(As filed June 1, 1999)
File No. 70 -____
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM U-1
APPLICATION OR DECLARATION
UNDER THE
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
ALLIANT ENERGY CORPORATION
(formerly Interstate Energy Corporation)
222 West Washington Avenue
Madison, Wisconsin 53703
IES UTILITIES INC.
Alliant Tower
Cedar Rapids, Iowa 52401
(Names of companies filing this statement and addresses
of principal executive offices)
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ALLIANT ENERGY CORPORATION
(Name of top registered holding company parent)
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Erroll B. Davis, Jr.
President and
Chief Executive Officer
Alliant Energy Corporation
222 West Washington Avenue
Madison, Wisconsin 53703-0192
(Name and address of agent for service)
The Commission is requested to send copies of all notices, orders and
communications in connection with this Application or Declaration to:
Barbara J. Swan, General Counsel William T. Baker, Jr., Esq.
Alliant Energy Corporation Thelen Reid & Priest LLP
222 West Washington Avenue 40 West 57th Street
Madison, Wisconsin 53703-0192 New York, New York 10019
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ITEM 1. DESCRIPTION OF PROPOSED TRANSACTION.
A. Introduction. Alliant Energy Corporation (formerly Interstate Energy
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Corporation) ("Alliant") is a registered holding company under the Public
Utility Holding Company Act of 1935, as amended (the "Act").1/ Its public
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utility subsidiaries are Wisconsin Power & Light Company ("WP&L"), South Beloit
Water, Gas and Electric Company, Interstate Power Company, and IES Utilities,
Inc. ("IES") (collectively, the "Operating Companies"). Together, the Operating
Companies provide public utility service to approximately 908,000 electric and
388,000 retail gas customers in parts of Wisconsin, Iowa, Minnesota and
Illinois. Alliant's direct non-utility subsidiaries include Alliant Services
Company, a service company, and Alliant Energy Resources, Inc., which serves as
the holding company for substantially all of Alliant's investments in
non-utility subsidiaries.
Alliant indirectly owns undivided interests in two nuclear power
facilities, the Kewaunee Nuclear Power Plant ("KNPP"), located in the Town of
Carlton, Wisconsin, and the Duane Arnold Energy Center ("DAEC"), located in
Palo, Iowa. KNPP, a 532 megawatt pressurized water reactor, is operated by
Wisconsin Public Service Corporation ("WPSC"), a subsidiary of WPS Resources
Corporation ("WPS Resources"), and is jointly owned by WPSC (41.2%), WP&L
(41.0%) and Madison Gas & Electric Company (17.8%). DAEC is a 535 megawatt
boiling water reactor. It is operated by IES, which has a 70% ownership interest
in the facility. The remaining 30% is owned by two generation and transmission
cooperatives.
Alliant requests approval herein to acquire all of the voting
securities of a new subsidiary to be organized under Wisconsin law (herein
referred to as "Alliant Nuclear"). Through Alliant Nuclear, Alliant proposes to
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1/ See WPL Holdings, Inc., et al., 66 SEC Docket 2256 (April 14, 1998).
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acquire a 25% membership interest in Nuclear Management Company, LLC ("NMC"), a
Wisconsin limited liability company formed for the purpose of consolidating into
one organization the talents and efforts of specialized employees of IES and
certain other unaffiliated nuclear power plant owners in order to make available
to such plant owners a larger and more diverse pool of skilled workers and other
specialized resources than would otherwise be available to them if they were to
continue to manage their plants independently of each other. Initially, NMC will
render services to the NMC Plant Owners, as defined below, and, subsequently, to
Nonaffiliated Companies, as defined below.
Currently, the members of NMC are WEC Nuclear Corp. ("WECN"), a
subsidiary of Wisconsin Energy Corporation ("WEC"), WPS Nuclear Corporation
("WPSN"), a subsidiary of WPS Resources and an affiliate of WPSC, and Northern
States Power Company ("NSP"). Subject to obtaining the approval of the
Commission in this proceeding, Alliant Nuclear proposes to become a 25% member
of NMC. Further, as more fully described below, IES and NMC propose to enter
into certain agreements pursuant to which IES would make available to NMC
specialized personnel and, in turn, would purchase from NMC specified categories
of services.
