or subject to setoff or reduction for any reason what-soever, including failure by FPL to deliver power or energy or otherwise to perform ita obligations to the purchaser; provided however that if the St. Lucie Unit No. 2 has not reached Firm Operc. tion by January 1, 1984, the purchaser may, by notice given no later than January 1, 1984, cancel the unit power contract, provided that no Participating Member shall have any right to I
capacity or energy from St. Lucie Unit No. 2 or any obligation to make payment therefor, except from and after the effective date of a Unit Power Contract between it and FPL.
b.
The purchaser shall not be required to make any capita.1 contributien, but shall, in lieu thereof, pay an amount determi.ied by applying a Fixed Charge Rate (expressed as a percentage) to a percentage of FPL's total net (depreciated)
- s. -
capital investment allocable (in accordance with the principles embodied in the Participation Agreement) to S t. Lucie Unit No. 2 equal to the purchaser's percentage entitlement to capacity and energy.
Such net investment shall, for the purposes of this Agreement, be increased or decreased to appropriately reflect accumulated deferred income taxes associated therewith.
The Fixed Charge Rate shall include an allowance for depreciation and i
a component to reflect FPL's cost of capital.
The allowance for depreciation shall be determined in accordance with the following principles:
(1)
It shall recover FPL's total capital invest-ment allocable to St. Lucie Unit No. 2 on a basis consistent with that approved by the Florida Public Service Commission.
(2)
It shall appropriately reflect future capital expenditures allocable to St. Lucie Unit No.
2.
(3)
It shall not include an amount for recovery i
of decommissioning costs which costs shall be recovered from
~
purchaser pursuant to 4(e) below.
(4)
It shall recover Federal and Florida Income Taxes actually incurred by FPL. as a result of the depreciation of the AFC portion of the investment in property covered under the Participation Agreement, less deferred income taxes associated therewith.
The component to reflect FPL's cost of capital shall be determined in accordance with the following principles:
(1)
FPL's capital structure shall consist of long term debt obligations, outstanding preferred and preference stock and common equity,
(2)
The percentage cost of common equity shall be the return on common equity most recently allowed by the Florida Public Service Commission at the time each bill is rendered, adjusted to reflect the statutory marginal federal and state corporate income tax rates to which FPL is subject; if the F3RC has made a determination on such return in connection with the most recent change affected in FPL's Sale for Resale rates, that FERC determination, adjusted as provided above, shall be used in lieu of the Florida Public Service Commission determinatiori, (3)
The percentage cost of preferred and preference stock shall be the weighted average of the percentage costs to FPL of the preferred and preference stock issued during construction of St. Lucie Unit No.
2, adjusted to reflect the statutory marginal federal and state corporate income tax rates to which FPL is subject, except that shares of preference and preferred stock issued after Firm Operation during a period when FPL is financing capital improvements to St. Lucie Unit No. 2 shall be taken into account on an equitable basis, (4)
The percentage cost of long term debt obligations shall be the weighted average of FPL's percentage cost of long term debt obligation issued during construction of St. Lucie Unit No.
2, except that long term debt obligations issued after Firm Operation during a period when FPL is financing capital improvements to St. Lucie Unit No. 2 shall be taken into account on an equitable basis.
F
c.
FPL's capital investment in St. Lucie Unit No. 2 shall include an allowance for funds used during construction, up to the date of receipt of first payment, calculated in accordance with Section 1.1 of the Participation A ceement, excluding the 9
expansion for Federal and Florida income caxes provided in Section 1.l(ii) of the Participation Agreement.
d.
The costs for which the purchaser is responsible shall include fuel costs determined by FPL in accordance with the Uniform System of Accounts (as defined in the Participation Agreement); provided that such fuel costs shall be adjusted for purposes of the Unit Power Contract to (i) include an appropriate allowance for AFC, as defined in and calculated in accordance with the principles set forth in Section 1.1 of the Participation Agreement, (ii) eliminate any benefits derived by FPL from its existing settlement with Westinghouse Electric Corporation and from any other settlement subsequently entered into by FPL except to the extent that any such settlement involves a claim con-cerning the supply of fuel for St. Lucie Unit No.
2, and (iii) incorporate any other adjustment that is appropriate and equitable.
i e.
The monthly charges paid by the purchaser are l
l expected to contain allowances for decommissioning and disposal costs, in accordance with decisions of the Florida PSC, to the
(
extent not already included in fuel charges.
If the aggregate of such amounts proves to be inadequate or excessive, purchaser shall remain responsible for a percentage of such costs in excess l
n.
thereof, or entitled to a credit, according to its percentage entitlement to capacity and energy under the Unit Power Contract, to the extent such responsibility and entitlement are consistent with decisions of the Florida PSC concerning such allowances.
f.
The parties recognize that the Unit Power Contract shall be subject to the regulatory authority of the Federal Energy Regulatory Commission ("FERC").
The Unit Power Contract shall contain a provision substantially in accordance with the following:
the parties agree not to seek, or lend their support to any effort to seek, any changes in the Unit Power Contract, upon or after filing of sucn Contract with the FERC.
If the FERC imposes conditions upon the filing of the Unit Power Contract or modifies the terms or conditions of such Contract as a result of a proceeding or investigation initiated contemporaneously with the FERC's acceptance of such Contract for filing, either party may terminate such Contract if, in its good faith judgment, such modification (s) or condition (s) materially change the rights, benefits, duties, or obligations under such Contract of the party desiring to terminate.
Either party may so terminate by giving written notice within 30 days af ter such modifications or con-ditions become ef fective; provided, however, if either party gives such notice, parties shall undertake to renegotiate such Contract to achieve such modifications as are necessary to restore the overall economic benefits to each party to the levels provided for'in such Contract as originally executed.
