HomeMy WebLinkAboutGEORGIA POWER GENERATION PROJECT
GENERA TION PROJECT AGREEMENT
This Generation Project Agreement (the "Agreement") is made and entered into this
.:J 12.J1day of .~..t.k, , 2007 by and between Georgia Power Company ("Georgia Power") and
Augusta, Georgia ("Customer").
BACKGROUND
WHEREAS, the Customer owns and operates a system for the Generation of electric
power located 'at the premises set forth on Schedule A attached hereto (the "Generation System");
and
WHEREAS, the Customer desires to obtain and purchase from Georgia Power, and
Georgia Power desires to provide to the Customer certain equipment and related services with
respect to the Generation System, upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises contained herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, Georgia Power and the Customer
hereby agree as follows:
1. Project.
(a) The Customer hereby engages Georgia Power to provide to Customer and
agrees to purchase the equipment and/or services set forth on Schedule A attached hereto
and incorporated by reference herein with respect to the Generation System (collectively,
the "Project"), in accordance with the terms and conditions set forth in this Agreement.
(b) Georgia Power hereby accepts such engagement.
2. Customer Obligations.
(a) The Customer shall provide reasonable cooperation, assistance and support
to Georgia Power in connection with its performance of the Project.
(b) To the extent that access to the Generation System or other property or
facilities of the Customer, or to the personnel of the Customer, is at any time reasonably
necessary or appropriate in connection with the performance of the Project, the Customer
agrees to grant such access to Georgia Power and its subcontractors and representatives.
Georgia Power shall not be responsible for any loss, damage, fine, penalty, cost, expense,
delay, interruption, breach, non-performance or other failure with respect to the Project
arising out of or in connection with any failure by the Customer to provide access to its
property or facilities or personnel in connection with the performance of the Project.
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3. Georgia Power Obligations.
(a) Georgia Power will perform the Project in a professional and workmanlike
manner with a reasonable degree of care, skill and diligence and in accordance with all
applicable laws, rules and regulations and the terms of this Agreement.
(b) If the performance of any portion of the Project fails to comply with the
standard of care set forth in paragraph (a) of this Section 3, and the Customer gives
written notice of such failure to Georgia Power not later than one (1) month following
completion of the Project, then, to the extent necessary to cure such failure, Georgia
Power shall reperform such portion of the Project at no additional cost to the Customer.
(c) THE ONLY WARRANTY CONCERNING THE PROJECT (OR
J ANY GOODS, EQUIPMENT, MATERIALS OR SERVICES INCLUDED
THEREIN) IS SET FORTH IN PARAGRAPH (a) OF TIDS SECTION 3. ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE HEREBY
SPECIFICALLY AND EXPLICITLY EXCLUDED, INCLUDING WITHOUT
LIMITATION ANY WARRANTY ARISING FROM COURSE OF DEALING OR
USEAGE OF TRADE OR ANY WARRANTY AS TO NONINFRINGEMENT.
GEORGIA POWER SHALL HAVE NO OBLIGATION OR RESPONSIBILITY
FOR OR WITH RESPECT TO ANY WARRANTY PROVIDED BY THE
MANUFACTURER OR THIRD PARTY SUPPLIER OF ANY EQUIPMENT,
PARTS OR OTHER MATERIALS PROVIDED PURSUANT TO THIS
AGREEMENT.
(d) WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, GEORGIA POWER DOES NOT MAKE AND EXPRESSLY
DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR APPLICATION, OR
OTHERWISE, WITH RESPECT TO THE PROJECT OR ANY EQUIPMENT OR
OTHER GOODS OR MATERIALS FURNISHED PURSUANT TO THIS
AGREEMENT.
(e) Georgia Power may, in its sole discretion, subcontract all or any portion of
the Project to suitably qualified and experienced subcontractors. For purposes of this
Agreement, no contractual relationship will exist between the Customer and any such
subcontractor. Notwithstanding the foregoing, no such subcontracting by Georgia Power
will relieve Georgia Power of its obligation to perform the Project as set forth herein, and
Georgia Power will be responsible for the management of its subcontractors in their
performance of any portion of the Project.
