Exhibit C-42
CONSTRUCTION AND FINANCING AGREEMENT
FOR THE XXXXXX-FAIRPORT-ST. XXXXXX 345 KILOVOLT INTERCONNECTION
THIS AGREEMENT, made the 5th day of March 1990, by and
between ASSOCIATED ELECTRIC COOPERATIVE, INC. (AECI), a Missouri
corporation, and KANSAS CITY POWER & LIGHT COMPANY (KCPL), a
Missouri corporation.
WHEREAS, the parties to this Agreement (hereinafter called
"Party" or "Parties"), along with others, have entered into a
contract entitled COORDINATING AGREEMENT BY AND AMONG ASSOCIATED
ELECTRIC COOPERATIVE, INC., KANSAS CITY POWER & LIGHT COMPANY, ST.
XXXXXX LIGHT & POWER COMPANY, NEBRASKA PUBLIC POWER DISTRICT,
OMAHA PUBLIC POWER DISTRICT, CITY OF LINCOLN AND IOWA INC. FOR THE
XXXXXX-FAIRPORT-ST. XXXXXX 345 KILOVOLT INTERCONNECTION
(hereinafter called the "Coordinating Agreement"); and
WHEREAS, the Coordinating Agreement provides that the parties
to the Coordinating Agreement equally share in the financial
responsibility to construct certain Joint Facilities as defined in
that Coordinating Agreement, including, but not 1imited to, a 345
kilovolt transmission line from Nebraska Public Power District's
Xxxxxx 345 kV Substation to AECI's Fairport 345/161 kV Substation
to St. Xxxxxx Light & Power Company's St. Xxxxxx 345 kV
Substation; and
WHEREAS, KCPL desires AECI to finance, construct and own the
portion of the Joint Facilities for which KCPL has financial
responsibility under the terms and conditions hereinafter
described.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein set forth, the Parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 Joint Facilities shall be as defined in the Coordinating
Agreement and thus shall include a 345 kV transmission line
extending from Nebraska Public Power District's Xxxxxx 345 kV
Substation to AECI's Fairport 345/161 kV Substation to St. Xxxxxx
Light & Power Company's St. Xxxxxx 345 kV Substation, all
requisite reactive compensation facilities, and all other
property, facilities, and equipment comprising the Interconnection
as defined in the Coordinating Agreement, but shall not include
Terminal Facilities and the St. Xxxxxx Transformer as those terms
are defined in the Coordinating Agreement.
1.2 "Nebraska Segment" shall be as defined in the
Coordinating Agreement and shall include that portion of the 345
kV transmission lines included in the Interconnection,
approximately 1.0 mile in length, which extends from the Xxxxxx
Substation line terminal to the point at which the line crosses
the Nebraska-Missouri State border. This segment includes the
Nebraska portion of the river crossing which spans the Missouri
River adjacent to Xxxxxx.
1.3 "Missouri Segment" shall be as defined in the
Coordinating Agreement and shall include that portion of the 345
kV transmission lines included in the Interconnection,
approximately 104 miles in length, extending from the point at
which the line crosses the Nebraska-Missouri State border to the
Fairport Substation 345 kV bus and continuing from the Fairport
Substation 345 kV bus to the St. Xxxxxx Substation line terminal.
This segment includes the Missouri portion of the river crossing
which spans the Missouri River adjacent to Xxxxxx.
1.4 "Actual Construction Cost" shall mean the cost to
construct the Joint Facilities including, but not limited to,
labor, materials, contract services, engineering services,
environmental studies, right-of-way acquisition, legal expenses,
right-of-way clearing and restoration, and reasonable overheads.
Overheads shall include, but not be limited to, interest during
construction, engineering, superintendence, drafting, stores
handling, transportation, testing and miscellaneous. Actual
Construction Cost shall be calculated pursuant to the Electric
Plant Instructions section of REA Bulletin 181-1 (latest revision)
entitled "Uniform System of Accounts Prescribed for Electric
Borrowers of the Rural Electrification Administration" at such
time as the costs are incurred by the Party responsible for
constructing the applicable portion of the Joint Facilities.
ARTICLE II
CONSTRUCTION
2.1 AECI has, by separate agreement with each of the parties
to the Coordinating Agreement, agreed to construct and own the
Missouri Segment. By separate agreement with Nebraska Public
Power District (NPPD), AECI shall cause the Nebraska Segment,
including the crossing of the Missouri River, to be constructed by
NPPD at AECI's expense.
2.2 AECI agrees to construct the Missouri Segment and agrees
to cause the Nebraska Segment to be constructed in accordance with
acceptable standards and Prudent Utility Practice as defined in
the Coordinating Agreement using the same prudence and care that
it would exercise in the construction of such facilities for its
own use. In addition, all such construction shall be performed in
accordance with all applicable requirements of the Coordinating
Agreement.