If the parties are unable to negotiate a new Contract within 90 days i
__)
.- after such notice, such termination shall become effective on the 90th day af ter such notice.
If the FERC or any other governmen-tal agency or a court of competent jursidiction, as a result of a proceeding or investigation not initiated contemporaneous 1y with the filing of such Contract, modifies such Contract in a manner which affects the economic benefits flowing to either party, the parties shall forthwith undertake renegotiation of this Agreement in order to achieve such modifications as are necessary to restore the overall economic benefits to each party to the levels provided for in this Agreement as originally executed.
No party i
shall be required to renegotiate before the order effecting such modification becomes final as appealable or while any appeal from such final order is pending.
Nothing in this Contract shall be construed to prevent FPL from effecting, by unilateral filing with the FERC or otherwise, any changes in rates or service hereunder that qre consistent with the provisions of this Contract, including changes to reflect the data used to determine the purchase price under the Unit Power Contract; provided however, that no Participating Member shall be precluded from contesting whether any such change or proposed change by FPL is consistent with the terms of the Unit Power Contract.
g.
The purchaser under a Unit Power Contract may not assign its interest thereunder without FPL's consent, which shall i
i not be unreasonably withheld; provided that FPL consents to the possible assignment to the City of Gainesville by the City of Kissimmee, Lake Worth Utilities Authority and the Utill-ies Commission, City of New Smyrna Beach, in accordance with existing agreements.
I
3.3 If a Unit Power Contract has not been executed within the period provided in Section 3.2, the Participating Member shall be deemed to have waived all rights with respect to St.
Lucie Unit No.
2, and no person other than FPL shall have any rights with respect to the percentage interest concerned; provided that, if prior to expiration of such 60-day period, a Participating Member files an action with a court of competent J urisdiction to enforce this Agreement, this provision shall be subject to the outcome of that litigation.
Section 4 - Miscellaneous 4.1 Tc the extent that any Participating Member requests that FMPA act in its stead or on its behalf with respect to che arrangements described in Sections 3 and 4 hereof, FPL shall cooperate, provided that satisfactory arrangements exist to assure that FMPA and the Participating Member are legally bound and able to make the payments required to be made to FPL and otherwise to meet their contractual obligations.
t 4.2 Neither FMPA nor any Participating Member has any right, as against FPL, for participation in, or purchase of unit power from, St. Lucie Unit No. 2 other than as provided in the Participation Agreement and this Agreement.
4.3 This Agreement shall become ef fective if and only if the Settlement Agreement dated as of March 3, 1982 between FPL and other parties is entered into by all the parties thereto and becomes effective.
. a In Witness Whereof, the undersigned parties have caused this Agreement to be duly executed as of the day and year set forth at the beginning of this Agreement.
FLORIDA POWER & LIGHT COMPANY By:
Robert J.
Gardner Senior Vice President ATTEST:
(SEAL)
FLORIDA MUNICIPAL POWER AGENCY By:~5arbara Bidwell, Chairman ATTEST:
}
Joseph M. Tardugno, Jr.
Assistant Secretary-Treasurer (SEAL) me imimm innimmei um
i EXHIBIT 1 SCHEDULE OF PARTICIPATING MEMBERS l
Alachua Bartow Clewiston Fort Meade Fort Pierce Green Cove Springs Homestead Jacksonville Beach Key West i
Kissimmee Lake Worth Moore Haven l
Newberry New Smyrna Beach l
Saint Cloud i
Sebring l
l.
Starke i
r Vero Beach o
E I
i l
\\
t.
0 t
APPENDIX B FORM ST. LUCIE NUCLEAR RELIABILITY EXCHANGE AGREEMENT BETWEEN FLORIDA POWER & LIGHT COMPANY AND THE FLORIDA MUNICIPAL POWER AGENCY This St. Lucie Nuclear Reliability Exchange Agreement, made
- 19__,
is between the Florida Municipal Power Agency ("FMPA"), a legal entity organized and existing under the laws of the State of Florida, and Florida Power & Light Company
("FPL"), a corporation duly organized, created, and existing under and by virtue of the laws of the State of Florida, who are the " Parties."
Article 1 - Recitals This Nuclear Reliability Exchange Agreement ( Agreemen t) is made with reference to the following facts, among others :
1.1 T! e Parties have entered into the St. Lucie Unit No. 2 Participation Agreement between FPL and FMPA which provides for the transfer from FPL to FMPA of a 7.80825 percent undivided ownership interest in St. Luc ie Un i t No.
2, a nuclear generating facility being constructed by FPL.
1.2 FPL has agreed that, in the event that certain conditions are met, the Participation Agreement shall be amended to increase FMPA's ownership interest to 8.806 percent.
1.3 FPL and FMPA have entered into the St. Lucie Replacement Power Agreement (" Replacement Power Agreement" ).
. ~
v 6
2-Now, therefore, in consideration of the premises, the payments to be made by each Party to the other hereunder, and covenants herein contained, the Parties agree as follows:
Article 2 - Definitions 2.1
" Available Net Generating Capability" - The capability of either St. Lucie Unit No. 1 or St. Lucie Unit No. 2 to produce power at any time (after Firm Operation of St. Lucie Unit No '. 2),
less Station Service Requirements, taking into account limitations imposed by any governmental agency.
Metering for this power will be located at the generator termint ! s and at the low side of the associated step-up, auxiliary and start-up transformers and appropriately adj usted for losses in these transformers.
2.2
" Energy" - Kilowatt Hours (kWh) or Megawatt Hours (MWh).
