Attached files
Exhibit
10(c)1
Georgia
Power Company has requested confidential treatment for certain portions of this
document pursuant to an application for confidential treatment sent to the
Securities and Exchange Commission. Georgia Power Company has omitted such
portions from this filing and filed them separately with the Securities and
Exchange Commission. Such omissions are designated as "[***]."
AMENDMENT
NO. 2
TO
ENGINEERING,
PROCUREMENT AND CONSTRUCTION
AGREEMENT
BETWEEN
GEORGIA
POWER COMPANY, FOR ITSELF AND AS AGENT
FOR
OGLETHORPE POWER CORPORATION (AN ELECTRIC
MEMBERSHIP
CORPORATION), MUNICIPAL ELECTRIC
AUTHORITY
OF GEORGIA AND THE CITY OF DALTON,
GEORGIA,
ACTING BY AND THROUGH ITS BOARD OF WATER,
LIGHT
AND SINKING FUND COMMISSIONERS, AS OWNERS
AND
A
CONSORTIUM CONSISTING OF WESTINGHOUSE ELECTRIC
COMPANY
LLC AND STONE & WEBSTER, INC., AS
CONTRACTOR
FOR
UNITS
3 & 4 AT THE VOGTLE ELECTRIC GENERATING PLANT
SITE
IN
WAYNESBORO, GEORGIA
DATED
AS OF APRIL 8, 2008
1
AMENDMENT
NO. 2 TO
ENGINEERING,
PROCUREMENT AND CONSTRUCTION AGREEMENT
This
AMENDMENT NO. 2 TO THE ENGINEERING, PROCUREMENT AND CONSTRUCTION
AGREEMENT, dated April 8, 2008, as amended (the "Agreement") by and between
GEORGIA POWER COMPANY, a Georgia corporation ("GPC"), acting for itself and as
agent for OGLETHORPE POWER CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION), an
electric membership corporation formed under the laws of the State of Georgia,
MUNICIPAL ELECTRIC AUTHORITY OF GEORGIA, a public body corporate and politic and
an instrumentality of the State of Georgia, and THE CITY OF DALTON, GEORGIA, an
incorporated municipality in the State of Georgia acting by and through its
Board of Water, Light and Sinking Fund Commissioners (hereinafter referred to
collectively as “Owners”), and a consortium consisting of WESTINGHOUSE
ELECTRIC COMPANY LLC, a Delaware limited liability company having a place of
business in Monroeville, Pennsylvania ("Westinghouse"), and STONE & WEBSTER,
INC. a Louisiana corporation having a place of business in Charlotte, North
Carolina ("Stone & Webster") (hereinafter referred to collectively as
"Contractor"), is entered into as of the 15th day of January 2010.
RECITALS
WHEREAS,
Owners and Contractor entered into the Agreement to provide for, among other
things, the design, engineering, procurement, installation, construction and
technical support of start-up and testing of equipment, materials and structures
comprising the Facility;
WHEREAS,
the original Scope of Work of the Agreement provided for only one full scope
simulator system for Vogtle Units 3 and 4; and
WHEREAS,
the Parties now desire to amend the Scope of Work such that Contractor will
provide LSS-ISVs, as defined herein, and two full scope reference plant
simulator systems.
NOW,
THEREFORE, in consideration of the recitals, the mutual promises herein and
other good and valuable consideration, the receipt and sufficiency of which the
Parties acknowledge, the Parties, intending to be legally bound, stipulate and
agree as follows:
1. Revise
Article 1, “Definitions” to add the following new definition:
““LSS-ISVs”
means two (2) limited scope simulators with human factors engineering with phase
IV integrated system validation to be delivered by Contractor approximately
[***] in order to support the training of operators consistent with the
scheduled commercial operation dates for Vogtle Units 3 and 4.”
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2. Revise
Article 6, “Contract Price,” in its entirety, as follows:
“6.1 Contract
Price. The Contract Price consists [***].
3. Revise Article 11, "Testing,"
as follows:
3.1. Section
11.4, “Start-up Tests Objectives and Protocol,” shall be revised by adding the
following new subsection (v) to the end of Section 11.4(c):
“(v) For
the avoidance of doubt, a delay in Start-up Tests that results from the
unavailability of trained operators due to the unavailability of one functioning
limited scope simulator [***], a second functioning limited scope simulator
[***], and a first functioning full scope reference plant simulator [***] and a
second functioning full scope reference plant simulator [***], shall not
constitute a delay caused by Owners or its Personnel (for any purposes under
this Agreement), except to the extent that the availability of the simulators
was delayed by unreasonable acts or omissions of Owners or its Personnel during
the installation of such simulators in the simulator building.”
3.2. Section
11.5(d), “Readiness for Performance Tests,” shall be revised by adding the
following new subsection (v) to the end of Section 11.5(d):
“(v) For
the avoidance of doubt, a delay in Performance Tests that results from the
unavailability of trained operators due to the unavailability of one functioning
limited scope simulator [***], a second functioning limited scope simulator
[***], and a first functioning full scope reference plant simulator [***] and a
second functioning full scope reference plant simulator [***], shall not
constitute a delay caused by Owners or its Personnel (for any purposes under
this Agreement), except to the extent that the availability of the simulators
was delayed by unreasonable acts or omissions of Owners or its Personnel during
the installation of such simulators in the simulator building.”
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4.
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Revise
Article 13, “Delay and Performance Guarantees; Bonuses” to add a new
paragraph to the end of Section 13.1 (Delay Liquidated Damages), as
follows:
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a. “Delay
Liquidated Damages stated in Section 13.1 shall not be payable to the extent
that the Guaranteed Substantial Completion Date for a Unit is not met solely as
a result of [***].
