Exhibit 10.21
SERVICE AGREEMENT
This SERVICE AGREEMENT (hereinafter the "Agreement") is made this 28th
day of February, 2005, between Kansas City Power & Light Company, a Missouri
corporation, (hereinafter "KCP&L") and East Kansas Agri-Energy, LLC, a Kansas
limited liability company (hereinafter "CUSTOMER").
WITNESSETH:
Whereas, KCP&L is a regulated electric utility serving the greater Kansas City
Metropolitan Area;
Whereas, CUSTOMER desires permanent electrical service at its new commercial
development in the City of ▇▇▇▇▇▇▇ (hereinafter "CITY"), Kansas known as the
East Kansas Agri Energy Plant (hereinafter the "PLANT");
Whereas, CITY currently provides electric utility service to site of the PLANT;
Whereas, CUSTOMER desires KCP&L to provide regulated electric utility service to
the PLANT and KCP&L has agreed to provide regulated electric utility service to
the PLANT and install electrical facilities (hereinafter the "Facilities") in
accordance with the terms and conditions of this Agreement; and
Whereas, the CITY has agreed to allow KCP&L to provide regulated electric
utility service to the PLANT for an agreed upon term of service.
Now, therefore, in consideration of the promises and the covenants herein
contained, the parties agree as follows:
1. SCOPE OF AGREEMENT. KCP&L will install the Facilities and provide permanent
electric utility service to the PLANT. KCP&L will use reasonable best efforts to
complete installation of the Facilities so that the Facilities are capable of
providing such electric utility service on or before May 1, 2005. KCP&L will
provide such electric utility service in accordance with its General Rules and
Regulations on file with the Kansas Corporation Commission (hereinafter the
"Commission") as amended from time to time. KCP&L acknowledges that Customer
shall have all of the rights of a "Customer" as provided by and defined in the
General Rules and Regulations.
2. TERM OF SERVICE. KCP&L shall provide electric utility service to CUSTOMER
for a term of Fifteen (15) years. This term may be extended by mutual agreement
of CUSTOMER and KCP&L. Should KCP&L decide not to renew this Agreement, KCP&L
shall give Customer one (1) year written notice of its intent not to renew.
3. CUSTOMER TO PROVIDE. In order for KCP&L to provide electric utility service
and install the Facilities under this Agreement, CUSTOMER agrees to provide the
following to KCP&L:
A. Points of delivery for permanent electrical service.
B. Sixty (60) days notice of the required date of permanent electrical
service.
C. Easements in a form acceptable to KCP&L to allow for the construction of
a substation and other necessary electrical distribution equipment.
4. PAYMENT. In exchange for installing the Facilities and providing permanent
electric service to the PLANT, CUSTOMER agrees to pay KCP&L FIVE HUNDRED FIFTEEN
THOUSAND SEVEN HUNDRED TWENTY DOLLARS ($515,720). This amount will be payable in
five (5) equal installments with the first payment of ONE HUNDRED THREE THOUSAND
ONE HUNDRED FORTY FOUR DOLLARS ($103,144) due upon signing of this Agreement.
The remaining payments of ONE HUNDRED THREE THOUSAND ONE HUNDRED FORTY FOUR
DOLLARS ($103,144) each will be due from Customer on February 28, March 31,
April 30 and May 31, 2005, respectively. CUSTOMER shall also pay to KCP&L actual
costs exceeding FIVE HUNDRED FIFTEEN THOUSAND SEVEN HUNDRED TWENTY DOLLARS
($515,720) (hereinafter the "Cost Overage") but only to the extent the Cost
Overage is reasonably incurred by KCP&L as a direct result of discovery of rock
during installation of the Facility. Provided, however, CUSTOMER shall have no
obligation to pay such Cost Overage unless KCP&L provides to CUSTOMER reasonable
satisfactory written documentation supporting any claimed Cost Overage within
thirty days of completion of installation of the Facility. Notwithstanding
anything in this Agreement to the contrary, CUSTOMER shall, in no event, be
responsible for payment of any Cost Overage exceeding TWO HUNDRED NINETY-EIGHT
THOUSAND ONE HUNDRED SEVENTEEN DOLLARS ($298,117).
5. UNCONTROLLABLE FORCES. Neither party shall be responsible for performance
under this Agreement, other than the payment of moneys due, where such
performance has been prevented by uncontrollable forces. "Uncontrollable Forces"
shall include, but not be limited to, acts of God, acts of a public enemy,
blockades, insurrections, strikes, lockouts or other labor disputes, riots,
disorders, civil disturbances, sabotage, restraints by court or acts of public
authority, fires, explosions, storms, floods, landslides, washouts, shortages of
labor, transportation or material, boycotts, breakdowns or damage to plants,
equipment or facilities, and any other cause whether foreseeable or not but
without the negligence or intentional fault of the party asserting the
Uncontrollable Forces and not reasonably within the control of such party. The
party asserting Uncontrollable Forces shall use good faith efforts to eliminate
such matter insofar as possible with a minimum of delay; provided that the party
is not required to submit to what it considers to be unreasonable conditions or
restrictions, to make an unreasonable expenditure of money, to accept or agree
to governmental or regulatory orders or conditions without objection or contest,
or to submit to a labor agreement it deems unfavorable, and it is agreed that
any settlement of governmental or regulatory orders or conditions, labor strikes
or differences with workers shall be entirely with the sole discretion of the
party.
6. NOTICES. Unless otherwise provided in this Agreement, all notices shall be
made at the following addresses:
For KCP&L: Kansas City Power & Light Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
For CUSTOMER: East Kansas Agri-Energy, LLC
▇▇▇ ▇/▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
7. MODIFICATION OR AMENDMENT. No modification, amendment or waiver of any
provisions of this Agreement shall be valid unless it is in writing and signed
by each party.
8. CHOICE OF LAW. This Agreement shall be construed in accordance with the laws
of the State of Kansas, but without regard to the State's conflict of laws
provisions.
9. COMMISSION. This Agreement is made subject to the review and approval of the
Kansas Corporation Commission. KCP&L agrees to use its reasonable best efforts
to apply for and receive the necessary approval from the Kansas Corporation
Commission on a timely basis.
10. HEADINGS. The headings contained in this Agreement are solely for the
convenience of the parties and should not be used or relied upon in any manner
in the construction or interpretation of this Agreement.
11. ENTIRE AGREEMENT. This Agreement supersedes and nullifies all previous
contracts, oral or written, if any, between the parties with respect to
equipment. Both parties hereto represent they have read this Agreement, agree to
be bound by all terms and conditions stated herein, and acknowledge receipt of a
signed, true and exact copy of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed the day and year first above written.
Kansas City Power & Light Company:
by: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Reviewed by Counsel: /s/
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Signature
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Printed Name
V.P., Public Affairs for Great Plains Energy
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Title
CUSTOMER:
by: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Signature
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Printed Name
Chairman
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Title