2.3
" Exchange Capacity from St. Lucie Unit No.
1" - the c
j Available Net Generating Capability and associated Energy provided to FMPA by FPL from St. Lucie, Unit No. 2 pursuant to Article 3 hereof.
2.4
" Exchange Capacity from St. Lucie Unit No 2"
- the Available Net Generating Capability and associated Energy
(
provided to FPL by FMPA from FMPA's Ownership Parcentage in St.
l l
Lucie Unit No. 2 pursuant to Article 3 hereof.
l
{
f
n-
. s.
2.5 "FERC" - the Federal Energy Regulatory Commission or its successor.
(
2.6
" Firm Operation of St. L_.cie Unit No.
2"
- has the meaning set forth in Section 1.9 of the Participation Agreement.
2.7
" Net Ene rgy" - the gross Energy generated over any period of time by either St. Lucie Unit No. 1 or St. Lucie Unit No. 2 less the associated Station Service Requirements, the step-up, auxiliary, and start-up transformer losses.
2.8 "FMPA's Ownership Percentage" - the 7.80825 percent undivided interest in St. Lucie Unit No. 2 which will be owned by FMPA upon closing in accordance with the Participation Agreement, or, if the Participation Agreement is"so amended, 8.806 percent.
2.9
" Participation Agreement" - the St. Lucie Unit No. 2 Participation Agreement between FPL and FMPA dated February 1982.
2.10 " Parties" FPL and FMPA.
2.11 " Power" - megawatts electrical.
2.12 " Prime Rate" - during any calendar month the rate per annum reported in the Money Rates column of the Wall Street Journal on the last business day of the preceding nonth as the
" PRIME RATE: The charge by large U.
S. money center commercial
_4_
banks to their best business borrowers", and the highest such rate if more than one is reported.
Similar data from The New York Times may be used if the Wall Street Journal is not published that day.
2.13 " Seasonal Net Capability" - the net capability rating of St. Lucie Unit No. 1 or St. Lucie Unit No. 2 as established from time to time by FPL for summer (June-September), spring / fall
( April, May, October, and November) and winter ( December-March) in accordance with the method described and illustrated in Exhibit V of the Particiaption Agreement.
This method is pre-sently applied uniformly to all nuclear generating units operated by FPL.
This method may be changed by FPL from time to time, so long as such method, as changed, applies uniformly to all nuclear generating units operated by FPL.
The Seasonal Net Capability so established is in conformance with the general guides and testing procedures in Section III and IV, respectively, of the Southeastern Electric Reliability Council Guideline No. 2 for Uniform Generator Ratings for Reporting, dated February 1972, as amended October 1978.
2.14 "St.
Lucie Unit No. 1 Fuel Costs" - the costs determined pursuant to Exhibit 1 hereof.
2.15 "St.
Lucie Unit No. 2 Fuel Costs" - the costs determined pursuant to Exhibit 1 hereof.
O h
.-,,n r
2.16 "St.
Lucie Unit No. 1 Production Operation and Maintenance Costs" - the costs determined pursuant to Exhibit 2 hereof.,
2.17 "St.
Lucie Unit No. 2 Production operation and Maintenance Costs" - the costs determined pursuant to Exhibit 3 hereof.
I 2.18 " Station Service Requirements" - the Power and Energy required during any period for operation of all equipment and systems (including an allocable portion of the Power and Energy used for Common Facilities (as the term " Common Facilities" is used in Section 1.4 of the Participation Agreement) used or useful in connection with the start-up, operations, shut-down and maintenance of St. Lucie Unit No. 1 or St. Lucie Unit No. 2.
Article 3 - Nuclear Reliability Exchange 3.1 FMPA hereby agrees to exchange to FPL the rights to i
Available Net Generating Capability and associated Net Energy from FMPA's Ownership Percentage of St. Lucie Unit No. 2 described in Section 3.2
(" Exchange Capacity from St. Lucie Unit I
I No. 2") for the rignts to Available Net Generating Capability and associated Net Energy from St. Lucie Unit No. 1 described in Section 3.3 (" Exchange Capacity from St. Lucie Unit No. 1") which FPL hereby agrees to exchange to FMPA, in each instance on the terms and subject to the conditions set forth in this Agreement.
f
-n,
...,e-
-~-
r
s.
G-s.
Each year, FMPA shall pay to FPL a charge of S0.01/kW day for each kilowatt of Exchange Capacity from St. Luc ie No. 1 (expressed in kilowatts).
The only other consideration received by each Party is the righc, subject to the terms and conditions set forth in this Agreement, to Available Net Gsne ra ting Capability and Net Energy of the generating capacity specif ted herein, and neither Party has entered into this Agreement with any assurance or expectation that Power or Energy will be available to it for any definite duration or in any definite quantity.
The intent of the Parties is to share the risks that Power and Energy will not be available, or will be available in reduced quantities, from the generating capacity exchanged for whatever reason.
3.2 Exchange Capacity from St. Lucie Unit No. 2 shall be equal to 3.904125 percent of the Av ailable Net Generating Capability and Net Energy of St. Lucie Unit No.
2, subject to increase to 4.403 percent if the Participation Agreement is amended to increase EMPA's Ownership Percentage to 8. 806.
3.3 Exchange Capacity from St. Lucie Unit No. 2 shall be equal to a percentage of the Available Net Generating Capability and Ne t Energy of St. Lucie Unit No.
1, derived as follows:
ECl =
POP x SNC2 2 x SNCl 1
s
. s.
Where:
"EC1" is the Exchange Capacity from St. Lucie Unit No. 1 expressed as a percentage of the Available Net Ganerating Capability and Net Energy of St. Lucie Unit No.
1.
