EXHIBIT 10.5.2(a)
AMENDMENT, DATED AS OF JANUARY 15, 1995,
TO THE PLANT ▇▇▇ ▇▇▇▇▇▇▇
OPERATING AGREEMENTS
by and among
GEORGIA POWER COMPANY
and
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP GENERATION & TRANSMISSION CORPORATION)
and
MUNICIPAL ELECTRIC AUTHORITY OF GEORGIA
(A PUBLIC CORPORATION AND INSTRUMENTALITY OF
THE STATE OF GEORGIA)
and
CITY OF ▇▇▇▇▇▇
(AN INCORPORATED MUNICIPALITY IN THE STATE OF GEORGIA)
AMENDMENT
TO THE PLANT ▇▇▇ ▇▇▇▇▇▇▇
OPERATING AGREEMENT
TABLE OF CONTENTS
Section No.
1. Certain Definitions. . . . . . . . . . . . . . . . . .2
2. Amendment to Create Section 9. . . . . . . . . . . . .2
3. Amendment to Section 1(b). . . . . . . . . . . . . . 10
4. Amendment to Section 1 (d) . . . . . . . . . . . . . 10
5. Amendment to Create Section 1(e) . . . . . . . . . . 10
6. Amendment to Create Section 1(f) . . . . . . . . . . 14
7. Amendment to Create Section 1(g) . . . . . . . . . . 25
8. Amendment to Create Section 1(h) . . . . . . . . . . 34
9. Amendment to Section 2(a). . . . . . . . . . . . . . 41
10. Amendment to Section 2(b). . . . . . . . . . . . . . 44
11. Amendment to Create Section 2(c) . . . . . . . . . . 46
12. Amendment to Section 3(b). . . . . . . . . . . . . . 47
13. Amendment to Section 3(d). . . . . . . . . . . . . . 56
14. Amendment to Create Section 10 . . . . . . . . . . . 56
15. Effectiveness of this Amendment. . . . . . . . . . . 57
16. Miscellaneous. . . . . . . . . . . . . . . . . . . . 58
APPENDICES
A. Captital Budgets, Operating Budgets, Scheduling and
Dispatch Budget, Maintenance Schedules and Fuel Plan
B. Plant ▇▇▇▇▇▇▇ Operations and Maintenance Expenses
THIS AGREEMENT, dated as of January 15, 1995, is by and
among GEORGIA POWER CORPORATION ("GPC"), a corporation organized
and existing under the laws of the State of Georgia, OGLETHORPE
POWER CORPORATION (AN ELECTRIC MEMBERSHIP GENERATION &
TRANSMISSION CORPORATION), an electric membership corporation
organized and existing under the laws of the State of Georgia and
formerly known as Oglethorpe Electric Membership Corporation
("OPC"), MUNICIPAL ELECTRIC AUTHORITY OF GEORGIA, a public
corporation and an instrumentality of the State of Georgia
("MEAG"), and the CITY OF ▇▇▇▇▇▇, an incorporated municipality in
the State of Georgia ("Dalton") and is the Amendment to those
certain Plant ▇▇▇▇ ▇▇▇▇▇▇▇ Operating Agreements, dated as of
March 26, 1976, August 27, 1976 and April 19, 1977 (the
"Operating Agreements"), between GPC and Oglethorpe Electric
Membership Corporation, GPC and MEAG, and GPC and ▇▇▇▇▇▇,
respectively.
W I T N E S S E T H:
A. The Participants have previously entered into the
Operating Agreements providing, among other things, for the
management, control, maintenance and operation of Plant ▇▇▇
▇▇▇▇▇▇▇.
B. The Participants mutually desire to alter and
modify in this Agreement certain provisions of their respective
Operating Agreements relating to fuel procurement and accounting
and relating to scheduling and dispatching of the Units such that
the Participants' prior agreements and understandings shall be
superseded hereby.
NOW, THEREFORE, in consideration of the premises and the
mutual promises and agreements herein set forth, the Participants
amend each of their respective Operating Agreements and mutually
agree among themselves as follows:
1. Certain Definitions. Capitalized terms and
phrases used and not otherwise defined in this Agreement shall
have the respective meanings assigned to them by the Operating
Agreements, unless the context or use clearly indicates
otherwise. All rules of interpretation, construction, or both,
set forth in the Operating Agreements shall apply with equal
force and effect to this Amendment.
2. Amendment to Create Section 9 of the Operating
Agreements. Section 9 of each of the Operating Agreements hereby
reads as follows:
"9. Certain Definitions.
(a) APPLICABLE ACCOUNTING PERIOD. "Applicable Accounting
Period" shall mean that period of operation which occasioned the
need to incur the particular Operating Cost incurred. Depending
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on the particular Operating Cost involved, such period may be a
month, a calendar year or a longer period. For example, for
planned, periodic maintenance of the Units, the Applicable
Accounting Period shall be the time since the last planned
maintenance outage during which the same or similar maintenance
was last conducted. If such a period cannot be readily
determined for a particular Operating Cost, then the Applicable
Accounting Period shall be the most recent 12 calendar months.
(b) COMMON COAL STOCKPILE. "Common Coal Stockpile" shall
refer to that portion of the Plant ▇▇▇▇▇▇▇ Coal Stockpile
attributable to the ownership interests of the Common Coal
Stockpile Participants from time to time pursuant to Section 1(g)
of this Agreement.
(c) COMMON COAL STOCKPILE COSTS. "Common Coal Stockpile
Costs" shall mean all costs incurred by GPC on its own behalf and
as agent for the other Common Coal Stockpile Participants that
are allocable to the acquisition, processing, transportation,
delivering, handling, storage, accounting, analysis, measurement
and disposal of coal for the Common Coal Stockpile, including,
without limitation, any advance payments in connection therewith,
less credits related to such costs applied as appropriate, and
including, without limitation, that portion of administrative and
general expenses which is properly and reasonably allocable to
acquisition and management of coal for the Common Coal Stockpile
and for which the incurring party has not been otherwise
reimbursed by the other Common Coal Stockpile Participants.
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Common Coal Stockpile Costs shall not include Other Fuel Costs,
Separate Coal Stockpile Costs and amortization of the Plant
▇▇▇▇▇▇▇ initial fossil fuel supply (including, without
limitation, unrecoverable base coal).
(d) COMMON COAL STOCKPILE PARTICIPANTS. "Common Coal
Stockpile Participants" shall mean such Participants as are
participating in the Common Coal Stockpile from time to time.
(e) COMMON DISPATCH PARTICIPANT. "Common Dispatch
Participant" shall mean those Participants which are not Separate
Dispatch Participants.
(f) COMMITTING PARTICIPANTS. "Committing Participants"
shall have the meaning assigned in Section 3(b)(iii) of this
Agreement.
(g) COMMON PROCUREMENT. "Common Procurement" shall have
the meaning assigned in Section 1(f)(i) of this Agreement.
(h) COMMON PROCUREMENT PARTICIPANT. "Common Procurement
Participant" shall mean, initially, the Common Coal Stockpile
Participants and each Separate Coal Stockpile Participant (i)
which has not exercised its rights under Section 1(e)(i) of this
Agreement, (ii) which has not otherwise been found by a vote of
the Common Procurement Participants owning at least a majority
percentage undivided ownership interest in Plant ▇▇▇▇▇▇▇ of the
aggregate undivided ownership interests in Plant ▇▇▇▇▇▇▇ of the
then Common Procurement Participants (excluding the percentage
ownership interest in Plant ▇▇▇▇▇▇▇ of the Common Procurement
Participant under consideration), to have violated the policies
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and rules for Common Procurement Participants established from
time to time by GPC or (iii) which has been reestablished as a
Common Procurement Participant pursuant to Section 1(f) of this
Agreement.
(i) FERC. The "FERC" shall mean the Federal Energy
Regulatory Commission or any entity succeeding to the powers and
functions thereof.
(j) GEORGIA INTEGRATED TRANSMISSION SYSTEM. "Georgia
Integrated Transmission System" shall mean the integrated
transmission system owned by GPC, OPC, MEAG and Dalton pursuant
to those certain Agreements between GPC and OPC dated as of
January 6, 1975 and June 9, 1986, those certain Agreements
between GPC and MEAG dated as of August 27, 1976, and those
certain Agreements between GPC and ▇▇▇▇▇▇ dated as of August 27,
1976, as any one or more of those Agreements may be amended,
modified, revised, restated or superseded from time to time, or
any successor transmission system thereto.
(k) NONCOMMITTING PARTICIPANTS. "Noncommitting
Participants" shall mean as of any particular time, those
Participants which at such time are not Committing Participants
pursuant to Section 3(b)(iii) of this Agreement.
(l) OPERATING AGREEMENTS. "Operating Agreements" shall
refer to the Plant ▇▇▇ ▇▇▇▇▇▇▇ Operating Agreements between (i)
GPC and OPC, dated as of ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) GPC and MEAG, dated
as of August 27, 1976, and (iii) GPC and the City of Dalton,
Georgia, dated as of April 19, 1977.
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(m) OPERATING COSTS. "Operating Costs" shall mean all
expenses incurred by GPC in respect to Plant ▇▇▇▇▇▇▇ and properly
recordable in accordance with the Operating Expense Instructions
and in appropriate accounts as set forth in the Uniform System of
Accounts, but shall not include Common Coal Stockpile Costs,
Separate Coal Stockpile Costs, or Other Fuel Costs.