The current members of NMC or their utility affiliates and IES
(hereinafter referred to, collectively, as the "NMC Plant Owners") collectively
own interests in and operate seven nuclear generating units at five locations.
NSP owns and operates the Prairie Island Units 1 and 2, located near Red Wing,
Minnesota, which are pressurized water reactors having a combined net generating
capacity of 1,003 megawatts, and the Monticello generating station, located near
Monticello, Minnesota, a boiling water reactor with a net generating capacity of
536 megawatts. Wisconsin Electric Power Company, a subsidiary of WEC, owns and
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operates two units at the Point Beach nuclear generating station located near
Two Rivers, Wisconsin. The Point Beach units are also pressurized water reactors
and have a combined net generating capacity of 970 megawatts. These five units,
together with the single unit DAEC and KNPP, are hereinafter referred to
collectively as the "NMC Plants."
NMC will be managed by a Board of Directors comprised of representatives of
each of its members, and will be capitalized with contributions from each of its
members, as provided for in the NMC Limited Liability Company Operating
Agreement (the "Operating Agreement") filed herewith on a confidential basis as
Exhibit A-2. It is intended that the capital contributions of the members will
be equal. Under the terms of the Operating Agreement, the profits and losses of
NMC will be allocated to the members in accordance with their percentage
interests, and additional capital contributed pursuant to a capital call would
be on the same basis. The Operating Agreement requires a supermajority vote of
the members to make a capital call greater than $250,000 annually per member.
The rate on return on NMC's equity capital deployed to serve the NMC Plants will
not exceed the average of the most recent rates of return allowed by the public
service commissions that regulate the NMC members, i.e., the Iowa Utilities
Board, the Minnesota Public Service Commission and the Public Service Commission
of Wisconsin. The Operating Agreement contemplates the admission of other
utilities as members.
IES's commitments to purchase services from and provide personnel and other
resources to NMC are set forth in a Services Agreement (the "Services
Agreement") and Employee Lease Agreement (the "Lease Agreement") (collectively,
the "Agreements"). Forms of the Services Agreement and Lease Agreement are filed
herewith as Exhibits B-1 and B-2, respectively. The Services Agreement and Lease
Agreement between NMC and IES will be substantially identical to those between
NMC and each of the other NMC Plant Owners.
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B. Description of the Agreements.
-----------------------------
1. The Services Agreement.
----------------------
The Services Agreement lists various categories of support services which
the NMC Plant Owners believe will improve operations of the NMC Plants if
provided on an integrated basis by NMC (the "Services"). The Services will be in
the areas of fuel management; procurement and warehousing; licensing; outage
support; quality assurance; records management; safety assessment and oversight;
security; training and special projects.
Because the decision to integrate the provision of any nuclear plant
support service must be undertaken with great care, the Services Agreement
allows for a period of time for Service Development Teams ("SDTs") to further
evaluate each category of the Services to determine whether providing them on an
integrated basis through NMC will be compatible with the needs and
responsibilities of each NMC Plant Owner with respect to its own nuclear units.
For example, if a particular service is currently provided to an NMC Plant Owner
pursuant to a long-term contract with a third-party vendor and there is
difficulty in assigning that contract to NMC, it may not be possible for NMC to
achieve the scope needed to create safety or reliability standardization, or
economic efficiencies. Once SDTs have recommended that a Service or group of
Services (the "Basic Services") can be provided by NMC on an integrated basis,
then an implementation plan for transitioning such Basic Services to NMC will be
developed. The transition plan will require development of a service specific
budget. NMC Plant Owners will be obligated to make good faith efforts to take
the Basic Services from NMC. NMC may also offer other categories of the Services
("Optional Services") to the NMC Plant Owners which the NMC Plant Owners may
choose, but shall not be obligated, to take.