" POP" is FMPA's Ownership Percentage in St. Lucie Unit No. 2 expressed as a percentage.
"SNC2" is the anticipated summer Seasonal Net Capability of St. Lucic Unit No. 2 in kW as determined by FPL as of the date of Firm Oceration of Unit No. 2 (subject to modification in accordance with Section 3.4).
"SNCl" is the normal summer Seasonal Net Capability in kW of St. Lucie Unit No.
1, determined as of the date of Firm Operation of St. Lucie Unit No. 2 (subjdet to modification in accordance with Section 3.4 ).
3.4 Exchange Capacity from St. Lucie Unit No. 1 shall be determined as of the date of Firm Operation of St. Lucie Unit No.
2, and the percentage so determined shall remain fixed throughout the term of this Agreement, except that "ECl" shall be recalculated in accordance with the formula provided in Section 3.3 for prospective application only, when and if (i) FPL applies for and obr.ains from the Nuclear Regulatory Commission, or its successor, authority to operate either St. Lucie Unit No. 1 or St. Lucie Unit No. 2 in a manner which permits an increase in the ability of such unit to produce electric power over that e
]
authorized at the date of Firm Operation of St. Lucie Unit No. 2; and (ii) such unit produces electric power at such higher level on a dependable basis for a reasonaole period of time.
3.5 The exchange provided in this Agreement involves the exchange of rights to receive Power and Energy, if any, associated with certain specified nuclear generating facilities l
owned by FPL and FMPA respectively.
Nothing in this Agreement is intended to ef fect a transfer of ownership or any incident of l
ownership of any generating facility, and none of the obligations of either Party under the Participation Agreement shall be deemed i
to be affected by this Agreement.
3.6 The exchange provided in Section 3.1 shall commence if and when FPL declares St. Lucie Unit No. 2 in Firm Operation pursuant to the Participation Agreement and shall be ef fective until the earlier of (a) final retirement by FPL of both St.
Lucie Unit No. 1 and St. Lucie Uni t No.
2, or (b) the final maturity date o' the original bonds issued by FMPA to finance its i
ownership interest in St Luc ie No.
2.
FPL may finally retire i
St. Lucie Unit No. 2 in accordance with the Participation Agreement and may finally retire St. Lucie Unit No. 1 at such time and under such circumstances as it in its sole discretion I
deems appropriate.
As the intent of the Parties in agreeing to the exchange is to share the risks of operation and premature i
retirement of the two generating unite (including the risks of government action), the exchange, once initiated, shall remain in i
i
v
-,.w,
,,---.,,.-,er
,,-,,-,a
- _ _ _. _ ~
4 4'
.- 1 ef fect until the earlier of (a) final retirement of both St.
Lucie Unit No. 1 and St. Lucie Unit No. 2 whether or not each such unit is operable or operating at any time or from time to l
time or has been retired or (b) the final maturity date of the original bonds issued by FMPA to finance its ownership interest in St. Lucie Unit No.
2.
Article 4 - Costs i
4.1 Except as provided below, FPL shall be responsible for all costs associated with St. Lucie Unit No.
1, which it owns,
and FMPA will be responsible for all costs associated with its Ownership Percentage of St. Lucie Unit No.
2.
4.2 For each kilowatt-hour of energy supplied by one Party
(" Owner") to the other Party in each month, the receiving Party shall pay the Owner a charge per kilowatt-hour equal to the l
higher of (i) the average monthly fuel cost per kWh incurred by FPL for St. Lucie Unit No. 2 in such month or (ii) the average monthly fuel cost per kWh incurred by FPL for St. Lucie Unit No.
1 in such month, all calculated in accordance with Exhibit No.
1.
4.3 For each month during the term of thia Agreement but l!
prior to the retirement of either St. Lucie Unit No. 1 or St.
Lucie Unit No. 2 (a) FMPA shall pay FPL one-third (1/3) of the Production Operation and Maintenance Costs associated with the Exchange Capacity from St. Lucie Unit No. 1 calculated in
accordance with Exhibit No. 2 and (b) FPL shall pay FMPA one-third (1/3) of the Production Operation and Maintenance Costs associated with the Exchange Capacity from St. Lucie Unit No. 2, calculated in accordance with Exhibit No. 3.
4.4 In the event St. Lucie Unit No. 2 is retired during the term of this Agreement then, during each month thereaf ter, FMPA shall pay FPL one hundred percent (100%) of that part of the Production Operation and Maintenance Costs of St. Lucie Unit No.
1 calculated in accordance with Exhibit No.
2.
4.5 In the event St. Lucie Unit No. 1 is retired during the term of this Agreement then, during each month thereaf ter, FPL shall pay FMPA one hundred percent (100%) of that part of the Production Operation and Maintenance Costs of St. Lucie Unit No.
2 calculated in accordance with Exhibit No.
3.
Article 5 - Operation FMPA's right to Exchange Capacity from St. Lucie Unit No. 1 shall not vest in FMPA any right, duty, or obligation to exercise any supervision or control over any aspect of the management, operation, maintenance, control and/or dispatch of or from St.
Lucie Unit No.
1.
St. Lucie No. 1 shall be controlled and dispatched in the sole discretion of FPL.
FPL shall, in its sole discretion, make all decisions regarding management, operation and maintenance of St. Lucie Unit No.
1, including decisions i.
..~
concerning the times and power levels at and at which St. Lucie Unit No. 1 is to be operated and decisions regarding refueling and suspension and termination of operation, and FMPA's rights to receive Power and Energy from St. Lucie Unit No. 1 are subject to FPL's rights to make such decisions.