(n) OTHER FUEL COSTS. "Other Fuel Costs" shall mean all
costs and expenses, other than Common Coal Stockpile Costs and
Separate Coal Stockpile Costs, incurred by GPC on its own behalf
and as agent for the other Participants that are allocable to the
acquisition, processing, transportation, delivering, handling,
storage, accounting, analysis, measurement and disposal of fossil
materials required for Plant ▇▇▇▇▇▇▇, including, without
limitation, any advance payments in connection therewith, less
credits related to such costs applied as appropriate, and
including, without limitation, that portion of administrative and
general expenses which is properly and reasonably allocable to
acquisition and management of fossil fuel (other than coal for
the Common Coal Stockpile and the Separate Coal Stockpiles) for
Plant ▇▇▇▇▇▇▇. Other Fuel Costs shall not include Common Coal
Stockpile Costs, Separate Coal Stockpile Costs and amortization
of the Plant ▇▇▇▇▇▇▇ initial fossil fuel supply (including,
without limitation, unrecoverable base coal).
(o) OWNERSHIP AGREEMENTS. "Ownership Agreements" shall
refer to the Plant ▇▇▇ ▇▇▇▇▇▇▇ Purchase and Ownership
Participation Agreement between (i) GPC and OPC, dated as of
-▇-
▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) GPC and MEAG, dated as of August 27, 1976
and (iii) GPC and the City of ▇▇▇▇▇▇, dated as of April 19, 1977.
(p) PARTICIPANT. "Participant" and "Participants" shall
refer, individually or collectively, as the case may be, to GPC,
OPC, MEAG, and ▇▇▇▇▇▇ and to any transferee or assignee of any of
them pursuant to Section 5(f) of the Ownership Agreement.
(q) PLANT ▇▇▇▇▇▇▇. "Plant ▇▇▇▇▇▇▇" shall have the meaning
set forth in Section 1(a) each of the respective Ownership
Agreements.
(r) PLANT ▇▇▇▇▇▇▇ COAL STOCKPILE. The "Plant ▇▇▇▇▇▇▇ Coal
Stockpile" shall mean the coal stockpile maintained from time to
time for the Units.
(s) PLANT ▇▇▇▇▇▇▇ PARTICIPATION AGREEMENTS. "Plant ▇▇▇▇▇▇▇
Participation Agreements" shall mean the Ownership Agreements,
and Operating Agreements, collectively.
(t) SEPARATE COAL PROCUREMENT. "Separate Coal Procurement"
shall mean the procurement of coal pursuant to the standards and
procedures set forth under Section 1(e)(i) of this Operating
Agreement.
(u) SEPARATE COAL STOCKPILE. "Separate Coal Stockpile"
shall have the meaning assigned in Section 1(g) of this
Agreement.
(v) SEPARATE COAL STOCKPILE COSTS. "Separate Coal
Stockpile Costs" shall mean with respect to each Separate Coal
Stockpile Participant all costs incurred by GPC as agent for such
Separate Coal Stockpile Participant that are allocable to the
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acquisition, processing, transportation, delivering, handling,
storage, accounting, analysis, measurement and disposal of coal
for such Separate Coal Stockpile Participant, including, without
limitation, all costs incurred by GPC in administering fuel and
transportation contracts entered into by such Separate Coal
Stockpile Participant pursuant to any one or more of Sections
1(e)(i), 1(f) or 1(g) of this Agreement, and including any
advance payments in connection therewith, less credits related to
such costs applied as appropriate, and including that portion of
administrative and general expenses which is properly and
reasonably allocable to acquisition and management of coal for
such Separate Coal Stockpile Participant's Separate Coal
Stockpile and for which the incurring party has not otherwise
been reimbursed. Separate Coal Stockpile Costs shall not include
Common Coal Stockpile Costs, Other Fuel Costs and amortization of
the Plant ▇▇▇▇▇▇▇ initial fossil fuel supply, including, without
limitation, unrecoverable base coal.
(w) SEPARATE COAL STOCKPILE PARTICIPANT. "Separate Coal
Stockpile Participant" shall mean the Participants making an
election to discontinue participation in the Common Coal
Stockpile pursuant to 1(g)(iii) of this Agreement, or which has
otherwise entered into an agreement with GPC to become a Separate
Coal Stockpile Participant pursuant to subsection (vi) of
Section 1(g) of this Agreement. Such Participants are referred
to individually as a "Separate Coal Stockpile Participant" and
collectively as "Separate Coal Stockpile Participants."
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(x) SEPARATE DISPATCH PARTICIPANT. "Separate Dispatch
Participant" shall mean those Participants which have become
Separate Coal Stockpile Participants pursuant to the provisions
of 1(g) of this Agreement and which exercise separate dispatch
rights under Section 3(b)(iii) of this Agreement.
(y) SEPARATE PROCUREMENT PARTICIPANT. "Separate
Procurement Participant" shall mean each Separate Coal Stockpile
Participant (i) which has exercised its rights under Section
1(e)(i) of this Agreement, or (ii) which has been found by a vote
of the Common Procurement Participants owning at least a majority
percentage undivided ownership interest in Plant ▇▇▇▇▇▇▇ of the
aggregate undivided ownership interests in Plant ▇▇▇▇▇▇▇ of the
then Common Procurement Participants (excluding the percentage
ownership interest in Plant ▇▇▇▇▇▇▇ of the Common Procurement
Participant under consideration) to have violated the policies
and rules for Common Procurement Participants established from
time to time by GPC and which has not been reestablished as a
Common Procurement Participant pursuant to Section 1(f) of this
Agreement.
(z) SPOT COAL. "Spot Coal" shall mean all coal purchased
for the Common Coal Stockpile or any Separate Coal Stockpile
under an arrangement of acquisition for a period of less than one
year.
(aa) UNIFORM SYSTEM OF ACCOUNTS. The "Uniform System of
Accounts" shall mean the FERC Uniform System of Accounts
prescribed for Public Utilities and Licensees subject to the
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provisions of the Federal Power Act, as the same now exist or may
be hereafter amended by the FERC.
(bb) UNITS. The "Units" shall refer to ▇▇▇▇▇▇▇ Unit No. 1
and ▇▇▇▇▇▇▇ Unit No. 2 collectively."
3. Amendment to Section 1(b) of the Operating Agreements.
The first and second sentences of Section 1(b), AUTHORITY FOR
OPERATION AND MANAGEMENT, of each of the Operating Agreements,
are hereby amended to add the phrase "(e), (f), (g) and (h)"
after the words "provisions of Section 1(d)."
4. Amendment to Section 1(d) of the Operating Agreements.
The second paragraph of Section 1(d), OPERATION, of each of the
Operating Agreements, is hereby amended to add the following
sentence to the end thereto.
"Notwithstanding the foregoing, in no event shall the
provisions of this second paragraph of Section 1(d) apply to
a Separate Dispatch Participant."
5. Amendment to Create Section 1(e) of the Operating
Agreements. Section 1, GENERAL OBLIGATIONS AND RIGHTS OF
PARTIES, of each of the Operating Agreements, is hereby amended
to add the following subsection (e) thereto.
"(e) Fuel Procurement by Participants other than GPC.
(i) Separate Procurement by Separate Procurement
Participants - Generally. Any Separate Coal Stockpile
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Participant shall be permitted to supply, solely for its own
account and solely for its Separate Coal Stockpile, its coal
requirements for its undivided ownership interests in the Units
upon the following conditions:
(A) Prior to entering into each coal supply
arrangement, such Separate Coal Stockpile Participant must
demonstrate that such arrangement complies with the
provisions of this Section 1(e)(i) and must demonstrate (1)
that the proposed coal to be procured meets or exceeds the
quality and compatibility standards set by GPC and will
enable the Units to operate at their normal operational
levels in compliance with all governmental regulations
applying thereto; (2) that transportation for such coal can
be arranged by such Separate Coal Stockpile Participant
which is compatible with the transportation and fuel
delivery facilities at Plant ▇▇▇▇▇▇▇; and (3) all parties
associated with the supply of such coal, including, without
limitation, the vendor, broker, mine operator and
transporter are reliable and technically and financially
qualified. Within six months following the date of the
first election by a Separate Coal Stockpile Participant to
discontinue participation in the Common Coal Stockpile, GPC
shall develop written guidelines setting forth standards and
procedures for compliance by a Separate Coal Stockpile
Participant with the provisions of this Section 1(e)(i)(A),
including, without limitation, standards relating to the
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operational characteristics of the Units and setting forth
the standard contract terms and provisions referred to in
Section 1(e)(i)(B).
(B) At least 90 days prior to the first scheduled
delivery of coal from any such arrangement, the Separate
Coal Stockpile Participant proposing to participate in the
arrangement shall give GPC written notice of its intent to
enter into such coal supply arrangement, shall make the
demonstrations set forth in (A) above to the reasonable
satisfaction of GPC, as agent, and, thereafter shall enter
into a valid, binding and enforceable contract for such coal
containing such standard terms and conditions as are
required by the guidelines established by GPC (other than
price, quantity, and duration), which contract shall be
consistent with the demonstrations provided for in (A) above
and providing by its terms for GPC (or any successor agent
hereunder) to have sole authority for all administration
with respect thereto, including, without limitation,
coordination with the mine operator, scheduling of
deliveries, transportation arrangements and testing;
provided, however, that except as otherwise set forth
herein, the Separate Coal Stockpile Participant shall have
sole authority, subject to the policies and procedures
adopted or revised from time to time by GPC, to make or
direct major economic decisions which are not administrative
in nature, including, without limitation, to extend,
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terminate or renegotiate the contract or exercise options
thereunder and to ▇▇▇ the supplier.
Except as set forth in Section 1(f) of this Agreement, GPC
shall have no obligation to purchase, arrange for or contract for
the purchase of coal for any Separate Coal Stockpile Participant.
If, at any time, any one or more deliveries of coal from any
such coal supply arrangement fail in any respect to satisfy the
requirements as to quality and characteristics specified in
clause (A) above, fail to comply with any material provision of a
contract governing such coal supply arrangements or are
incompatible with the Units or any governmental regulations
applying thereto, then, GPC may decline to use the coal from any
such delivery, may order a suspension of any further deliveries
from such coal supply arrangement until receipt of adequate
assurances satisfactory to it that all future deliveries of coal
will conform to the delivery schedules and to all of the other
requirements of the Plant ▇▇▇▇▇▇▇ Coal Stockpile and the Units,
as the case may be, and may take any other action and exercise
any other rights which may be permitted by law or by the
provisions of any contracts with respect to such coal supply
arrangement.