2.3 AECI shall put forth its best efforts to obtain the
lowest cost financing for the Joint Facilities, for which AECI has
assumed financing responsibility, that is available to AECI on
reasonable commercial terms.
2.4 KCPL agrees to make monthly payments to AECI in
accordance with the formula for "Determination of Financing Cost
for Joint Facility Construction by AECI" in Exhibit A, attached
hereto. The first such payment shall be due on the first day of
the month after the Joint Facilities are placed in commercial
operation and such full payments shall continue for a total of 436
months. A final partial payment equal to 36 percent (36%) of the
monthly payment shall be paid on the 437th month, at which time
the Joint Facilities shall be fully amortized.
2.5 AECI shall use its best efforts to have the
Interconnection ready for commercial operation by June 1, 1992, or
such other time as may be agreed upon in writing by the
Participants to the Coordinating Agreement.
2.6 Billing procedures shall be in accordance with Article
III, Section 3.1 of this Agreement.
ARTICLE III
BILLING
3.1 Each invoice for services rendered under this Agreement
shall be paid within fifteen (15) days after receipt of the xxxx.
ARTICLE IV
BOOKS AND RECORDS
4.1 Books of account and records containing details of cost
applied to the construction of the Missouri Segment shall be kept
by AECI in accordance with AECI's established procedures and
methods adopted for accounting of Actual Construction Cost and
shall be in conformity with accepted accounting practices and the
Rural Electrification Administration's Uniform System of Accounts.
These books shall be open to examination at any time by KCPL. AECI
shall furnish KCPL summaries or counterparts of such books of
account and records as may be necessary to satisfy compliance with
all applicable regulatory requirements. AECI shall cause NPPD
similarly to maintain such books of account and records relating
to the costs of construction of the Nebraska Segment, and to make
such books of account and records open to examination at any time
by KCPL.
ARTICLE V
TERM OF AGREEMENT
5.1 This Agreement shall become effective upon its execution
by the Parties and shall remain in effect concurrently with the
Coordinating Agreement, until such time that the Joint Facilities
are fully amortized, at which time KCPL's financial responsibility
hereunder shall cease.
ARTICLE VI
INDEMNIFICATION, DEFAULT AND LIMITATION OF LIABILITY
6.1 Each Party shall indemnify, hold harmless and defend the
other Party, its agents, servants, employees and officers, from
any and all costs and expenses, including hat not limited to
attorneys' fees, court costs and all other amounts which said
other Party, its agents, servants, employees and officers are or
may become obligated to pay on account of any and all demands,
claims, liabilities or losses (except as limited by Section 6.3)
arising or alleged to have arisen out of, or in any way connected
with, the negligent acts or omissions or willful or wanton action
of the indemnifying Party, its agents, servants, employees or
officers relating to this Agreement, whether such demands, claims,
liabilities or losses be for damages to property, including
property of the other Party, or injury or death of any person,
including agents, servants, employees or officers of the other
Party.
6.2 Upon failure of either Party hereto to make any payment
when due under this Agreement or to perform any other obligation
on its part hereunder, the other Party may make written demand
upon such Party, and if such failure is not cured (i) within ten
(10) days from the date of receipt of such demand in the event of
failure of such Party to make any such payment when due, or (ii)
within 60 days from the date of receipt of such demand in the
event of the failure of such Party to perform any other
obligation, such failure shall at the expiration of such
respective period constitute a default. If either Party in good
faith disputes the existence or extent of any such failure to make
any payment when due, it shall within such ten- (10) day period
make such payment under written protest. A Party or Parties may
take any action, in law or equity, including an action for
specific performance, to enforce this Agreement and to recover for
any loss or damage (except as limited by Section 6.3), including
reasonable attorneys' fees and collection costs, incurred by
reason of any default under this Agreement.
6.3 In no event shall either Party be liable to the other
Party for any indirect, incidental, consequential, punitive, or
similar damages from or in any way connected with this Agreement
whether based upon contract, tort (including negligence but
excluding willful action), or otherwise, including but not limited
by way of example or otherwise to loss of profit or revenues, cost
of capital, cost of purchased or replacement power or energy, or
claims of customers for service interruptions.