Article 6 - Reoresentations and Liability Entering into this Agreement is not to be conscrued as a warranty or representation by either Party that Power or Energy from St. Lucie Unit No. 1 or St. Lacie Unit No. 2 will be available at any time.
Neither Party, or its governing board members, directors, officers, Commissioners, Councilmen, agents, employees or contractors shall have.any liability in contract, in tort or otherwise to the other Party for any direct, indirect or consequential loss, cost, damage or other expense incurred or sustained as a result of any failure to deliver Power or Energy or otherwise arising out of the performance of this Agreement, except for an intentional breach of this Agreement.
Article 7 - Delivery Power and Energy associated with Exchange Capacity from St.
Lucie Unit No. 1 shall be delivered to FPL for FMPA's account at the high voltage terminals of the generator step-up transformer (s) ot St. Lucie Unit No.
1.
Power and Energy associated with Exchange Capacity from St. Lucie Unit No. 2 shall
4. -
be delivered to FPL at the high voltage terminals of the generator step-up transformer (s) of St. Lucie Unit No.
2.
In each instance, metering will be located at the generator terminals and at the low voltage side of each unit's step-up, auxiliary and start-up transformers, and appropriately adjusted for losses in those transformers.
Differences between deliveries so determined and actual Net Energy will be determined after the fact on a monthly basis, and FPL will adjust deliveries in the following month or as soon thereaf ter as practicable to correct for any such differences, so that each Part/ will receive, as nearly as possible, the exact amount of Net Energy to which it is entitled.
Article 8 - Billing and Payment 8.1 On or before the tenth day of each month that this Agreement is in effect, beginning with the first calendar month af ter the month in which the exchange provided in Section 3.1 shall commence, FPL will calculate, in accordance with Exhibit 1 hereof, the St. Lucie Unit No. 1 and St. Lucie Unit No. 2 Fuel Costs for the preceding month and render a net billing statement showing the amounts due to each of the Parties and the Net Amount due from one Party to the other.
The Party responsible for any net payment will pay such costs to the other Party on or before fif teen days af ter such rendition of the net billing statement.
8.2 By the first day of each month that this Agreement is in effect, beginning with the first calendar month af ter the month a
(
e 9
- 13 in which the exchange provided in Section 3.1 shall commence, FPL will furnish to FMPA estimates in accordance with Exhibits 2 and 3 hereof of the St. Lucie Unit No. 1 and St.
Lucie Unit No. 2 Production Operation and Maintenance Costs which are anticipated to be incurred in that month and the basis for each such estimate.
(The first t-ach estimates furnished by FPL will include such costs incurred or estimated to have been incurred during the first calendar month that this Agreement has been in effect.)
Each such notification made by FPL shall be accompanied by a preliminary accounting of costs incurred for the third preceding month (if applicable).
The estimates of costs to be incurred in the current month will be adjusted to reflect any difference between costs which were estimated to have been incurred in the third preceding month and the costs which were actually incurred in that month.
8.3 The amounts derived in Section 8.2 shall be netted against each other.
The Party owing a net sum to the other will pay such sum on or before the fifteenth day of the month.
8.4 No interest shall be charged to FPL or FMPA for subsequent adjustments to estimated costs for the current month made by a preliminary accounting.
However, FMPA shall have reasonable rights to audit or dispute a bill and should an audit or review reveal an underpayment or. overpayment of costs billed pursuant to a preliminary accounting, the appropriate Party shall be liable for and shall be billed for any underpayment, or shall
be entitled to and shall receive a refund of any overpayment, on the next monthly statement rendered af ter the overpayment or underpayment has been discovered, with interest at the Prime i
Rate, but not to exceed the highest contract rate allowed by law from the date of payment pursuant to the preliminary accounting.
Article 9 - Remedies 9.1 Subject to the provisions of Article 6, in the event of a breach of this Agreement the non-breaching Party shall be free to seek such remedies at law or equity as may be available to it.
1 j
9.2 If FMPA's right to receive Power and Energy from all or part of its Ownership Percentage of St. Lucie Unit No. 2 is suspended pursuant to Section 33.4.1 of the Participation Agreement, the exchange provided in this Agreement shall be suspended during the term of such suspension.
If FMPA's rights 1
under the Participation Agreement are terminated pursuant to Section 33.4.3 of the Participation Agreement, the exchange provided in this Agreement shall also terminate at the same time.
9.3 Should either Party fail to make any payment required by this Agreement at the time provided herein, it shall be i
responsible for interest on any late payment at a daily rate based on the Prime Rate plus five percent (5%) per annum until paid; provided, however, that in no. event shall interest accrue
]
or be payaole in excess of the highest contract rate allowed by
l law.
The party failing to make such payment shall also be responsible for any Jocs incurred by the other Party in connection with collection of any late payment, including expenses and attorneys' and other professional fees.
Article 10 - Miscellaneous 10.1 Term of Agreement -
Tnis Agreement will be effective from the first day of the first month following its execution and will thereaf ter continue in force and ef fect until the termination of the exchange in accordance with Section 3.6.
10.2 Assignment -
Neither Party may assign its rights or obligations under this Agreement except in connection with a conveyance of ownership l
interest in St. Lucie Unit No. 1 or St. Lucie Unit No. 2.
10.3 Binding on Successors and Assigns -
k This Agreement shall be binding on the successors and assigns of each party, and, insofar as permitted t-y law, on any receiver i
or trustee in bankruptcy, receivership, or reorganization of a Party.
References herein to FPL and FMPA shall be deemed to include the successors thereof.
16 -
10.4 Regulation -
The Parties recognize that this Agreement must be filed with the FERC and is subject to the FERC's regulatory jurisdiction.