GPC shall not be liable to any other Participant for any
actions taken by it under this Section 1(e)(i), and the Separate
Procurement Participant participating in any such coal supply
arrangement shall indemnify and hold GPC and the other
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Participants harmless from and against any and all costs,
expenses, claims, judgments and fines, including, without
limitation, legal fees incurred in defense of any lawsuit or
other proceeding, as a result of any such action taken by GPC,
except that GPC shall not be so indemnified and held harmless
from the payment of legal fees incurred in defense of any lawsuit
brought by a Separate Procurement Participant proposing to
participate in such arrangement seeking specific performance or
injunctive relief against GPC to reverse GPC's determination that
such a proposed arrangement does not comply with the terms and
conditions of this Section 1(e)(i)."
6. Amendment to Create Section 1(f) of the Operating
Agreements. Section 1, GENERAL OBLIGATIONS AND RIGHTS OF
PARTIES, of each of the Operating Agreements, is hereby amended
to add the following subsection (f) thereto.
"(f) Fossil Fuel.
(i) (A) Coal and Transportation Procurement by
GPC - Initiation Until Receipt of Offers. Subject to
the provisions of Section 1(d) and 1(e) of this
Agreement, GPC, on its own behalf and as agent for the
other Participants, shall have sole authority to and
shall arrange for and acquire all fossil fuel and fuel
transportation for the Units consistent with such
policies and procedures with respect thereto as may be
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adopted from time to time by GPC and shall have sole
authority to administer all fuel and fuel
transportation standards for fossil fuel for the Units
consistent with such standards with respect thereto as
may be adopted from time to time by GPC. GPC, on its
own behalf and as agent for the other Participants,
shall procure coal and transportation from time to time
for the Common Coal Stockpile and for each of the
Separate Coal Stockpile Participants which is at such
time a Common Procurement Participant. At such times as
GPC deems it appropriate to procure coal or
transportation for the Common Coal Stockpile, GPC shall
consult with each of the Separate Coal Stockpile
Participants which are then Common Procurement
Participants to determine their procurement
requirements for their Separate Coal Stockpiles and to
determine the procurement strategy desired by each of
the Common Procurement Participants. At any other time
a Separate Coal Stockpile Participant which at such
time is also a Common Procurement Participant may
request that GPC commence a coal or transportation
procurement for the requirements of such Separate Coal
Stockpile Participant's Separate Coal Stockpile, and
GPC likewise shall consult with the other Separate Coal
Stockpile Participants which are then Common
Procurement Participants to determine their procurement
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requirements for their Separate Coal Stockpiles and to
determine the procurement strategy desired by each of
the other Common Procurement Participants. In each
case, GPC, on its own behalf and as agent for the other
Common Coal Stockpile Participants which are then
Common Procurement Participants and for the Separate
Coal Stockpile Participants expressing a desire to
participate in such Common Procurement, shall use its
reasonable best efforts to develop a procurement
strategy to accommodate the requirements and
procurement strategies of GPC for the Common Coal
Stockpile and of the Separate Coal Stockpile
Participants which are then Common Procurement
Participants expressing a desire to participate in such
Common Procurement; provided, however, that GPC shall
not be required to accommodate the requirements or
procurement strategy of any Separate Coal Stockpile
Participant which is a Common Procurement Participant
that is incompatible with the guidelines with respect
to Common Procurement adopted from time to time by the
Plant ▇▇▇▇▇▇▇ Operating Committee or which is
incompatible with the requirements or procurement
strategy desired by the Common Procurement Participants
initiating the Common Procurement. GPC, on its own
behalf and as agent for the other Common Coal Stockpile
Participants and for each of the Separate Coal
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Stockpile Participants which are then Common
Procurement Participants electing to participate in
such Common Procurement, shall then initiate a Common
Procurement in an effort to obtain offers from coal
vendors to sell coal, offers from transporters to
provide transportation, or both (individually, an
"Offer" and collectively, "Offers") to meet the
requirements and procurement strategy of GPC for the
Common Coal Stockpile and of each of the Separate Coal
Stockpile Participants which are Common Procurement
Participants electing to participate in such Common
Procurement for its Separate Coal Stockpile.
(B) Coal and Transportation Procurement by GPC -
After Receipt of Offers. Upon receipt of one or more
Offers, GPC, on its own behalf and as agent for the
other Participants, shall offer the Separate Coal
Stockpile Participants which are Common Procurement
Participants electing to participate in such Common
Procurement the opportunity to participate in each such
Offer. If two or more of such Common Procurement
Participants (including, without limitation, GPC on
behalf of the Common Coal Stockpile) elect to
participate in any particular Offer, GPC, as agent for
the Common Coal Stockpile and each Separate Coal
Stockpile Participant which is a Common Procurement
Participant shall have the right to participate in such
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Offer up to the proportion that such Common Procurement
Participant's percentage undivided ownership interest
in Plant ▇▇▇▇▇▇▇ bears to the aggregate of the
percentage undivided ownership interests in Plant
▇▇▇▇▇▇▇ of all Common Procurement Participants electing
to participate in such Offer, and for such purpose, in
computing GPC's percentage undivided ownership interest
in Plant ▇▇▇▇▇▇▇ there shall be added to GPC's
percentage undivided ownership interest in Plant
▇▇▇▇▇▇▇ the percentage undivided ownership interest in
Plant ▇▇▇▇▇▇▇ of the other Participants which are then
Common Coal Stockpile Participants. If GPC, as agent
for the Common Coal Stockpile, or any of the Separate
Coal Stockpile Participants which are Common
Procurement Participants elect to participate in any
such Offer on a timely basis, GPC will negotiate with
the supplier of such Offer in an effort to develop
final contract terms and conditions satisfactory to
GPC, as agent for the Common Coal Stockpile, and the
Separate Coal Stockpile Participants which are Common
Procurement Participants electing to participate in
such Offer, and GPC, as agent for the Common Coal
Stockpile, and each participating Separate Coal
Stockpile Participant which is a Common Procurement
Participant shall enter into a separate contract with
such supplier, which contract for such Separate Coal
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Stockpile Participant shall provide that GPC shall be
the exclusive agent on behalf of such Separate Coal
Stockpile Participant for the administration of such
contract upon such terms and conditions as are
satisfactory to GPC; provided, however, that except as
otherwise set forth herein, such Separate Coal
Stockpile Participant shall have sole authority,
subject to the policies and procedures adopted or
revised from time to time by the Plant ▇▇▇▇▇▇▇
Operating Committee, to make or direct major economic
decisions which are not administrative in nature,
including, without limitation, to extend, terminate or
renegotiate the contract or exercise options thereunder
and to ▇▇▇ the supplier. GPC makes no representation
or warranty that any Common Procurement effort will
satisfy either the requirements or the procurement
strategy of any Participant, and GPC shall have no
liability to any Participant in these regards.
(C) Separate Procurement. Upon (i) exercise by
any Separate Coal Stockpile Participant of a Separate
Procurement under Section 1(e)(i) of this Operating
Agreement or (ii) violation by any Separate Coal
Stockpile Participant, which has been found by a vote
of the Common Procurement Participants owning at least
a majority percentage undivided ownership interest in
Plant ▇▇▇▇▇▇▇ of the aggregate undivided ownership
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interest in Plant ▇▇▇▇▇▇▇ of the then Common
Procurement Participants (excluding the percentage
undivided ownership interest in Plant ▇▇▇▇▇▇▇ of the
Common Procurement Participant under consideration), of
any policy or rule for Common Procurement Participants
established from time to time by the Plant ▇▇▇▇▇▇▇
Operating Committee, such Separate Coal Stockpile
Participant shall immediately cease to be a Common
Procurement Participant, and GPC shall have no
obligation to procure coal or transportation on behalf
of such Separate Coal Stockpile Participant other than
for Spot Coal. The remaining Common Procurement
Participants owning in the aggregate more than 50%
undivided ownership interest in Plant ▇▇▇▇▇▇▇ out of
the total percentage undivided ownership interest in
Plant ▇▇▇▇▇▇▇ of the then remaining Common Procurement
Participants may vote to reestablish such Separate Coal
Stockpile Participant's status as a Common Procurement
Participant. Otherwise, GPC shall have no obligation
to procure coal or transportation on behalf of any
Separate Coal Stockpile Participant which has ceased to
be a Common Procurement Participant, other than for
Spot Coal. A Separate Procurement Participant shall
have no right to receive or review any information
relating to any Common Procurement effort or any Offers
or contracts resulting from a Common Procurement effort
-20-
except as may otherwise be provided in subsection
(i)(E) of this Section 1(f) relating to Spot Coal.
(D) Review of Offers. Any Common Procurement
Participant that initiates a Common Procurement and any
Common Procurement Participant (other than GPC as
agent) that elects to review information relating to
any Offer shall pay that portion of the costs of the
Common Procurement resulting in such Offer in the
proportion that such Common Procurement Participant's
percentage undivided ownership interest in Plant
▇▇▇▇▇▇▇ bears to the aggregate of the percentage
undivided ownership interests in Plant ▇▇▇▇▇▇▇ of the
Common Procurement Participants participating in such
Common Procurement or reviewing any information
relating to any Offer, whether or not such Common
Procurement Participant elects to participate in any
such Offer and all other Common Procurement
Participants electing to participate in any such Offer
(which shall include the Common Coal Stockpile
Participants if GPC, as agent for the Common Coal
Stockpile, elects to participate in such Offer) shall
each pay a portion of such costs computed on the same
basis. Upon request, GPC shall inform a Separate Coal
Stockpile Participant which is a Common Procurement
Participant that did not initiate the subject Common
Procurement of the approximate cost to review the
-21-
information pertaining to the Offer. No Participant
shall use any information furnished to it by or on
behalf of GPC, or any other Common Procurement
Participant concerning any such Offers in a manner to
prejudice the efforts of GPC and the other Common
Procurement Participants in any Common Procurement
effort. As to any particular information such
prohibition shall terminate two years following the
date such information was received by such Participant.
