EXHIBIT 10.41
LOWER COLORADO RIVER AUTHORITY
WHOLESALE POWER AGREEMENT
AGREEMENT
This AGREEMENT, made and entered into by and between LOWER COLORADO
RIVER AUTHORITY (hereinafter called "Authority"), a corporation created and
existing under and by virtue of the Lower Colorado River Authority Act of
1934, as amended, (here-inafter called "LCRA Act"), and XXXXXXXXX ELECTRIC
COOPERATIVE, INC. (hereinafter called "Distributor").
W I T N E S S E T H:
The LCRA Act authorizes the Authority to sell electric power and
energy under the terms and conditions of the Act. The Act Prescribes that
such electric power and energy shall be primarily for the benefit of the
people of the area served by the Authority at the lowest practical rates.
The Distributor presently owns and operates an electric distribution system
and now purchases electric power and energy from the Authority. The
Distributor desires to continue to purchase from the Authority and the
Authority desires to continue to sell to Distributor electric power and
energy according to the terms of this agreement.
In lieu of all preexisting and presently outstanding agreements, for
the sale and purchase of such electric power and energy, for and in
consideration of the mutual covenants and agreements herein contained, the
Authority and Distributor agree as follows:
1. TERM OF AGREEMENT: This agreement shall be for a term of
twenty-two (22) years from the effective date hereof and successive periods
of twenty-five years thereafter unless either party has notified the other in
writing prior to the end of the seventeenth year of the original or the
twentieth year of any succeeding term that it intends to terminate this
agreement. Immediately following the end of the sixteenth year of the
original or the nineteenth year of any succeeding term, the Authority will
notify Distributor of the right of termination.
2. POWER SUPPLY: Beginning with the effective date of this agreement
and for the term thereof, Authority will supply electric power and energy to
Distributor for its own use and for resale to customers of its electric
distribution system, and Distributor agrees to purchase from Authority, and
Authority agrees to furnish the electric power and energy requirements of
Distributor up to the maximum number of kilowatts (Kw) as set forth in
Exhibit A, subject to all the terms and conditions of this agreement.
The electric energy to be delivered hereunder shall be at a
frequency of approximately 60 Hertz (cycles per second) and shall be
delivered at the voltage as stipulated in Exhibit A (with reasonable
variations). The points of delivery, the delivery voltages, and the contract
loads (Kw) are set out in Exhibit A attached hereto. Changes in location of
points of delivery, voltages, contract loads, and the addition of new points
of delivery or the deletion of existing points of delivery shall become
effective upon the execution of a new Exhibit A by the parties hereto.
2.
Each point of delivery established in the future shall be metered
and billed separately at the voltage stipulated in Exhibit A or as otherwise
agreed upon by the parties.
It is agreed by the parties hereto that all electric power and
energy delivered and purchased under this agreement shall be consumed wholly
within the State of Texas.
When electric power and energy is required by Distributor and is not
scheduled to be delivered by Authority from its own facilities and therefore
must be delivered or supplied by a party other than Authority, then
regardless of any other provision of this agreement which might be construed
to the contrary, the responsibility of Authority to deliver such electric
power and energy to Distributor is limited to the power and energy that is
delivered or supplied by said other party and there shall be no liability on
Authority for failure on the part of said other party to deliver or supply
the electric power and energy requirements of Distributor; however, Authority
will use diligence in exercising its rights under any existing contract with
said other party which provides that such electric power and energy is to be
delivered or supplied to Distributor.
It is understood that if the contract between the Authority and such
other party expires prior to the expiration date of this agreement, Authority
will endeavor to work out a contract with said other party (which contract
must be satisfactory to each -- the other party, the Authority, and the
Distributor) whereby such electric power and energy can continue to be made
available to Distributor during the remainder of the term of this agreement
and if no such mutually satisfactory contract can be negotiated, then all
obligations of Authority to
3.
Distributor with respect to such electric power and energy shall cease;
provided, however, Authority will use all reasonable means to continue to
supply the power and energy requirements of Distributor.
3. SCHEDULE OF RATES:
A. The initial Rate Schedule attached hereto as Exhibit C,
identified as Authority's "Wholesale Power Rate Schedule WP-1", which is made
a part hereof by this reference, shall be used to determine the amount to be
received by Authority, except with respect to the minimum charges applicable
to certain delivery points now in existence for all electric power and energy
delivered to Distributor during the term of this agreement, unless during
said term there is placed in effect a revision thereof as provided in this
agreement in which event such revised schedule shall be used thereafter in
place of the initial Schedule of Rates for determining the amount to be
received by the Authority. The minimum xxxx provision contained in said
Schedule of Rates and Charges will apply in all cases unless a modification
thereof with respect to certain delivery points now in existence is provided
for in Exhibit A of this agreement.
Also attached and made a part hereof is Exhibit C-1 identified as
"Surcharges". Payments thereunder to be made by Distributor to Authority
shall be limited as provided therein.
B. All revisions or modifications of rate schedules and any
modification of the terms of this contract shall be under the circumstances
set forth and according to the procedures described in the General Terms and
Conditions of this contract. In the event of any dispute arising under this
4.
agreement with respect to the Authority's Schedule of Rates and Charges then
in effect for service rendered to Distributor, Distributor shall, during the
pendency of the dispute, pay Authority in accordance with the rates and
charges applied by the Authority in accordance with this contract. Upon final
determination of the matter the Authority will refund to Distributor the
amounts, if any, that have been determined to have been incorrectly billed.