The parties agree not to seek, or lend their support to any effort to seek, any changes in this agreement, upon or after filing of.such Agreement with the FERC.
If FERC conditions its initial acceptance or approval of this Agreement in a final order which requires modi-fications hereto which any party is unwilling to accept, the par-ties shall unde'rtake, during the 90 days immediately following the issuance of such order, to renegotiate this Agreement to ac'.tieve such modifications as are necessary to restore the overall economic benefits to each party to the levels provided for in this Agreement as originally executed.
If such renegotiation does not produce a modified Agreement during the aforesaid 90-day period, each party shall have the absolute right to withdraw from this Agreement.
If FERC or any other governmental agency or court have juris-diction to do so, as a result of a proceeding or investigation not initiated contemporaneously with the filing of this Agreement, modifies this Agreement in a manner which alters the economic bene-fits flowing to either Party, the Parties shall forthwith undertake renegotiation of this Agreement in order to achieve such
^\\
4 e
modifications as are necessary to restore the overall economic benefits to each Party to the levels provided for in the Agreement as originally executed.
No Party shall be required to renegotiate before such order becomes final and nonappealable or while any appeal from such final order is pending.
Nothing in this Agreement shall be construed to prevent FPL from effecting, by unilateral filing with the FERC or otherwise, any changes in rates or service hereunder that are consistent with the provisions of this Agreement, including changes to reflect changes in the data used to determine the cost or amount of the exchange under Articles 3 and 4 of this Agreement; provided, however, that FMPA shall not be precluded from contesting whether any such change made or proposed by FPL is consistent with the terms of this Agreement.
10.5 Notice -
Any notice, demand or request by a Party pursuant to any provisions of this Agreement shall be made in writing and shall be delivered either in person, by prepaid telegram, or by first class mail, postage prepaid, to such officer of the Party as shall have executed this Agreement or his legally designated successor at the principal place of business of such Party.
Such officer and address for notice may be changed from time to time by written notice of one Party to the other.
If a post office box is designated as an address for notices, an alternate street address for notices shall also be designated.
l A notice, demand or request is deemed to have been given or l
l made: (1) upon receipt, if delivered in person or by telegram; or (2) as of the date of the signed return receipt, if delivered by first-class mail, certified return receipt requested.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on this day of 1982.
ATTEST:
FLORIDA POWER & LIGHT COMPANY By By ATTEST:
FLORIDA MUNICIPAL POWER AGENCY By By O
EXHIBIT NO. 1 Page 1 Determination of Fuel Cost Payments for Energy Supplied By Any owner Pursuant to this Agreement For the Month of 19 Line No.
1 Cwner's kWh supplied pursuant to this Agreement kWh 2
Rate in 9/kWh applicable to kWh in Line 1 above:
a.
Based on fuel cost per kWh at St. Lucie Unit No. 1 Exhibit I,
page 2, line 8.
9/kWh b.
Based on fuel cost per kWh at St. Lucie Unit No. 2 Exhibit I, page 3, line 8.
9/kWh 3
Monthly charge for fuel costs (Line 1 x higher of 2a or 2b)
S
/-
EXHIBIT NO.1 Page 2 Determination of FPL Actual Monthly St. Lucie Unit No.1 Fuel Costs Per kWh For the Month of
, 19 Line No.
Item A mount Nuclear Fuel Expense (Acet. No. 518) (a) 1 Burned owned fuel 2
Burned leased fuel 3
Nuclear fuel disposal cost 4
Other nuclear charges / credit 5
Total fuel expense 6
Net kWh generated by St. Lucie Unit No.1 (b) kWh 7
Line 5 divided by line 6 (in kWh)(b) c/kWh l
(a) Amortization and cost determination to be consistent with the methodology used by FPL at its other nuclear stations at the time the calculation is made in accordance with the uniform system of accounts defined in Section 1.30 of the Participation Agreement but adjusted to exclude any nuclear fuel, fuel cycle services and related materials which FPL received as settlement of claims against third parties for losses or damages incurred prior to the effective date of exchange provided in the Agreement.
(b) If the calculation of c/kWh in line 7 is determined to be abnormal because of a monthly capacity factor of the unit less than 40%, then an adjustment will be made to net generation and nuclear fuel costs per kWh to reflect the normal percentage Station Service Requirements reasonably associated with a 70% capacity factor.
EXHIBIT NO.1 Page 3 Determination of FPL Actual Monthly St. Lucie Unit No. 2 Fuel Costs Per kWh For the Month of
, 19 Line No.
Item Amount Nuclear Fuel Expense (Acet. No. 518)(a) 1 Burned owned fuel 2
Burned leased fuel 3
Nuclear fuel disposal cost 4
Other nuclear charges / credit 5
Total fuel expense 6
Net kWh generated by St. Lucie Unit No. 2 (b) kWh 7
Line 5 divided by line 6 (in kWh)(b) c/kWh
(
(a) Amortization and cost determination to be consistent with the methodology used by FPL at its other nuclear stations at the time the calculation is made in accordance with l
the uniform system of accounts defined in Section 1.30 of the Participation Agreement
(
but adjusted to exclude any nuclear fuel, fuel cycle services and related materials which l
FPL roccived as settlement of claims against third parties for losses or damages incurred prior to the effective date of exchange provided in the Agreement.
(b) If the calculation of c/kWh in line 7 is determined to be abnormal because of a monthly capacity factor of the unit less than 40%, then an adjustment will be made to net generation and nuclear fuel costs per kWh to reflect the normal percentage Station Service Requirements reasonably associated with a 70% capacity factor.
r m-
- e y
m,-
,,,4 y3, sc-.