(E) Spot Coal Procurement. Notwithstanding the
foregoing provisions of Sections 1(e), 1(f) and 1(g) of
this Agreement, GPC shall be the exclusive agent to act
on behalf of itself and all other Participants for the
procurement, transportation and delivery of Spot Coal.
All Offers to sell Spot Coal shall be made available to
GPC on its own behalf and on behalf of the other then
Common Coal Stockpile Participants, and to each
Separate Coal Stockpile Participant (whether or not
such Separate Coal Stockpile Participant is then a
Common Procurement Participant) on the same basis that
an Offer under a Common Procurement is made available
to the Common Procurement Participants. GPC shall
remain a Common Procurement Participant (both as buyer
and seller) so long as there remains one or more other
Common Procurement Participants.
-22-
(ii) Each Participant shall have the right to make
whatever financial arrangements it may desire, whether by
lease, security transaction or otherwise, for the discharge
of its fossil fuel payment obligations so long as such
arrangements do not adversely affect the rights of the other
Participants.
(iii) Except as otherwise agreed by the Common Coal
Stockpile Participants or as otherwise provided in Sections
2(c) and 3(b) of this Agreement, the Common Coal Stockpile
Participants shall pay Common Coal Stockpile Costs and shall
own coal in the Common Coal Stockpile in proportion to their
respective undivided ownership interests in the Common Coal
Stockpile.
(iv) Except as otherwise agreed to by the Participants
or as otherwise provided in Sections 2(c) and 3(b) of this
Agreement, each Separate Coal Stockpile Participant shall
pay all Separate Coal Stockpile Costs which are properly and
reasonably allocable to such Separate Coal Stockpile
Participant's Separate Coal Stockpile, determined in
accordance with GPC's standard accounting practices, which
shall comply with the Uniform System of Accounts in effect
from time to time except as provided in subsection (vii) of
Section 1(g) hereof.
-23-
(v) Except as otherwise agreed to by the Participants
or as otherwise provided in Sections 2(c) and 3(b) of this
Agreement, the Participants shall pay Other Fuel Costs and
shall own fossil fuel (other than coal allocated to the
Common Coal Stockpile and to the Separate Coal Stockpiles)
in proportion to their respective percentage undivided
ownership interests in Plant ▇▇▇▇▇▇▇.
(vi) If on or prior to 30 days following OPC's receipt
of approval of this Amendment from the Administrator of the
Rural Electrification Administration, any Participant
exercises its election to become a Separate Coal Stockpile
Participant, then within six months following the date of
the first election by a Separate Coal Stockpile Participant,
GPC shall develop written procedures for Separate Coal
Procurement and Common Procurement and shall submit such
procedures to the other Participants which shall adopt such
procedures by vote of Participants owning at least an
aggregate 85% undivided ownership interest in Plant ▇▇▇▇▇▇▇
within two months of submission or which shall revise such
procedures, such revisions to be approved by Participants
owning at least an aggregate 85% undivided ownership
interest in Plant ▇▇▇▇▇▇▇. In the absence of such adoption
or approval of revisions within two months of submission,
the procedures submitted by GPC shall go into effect as the
procedures adopted by the Participants. The procedures may
-24-
be revised thereafter only by approval of such Participants
owning at least an aggregate 85% undivided ownership
interest in Plant ▇▇▇▇▇▇▇. In the absence of the approval
of any revisions to the procedures by such 85% vote, the
revisions to the procedures shall go into effect as
submitted by GPC."
7. Amendment to Create Section 1(g) of the Operating
Agreements. Section 1, GENERAL OBLIGATIONS AND RIGHTS OF
PARTIES, of each of the Operating Agreements, is hereby amended
to add the following subsection (g) thereto.
"(g) Common Coal Stockpile and Separate Coal
Stockpiles.
(i) In order to provide for the ownership by the
Participants of interests in a Common Coal Stockpile
and to provide for the sharing among the Participants
of Common Coal Stockpile Costs, the Participants agree
that initially, all Participants shall participate in
the Common Coal Stockpile.
GPC shall cause an adjustment to be made to the
account of each Common Coal Stockpile Participant (A)
so that the quantity of coal in the Common Coal
Stockpile shall thereafter be allocated to the Common
Coal Stockpile Participants according to such Common
Coal Stockpile Participant's percentage undivided
-25-
ownership interest in the Common Coal Stockpile as set
forth in the following sentence, and (B) so that the
average cost per ton or, following a division of the
Plant ▇▇▇▇▇▇▇ Coal Stockpile into the Common Coal
Stockpile and one or more Separate Coal Stockpiles
pursuant to Section 1(g)(iii) of this Agreement, the
average cost per British Thermal Unit ("Btu") of the
coal in the Common Coal Stockpile is the same for each
Common Coal Stockpile Participant, with appropriate
charges and credits to be made to the accounts of such
Common Coal Stockpile Participants, all in accordance
with GPC's standard accounting practices which shall
comply with the Uniform System of Accounts in effect
from time to time except as provided in subsection
(vii) of Section 1(g) hereof. Following each such
allocation, each Common Coal Stockpile Participant
shall own a percentage undivided ownership interest in
the Common Coal Stockpile in the proportion that such
Common Coal Stockpile Participant's percentage
undivided ownership interest in Plant ▇▇▇▇▇▇▇ bears to
the aggregate of all Common Coal Stockpile
Participants' percentage undivided ownership interest
in Plant ▇▇▇▇▇▇▇.
(ii) All Common Coal Stockpile Costs incurred in
connection with the Common Coal Stockpile shall be
allocated among the Common Coal Stockpile Participants
-26-
at the time such Common Coal Stockpile Costs are
incurred in the same respective percentages of each
Common Coal Stockpile Participant's undivided ownership
interest from time to time in the Common Coal Stockpile
at that particular time and, subject to the provisions
of Sections 2(c) and 3(b) of this Agreement, the Common
Coal Stockpile Costs shall be paid as provided in
Sections 1(f), 2(b) and 2(c) of this Agreement;
provided, however, that at the end of each calendar
month, GPC shall cause an adjustment to be made among
the Common Coal Stockpile Participants in accordance
with the amount of coal (or, following a division of
the Plant ▇▇▇▇▇▇▇ Coal Stockpile into the Common Coal
Stockpile and one or more Separate Coal Stockpiles
pursuant to Section 1(g)(iii) of this Agreement, the
amount of Btus) actually consumed by each of the Common
Coal Stockpile Participant's undivided ownership
interest in each of the Units, all in accordance with
GPC's standard accounting practices which shall comply
with the Uniform System of Accounts in effect from time
to time except as provided in subsection (vii) of
Section 1(g) hereof.
All Other Fuel Costs incurred in connection with
the Units shall be allocated among the Participants at
the time such Other Fuel Costs are incurred in the same
respective percentages of each Participant's percentage
-27-
undivided ownership interest in Plant ▇▇▇▇▇▇▇ at that
particular time, and the Other Fuel Costs shall be paid
as provided in Sections 1(f), 2(b) and 2(c) of this
Agreement; provided, however, that at the end of each
calendar month, GPC shall cause an adjustment to be
made among the Participants in accordance with the
amount of fuel (other than coal) actually consumed by
each of the Participants all in accordance with GPC's
standard accounting practices which shall comply with
the Uniform System of Accounts in effect from time to
time except as provided in subsection (vii) of Section
1(g) hereof.
(iii) Each Participant (other than GPC) may elect
to discontinue participation in the Common Coal
Stockpile by delivery of written notice to GPC of such
election not later than 30 days following OPC's receipt
of approval of this Amendment from the Administrator of
the Rural Electrification Administration. Within six
months following the date of the first election by a
Separate Coal Stockpile Participant, GPC, as agent for
the other Participants, shall cause an adjustment to be
made to the Common Coal Stockpile and to the account of
each Separate Coal Stockpile Participant so that (A)
the quantity of coal allocated to the Common Coal
Stockpile will equal the percentage undivided ownership
interests of the remaining Common Coal Stockpile
-28-
Participants and so that the quantity of coal allocated
to each Separate Coal Stockpile Participant's account
will equal its percentage undivided ownership interest
in the Common Coal Stockpile at the time such
adjustment is made, and (B) the average cost per ton
and average cost per Btu for the Common Coal Stockpile
and for each Separate Coal Stockpile are the same. GPC
shall notify each of the Participants immediately after
such an adjustment has been made of (l) the quantity of
coal in the Common Coal Stockpile and in each Separate
Coal Stockpile and (2) the average cost per ton and
average cost per Btu for the Common Coal Stockpile and
for each Separate Coal Stockpile. Thereafter, each
Separate Coal Stockpile Participant shall be entitled
only to use coal available in its Separate Coal
Stockpile account for the operation of its undivided
ownership interests in the Units, and the remaining
Common Coal Stockpile Participants shall be entitled to
use only coal available in the account of the Common
Coal Stockpile for the operation of their undivided
ownership interests in the Units. Except as otherwise
provided in subsection (ii) of this Section 1(g), no
Participant shall be required to sell or otherwise
supply coal to any other Participant; however, GPC, on
its own behalf and as agent for the other Common Coal
Stockpile Participants, and each Separate Coal
-29-
Stockpile Participant may buy, sell, trade or otherwise
supply coal in the Plant ▇▇▇▇▇▇▇ Coal Stockpile from
their respective accounts to one another upon such
terms as they may agree and upon prior written notice
to GPC; provided, however, that all offers to sell coal
by a Common Procurement Participant must be offered to
all of the Common Procurement Participants on the same
basis as an Offer under a Common Procurement. There
shall be allocated to each Separate Coal Stockpile
Participant's account and each Separate Coal Stockpile
Participant shall take and pay for a portion of
subsequent deliveries of coal and associated costs
(including, without limitation, "buy-out" costs, if
any) through December 1997 from that certain agreement
entered into on December 6, 1972, as amended, between
Georgia Power Company and Arch Mineral Corporation in
an amount equal to such Separate Coal Stockpile
Participant's percentage undivided ownership interest
in the Units. In addition, there shall be allocated to
each Separate Coal Stockpile Participant's account all
coal procured on behalf of such Separate Coal Stockpile
Participant by GPC pursuant to Section 1(f) of this
Agreement or procured by such Separate Coal Stockpile
Participant pursuant to Section 1(e)(i) of this
Agreement. GPC shall account for all coal allocated to
the account of each Separate Coal Stockpile Participant
-30-
and for coal consumed by such Separate Coal Stockpile
Participant's undivided ownership interests in the
Units, all in accordance with GPC's standard accounting
practices which shall comply with the Uniform System of
Accounts in effect from time to time except as provided
in subsection (vii) of Section 1(g) hereof. No
Separate Coal Stockpile Participant nor any purchaser
of an undivided ownership interest in the Units from a
Separate Coal Stockpile Participant may elect to become
a Common Coal Stockpile Participant without the written
consent of a majority of the percentage undivided
ownership interest in Plant ▇▇▇▇▇▇▇ of the then
remaining Common Coal Stockpile Participants,
including, without limitation, GPC so long as GPC is a
Participant.