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Even when the SDTs agree that a Basic Service can effectively be delivered
by NMC, IES will not be obligated to take the Basic Service if it believes that
to do so would jeopardize the safety, integrity or reliability of DAEC or
compliance with government regulations. The provisions of the Services Agreement
are intended to promote as much integration of support services among the NMC
Plants as possible while assuring that no one utility is disadvantaged by being
required to take a specific service. Thus, the Services Agreement balances the
interests of furthering the development of NMC with the interests of each of the
NMC Plant Owners. The Services Agreement also assures that this balancing of
each utility's interests is achieved not only when NMC commences to provide any
of the Services, but on an ongoing basis.
The primary advantage of using NMC is that the Services will be performed
by utility employees experienced in the operation and maintenance of a nuclear
power facility on a continuing basis. Such employees will be dedicated to NMC
pursuant to the Services Agreement. As indicated, the Services Agreement
provides that the NMC Plant Owners will retain the discretion to withhold
employees from NMC if necessary to avoid jeopardizing safety and reliability in
the operation of any NMC Plant. Thus, the Services Agreement will provide IES
with adequate safeguards to assure that the primary objectives of safety and
reliability of its nuclear operating facilities are preserved and that NMC will
work only to improve upon these primary objectives.
NMC will combine and coordinate the talents and resources of four regulated
utilities in the area of nuclear power plant operations. This will enable IES
and the other NMC Plant Owners to standardize processes and service functions
that meet or exceed industry standards and to achieve cost efficiencies through
economies of scale. NMC will also allow the NMC Plant Owners to reduce their
dependence upon third-party vendors and contractors by creating a larger and
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more flexible pool of specialized employees who will be available to all NMC
Plant Owners. In contrast, bidding to the market for services available from
consultants provides no opportunity for the pooling of resources or sharing of
costs and gains in safety, reliability and efficiency.
In the near term, it is anticipated that IES employees involved in the
operation and management of DAEC will continue to devote most of their time to
those duties. As NMC develops over time, however, service delivery will likely
become more integrated among the NMC Plant Owners and IES employees will devote
more of their time to the performance of the Services for other NMC Plant
Owners.
NMC will maintain its books and records and system of accounts in
substantial conformity with the Uniform System of Accounts for Mutual Service
and Subsidiary Service Companies, as in effect from time to time. IES will have
full access to NMC's books and records. To the extent that costs incurred by NMC
can be identified to a particular NMC Plant or Plants, such costs will be
directly assigned to the owner or owners of the respective NMC Plant or Plants
as appropriate. It is anticipated that NMC will directly assign substantially
all of its costs in this manner. Costs which cannot be directly assigned to a
particular NMC Plant (e.g., NMC's general overheads and administrative expenses)
will be allocated through a loading on direct labor dollars charged to each of
the NMC Plant Owners for Services performed. This loading will be based on
estimates of direct labor dollars made at the beginning of each year and will be
adjusted (trued-up) annually based on actual indirect charges for common costs
incurred and actual labor dollars charged for Services in that year. Certain
other common costs which provide benefits to all NMC Plant Owners (e.g., cost of
a computer system) will be allocated equitably among the NMC Plant Owners. NMC
will file annual reports on Form U-13-60 to comply with periodic reporting
requirements of Rule 94 under the Act.
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All of the Services furnished by NMC to the NMC Plant Owners will be at
cost, fairly and equitably allocated. NMC will submit monthly statements to each
NMC Plant Owner for the Services rendered during the previous month. This
monthly payment and billing procedure is expected to minimize the need for
substantial working capital by NMC.2/ In the case of Services rendered by NMC in
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respect to DAEC and KNPP, which are jointly owned with other utilities, such
costs will be reallocated among the plant owners in proportion to their
respective ownership shares in the manner provided in the participation or
operating agreement among the owners of those plants.
Subject to the availability of resources and its commitment to provide the
Basic Services to the NMC Plant Owners, NMC may also from time to time offer
similar services to nonaffiliated companies ("Nonaffiliated Companies"). Any
services which may be rendered by NMC to Nonaffiliated Companies will be billed
at negotiated rates designed to produce a profit to NMC.