(f) The Customer acknowledges and agrees that the estimated start date and
completion date for the Project, if any, set forth on Schedule A are good faith estimates
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only, and that Georgia Power makes no warranty or guaranty that the Project will
commence or be completed on the dates or within the time period so estimated.
(g) Georgia Power may, if requested by the Customer and agreed to in writing
by Georgia Power in its sole discretion, assist the Customer in seeking a capital lease
arrangement or other financing arrangement with a third party to finance all or a portion
of the Project. The availability of such financing arrangement will be subject to the
requirements and credit approval of such third party, and Georgia Power shall have no
obligation to provide such financing arrangement, or to guarantee the payment or
performance of the Customers obligations under such financing arrangement. To the
extent that the Customer is unable to obtain any such third party financing, such
Customer shall nevertheless remain obligated to pay and perform all of its obligations
under this Agreement. The obligations of the Customer hereunder are not contingent in
any respect upon the Customer obtaining any such financing.
To the extent that the Customer is able to obtain such third party financing, Georgia
Power may, if requested by the Customer and agreed to in writing by Georgia Power in its
sole discretion, act as servicer for such third party. In such capacity, Georgia Power
would bill and collect amounts owing under such financing arrangement for the benefit of
the third party. Any such arrangement shall be on terms and conditions satisfactory to
Georgia Power.
4. Compensation~ Title and Risk of Loss.
(a) As consideration for the Project, the Customer shall pay to Georgia Power
the amounts set forth on Schedule A. The Customer shall deliver such payments by
check or wire transfer of immediately available funds to an account designated in writing
by Georgia Power.
(b) Payment to Georgia Power for the Project in the amount(s) set forth on
Schedule A shall be made by the Customer within thirty (30) days after the Customer's
receipt of an invoice with respect thereto. If the Customer fails to pay any amount when
due, it shall pay interest on such amount at a rate equal to the lesser of eighteen percent
(18%) or the highest rate of interest permitted by applicable law, accruing until paid.
(c) To secure the payment in full of all amounts payable by the Customer
hereunder, the Customer hereby grants to Georgia Power a purchase money security
interest in and security title to all equipment, parts and other materials provided or
installed by Georgia Power pursuant to this Agreement and all proceeds from their sale or
disposition. The Customer agrees to execute such financing statements and other
documentation as may be requested by Georgia Power in order to protect and perfect the
security interest granted herein. The Customer further authorizes Georgia Power to file
any financial statements and other documentation in order to protect or perfect such
security interest with or without the Customer's signature.
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(d) Any applicable federal, state and local sales, excise, ad valorem, use or
similar taxes, if any, imposed in connection with the Project, except for federal and state
income taxes payable by Georgia Power based on net income, will be reimbursed by the
Customer.
(e) In the event that Georgia Power encounters any conditions on or with
respect to the Generation System or the premises thereof which could not have been
reasonably foreseen by Georgia Power ("Adverse Conditions"), and such conditions
materially increase the cost to be incurred by Georgia Power in performing the Project,
then Georgia Power shall so notify the Customer and the parties shall negotiate in good
faith to equitably increase the amount to be paid for the Project by the Customer under
Section 4 hereof in light of the increased cost.
(f) Risk of loss associated with equipment or other goods furnished to the
Customer hereunder shall transfer to the Customer upon delivery of such equipment or
other goods to the Customer. Any claim against Georgia Power for non-delivery or
shortages in delivery or shipments shall be made in writing to Georgia Power within
thirty (30) days after receipt of shipment. Title to equipment or other goods purchased by
the Customer hereunder shall transfer to the Customer only upon receipt of payment
therefor by Georgia Power in accordance with this Agreement.
5. Term and Termination.
(a) The term of this Agreement (the "Term") shall commence as of the date of
this Agreement and shall continue until the completion of the Project.
(b) This Agreement may be terminated at any time upon the mutual written
consent of Georgia Power and the Customer.