(iv) Except as otherwise provided in subsection
(vi) of this Section 1(g), unless otherwise agreed to
by Participants owning in the aggregate at least an 85%
undivided ownership interest in Plant ▇▇▇▇▇▇▇, the
Participants recognize and agree, that the division of
the Common Coal Stockpile and each Separate Coal
Stockpile is for the purposes only of accounting,
payment and settlement of costs and entitlement to use;
that there will be no physical separation of coal at
Plant ▇▇▇▇▇▇▇ among the Common Coal Stockpile and the
Separate Coal Stockpiles and that the Common Coal
-31-
Stockpile and the Separate Coal Stockpiles will be
physically combined and commingled into one common coal
stockpile at Plant ▇▇▇▇▇▇▇; and that existing coal and
future deliveries of coal at Plant ▇▇▇▇▇▇▇ allocated
among the Common Coal Stockpile and the Separate Coal
Stockpiles will all be physically commingled and may be
used for the operation of the undivided ownership
interests of any Participant so long as the account of
such Participant demonstrates that there is sufficient
coal credited to its account for such operation.
Nothing in this Section 1(g)(iv) shall preclude
Participants owning in the aggregate at least an 85%
undivided ownership interest in Plant ▇▇▇▇▇▇▇ from
agreeing, upon such terms and conditions as they may
agree to, to physically separate the Plant ▇▇▇▇▇▇▇ Coal
Stockpile in the future.
(v) All discrepancies between the book inventory
and the physical inventory of the Plant ▇▇▇▇▇▇▇ Coal
Stockpile shall be charged or credited, as appropriate,
among the Common Coal Stockpile and the Separate Coal
Stockpiles and to the respective accounts of each
Participant in accordance with the amount of coal
actually consumed by the undivided ownership interests
of each Participant during the physical inventory
period to which such discrepancy relates, all as
determined in accordance with GPC's standard accounting
-32-
practices which shall comply with the Uniform System of
Accounts in effect from time to time except as provided
in subsection (vii) of Section 1(g) hereof.
(vi) GPC and each of the other Common Coal
Stockpile Participants or any purchaser of an undivided
ownership interest in the Units may enter into whatever
other arrangements GPC and such other Common Coal
Stockpile Participant (or purchaser) may agree to with
respect to such Common Coal Stockpile Participant's (or
purchaser's) ownership interest in the Common Coal
Stockpile, including, without limitation, the creation
of further Separate Coal Stockpiles without requiring
the consent of any other Participant, so long as such
arrangement provides for Common Coal Stockpile Costs to
be paid as contemplated by this Agreement.
(vii) If on or prior to 30 days following OPC's
receipt of approval of this Amendment from the
Administrator of the Rural Electrification
Administration, any Participant exercises its election
to become a Separate Coal Stockpile Participant, then
within six months following the date of the first
election by a Separate Coal Stockpile Participant, GPC
shall develop written procedures for Separate Coal
Stockpile accounting and Common Coal Stockpile
accounting and shall submit such procedures to the
other Participants which shall adopt such procedures by
-33-
vote of Participants owning at least an aggregate 85%
undivided ownership interest in Plant ▇▇▇▇▇▇▇ within
two months of submission or which shall revise such
procedures, such revisions to be approved by
Participants owning at least an aggregate 85% undivided
ownership interest in Plant ▇▇▇▇▇▇▇. In the absence of
such adoption or approval of revisions within two
months of submission, the procedures submitted by GPC
shall go into effect as the procedures adopted by the
Participants. The procedures may be revised thereafter
only by approval of such Participants owning at least
an aggregate 85% undivided ownership interest in Plant
▇▇▇▇▇▇▇. In the absence of the approval of any
revisions to the procedures by such 85% vote, the
revisions to the procedures shall go into effect as
submitted by GPC."
8. Amendment to Create Section 1(h) of the Operating
Agreements. Section 1, GENERAL OBLIGATIONS AND RIGHTS OF
PARTIES, of each of the Operating Agreements, is hereby amended
to add the following subsection (h) thereto.
"(h) Budgets, Schedules and Plans to be Provided by
GPC to the Participants.
(i) Capital Budgets. By the date set forth in
-34-
Appendix A, GPC shall use its reasonable best efforts to
provide to each Participant a written budget estimate of
capital costs anticipated to be incurred for a five-year
budget period for ▇▇▇▇▇▇▇ Unit No. 1 and ▇▇▇▇▇▇▇ Unit No. 2.
Each capital budget estimate shall be based on information
reasonably available. Also to be included in the capital
budget are any projects which may be charged to a
Participant on the basis of its ownership pursuant to the
Ownership Agreement. This budget estimate is to consist of
project estimate sheets for each project. For the five-year
budget period, a summary of estimates of capital
expenditures and retirements will be provided, the first
year by month and the remaining four years by annual total.
GPC may from time to time propose changes in the
capital budget estimates and revised capital budget
estimates as necessary to reflect any changes in
construction, purchasing or payment schedules, plans,
specifications or costs related to completions, renewals,
additions, replacements, modifications and disposal in
connection with the Units and GPC shall similarly submit
such proposed changes to all Participants.
Each capital budget estimate and revised capital budget
estimate shall be in a format such that for the next
calendar year each month's estimated costs are listed by
reference to the applicable Uniform System of Accounts
account number. In addition, each capital budget estimate
-35-
and revised capital budget estimate shall be in a format
showing expected amounts that the Participant will be
billed.
GPC shall attempt to make all such completions,
renewals, additions, replacements, modifications and
disposals in connection with the Units in accordance with
the then current capital budget estimate, but GPC makes no
representation, warranty or promise of any kind as to the
accuracy of any of such capital budget estimates or that
such attempt to make all such completions, renewals,
additions, replacements, modifications and disposals in
accordance with the then current capital budget estimate
will be successful, and in no event shall GPC have any
liability to any other Participant in these regards.
Notwithstanding the foregoing provisions of this
Section 1(h)(i) with respect to the information to be
provided by GPC and applicable times and dates, the matters
set forth in Appendix A attached hereto relating to capital
budgets, as the same may be revised from time to time by
agreement among all of the Participants and GPC as agent for
the Participants, shall govern and control any such
conflicting or contrary provisions of this Section 1(h)(i).
(ii) Operating Budgets. By the date set forth in
Appendix A, GPC shall use its reasonable best efforts to
provide to each Participant a written budget estimate of
-36-
Operating Costs including, without limitation, scheduled
outage costs (by month for the following year and in summary
fashion for the succeeding four years) anticipated to be
incurred for a five-year budget period for ▇▇▇▇▇▇▇ Unit
No. 1 and ▇▇▇▇▇▇▇ Unit No. 2. Each operating budget
estimate shall be based on information reasonably available.
Each operating budget estimate and revised operating
budget estimate shall be in a format such that for the next
calendar year each month's estimated costs are listed by
reference to the applicable Uniform System of Accounts
account number. In addition, each operating budget estimate
and revised operating budget estimate shall be in a format
showing expected amounts that the Participant will be
billed.
The operating budget for each calendar year shall be
revised as deemed necessary by GPC to reflect changed
operating conditions in such calendar year, and promptly
upon any such revision GPC shall provide to each of the
other Participants a revised operating budget. Each revised
operating budget shall include Operating Costs incurred by
GPC in the operation and maintenance of the Units prior to
the time such revised operating budget becomes effective but
not included in prior operating budgets, and shall be
supported by detail reasonably adequate for the purpose of
each Participant's reasonable review thereof.
GPC shall attempt to manage, control, operate and
-37-
maintain the Units in accordance with the then current
operating budget so that payments to be made by the
Participants for the costs contained therein shall be, as
nearly as practicable, within the then current operating
budget and the schedules of expenditures contained therein.
Notwithstanding the foregoing, GPC makes no representation,
warranty or promise of any kind as to the accuracy of any
estimate contained in an operating budget or revised
operating budget or that any such attempt referred to in the
preceding sentence will be successful, and in no event shall
GPC have any liability to any of the other Participants in
these regards.
Notwithstanding the foregoing provisions of this
Section 1(h)(ii) with respect to the information to be
provided by GPC and applicable times and dates, the matters
set forth in Appendix A attached hereto relating to
operating budgets, as the same may be revised from time to
time by agreement among all of the Participants and GPC as
agent for the Participants, shall govern and control any
such conflicting or contrary provisions of this Section
1(h)(ii).