EXHIBIT NO. 2 St. Lucie Unit No. 1 Production Operation and Maintenance Costs The St. Lucie Unit No. 1 Production Operation and Maintenance costs shall be 100 percent of all operation and maintenance expenses properly allocable to St. Lucie Unit No. 1 plus 50 percent of all operation and maintenance expenses properly allocable to common locilities (as " Common Facilities" is defined in the Participation Agreement).
The operation and maintenance expenses include the following:
(A)
The operation expenses chargeable to FERC Accounts 517, 518 (excluding Nuclear Fuel Expenses); 519-525, inclusive, and 557.
(B)
The maintenance expenses chargeable to FERC Accounts 528 to 532, inclusive.
(C)
An allowance to reflect costs of payroll-related taxes, insurance, pensions and benefits determined in a manner consistent with the Company's practices for determining construction payroll.
These costs will be consistent with the costs billed FMPA in Section 6.3.3 and 6. 4. 2 of the St. Lucie Unit No. 2 Participation Agreement.
The amount which FMPA shall pay shall be calculated as follows:
Above Production O&M Costs x Exchange Capacity from St. Lucie Unit No. 1 expressed as a percentage, pursuant to Section 4. 3.
--.y-
,,,w-2
. _ =_- -
e.*
e o.
EXIIIBIT No. 3 i
St. Lucie Unit No. 2 Production Operation and Maintenance Costs The St. Lucie Unit No. 2 Production Operation and Maintenance costs shall be 100 percent of all operation and maintenance expenses which FPL has billed to FMPA for St. Lucie Unit No. 2 in accordance with Section 6.3.3 of the St. Lucie Unit No. 2 Participation Agreement plus 100 percent of all operation and maintenance expenses which FPL has billed FMPA for Common Facilities (as " Common Facilities" is defined in the Participation Agreement) in accordance with Section 6. 4. 2 of the St. Lucie Unit No. 2 Particiation Agreement.
The amount which FPL shall pay shall be calculated as follows:
Above Production OsM Costs x 50 percent.
'l O
e
-,,-,w--
m, y,,..---,----m--.r,
-,,w
-,,,,,.e,,,w,-,.-
y-
--w-v w
iv
.-,w-,w, i
-r
Eh=
APPENDIX C.
1$
FLORIDA POWER & LIGilT COMPANY FPC Electrie Tariff Original Volume No.1 SALE FOR RESALE TIME-DIFFERENTIATED PARTIAL REQUIREMENTS RATE SCIIEDULE - PRT-1 AVAILABLE:
See Rate Schedule PR-1.
APPLICABLE:
See Rate Schedule PR-1.
SERVICE:
Three phase, 60 hertz at such delivery points: (1) as may be established at any loestion on the Company's Intereennected system where the cperating volta;;e is 115 KV,133 KV, 240 KV, or 500 KY, and the customer's and Company's eicetriest systems are in parallel operation, or (2) at any location on the Company's intereennected system where the operating voltage is 69 KV or below and that portion of the Customer's system being served by the company is electricany isolated from the remainder of the customer's system and adequate espacity is available to meet the customer's estimated load for the initial five years, and (3) at other points agreed upon by the Company and the customer.
All service required at the point of delivery by the customer shall be furnished through one meter.
Customer win provide, instan, operate and maintain all necessary lines, substations, transformers, and other equipment necessary to utilize the electric service delivered hereunder, including the switching and protective equipment to be installed ct the point of delivery.
LIMITATION OF SERVICE:
Standby or emergency service is not permitted hereunder.
MONTH!,Y RATE, AT EACH POINT OF DELIVERY:
Cu ;tomer Charre:
$430 Enerev Charees:
Fcr su kwh in On-Peak Period 6.5 cents per kwh For an kwh in Off-Peak Period 4.5 cents per kwh Monthly Demand Charces:
Delivery at Delivery 69 kV or Below Higher 69 kV Contracted Service per KW of Billing Demand
$ 4.55
$ %.82 l
Non-contracted Service per KW
$ 7.96
$ 8.03 of Non-Contracted Demand Reactive Demand Charce l
For all rKVA by which the Reactive Demand exceeds one-half the measured KW demand
$0.15 per rKVA.
Adjustment: The amount computed at the above Monthly Rate shall be adjusted minus or plus by an amount es!culated in accordance w:th the formulae specified in the Company's Fuel and Tax Adjustment Clauses which are incorporated as a part of this Rata as Appendices A and B.
Minimum: The Customer Charge plus the charge for the currently effective Bining Demand.
l l
BILLING DEMAND:
~
l The Bining Demand tallbe determined as the sum of the On-Peak Demand and 75 percent of the Excess Off-Peak Demand as they are defined below.
e-l l
Issued by: J. J. Hudiburg, President Effectives
!ssued on:
s
- h.
o FLORIDA POWER ac1.IGlif COMPANY FPC Electric Tariff Original Voiume No.1 SA1.E FOR RESALE TIME-DIFFERENTIATED PARTIAL REQUIREMENTS RATE SCHEDULE - PRT-1 ON-PEAK DEMAND:
The On-Peak Demand is the greater of the maximum 60 minute KW demand recorded during the current month during the On-Peak Period or 85 percent of the On-Peak Contract Demand, rounded to the nearest MW for scheduled deliveries, but not to exceed 115 percent of the On-Peak Contract Demand, rounded to the nearest MW for scheduled deliveries.
OFF-PEAK DEMAND:
The Off-Peak Demend is the greater of a) the maximum 60-minute KW demand recorded during the current month in the Off-Peak Period, or b) 85 percent of the Off-Peak Contract Demand in the current month, rounded to the nearest MW for seneduled deliveries, or c) 35 percent of highest Off-Peak Contrset Demand during the preceding eleven months. rounded to the nearest MW for seneduled delivertes, but not,to exceed 115 percent of the current Off-Peak Contract Demand rounded to the nearest MW for scheduled deliveries.