The rates specified herein shall be subject to a credit applicable
only to certain Distributors who are financed in whole or part by the Rural
Electrification Administration in accordance with the provisions of Exhibit B
attached hereto. This provision shall terminate on June 30, 1982, and shall
have no force and effect thereafter.
4. NONWAIVER AND FUTURE DEFAULT. No waiver by either Authority or
Distributor of any one or more defaults by the other in the performance of
any provisions of this agreement shall operate or be construed as a waiver of
any future default or defaults, whether of a like or of a different character.
5. PAYMENT TO THE AUTHORITY FOR ELECTRIC POWER AND ENERGY DELIVERED:
Distributor agrees to pay Authority each month for electric power and energy
in accordance with the terms and conditions of this agreement.
6. LIABILITY: The Distributor assumes all responsibility for the
electric power and energy after delivery and agrees to protect and save
Authority harmless from all liability growing out of any injury or damages to
persons or property occurring on Distributor's System, except liability
resulting from or growing out of Authority's misconduct or negligence.
5.
7. GENERAL TERMS AND CONDITIONS: The General Terms and Conditions
attached hereto as Exhibit D or any revision thereof which are then in effect
with respect to service rendered under this agreement are incorporated herein
by reference and are made a part of the contract.
8. AGREEMENT NOT TRANSFERABLE: Neither this agreement nor any
interest therein shall be transferable or assignable by either party hereto
without the written consent of the other party; however, if Distributor is
financed in whole or part by the Rural Electrification Administration, it may
assign its interests herein to the United States Government, without prior
written consent of the other party. Except as herein limited, this agreement
shall be binding upon and inure to the benefit of the successors and assigns
of the parties respectively.
9. RIGHT OF TERMINATION: Notwithstanding any other right or remedy
provided hereunder and as an additional right and remedy, in the event
Distributor fails or refuses to pay any monthly xxxx in accordance with the
provisions of Paragraphs 3 and 5 set out hereinabove, Authority shall have
the right upon thirty (30) days written notice to Distributor, to refuse to
deliver or supply electric power and energy to Distributor until Distributor
has made such payment.
10. FORCE MAJEURE AND REMEDIES: Neither Authority nor Distributor
shall be liable in damages to the other for any act, omission or
circumstances occasioned by or in consequence of any acts of God, strikes,
lockouts, acts of public enemy,
6.
war blockades, insurrections, riots, epidemics, landslides, lightning,
earthquakes, fires, storms, floods, washouts, arrests and restraints of
rulers and people, civil disturbances, explosions, breakage, or accident to
machinery or other equipment, or the binding order of any court or
governmental authority which has been resisted in good faith by all
reasonable legal means. A failure to settle or prevent any strike or other
controversy with employees or with anyone purporting or seeking to represent
employees shall not be considered a matter within the control of the party
claiming force majeure.
In the event of the exercise of force majeure under the foregoing
paragraph, the party claiming the difficulty shall promptly notify a
responsible representative of the other of the nature of the occurrence and
its expected duration so that the other party may minimize the effect of the
force majeure condition on its own system.
No such occurrence shall relieve Distributor of its obligations to
pay for electric power and energy heretofore delivered hereunder.
11. RETAIL RATES: It is agreed and understood that as between the
parties to this agreement and during the term thereof, Distributor shall have
the right to establish, as it deems appropriate, the rates charged by it to
any of its customers and Authority shall have no responsibility with respect
thereto; however, Distributor agrees that such rates will be sufficient to
enable Distributor to meet its obligations to Authority under this agreement.
7.
12. LCRA ACT: In the event any provision of this agreement is found
to be in conflict with any provision of the LCRA Act, the Act shall prevail.
13. UNIFORM RATE CLAUSE: If at any time during the term of this
agreement Authority, pursuant to a separate term of contract, should supply
electricity to any rural electric cooperative or to any municipality other
than the City of Austin and the City Public Service Board of the City of San
Antonio at a lower rate than set forth in Exhibit C Wholesale Power Rate
Schedule WP-1 during the time covered thereby and for equal demand and
consumption, for transmitted energy, and where the period of time covered by
the term of contract is substantially the same, and other conditions of
service are substantially equal, said lower rate shall be made available to
Distributor so long as such lower rate schedule shall be given under said
substantially equal circumstances to any other cooperative or municipality,
so long as this agreement is in force; it being understood that this
paragraph does not apply where power and energy is being sold on an emergency
rate, or dump rate, or inadvertent flow basis, nor to contracts with the
Cities of Austin and San Antonio.
14. EFFECTIVE DATE: The parties hereto agree that this agreement is
effective as of June 25, 1977.
15. APPROVAL BY ADMINISTRATOR: The parties hereto agree that this
agreement shall become effective only upon approval by the Administrator of
the Rural Electrification Administration of the United States of America.
8.
IN TESTIMONY WHEREOF, the parties hereto have caused this agreement
to be executed and attested by their duly authorized officers, in five
original counterparts
LOWER COLORADO RIVER AUTHORITY
By: /s/ [ILLEGIBLE]
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General Manager
ATTEST:
/s/ Xxxxxxx X. Xxxxxx Date: 8-5-77
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XxXXXXXXX ELECTRIC COOPERATIVE, INC.
ATTEST: By: /s/ Xxxxxxx Xxxxxxxx
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/s/ Xxxxx X. Xxxxxx Date: 8-11-77
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APPROVED:
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Administrator of the
Rural Electrification
Administration of the
United States of America
9.