As indicated, each of the NMC Plant Owners will be committed under the
Services Agreement to make available to NMC such personnel and other resources
as are reasonably necessary to enable NMC to provide the Basic Services
described above. Personnel resources may be provided under employee leases (see
description below), direct employee charges to NMC, and/or the transfer of
employees to NMC. Other resources made available to NMC may include the use of
office space, vehicles, furniture, equipment, informational systems and computer
time. The NMC Plant Owner providing services or other resources to NMC will be
reimbursed for the cost thereof in accordance with Rules 90 and 91.
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2/ To the extent working capital is required, it is anticipated that NMC
- - would borrow funds from lenders pursuant to Rule 52.
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The Services Agreement, which has been submitted for approval by the
Wisconsin and Minnesota public service commissions, provides (in Section 3.1(d)
thereof) that NMC shall provide the Services at the lower of its cost (defined,
consistent with Rules 90 and 91, to mean the fully allocated cost of NMC,
inclusive of a reasonable return on amounts invested in NMC) or the "market
price" for such Services. Similarly, Section 4.6(d) of the Services Agreement
provides that an NMC Plant Owner shall be reimbursed by NMC for personnel and
other resources provided by such NMC Plant Owner at the lower of its cost or the
"market price" for such personnel and resources. Under Section 2.3(d)(i) of the
Services Agreement, however, the parties will agree as between themselves that
cost shall be deemed to reflect the "market price." Further, the filings that
have been made with the Wisconsin and Minnesota commissions request the advance
determination of those commissions that, in the absence of a comparable service
company market for services of the type that NMC will provide (other than the
"market" that the NMC Plant Owners themselves have created through NMC), it is
appropriate to treat "cost" as the relevant "market price."
2. Employee Lease Agreement.
------------------------
The Lease Agreement sets forth the terms and conditions under which each of
the NMC Plant Owners will make its employees available to NMC. The Lease
Agreement confirms that each NMC Plant Owner shall retain direction and control
over its employees and that such employees shall continue to be employed by the
respective NMC Plant Owner, not NMC. The Lease Agreement enumerates all
employee-related expenses which would be included in the determination of a
fully loaded, fully allocated cost and incorporates various terms from the
Services Agreement so as to coordinate the Lease Agreement with the Services
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Agreement. For example, the Agreements have the same term, termination,
liability and dispute resolution provisions.
C. The Provision of Services by NMC is in the Public Interest.
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In this era of change in the nuclear power industry highlighted by
increasing competition, the nuclear industry faces two significant challenges
that are addressed by the creation of NMC. The first involves retaining staffing
resources with the skills and expertise to operate facilities in a safe,
reliable and efficient manner. The second is to achieve a consistent, strong
performance record to assure compliance with all Nuclear Regulatory Commission
("NRC") requirements. In this regard, some utilities have found it difficult to
meet current nuclear plant safety and reliability requirements and still achieve
cost and plant performance results necessary to remain economically viable.
NMC will provide the NMC Plant Owners with an opportunity to achieve
economies and efficiencies without adversely affecting plant safety and
reliability. The opportunity provided to nuclear engineers and managers by NMC
to work to promote the safe, reliable and efficient operation of a fleet of
nuclear plants rather than one or two plants should help to retain and recruit
experienced and well-qualified personnel. This resource sharing should also lead
to the development of best practices and standardization which will enhance the
safety and reliability of each of the facilities serviced. Maintaining high
levels of safety and reliability is an important factor in maintaining cost
effective nuclear operations. Developing strong, consistent compliance with NRC
regulations may be better achieved over the long run through a single entity
that focuses on operations of several units rather than only one or two.
Through NMC, the safety and reliability of the NMC Plants will be
maintained. At the same time, through NMC, the NMC Plant Owners will have an
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opportunity to make more efficient use of their employees and other resources
related to nuclear plant management and operations, which could lower costs.
Utility employees responsible for providing services at up to five different
plant sites will coordinate their efforts to establish best practices and
process improvements that can be implemented at all of the plants serviced by
NMC. Sharing of personnel may also provide efficiency gains, particularly where
utility employees are able to dedicate a portion of their time to plants where
the services have been performed by outside consultants, as the utility owners
can utilize leased utility employees at a lower cost.