(iii) Maintenance Schedule. GPC agrees to submit
to the other Participants on or before the date set forth in
Appendix A, a scheduled maintenance plan for the ensuing
five calendar years. Each such plan shall describe in
-38-
reasonable detail the contemplated time and duration of each
outage and maintenance work to be done and the estimated
cost thereof. In formulating the plan to be submitted to
the Participants, GPC shall consider any comments submitted
by the Participants to GPC prior to the date set forth in
Appendix A, and GPC shall use its reasonable best efforts to
minimize any period during which the Units are scheduled to
be out of service for maintenance at the same time.
Scheduled maintenance plans may be changed by GPC from time
to time as deemed appropriate by GPC and when so changed
shall be delivered to the other Participants. Should any
major changes be made to the maintenance schedule within a
calendar year, GPC shall use its reasonable best efforts to
provide each Participant with a revised schedule. GPC makes
no representation, warranty or promise of any kind as to the
accuracy of any estimate or other information contained in
any scheduled maintenance plan and in no event shall GPC
have any liability to any of the other Participants in these
regards. A Common Dispatch Participant shall receive
maintenance schedules for the territory.
Notwithstanding the foregoing provisions of this
Section 1(h)(iii) with respect to the information to be
provided by GPC and applicable times and dates, the matters
set forth in Appendix A attached hereto relating to
maintenance schedules, as the same may be revised from time
to time by agreement among all of the Participants and GPC
-39-
as agent for the Participants, shall govern and control any
such conflicting or contrary provisions of this Section
1(h)(iii).
(iv) Fuel Plan. By the date set forth in Appendix
A, GPC shall prepare and submit to the other Participants
for their approval a fuel supply plan covering at least a
five-year period for the Units (the "Fuel Plan"). Each Fuel
Plan shall describe in reasonable detail each action or
contemplated action and payment and the estimated dates
thereof relating to the acquisition, transportation,
delivery and storage of fossil fuel for the Units, the
entitlement (or estimates thereof) of each Participant to
the energy generated by each of the Units for each calendar
year of the Fuel Plan pursuant to Sections 3(b) hereof, a
cash flow analysis of forecasted expenditures and credits
for each Participant for each major cost component of the
Fuel Plan by year for the period covered by the Fuel Plan,
and cash flow by months (or such other period as agreed to
by the Participants) for the first three years of each such
period. GPC may amend the Fuel Plan from time to time as it
deems appropriate and shall deliver to the other
Participants such amended Fuel Plan. GPC shall attempt to
acquire, transport, deliver and store fuel for the Units in
accordance with the Fuel Plan to the extent reasonably
practicable; provided, however, that GPC makes no
-40-
representation, warranty or promise of any kind as to the
accuracy of any estimate or forecast or other information
contained in any Fuel Plan or that any attempt to acquire,
transport, deliver and store fuel for the Units in
accordance with the Fuel Plan will be successful, and in no
event shall GPC have any liability to any of the other
Participants in these regards.
Notwithstanding the foregoing provisions of this
Section 1(h)(iv) with respect to the information to be
provided by GPC and applicable times and dates, the matters
set forth in Appendix A attached hereto relating to Fuel
Plans, as the same may be revised from time to time by
agreement among all of the Participants and GPC as agent for
the Participants, shall govern and control any such
conflicting or contrary provisions of this Section
1(h)(iv)."
9. Amendment to Section 2(a) of the Operating Agreements.
Section 2(a), SHARING OF COSTS - GENERAL, of each of the
Operating Agreements is hereby amended by deleting such Section
2(a) in its entirety and by substituting, in lieu thereof, the
following:
"(a) Sharing of Costs - General. The Participants
shall be responsible for payment of Cost of Construction in
accordance with the provisions of the Ownership Agreement
-41-
and shall be responsible for the payment of Separate Coal
Stockpile Costs, Common Coal Stockpile Costs and Other Fuel
Costs in accordance with the provisions of Sections 1(f),
1(g), 2(b), and 3(d) of this Agreement.
Except as otherwise provided in this Section 2, each
Participant shall be responsible for the payment of its
respective share of all Operating Costs. Each Participant's
respective share of such Operating Costs, to the extent
feasible, shall be equivalent to the proportion that the
output of energy from its undivided ownership interest in
the Units bears to the total output of energy from the Units
during the Applicable Accounting Period; provided, however,
that if there is no output of energy from the Units during
the Applicable Accounting Period, each Participant's
respective share of such Operating Costs shall be equivalent
to its respective percentage undivided ownership interest
during such accounting period in the Units, and, for those
Operating Costs which cannot be feasibly allocated based on
the Participant's output of energy from their respective
undivided ownership interests in the Units, each
Participant's respective share of such Operating Costs shall
be equivalent to its respective percentage undivided
ownership interest in the Units during such accounting
period. Operating Costs incurred in connection with Plant
▇▇▇▇▇▇▇ shall be allocated as provided in Appendix "B"
attached hereto and incorporated herein by reference as the
-42-
same may be revised from time to time by approval of all of
the Participants.
It is the absolute intent of the Participants to share
all items of cost, obligation and liability incurred in
connection with the Units and Plant ▇▇▇▇▇▇▇ (other than the
financing of each Participant's respective undivided
ownership interest in the Units), and not otherwise
expressly provided for, in the proportion equivalent to each
Participant's undivided ownership interest in the Units.
Notwithstanding the foregoing provisions of this
Section 2(a) or any other provision of this Agreement, in
the event any Participant sells to any other person
(including, without limitation, a Participant) any undivided
ownership interest in the Units or any portion thereof in
accordance with the provisions of Section 5(f) of the
Ownership Agreement (other than a sale or conveyance as
security for an indebtedness or in connection with the
financing of pollution control facilities), such selling
Participant's rights and obligations hereunder as a
Participant and co-owner of the Units, including the
obligation to make payments of the Operating Costs, Common
Coal Stockpile Costs, Separate Coal Stockpile Costs, Other
Fuel Costs and any other costs to be shared by the
Participants hereunder, shall be reduced to the extent of
such costs attributable to the undivided ownership interest
so sold, and all Participants shall look solely to such
-43-
purchaser for payment of the corresponding portion of the
Operating Costs, Common Coal Stockpile Costs, Separate Coal
Stockpile Costs, Other Fuel Costs and other costs to be
shared by the Participants hereunder; provided, however,
that no such sale shall relieve any Participant from its
obligations under Section 3(d) hereof."
10. Amendment to Section 2(b) of the Operating Agreements.
Section 2(b), PAYMENT AND SETTLEMENT OF COSTS, of the Operating
Agreements is hereby amended as follows:
(i) Section 2(b)(i) of each of the Operating
Agreements is hereby amended to delete the words
"and acquisition of fuel" therefrom.
(ii) The second sentence of Section 2(b)(iii) is hereby
amended to delete the words:
In the OPC Operating Agreement: "of its 30%
share of such Operating Costs of Plant
▇▇▇▇▇▇▇"
In the MEAG Operating Agreement: "of its
15.1% share of such Operating Costs of Plant
▇▇▇▇▇▇▇"
In the ▇▇▇▇▇▇ Operating Agreement: "of its
1.4% share of such Operating Costs of Plant
▇▇▇▇▇▇▇,"
-44-
and to substitute in each instance in lieu
thereof, the words "of its share of Operating
Costs as provided in Section 2(a), SHARING OF
COSTS-GENERAL."
(iii) Section 2(b) of each of the Operating Agreements
is hereby amended to add the following section
(vi) to the end thereof.
"(vi) Notwithstanding the foregoing provisions of
this Section 2(b), GPC agrees to establish depository
reconcilement accounts for use in billing and payment
of costs at Plant ▇▇▇▇▇▇▇ and to develop, after
consultation with the other Participants, procedures
for the implementation of such accounts. The
establishment of such accounts and the development of
such procedures shall be consistent, to the extent
practicable, with the methodologies used by GPC for the
billing and payment of costs at GPC's other jointly
owned generating facilities which implement depository
reconcilement accounting."
11. Amendment to Create Section 2(c) of the Operating
Agreements. Section 2, GENERAL FINANCIAL OBLIGATIONS, of each of
the Operating Agreements is hereby amended to add the following
subsection (c) thereto.
-45-
"(c) Common Coal Stockpile Costs, Separate Coal Stockpile
Costs, and Other Fuel Costs.
(i) Each Participant which is at any given time a
Common Coal Stockpile Participant shall own an
undivided ownership interest in the Common Coal
Stockpile, and shall be responsible for the payment of
Common Coal Stockpile Costs in the proportions set
forth in Sections 1(f)(iii) and 1(g) of this Agreement.
Each Participant which is at any given time a Separate
Coal Stockpile Participant shall own the coal allocated
to its account and shall be responsible for payment of
Separate Coal Stockpile Costs pursuant to Sections
1(f)(iv) and 1(g) of this Agreement. Each Participant
shall own other fossil fuel and shall be responsible
for payment of Other Fuel Costs for the Units in
proportion to its percentage undivided ownership
interest from time to time in the Units. Not later
than 120 days prior to the beginning of each calendar
year, GPC shall deliver to the other Participants an
estimate of the Common Coal Stockpile Costs or Separate
Coal Stockpile Costs, as the case may be, and Other
Fuel Costs to be paid by each Participant for such
calendar year;
-46-
(ii) For each calendar year, GPC shall keep an
hourly record of the kilowatt-hours of energy delivered
to each Participant from each of ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇ and shall report such amounts each
month along with the cumulative amount of energy
delivered to each Participant since the beginning of
that calendar year."
12. Amendment to Section 3(b) of the Operating Agreements.
Section 3(b), SCHEDULING AND DISPATCHING, of each of the
Operating Agreements is hereby amended by deleting such Section
3(b) in its entirety and by substituting, in lieu thereof, the
following:
"(b) Scheduling and Dispatching.