EXCESS OFF-PEAK DEMAND:
The Excess Off-Peak Demand is the amount by which the Off-Peak Demand exceeds the On-Peak Demand.
i CONTRACF DEMAND:
The On-Peak Contract Demand and Off-Peak Contract Demand are those demands, for the succeeding 12-month period, as determined by the Customer and set forth in Exhibit A to Company's FPC Electric Tariff Original Volume No.1, for each point of delivery for the On-Peak and Off-Peak ?eriods. If the Customer does not specify Contract Demands they shall be determined as the higtest actual demands for the On-Peak and Off-Peak Periods established in of the past twelve months including the current month. The Contract Demands may be changed, effective Jac f of thesmayear; however, the increase in On-each year upon written request of the Customer on or before AM i 15.0 percent of such demand for the Peak Contract Demand in any one year shall be !!mited to the greater of prior year or the forecasted increase in Customer's native system peak loao ano tne increase in Off-Peak Contract Demand in any one year shaII be Ilmited to 25 percent of such Off-Peak Contract Demand for the prior year, except upon mutual Agreement of Company and Customer. In the event that a Customer transfers from this rate schedule its successor to another Company Sale for Resale rate schedule, the Contrset Demand, if applicable, shall be limited to the greater of either the On-Peak Contract Demand or the Off-Peak Contract Demand last established under this rate schedule or its successor.
NON-CONTRACTED DEMAND The Non-Contracted Demand is the greater of a) the amount by which the maximum 60 minute KW Demand recorded durmg the current month durmg the On-Peak Period exceeds 115 percent of the On-Peak Contract Demand, the amount by which the maximum 60 minu*.e KW Demand rounded to the nearest MW for scheduled deliveries, or b) recorded durutt the current month during the Off-Peak Period exceeds 115 percent of the Off-Peak Contract Demand, rounded to the t..:arest MW for scheculed deliveries, or c) the highest Non-ContrScted Demand incurred in the previous eleven months.
ON-PEAK PERIOD:
Monoafs through Fridays during the hours frora 6 a.m. to 10 a.m. and 6 p.m. to 10 p.m.
November 1 throutrh March 31:
exclucmg Ihanxsgivmg Day, Christmas Day, and New Year's Day.
Mondoys through Fridays durmg the hours from 12 noon to 9 p.m. excluding Memorial Acril 1 throutrh October 31:
Daf, Incepencence Day, and Labor Day.
OFF-PEAK PERIOD:
A11 other hours.
REACITVE DEMAND:
The Reactive Demand is the maximum 60-minute rKVA effective demand durirg the current billing month.
RTT flNG ADJUSTMENTS:
The demand and energy recordings at the point of delivery shall be adjusted monthly to reflect supplemental power resources, if any.
c Effective:
Issued by: J. J. Hudiburg,.Presiderit
%^m
I
/,.
FLORIDA POWER & LIGHT COMPANY FPC Electric Tariff Original Volume No. I t
SALE FOR RESALE TIME-DIFFERENTIATED PARTIAL REQUIREMENTS RATE SCllEDULE - PRT-1 TERM:
Customer shall give Company at least ninety (90) days written notice of its intention to receive service at any point of delivery not previously served hereunder. A Customer receiving service at a point of delivery under this rate schedule shall give Company five W years written notice of its intention to receive service under another Company rate schedule or to terminate service. Customer shall give Company five (5) years written notice of its intention to receive service hereunder at any point of delivery previously served hereunder. The initial period of service, in any case, shall be five (5) years. During the initial period of 3 years from the initial effective date of this rate schedule the following provision shall apply: A Customer receiving service at a point of delivery under this rate schedule shall give Company at least one (1) year written notice of its intention to receive service under another Company rete schedule. The above Term provisions shall prevail except upon mutual agreement of Company and Customer.
PAYMENT:
Bins for electrie energy shall be rendered monthly by the Company and paid monthly by the customer, and shall be due and payable within twenty days from date rendered, and the Company shall have the right to discontinue the delivery of electric energy to customer in the event customer shall fail to pay any sum due, or in the event customer otherwise violates this contract; provided that the Company shall give customer at least sixty (60) days' written notice i
of its intention to discontinue the delivery of electrie energy and the reason therefor. Customer shan have such period in which to pay such sum or cure such default; provided, however, that the foregoing shan not.be applicable to the extent that bona fide dispute ex2sts.
RULES AND REGULATIONS:
Service under this rate is subject to orders of governmental bodies having jurisdiction and to the currently effective " General Terms and Conditions and contract agreements applicable to Rate Schedules under the FPC.
Electric Tariff Original Volume No.1. A Customer served under this rate schedule at a delivery point may not, while meiving such service, receive service under Rate Schedule PR-1 or its successor at that or any other delivery point whic can be operated as a parallel interconnection. If any conflict appears in the terms and conditions contained herein md those terms and conditions as set forth in the FPC Tariff, the terms and conditions herein shan prevail.
Not sing contained herein, or any provisions in the " Genera 1 Terms and Conditions
- shan be construed as affecting in any way the right of Florida Power & Light Company to unilaterally make application to the Federal Energy Regulatoc Commission, or other regulatory authority having jurisdiction, for a change in rates under Section 205 of the Federd h - Act and pursuant to the Commission's Rules and Regulations promulgated thereunder.
t*
Issued by: J. J. Hudiburg, President Effective:
Issued on:
j
. _ _ _ _.