IES believes that its employees will benefit from the experiences of other
utilities operating similar nuclear facilities. In this regard, each of the NMC
Plant Owners brings significant experience and historically strong performance
to this venture. In addition to DAEC, which is operated by IES, the other NMC
Plant Owners operate six nuclear units. Both the Point Beach and Prairie Island
dual unit plants have a relatively small total generating capacity in comparison
to other dual unit plants in the industry. The others are single unit plants.
Creation of a common overhead structure for various management services is
anticipated to improve operations at all of the facilities. Further, some of the
units share common design features. The Point Beach units, Prairie Island units,
and the KNPP unit are similarly designed pressurized water reactor plants.
Likewise, the Monticello unit and DAEC are similarly designed boiling water
reactors. These similarities will afford the NMC Plant Owners opportunities to
achieve efficiencies through standardization and the transfer of relevant
experience.
IES believes that obtaining the Services from NMC will allow it to evaluate
and possibly implement best practices existing at the other utilities. Whether
or not IES adopts such practices, it will continue to benefit from the
efficiencies achieved through working with the experienced staff of other
regional nuclear operators. Neither the Services Agreement nor Lease Agreement
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will compromise or conflict with IES's duty and commitment to have its nuclear
facilities operated in a safe and efficient manner. Finally, the Agreements do
not transfer IES's ultimate control or responsibility for operation of DAEC.
NMC will provide a favorable corporate arrangement for joint service
delivery in a structured, recurring and efficient manner. If successful, IES
believes this arrangement may provide the opportunity to pursue other corporate
structures that may be consistent with industry restructuring, such as a
movement to a generating company business (either through sale or lease of
assets or output). However, IES has no current plans to transfer operating
control of the DAEC to NMC.
ITEM 2. FEES COMMISSIONS AND EXPENSES.
-----------------------------
The estimated fees, commissions and expenses to be incurred in
connection with the proposed transaction will be filed by amendment.
ITEM 3. APPLICABLE STATUTORY PROVISIONS.
-------------------------------
(a) The issuance and sale by Alliant Nuclear of its common stock are
subject to the provisions of Sections 6 (a) and 7 of the Act.
(b) The acquisition by Alliant Nuclear of a membership interest in NMC and
by Alliant of the common stock of Alliant Nuclear is subject to Sections 9(a)
and 10 of the Act.
(c) The funding of capital calls by Alliant Nuclear is subject to
Section 12(b) of the Act and Rule 45 thereunder, but is deemed to be exempt
pursuant to Rule 45(b)(4).
(d) The provision of personnel and other resources by IES to NMC pursuant
to the Agreements is subject to Section 13(b) of the Act and Rules 87, 90 and 91
thereunder.
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(e) The sale of services by NMC to Nonaffiliated Companies may be subject
to Sections 9(a) and 10 of the Act.
Compliance with Rule 54. The transactions proposed herein, solely as they
relate to Alliant, IES and Alliant Nuclear, are also subject to Rule 54. Rule 54
provides that the Commission shall not consider the effect of the capitalization
or earnings of subsidiaries of a registered holding company that are "exempt
wholesale generators" ("EWGs") or "foreign utility companies" ("FUCOs"), as
defined in Sections 32 and 33, respectively, in determining whether to approve
other transactions if the requirements of Rule 53(a), (b) and (c) are satisfied.
Alliant currently meets all of the requirement of Rule 53.
Rule 53(a)(1): At March 31, 1999, Alliant's "aggregate investment" in EWGs
and FUCOs is approximately $110,000,000, or approximately 20.3% of Alliant's
"consolidated retained earnings" for the four quarters ended March 31, 1999
($541,478,000).
Rule 53(a)(2): Alliant will maintain books and records enabling it to
identify investments in and earnings from each EWG and FUCO in which it directly
or indirectly acquires and holds an interest. Alliant will cause each domestic
EWG in which it acquires and holds an interest, and each foreign EWG and FUCO
that is a majority-owned subsidiary, to maintain its books and records and
prepare its financial statements in conformity with U.S. generally accepted
accounting principles ("GAAP"). All of such books and records and financial
statements will be available to the Commission, in English, upon request.