(c) Notwithstanding anything to the contrary set forth in this Agreement, (i)
either party hereto may, by written notice to the other, effective immediately, terminate
this Agreement if the other party materially breaches any of its obligations under this
Agreement (including, without limitation, any failure by the Customer to remit any
payment when due) and fails to cure such breach within thirty (30) days following receipt
of written notice of such breach from the non-breaching party (or, if the breach is such
that its cure is possible but will take longer than thirty (30) days, fails to commence to
cure such breach and proceed diligently therewith until cured); and (ii) Georgia Power
may, by written notice to the Customer, effective immediately, terminate this Agreement
if, after a period of ten (10) days following the Customer's receipt of notice of any
Adverse Condition, the parties have been unable to reach agreement on any price increase
contemplated by Section 4 hereof. In the event this Agreement is terminated pursuant to
this subsection prior to completion of the Project, the Customer shall pay to Georgia
Power, in full satisfaction of its payment obligations under this Agreement (except as set
forth in Section 7), an amount equal to the out of pocket expenses incurred by Georgia
Power for all materials, equipment and labor in performing the Project through the
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effective date of such termination plus a reasonable allowance for overhead and profit
charged by Georgia Power in light of the percentage of the completion of the Project and
any taxes payable by the Customer under Section 4(c).
(d) Sections 3(b), 4, S(c), 6, and 7, and any provisions of Sections 8-19 which
by implication would be applicable following the expiration or termination of this
Agreement, shall survive any expiration or termination of this Agreement.
6. Limitation of Liabilitv.
(a) The re-performance of any portion of the Project pursuant to Section 3(b)
shall be the Customer's sole remedy with respect to any faulty or improper performance
of the Project, except in the case of the gross negligence or willful misconduct of Georgia
Power or its agents or employees in performance of the Project. In no event shall Georgia
Power be liable to the Customer for any liabilities, losses, claims, damages or expenses
incurred by the Customer arising, directly or indirectly, from or in connection with the
Generation System or the operation, use, malfunction, failure or defect thereof or the
performance of the Project hereunder, including without limitation damages resulting
from claims of third parties, outages of electric current or damage to property or
equipment, except to the extent such liability, loss, claim, damage or expense is caused by
the willful misconduct or gross negligence of Georgia Power or its agents or employees in
the performance of the Project.
(b) This Agreement is completely separate from, and shall have no effect
whatsoever on, any other contract, agreement or arrangement, including but not limited to
(i) any Georgia Public Service Commission ("GPSC") tariff or any GPSC rules or
regulations governing the provision of electric service by Georgia Power, or (ii) any
agreement for the provision of electric power between Georgia Power and the Customer,
or any of its various divisions and affiliates. In no event will Georgia Power be
responsible, liable or accountable (x) for any increase in the Customer's electric power
rates or costs arising, directly or indirectly, from or in connection with the performance of
the Project or the use, malfunction, failure or defect of the Generation System or (y) for
any interruption or discontinuance of electric power services.
(c) Notwithstanding anything else set forth herein to the contrary, in no event
shall Georgia Power be liable to the Customer (i) for any special, incidental,
consequential or punitive damages, including loss of business or profits, arising, directly
or indirectly, from or in connection with this Agreement or the performance of the Project
hereunder, whether based upon breach of warranty, breach of contract, negligence, strict
liability, tort or any other legal theory, and whether or not Georgia Power has been
advised of the possibility of such damages, or (ii) for any liabilities, losses, claims,
damages or expenses, arising, directly or indirectly, from or in connection with this
Agreement or the performance of the Project hereunder in excess of the amount paid or
payable to Georgia Power under Section 4 of this Agreement.
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7. Indemnification.
To the fullest extent permitted by law, the Customer shall indemnify, defend and
hold harmless Georgia Power and its officers, directors, employees, contractors, agents, affiliates,
successors and assigns (collectively, the "Indemnitees") from and against any and all losses,
liabilities, claims, damages and expenses (including costs of investigation and defense and
reasonable attorneys' fees) incurred or suffered by any Indemnitee, whether or not involving third
party claims and whether or not caused in part by the active or passive negligence of any
Indemnitee (collectively, "Damages"), arising, directly or indirectly, from or in connection with
the Generation System or the operation, use, malfunction, failure or defect thereof or the Project,
except for any Damages arising out of bodily injury to person or damage to property caused by or
resulting from the sole negligence or willful misconduct of any applicable Indemnitees or their
agents or employees in the performance of the Project.