5. Revise Article 14, "Warranty,"
as follows:
Section
14.3(a) shall be revised by adding the following new subsection
(iv):
“(iv) The
LSS-ISVs shall be Equipment placed into service prior to Substantial Completion
pursuant to Section 14.3(a)(iii) above; provided, however, that the first of the
LSS-ISVs shall be deemed to be placed into service on [***], and the second of
the LSS-ISVs shall be deemed to be placed into service [***]; and provided
further that the Equipment
3
Warranty
and, with respect to LSS-ISVs Software, the Software Warranty Period (as defined
in Exhibit M)
shall expire [***]. Furthermore, each full scope reference plant
simulator Equipment Warranty will extend until [***].
6. Revise Article 19, "Confidential
& Proprietary Information," as follows:
All
references to "simulator" are hereby pluralized.-
7. Revise
Article 21, "Title/Risk of Loss," as follows:
All
references to "simulator" are hereby pluralized.
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8.
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Revise
EXHIBIT A-TABLE 1, SCOPE OF WORK/SUPPLY AND DIVISION OF RESPONSIBILITIES,
as follows:
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8.1 Add
a new line item to the [***] section of the table, as follows:
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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8.2 Revise
the [***] line item in the [***] section of the table to read as
follows:
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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8.3 Revise
Note 22 (on page 17) to read as follows:
[***]
8.4 Add
the following new note to the [***] section of the table:
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[***]
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[***]
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[***]
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4
8.5 Add
the following new note to the [***] section of the table:
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[***]
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[***]
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[***]
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9.
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Revise
EXHIBIT F - PAYMENT SCHEDULES, Section F.2, [***] Price
Payments, Table F.2.1, [***] Milestone Base Payments, as
follows:
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9.1 Revise
Table F.2.1 to add the following [***]:
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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9.2 Revise Table F.2.1 to amend (as shown
in bold) the following existing [***] to read as follows:
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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9.3 Revise
Unit 3 and Unit 4 totals for Table F.2.1 to read as follows: [***]
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10.
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Revise
EXHIBIT F - PAYMENT SCHEDULES, Section F.2, [***]Price
Payments, Table F.2.3, [***] Milestone Payments, as
follows:
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10.1 Revise Table F.2.3 to add the
following new [***]:
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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10.2 Revise Table F.2.3 to amend (as shown
in bold) the following existing [***] to read as follows:
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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10.3 Revise
Unit 4 total for Table F.2.3 to read as follows: [***].
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11.
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Exhibit
F, Tables F.2.1 and F.2.3 are hereby amended by deleting such Tables in
their entirety and inserting in lieu thereof new Tables F.2.1 and F.2.3
that reflect the revisions noted in sections 9 through 10, above, and are
attached to this Amendment as Attachments A and B,
respectively.
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12.
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Revise EXHIBIT H, Attachment 1 – [***], under the
[***] section, to read as
follows:
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[***]
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13.
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Revise
Exhibit M, "Software License," as
follows:
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5
All
references to "simulator" are hereby pluralized.
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14.
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Revise
Exhibit O, "Proprietary Data Agreement," as
follows:
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All
references to "simulator" are hereby pluralized.
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15.
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Miscellaneous.
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15.1
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Capitalized
terms used herein and not defined herein have the meaning assigned in the
Agreement.
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15.2
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This
Amendment shall be construed in connection with and as part of the
Agreement, and all terms, conditions, and covenants contained in the
Agreement, except as herein modified, shall be and shall remain in full
force and effect. The Parties hereto agree that they are bound
by the terms, conditions and covenants of the Agreement as amended
hereby.
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15.3
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This
Amendment may be executed simultaneously in two or more counterparts, each
of which shall be deemed an original but both of which together shall
constitute one and the same
instrument.
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15.4
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The
validity, interpretation, and performance of this Amendment and each of
its provisions shall be governed by the laws of the State of
Georgia.
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15.5
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Except as expressly
provided for in this Amendment, all other Articles, Sections and
Exhibits of and to the Agreement remain
unchanged.
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6
IN
WITNESS WHEREOF, the Parties have duly executed this Amendment as of the date
first above written.
STONE & WEBSTER,
INC.
By:/s/ Alan K.
Beckman
Name:
Alan K. Beckman
Title: Authorized
Representative
Attest: /s/Jason
Dunaway
Its: Prime
Contract Manager
(CORPORATE
SEAL)
WESTINGHOUSE
ELECTRIC COMPANY LLC
By: /s/Ricardo
Perez
Name:
Ricardo Perez
Title:
Senior Vice President, Nuclear Power Plants
Attest: /s/Linda
Ackerman
Its:
Assistant General Counsel
(CORPORATE
SEAL)
GEORGIA
POWER COMPANY, as an Owner
and
as agent for the other Owners
By: /s/ Joseph A.
Miller
Name:
Joseph A. Miller
Title: Executive
Vice President
Attest:
/s/ Daniel
Lowery
Its: Corporate
Secretary
(CORPORATE
SEAL)
7
Attachment
A to Amendment No. 2 to EPC Agreement (April 8, 2008)
F.2.1 [***]
Milestone Base Payments
[***](1)
___________________________
(1) 14
page schedule.
8
Attachment
B to Amendment No. 2 to EPC Agreement (April 8, 2008)
F.2.3 [***]
Milestone Payments
[***](1)
___________________________
(1) 37
page schedule.
9