Attached files
Exhibit
10(c)2
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. 3
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. 3 TO
ENGINEERING,
PROCUREMENT AND CONSTRUCTION AGREEMENT
This
AMENDMENT NO. 3 (the "Amendment") 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 22nd day of February 2010.
RECITALS
WHEREAS,
Owners and Contractor entered into the Agreement, as of April 8, 2008, 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 Agreement incorporated the [***] Contract Price;
WHEREAS,
in order to resolve a dispute with respect to [***], the Parties now desire to
amend the Agreement to remove and replace
[***];
WHEREAS,
the Parties further desire to re-allocate among the Consortium Members the
existing Milestone Payments for certain structural modules, as described herein;
and
WHEREAS,
the Parties agree that, with the exception of the changes expressly stated
herein, this Amendment will not change the terms and conditions of the
Agreement;
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:
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1.
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Contractor
hereby agrees and represents that this
Amendment shall not cause, directly or indirectly, any delay in the
Project Schedule [***].
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2.
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This
Amendment shall not be effective until the Georgia Public Service
Commission (GPSC) has taken any requisite action to approve this
Amendment and such action
is final and not subject to further judicial review or
appeal. The Owners shall provide prompt written notice to
Contractor of such final action. Notwithstanding the foregoing,
the GPSC approval pertains to those provisions of this Amendment No. 3
that amend the Agreement to remove and
replace [***].
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2
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3.
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Article 1 –
Definitions. The definitions of [***] are hereby deleted
in their entirety.
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4.
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Section 7.2 –
[***]. This section is hereby deleted in its entirety,
and will be replaced with the word “Reserved” within both the body of the
Agreement and the table of contents of the
Agreement.
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5.
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Section 19.7 –
Procedures for Disclosure to Related Party
Recipients. The reference to “Section 7.2” is hereby
deleted in its entirety.
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6.
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Exhibit F – Payment
Schedules. Section F.2, ”[***] Price Payments,” is
hereby amended as follows.
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a.
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Tables
F.2.1, F.2.2 and F.2.3 are hereby amended to [***], as shown in
Attachments A, B and C hereto.
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b.
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Tables
F.2.1 and
F.2.3 are hereby amended to [***], as shown in Attachments A and C
hereto.
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c.
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For
the avoidance of doubt, Tables F.2.1, F.2.2 and F.2.3 are hereby deleted
in their entirety and replaced with the new Tables F.2.1, F.2.2 and F.2.3,
which reflect the revisions noted in this Section 6, subsections (a) and
(b), above, and are attached hereto as Attachments A, B and
C, respectively.
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7.
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Exhibit J – Price
Adjustment Provisions. Exhibit J of this Agreement is
hereby deleted in its entirety and replaced with the new Exhibit J, which
reflects the revisions noted above and is attached hereto as Attachment
D.
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3
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8.
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Miscellaneous.
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8.1
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Capitalized
terms used herein and not defined herein have the meanings assigned in the
Agreement.
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8.2
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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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8.3
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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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8.4
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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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8.5
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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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IN
WITNESS WHEREOF, the Parties have duly executed this Amendment as of the date
first above written.
WESTINGHOUSE
ELECTRIC COMPANY LLC
By:/s/Aris
Candris
Name:
Aris Candris
Title:
President and Chief Executive Officer
Attest:
/s/ Lisa Campagna
Its:
Assistant General Counsel
(CORPORATE
SEAL)
STONE & WEBSTER,
INC.
By:
/s/Alan Beckman
Name:
Alan Beckman
Title:
VEGP 3&4 Project Director
Attest:
/s/Jason Dunaway
Its:
Prime Contract Manager
(CORPORATE
SEAL)
4
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)
5
Attachment
A to Amendment No. 3 to EPC Agreement (April 8, 2008)
F.2.1 [***]
Milestone Base Payments
[***](1)
__________________________
(1) 10
page schedule.
6
Attachment
B to Amendment No. 3 to EPC Agreement (April 8, 2008)
F.2.2 [***]
Payments
[***](1)
________________________
(1) 2
page schedule.
7
Attachment
C to Amendment No. 3 to EPC Agreement (April 8, 2008)
F.2.3 [***]
Milestone Payments
[***](1)
____________________________
(1) 36
page schedule.
8
Attachment
D to Amendment No. 3 to EPC Agreement (April 8, 2008)
Exhibit
J
Price
Adjustment Provisions
[***](1)
____________________________
(1) 15
page schedule.
9