(i) Subject to the further provisions of this
Section 3(b), GPC, on its own behalf and as agent for
the other Participants shall have sole authority for
the scheduling and dispatching of the output of each of
▇▇▇▇▇▇▇ Unit No. 1 and ▇▇▇▇▇▇▇ Unit No. 2 and shall
schedule and dispatch such outputs on a continuous
economic dispatch basis, to the extent each such unit
is capable of such dispatch, in accordance with GPC's
standard scheduling and dispatching procedures to
serve, in part, the electric capacity and energy load
within the State of Georgia. By the date set forth in
-47-
Appendix A, as the same may be revised from time to
time with respect to such information by agreement
among all of the Common Dispatch Participants and GPC
as agent for the Common Dispatch Participants, GPC
shall use its reasonable best efforts to provide to
each Common Dispatch Participant a written budget
estimate of the estimated operating levels of ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇. ▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇ based upon the
anticipated economic dispatch of such Units for the
five-year budget period. Each budget estimate shall be
based on information reasonably available.
(ii) Any Common Dispatch Participant having an
undivided ownership interest in ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇,
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇, or both, shall have the right to
request and receive during such calendar year energy on
an hourly basis from either of ▇▇▇▇▇▇▇ Unit No. 1 or
▇▇▇▇▇▇▇ Unit No. 2 or both in excess of its
proportionate share of the energy generated by such
unit operating on an economic dispatch basis, up to a
maximum of such Participant's proportionate share of
the energy which could be generated by such unit
operating at its maximum practicable capability at any
given time, if (1) such Participant, gives GPC such
advance notice as is reasonably acceptable to GPC of
its desire to receive such additional energy from such
unit and the amount of such additional energy and such
-48-
increased generation can be reasonably accommodated
within GPC's scheduling and dispatching procedures; and
(2) such Participant agrees to be responsible, as of
the date of such notice, for any and all additional
costs resulting from such increased generation of
energy, including all prepayments in connection with
the acquisition of coal and other fuel, whether or not
it requires or takes the additional energy during such
calendar year and whether or not any additional energy
is generated.
(iii) Subject to the provisions of Section
3(b)(iv) of this Agreement, commencing within six
months following the date of the first election by a
Separate Coal Stockpile Participant to discontinue
participation in the Common Coal Stockpile, GPC shall
use its reasonable best efforts to dispatch the
undivided ownership interests of each Separate Dispatch
Participant in ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇.
▇ to match the schedules provided by such Separate
Dispatch Participant. Except as provided for in
Section 3(b)(iv) or in the third paragraph of this
Section 3(b)(iii), GPC shall have no right to dispatch
the undivided ownership interests in ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇.
▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇, or both, of the Separate
Dispatch Participants on any basis or for any purpose
other than to match the schedules provided by such
-49-
Separate Dispatch Participants. The Separate Dispatch
Participants having undivided ownership interests in
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇, or both, and
GPC agree to develop software and to install any
equipment at ▇▇▇▇▇▇▇ Unit No. 1 and ▇▇▇▇▇▇▇ Unit No. 2
which GPC and such Separate Dispatch Participants deem
reasonable and necessary for the separate scheduling
and dispatching of the undivided ownership interests of
the Separate Dispatch Participants in ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇.
▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇. The costs associated with
procuring, developing, installing and operating such
equipment and software shall be borne solely by the
Separate Dispatch Participants having undivided
ownership interests in the Units, and each such
Separate Dispatch Participant shall pay that portion of
such costs in the proportion that its undivided
ownership interest in the Units bears to the aggregate
of undivided ownership interests of Separate Dispatch
Participants in the Units.
GPC and the Separate Dispatch Participants having
undivided ownership interests in ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇,
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇, or both, shall establish mutually
agreeable notification procedures for the startup and
shutdown of ▇▇▇▇▇▇▇ Unit No. 1 and ▇▇▇▇▇▇▇ Unit No. 2
which shall be subject to approval by the Participants
by vote of Participants owning at least an aggregate
-50-
85% undivided ownership interest in the Units and upon
failure to secure such approval, such notification
procedures shall be those proposed by GPC. Such
procedures shall consider, among other things,
operational characteristics of ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇ as well as factors affecting the
operation of ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇
as a component of Plant ▇▇▇▇▇▇▇ integrated with the
Georgia Integrated Transmission System.
Either GPC, on its own behalf and as agent for the
other Common Dispatch Participants, or any Separate
Dispatch Participant having undivided ownership
interests in ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇, or
both, may commit such of ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇. ▇, or both, in which it has an undivided
ownership interest, when available, for start-up. The
Participant or Participants committing a Unit for
start-up shall pay and be solely responsible for all
costs associated with the start-up of the Unit,
including, without limitation, start-up fuel and
personnel costs, with each such Committing Participant
being responsible for a portion of such costs in the
proportion that its undivided ownership interest in the
committed Unit bears to the aggregate of the undivided
ownership interests of the Committing Participants in
the committed Unit. For this purpose, if GPC commits
-51-
▇▇▇▇▇▇▇ Unit No. 1, ▇▇▇▇▇▇▇ Unit No. 2, or both, for
start-up, all Common Dispatch Participants having an
undivided ownership interest in ▇▇▇▇▇▇▇ Unit No. 1 or
▇▇▇▇▇▇▇ Unit No. 2 shall be deemed Committing
Participants. If one or more of the Committing
Participants desire to shutdown ▇▇▇▇▇▇▇ Unit No. 1 or
▇▇▇▇▇▇▇ Unit No. 2 and one or more Committing
Participant desires to maintain the commitment of such
Unit, then the Committing Participant or Participants
desiring to maintain the commitment may do so and shall
be responsible for all costs associated therewith.
During any period of commitment of ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇, or both, by Committing
Participants, if another Participant or Participants
having the right to schedule or dispatch output from
the committed Unit or Units does so, then such
Participant or Participants shall become Committing
Participants and shall pay or reimburse the preexisting
Committing Participants for that portion of the costs
associated with start-up of the Unit for which the
preexisting Committing Participants were liable
pursuant to the third paragraph of this Section
3(b)(iii), which is properly and reasonably allocable
to each new Committing Participant, all in accordance
with GPC's standard operating and accounting procedures
which shall be submitted for approval by the
-52-
Participants by vote of Participants owning at least an
aggregate 85% undivided ownership interest in the Units
and upon failure to secure such approval, such
operating and accounting procedures shall be those
proposed by GPC. Each Separate Dispatch Participant
shall be responsible for any and all costs resulting
from its operation of ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇, or both.
(iv) It is recognized by the Participants that
the operation of the Georgia Integrated Transmission
System under both normal and abnormal conditions can be
impacted by the operation of ▇▇▇▇▇▇▇ Unit No. 1 and
▇▇▇▇▇▇▇ Unit No. 2, and it is further recognized that
the operation of ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇
and the remainder of Plant ▇▇▇▇▇▇▇, including, without
limitation, maintenance of voltage regulation and
electrical and mechanical stability, can be impacted by
the operation of the Georgia Integrated Transmission
System. The Participants agree that GPC, as agent,
shall have the right to take such actions relating to
the operation or shutdown of the Participants'
undivided ownership interests in the Units as are
reasonable for the safe and reliable operation of
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇, the remainder
of Plant ▇▇▇▇▇▇▇ and the Georgia Integrated
Transmission System.
-53-
The Participants recognize and agree that (1) GPC
shall have sole authority to control the reactive power
output of ▇▇▇▇▇▇▇ Unit No. 1 and ▇▇▇▇▇▇▇ Unit No. 2 in
order to control voltage at the Plant ▇▇▇▇▇▇▇ step-up
substation and auxiliary electric systems, maintain
reasonable voltage profiles on the Georgia Integrated
Transmission System, and provide reactive power to the
system, and (2) GPC may take actions to override the
dispatch of the Participants' undivided ownership
interests in ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇, or
both, including, without limitation, startup or
shutdown of ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇, or
both, in the event GPC reasonably determines that such
action is necessary or appropriate to maintain
reliability and integrity of ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇,
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇, the remainder of Plant ▇▇▇▇▇▇▇, the
Georgia Integrated Transmission System or any
combination of them. GPC shall notify each Participant
having an undivided ownership interest in ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇, or both, as soon as
reasonably practicable when such actions or similar
actions are necessary. Procedures for such
notification shall be included in the dispatch
procedures to be developed by GPC and submitted to the
Participants for approval by the Participants by vote
of Participants owning at least an aggregate 85%
-54-
undivided ownership interest in the Units and upon
failure to secure such approval, such notification
procedures shall be those proposed by GPC.
All costs for any additional energy produced by
operation of the Participants' undivided ownership
interests in ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇, or
both, pursuant to the foregoing provisions of this
Section 3(b)(iv), shall be borne by the Participants in
proportion to their undivided ownership interests in
the Units and the Participants will be entitled to such
additional energy in the same proportions whether or
not any such Participant requires or can utilize such
additional energy.
The rights granted GPC pursuant to this Section
3(b)(iv) shall remain in full force and effect even if
GPC is removed as agent for the Units and Plant ▇▇▇▇▇▇▇
Coal Stockpile, or any combination thereof.
(v) The Participants agree that GPC shall have no
obligation to generate energy which cannot be
transmitted either due to transmission restrictions or
lack of necessary transmission arrangements.
(vi) For the purpose of this Section 3(b), the
capacity associated with a Participant's undivided
ownership interest in the Units shall include, in the
-55-
case of GPC, the capacity purchased by GPC from time to
time pursuant to Section 3(d) of this Agreement.
13. Amendment to Section 3(d) of the OPC Operating
Agreement. Section 3(d), GPC ENTITLEMENT OF OEMC CAPACITY AND
ENERGY, of the OPC Operating Agreements is hereby amended to
delete subsection (iv) in its entirety therefrom and to renumber
the remaining subsections 3(d)(v) and 3(d)(vi) as 3(d)(iv) and
3(d)(v).