ARTICLE VII
UNCONTROLLABLE FORCES
7.1 Neither Party shall be considered to be in default with
respect to any obligation hereunder if prevented or delayed in
whole or in part from fulfilling such obligation by reason of
uncontrollable forces, provided that the provisions of this
Section shall not apply to the obligation for payments to be made
under this Agreement. The term "Uncontrollable Forces" shall mean
storm, flood, lightning, earthquake, fire, explosion, failure of
facilities not due to lack of proper care or maintenance, civil
disturbance, labor disturbance, sabotage, war, national emergency,
restraint by court or act of a public authority, or other causes
beyond the control of the Party affected, which such Party could
not reasonably have been expected to have avoided by exercise of
due diligence and foresight and by provision of reserve facilities
in accordance with Prudent Utility Practice. Either Party unable
to fulfill any of its obligations by reason of Uncontrollable
Forces will exercise its best efforts to remove such disability
with reasonable dispatch, provided that neither Party shall be
required to settle or resolve labor disturbances or strikes or to
accept or agree to governmental or regulatory orders or conditions
without objection or contest on any basis not acceptable to such
Party in its sole discretion. Notice of Uncontrollable Forces
shall be given by the Party affected as soon as reasonably
possible, but in no event later than 48 hours after learning of
such Uncontrollable Forces.
ARTICLE VIII
APPROVALS
8.1 This Agreement, including any subsequent amendment(s)
hereto, shall be subject to the authority of any regulatory body
or approving authority having jurisdiction hereof. This Agreement,
including any subsequent amendment(s) hereto, shall not be
operative until submitted to and accepted by all such regulatory
bodies and approving authorities that are required by law to
accept or approve this Agreement, including any subsequent
amendment(s) hereto, prior to its being placed into operation and
effect, including submission by AECI to, and approval by, the
Administrator, Rural Electrification Administration. If, at any
time, any regulatory body or approving authority modifies this
Agreement, or conditions its approval or acceptance hereof, the
Parties shall be required to put forth their best efforts to agree
upon such amendments to this Agreement as are required to (1)
comply with the directive(s) of the applicable regulatory body or
approving authority and (2) maintain the overall balance of
consideration of each Party such that, to the extent feasible,
each Party obtains the same share of the benefits anticipated from
participation in the Interconnection as was contemplated in the
Coordinating Agreement as originally executed. The preceding
sentence shall not be interpreted as giving rights to either Party
inconsistent with the obligations stated in Section 8.3.
8.2 The failure to obtain approval or acceptance of this
Agreement by any regulatory body or approving authority having
jurisdiction hereof shall not excuse either Party frau any prior
expenses and obligations incurred by such Party under this
Agreement.
8.3 The Parties intend that this Agreement shall be changed
only by written amendment executed by both Parties and that it
shall not be changed by any filing, application, or request made
to any regulatory body or approving authority having jurisdiction
over this Agreement.
ARTICLE IX
GENERAL
9.1 All notices hereunder shall be properly addressed to the
Executive Officer for the Party concerned and shall be given by
receipted personal delivery or courier service or by tested telex
or other teletransmission device capable of creating a written
record of such notice and its receipt. Notices hereunder shall be
effective upon receipt.
9.2 The Parties shall be the only parties in interest to this
Agreement. This Agreement is not intended to and shall not create
rights of any character whatsoever in favor of any person,
corporation, association, entity or power supplier, other than the
Parties, and the obligations herein assumed by the Parties are
solely for the use and benefit of the Parties. Nothing herein
contained shall be construed as permitting or vesting, or
attempting to permit or vest, in any person, corporation,
association, entity or power supplier, other than the Parties, any
rights hereunder or in any of the electric facilities owned by the
Parties or the use thereof.
9.3 This Agreement shall be binding upon and its benefits
shall inure to the Parties and their successors and assigns;
however, no transfer or assignment of any Party's interest in this
Agreement shall occur without the prior written consent of both
Parties except in cases of transfer or assignment to a trustee or
receiver in bankruptcy of a Party, to a foreclosing mortgagee of a
Party, to any successor to all or substantially all of the
electric properties of a Party, whether by reorganization, merger,
or consolidation, or, in the case of AECI, assignment of all or
substantially all of its rights to the United States of America.
9.4 Any waiver at any time by a Party of its rights with
respect to a default under this Agreement, or with respect to any
other matter arising in connection with this Agreement, shall not
be deemed a waiver with respect to any other default or matter.
Any delay short of the statutory period of limitation in asserting
or enforcing any right shall not be deemed a waiver of such right.
9.5 It is understood and agreed that all representations,
understandings and prior negotiations are merged into this
Agreement, and that this Agreement constitutes the sole and entire
Agreement between the Parties and no modification hereof shall be
binding unless made a part hereof in writing executed by both
Parties.
IN WITNESS WHEREOF, the Parties have caused this Agreement to
be executed by the duly authorized officers as of the day and year
first above written.
ASSOCIATED ELECTRIC COOPERATIVE, INC.
/s/X. X. Xxxxx
Title: President
ATTEST:
/s/Xxxxxx X. ________ (eligible last name)
Assistant Secretary
KANSAS CITY POWER & LIGHT COMPANY
/s/A. Xxxx Xxxxxxxx
Title: President & CEO
ATTEST:
/s/Xxxx Xxxxxxxxx
Assistant Secretary