8. Notices.
All notices and other communications hereunder shall be in writing and shall be
deemed given the earlier of (i) when received; (ii) when delivered personally; (iii) one (1)
business day after being delivered by facsimile transmission; (iv) one (1) business day after being
deposited with a recognized overnight courier service; or (v) four (4) days after being deposited
in the United States mail, First Class with postage prepaid, to the recipient party at its address (or
at such other address or facsimile number for a party as shall be specified by like notice;
provided, however, that notices of a change of address shall be effective only upon receipt
thereof):
If to Georgia Power:
If to the Customer:
Georgia Power Company
Bin 79510
6711 Londonderry Way
Union City, Georgia 30291
Attn: Joe Lawrence
Telecopy: 770-969-6615
Program Management TeamC/O CH2M HilL
360 Bav Street, Suite 100
Augusta, GA 30901
Attn: Bob Davis
Telecopy ~O(P -303 -~ y ..,~ 1
9. Assignment.
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Neither Georgia Power nor the Customer may assign this Agreement without the
prior written consent of the other party, which consent shall not be unreasonably withheld;
provided however, that (a) Georgia Power may, without the consent of the Customer, (i) assign
any or all of its rights or obligations under this Agreement to any subsidiary or other affiliate of
Georgia Power, or (ii) assign any or all of its rights or obligations under this Agreement in
connection with the sale or transfer of all or substantially all of its assets; and (b) the Customer
may assign its rights and obligations hereunder to a lender or finance lessor in connection with a
leasing or other financing arrangement approved by Georgia Power, provided that no such
assignment to a lender or finance lessor shall relieve the Customer of any of its obligations
hereunder.
10. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws
of the State of Georgia (without giving effect to conflicts of law principles) as to all matters,
including but not limited to matters of validity, construction, effect, performance and remedies.
11. Interpretation.
This Agreement shall not be construed more strongly against either party hereto
regardless of which party is responsible for its preparation, it being agreed that this Agreement
was fully negotiated by both parties.
12. Force Majeure.
In no event shall Georgia Power be deemed to be in default of any provision of
this Agreement or liable for delays or interruptions in the completion of the Project arising out of
or in connection with acts or events beyond the reasonable control of Georgia Power. Such acts
or events include acts of God, acts of civil or military authority, civil disturbance, war, strikes,
fires, other catastrophes, storms, ice, computer system failures, utility service failures, acts of
third parties, and other events of similar or dissimilar nature beyond Georgia Power's reasonable
control.
13. Entire Agreement.
This Agreement, including Schedule A hereto, contains the entire agreement and
understanding concerning the subject matter hereof between the parties hereto and supersedes all
prior agreements or understandings.
14. Independent Contractors.
The parties hereto acknowledge and agree that in the performance of its duties and
obligations hereunder Georgia Power is acting as independent contractor of the Customer, and
neither Georgia Power nor the Customer shall represent that an employer/employee, partnership,
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joint venture, or agency relationship exists between them, nor shall either party have the power
nor will either party represent that it has the power to bind the other party hereto to any contract
or agreement.
15. Waiver.
No waiver, amendment, termination or discharge of this Agreement or any of the
terms or provisions hereof shall be binding upon either party unless confirmed in writing. No
waiver by either party of any term or provision of this Agreement or of any default hereunder
shall affect such party's right thereafter to enforce such term or provision or to exercise any right
or remedy in the event of any other default, whether or not similar.
16. Severability.
If any provision of this Agreement shall be held void, voidable, invalid or
inoperative, no other provision of this Agreement shall be affected as a result thereof, and
accordingly, the remaining provisions of this Agreement shall remain in full force and effect as
though such void, voidable or inoperative provision had not been contained herein.
17. Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed to be an original, but all of which together shall constitute the same Agreement. Any
signature page of any such counterpart, or any electronic facsimile thereof, may be attached or
appended to any other counterpart to complete a fully executed counterpart of this Agreement,
and any telecopy or other facsimile transmission of any signature shall be deemed an original and
shall bind such party.
18. Further Assurances.
Upon the reasonable request of the other party, each party hereto agrees to take
any and all actions necessary or appropriate to give effect to the terms set forth in this
Agreement.