14. Amendment to Create Section 10 of the Operating
Agreements. Section 10 of each of the Operating Agreements hereby
reads as follows:
"10. Plant ▇▇▇▇▇▇▇ Operating Committee.
(a) Establishment of Plant ▇▇▇▇▇▇▇ Operating Committee.
There is hereby established by the Participants a "Plant ▇▇▇▇▇▇▇
Operating Committee" which shall be comprised of one
representative and one alternate of each Participant. The Plant
▇▇▇▇▇▇▇ Operating Committee shall establish its own rules of
procedure which shall be agreed to by all of the Participants to
become effective.
(b) Responsibilities of the Plant ▇▇▇▇▇▇▇ Operating
Committee. The Plant ▇▇▇▇▇▇▇ Operating Committee shall supersede
the role of the Joint Committee with respect to Plant ▇▇▇▇▇▇▇ and
shall administer the rights and obligations of the Participants
-56-
under the Plant ▇▇▇▇▇▇▇ Participation Agreements. The procedures
approved by the Joint Committee and Joint Subcommittee relating
to Plant ▇▇▇▇▇▇▇ currently in effect shall continue in full force
and effect and shall be implemented by the Plant ▇▇▇▇▇▇▇
Operating Committee. In addition, the Plant ▇▇▇▇▇▇▇ Operating
Committee shall be responsible for the following:
(i) The development of coal procurement procedures as
contemplated by Section 1(f)(vi) hereof.
(ii) The development of Separate Coal Stockpile and
Common Coal Stockpile accounting procedures as contemplated
by Section 1(g)(vii) hereof.
(iii) The development of dispatch procedures as
contemplated by Sections 3(b)(iii) and (iv) hereof.
(iv) Such other duties as may be conferred upon it by
mutual agreement of the Participants."
15. Effectiveness of this Amendment. Neither this
Amendment nor any of the obligations of the parties hereto shall
be effective until the receipt of all requisite approvals,
including, without limitation, the approval of the Securities and
Exchange Commission ("SEC") under the Public Utility Holding
Company Act of 1935, the written approval of the Administrator of
the Rural Electrification Administration and the approval of all
other persons, entities and regulatory bodies having a right or
the jurisdiction to approve or consent to an amendment to the
Operating Agreements, but upon receipt of such approvals this
-57-
Amendment and the obligations of the parties hereto shall be
effective. The parties hereby agree to use their respective best
efforts to expeditiously obtain all such requisite approvals.
16. Miscellaneous. Any and all notices, requests,
certificates and other instruments executed and delivered after
the execution and delivery of this Amendment may refer to the
Operating Agreements without making specific reference to this
Amendment, but nevertheless all such references shall be deemed
to include this Amendment unless the context shall otherwise
require.
This Amendment shall be construed in connection with and as
a part of the Operating Agreements, and all terms, conditions and
covenants contained in the Operating Agreements, except as herein
modified, shall be and remain in full force and effect, and the
parties hereto agree that they are bound by the terms and
conditions of the Operating Agreements as amended hereby.
This Amendment may be executed in any number of
counterparts, each executed counterpart constituting an original
but altogether one and the same instrument.
[Remainder of Page Intentionally Left Blank.]
-58-
IN WITNESS WHEREOF, the undersigned Parties hereto have duly
executed this Amendment under seal as of the date first above
written.
Signed, sealed and delivered GEORGIA POWER COMPANY
in the presence of:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------ --------------------------------------
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------ --------------------------------------
Notary Public Title: Senior Vice President
Attest: /s/ Cherry ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: Cherry ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: Assistant Corporate
--------------------------------
Secretary
--------------------------------
(CORPORATE SEAL)
Signed, sealed and delivered OGLETHORPE POWER CORPORATION
in the presence of: (AN ELECTRIC MEMBERSHIP
GENERATION & TRANSMISSION
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ CORPORATION)
------------------------------
/s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇.▇. ▇▇▇▇▇▇▇
------------------------------ --------------------------------------
Notary Public
Name: ▇.▇. ▇▇▇▇▇▇▇
---------------------------------
Title: President & CEO
--------------------------------
Attest: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Title: Assistant Secretary
--------------------------------
(CORPORATE SEAL)
[Signatures continued on next page]
-59-
[Signatures continued from previous page]
Signed, sealed and delivered MUNICIPAL ELECTRIC AUTHORITY
in the presence of: OF GEORGIA
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------ -----------------------------------
/s/ E. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------ ---------------------------------
Notary Public Its: President
----------------------------------
Attest: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Its: Assistant Secretary-
----------------------------------
Treasurer
----------------------------------
(OFFICIAL SEAL)
Signed, sealed and delivered CITY OF DALTON, GEORGIA
in the presence of:
/s/ ▇▇▇▇ ▇. Kenenear By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------ -----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------ ---------------------------------
Notary Public Its: Mayor
----------------------------------
Attest: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Its: Clerk
----------------------------------
(OFFICIAL SEAL)
Signed, sealed and delivered BOARD OF WATER, LIGHT AND
in the presence of: SINKING FUND COMMISSIONERS
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------ -----------------------------------
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------ ---------------------------------
Notary Public Its: Secretary
----------------------------------
Attest: /s/ ▇.▇. ▇▇▇▇▇▇, ▇▇.
-------------------------------
Name: ▇.▇. ▇▇▇▇▇▇, ▇▇.
---------------------------------
Its: Assistant to General
----------------------------------
Manager
----------------------------------
(OFFICIAL SEAL)
-60-
APPENDIX A TO OPERATING AGREEMENT
CAPITAL BUDGET, OPERATING BUDGET, SCHEDULING AND
DISPATCH BUDGET, MAINTENANCE SCHEDULES AND FUEL PLANS
Capital Budget. By August 15 of each calendar year, GPC
shall use its reasonable best efforts to provide to each
Participant a written budget estimate of capital costs
anticipated to be incurred for the five-year budget period for
▇▇▇▇▇▇▇ Unit No. 1 and ▇▇▇▇▇▇▇ Unit No. 2. Each budget estimate
shall be based on information reasonably available. Also to be
included in the capital budget are any projects which may be
charged to a Participant on the basis of its ownership pursuant
to the Ownership Agreement. This budget estimate is to consist
of project estimate sheets for each project. For the five-year
budget period, a summary of estimates of capital expenditures and
retirements will be provided, the first year by month and the
remaining four years by annual total.
Each capital budget estimate and revised capital budget
estimate shall be in a format such that for the next calendar
year each month's estimated costs are listed by reference to the
applicable Uniform System of Accounts account number. In
addition, each capital budget estimate and revised capital budget
estimate shall be in a format showing expected amounts that the
Participant will be billed.
Operating Budget. By August 15 of each calendar year, GPC
shall use its reasonable best efforts to provide each Participant
a written budget estimate of Operating Costs including, without
limitation, scheduled outage costs (by month for the following
year and in summary fashion for the succeeding four years)
anticipated to be incurred for the five-year budget period for
▇▇▇▇▇▇▇ Unit No. 1 and ▇▇▇▇▇▇▇ Unit No. 2. Each operating budget
estimate shall be based on information reasonably available.
Each operating budget estimate and revised operating budget
estimate shall be in a format such that each month's estimated
costs are listed by reference to the applicable Uniform System of
Accounts account number. In addition, each operating budget
estimate and revised operating budget estimate shall be in a
format showing expected amounts that the Participant will be
billed. Finally, a report on materials and supplies purchased
during the preceding calendar year shall be provided along with
the operating budget estimate.
Scheduling and Dispatching Budget. By August 15 of each
year, GPC shall provide each Common Dispatch Participant with a
budget estimate of the estimated operating levels of ▇▇▇▇▇▇▇ Unit
No. 1 and ▇▇▇▇▇▇▇ Unit No. 2.
Maintenance Schedules. In formulating the maintenance
schedule to be submitted to the Participants, GPC shall consider
any comments submitted by the Participants prior to August 1 of
each year. On or before August 15 of each calendar year, GPC
shall use its reasonable best efforts to provide each Participant
with a written scheduled outage plan for ▇▇▇▇▇▇▇ Unit No. 1 and
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▇▇▇▇▇▇▇ Unit No. 2. Should any major changes be made to the
maintenance schedule within a calendar year, GPC shall use its
reasonable best efforts to provide each Participant with a
revised schedule. A Common Dispatch Participant shall receive
maintenance schedules for the territory.
Fuel Plans. By September 1 of each year, GPC shall provide
each Participant with a Fuel Plan.
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APPENDIX B TO OPERATING AGREEMENTS
PLANT ▇▇▇▇▇▇▇ OPERATIONS AND MAINTENANCE EXPENSES
For the purposes of allocating costs, all FERC accounts
other than Operations and Maintenance on the Boiler and Turbine
(FERC's 502, 505, 512, and 513) are designated as fixed costs to
be allocated based upon the respective undivided ownership
interests in ▇▇▇▇▇▇▇ Units 1 and 2. The Operations and
Maintenance on Boiler and Turbine costs shall be divided between
labor and nonlabor. All labor, both straight time and overtime,
shall be designated as fixed costs. All other costs charged to
these FERC Accounts (502, 505, 512, 513) shall be considered
variable, and allocated to owner based on relative generation
during the "applicable accounting period." A flow chart of this
information is attached thereto.
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APPENDIX B
PLANT ▇▇▇▇▇▇▇
O & M COST ALLOCATION METHODOLOGY
I. FERC Accounts Non-Labor in 502, 505, 512, 513
A. Costs Related to Output
1. Applicable Accounting Period
a.) Output
i.) Shared by Generation
b.) No Output
i.) Shared by Ownership
II. FERC Accounts 500, 501, 506, 507, 510, 511, 514
Labor in 502, 505, 512, 513
A. Costs not Related to Output
1. Applicable Accounting Period
a.) Shared by Ownership
III. Cost Method Not Described
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