19. Binding Effect.
This Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
[Signatures on Next Page]
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IN WITNESS WHEREOF, Georgia Power and the Customer have caused this Agreement
to be signed by their respective duly authorized officers as of the date first above written.
AUGUSTA, GEORGIA
By:
( i~,?('. Y
2tt
The Honorable David S. Copenhaver
Mayor_
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:;p~~:
Stephen E. Shepard
County Attor;~
Date: D P 7
DEPARTMENT APPROVAL:
By: i/,flt~
N. Max Hie s, 'PE
Director, A~gU~a Utilities Department
Date: b '8 6 7
I ,
GEORGIA POWER COMPANY
B
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Schedule A
Project Description
Scope of Work
The following back up generation infrastructure will be moved from the N. Max Hicks Tobacco
Road Water Treatment Plant and installed at the site of Highland A venue Water Treatment Plant
located along Central A venue, Augusta, GA.
Generator scope:
I. Project Description/schedule
Georgia Power will provide all equipment necessary for interconnection of the IDG@
System on the existing secondary service from Georgia Power.
Georgia Power will deliver the IDG@ System project, as described in this Exhibit on a
complete turnkey basis including:
1. Engineering/Design
2. Relocation of Generation Equipment (provided by AUD)
3. Transfer Switch Equipment
4. IDG@ System Installation
5. Equipment and Installation Warranties
6. In-service Training
Georgia Power will deliver the project in the following estimated timeframe:
Milestone
Completion (Week No)
Agreement Signing
Receipt of Conduit Entry Plan
Receipt of IDG@ System Submittal
MSG-UAB Equipment Shipping Date to Site
Substantial Completion of MSG-UAB Installation
Relocation of Generator UA to Site
Final Commissioning/Start -up
o
8
?
24
26
50
52
Customer pays for all fuel including initial fill.
II. Engineering/Design Services
A. Georgia Power will provide all engineering and design services necessary to
complete construction documents for this project in accordance with the State of
GA.
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B. Georgia Power will prepare construction documents signed and sealed by a
Registered Professional Engineer of Record in GA.
III. Basic System Description
A. Re-Iocate 2,OOOKW Option: The pricing re-Iocate 2,000KW option includes:
1. Disconnecting Existing 2MW Generator that ADD owns
2. Re-Programming and reconfiguring of Existing Switchgear at location
where 2MW unit will be removed (N. Max Hicks Tobacco Road WTP)
3. Crane and Transportation to Relocate existing generator
4. New Concrete Pad for Generator at New Location
5. Concrete encased ductbank from new concrete pad to 5 feet outside the
new Fort Gordon Pump Station electrical room.
6. Power Wiring from the generator to the new main 4160V Switchgerar
Lineup (E53 - 52 -Gl). All other wiring to be provided by others.
7. New 4160V Main Switchgear Lineup using Cutler Hammer breakers
IV. 4160V Main Switchgear Lineup
A. We will redesign and provide the main switchgear lineup shown on E53 in the
drawings. The lineup will be "NexGear" brand and will provide the similar
functionality as in the drawings, but is not based on a "spec build". The main
switchgear will be designed to maintain the footprint as shown on the contract
drawings.
V. IDG@ System Installation
A. Georgia Power will combine our in-house IDG@ Project Management staff with a
reputable local licensed electrical contractor or utilize our in house licensed
electrical construction group to provide a fully coordinated high quality
installation.
B. The Georgia Power Project Manager will serve as the single point interface with
AUD and Georgia Power during construction/start-up and will be present on-site
for all critical activities and key construction milestones.
VI. Project Milestones
A. 12 copies of the conduit layout will be provided to customer by 8-1-07
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B. MSG-UAB will be in place by 1-1-08 if contract received by 6-4-07
C. Existing generator will be relocated and started up by 7-1-08
VII. Equipment and Installation Warranties
A. The entire system will be warranted for One Year following successful installation,
checkout, and startup.
VIII. In-Service Training
Georgia Power will provide onsite in-service training on the operation and
maintenance of the IDG@ System.
Re-Iocate 2MW generator and provide new 4160V Switchgear $ 965,900
~
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