Rule 53(a)(3): No more than 2% of the employees of Alliant's domestic
operating utility subsidiaries will, at any one time, directly or indirectly,
render services to EWGs and FUCOs.
Rule 53(a)(4): Alliant will submit a copy of each Application or
Declaration, and each amendment thereto, relating to any EWG or FUCO, and will
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submit copies of any Rule 24 certificates required thereunder, as well as a copy
of relevant portions of Alliant's Form U5S, to each of the public service
commissions having jurisdiction over the retail rates of Alliant's domestic
operating utility subsidiaries.
In addition, Alliant states that the provisions of Rule 53(a) are not made
inapplicable to the authorization herein requested by reason of the occurrence
or continuance of any of the circumstances specified in Rule 53(b). Rule 53(c)
is inapplicable by its terms.
ITEM 4. REGULATORY APPROVAL.
-------------------
No state commission and no federal commission, other than this
Commission, has jurisdiction over the transactions proposed herein as they
relate to Alliant or any of its subsidiaries. Certain of the NMC Plant Owners
(other than IES) have filed applications seeking approval of state public
service commissions for certain aspects of the transactions described herein.
ITEM 5. PROCEDURE.
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Applicants request that the Commission's Order be issued as soon as is
permitted by the Rules and that there be no 30-day waiting period between the
issuance of the Commission's Order and the date on which it is to become
effective. It is submitted that a recommended decision by a hearing or other
responsible officer of the Commission is not needed with respect to the proposed
transactions. Applicants hereby consent that the Division of Investment
Management may assist with the preparation of the Commission's decision and/or
Order with respect to this matter unless such Division opposes the matters
covered hereby.
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ITEM 6. EXHIBITS AND FINANCIAL STATEMENTS.
---------------------------------
The following exhibits and financial statements are filed as a part of
this Application/Declaration:
(a) Exhibits
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A-1 Articles of Organization of NMC (to be filed by amendment).
A-2 NMC Limited Liability Company Operating Agreement (filed on a
confidential basis).
B-1 Form of Services Agreement.
B-2 Form of Employee Lease Agreement.
C Not Applicable.
D Not Applicable.
E Not Applicable.
F Opinion of counsel (to be filed by amendment).
G Financial Data Schedule (filed as Exhibit 27.7 to the Quarterly
Report on Form 10-Q of Alliant for the period ended March 31,
1999 in File No. 1-09894 and incorporated herein by reference
thereto).
H Form of Federal Register Notice.
(b) Financial Statements
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1.1 Consolidated Statements of Income of Alliant for the period ended
March 31, 1999 (incorporated by reference to the Quarterly Report
on Form 10-Q of Alliant) (File No. 1-09894).
1.2 Consolidated Balance Sheet of Alliant as of March 31, 1999
(incorporated by reference to the Quarterly Report on Form 10-Q
of Alliant) (File No. 1-09894).
1.3 Consolidated Statements of Income of IES for the period ended
March 31, 1999 (incorporated by reference to the Quarterly Report
on Form 10-Q of IES) (File No. 1-04117).
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1.4 Consolidated Balance Sheet of IES as of March 31, 1999
(incorporated by reference to the Quarterly Report on Form 10-Q
of IES) (File No. 1-04117).
ITEM 7. INFORMATION AS TO ENVIRONMENT EFFECTS.
-------------------------------------
The transactions that are the subject of this Application or
Declaration do not involve a "major federal action" nor do they "significantly
affect the quality of the human environment" as those terms are used in section
102(2)(C) of the National Environmental Policy Act. Such transactions will not
result in changes in the operation of the Applicants that will have an impact on
the environment. The Applicants are not aware of any federal agency that has
prepared or is preparing an environmental impact statement with respect to the
transactions that are the subject of this Application or Declaration.
SIGNATURES
Pursuant to the requirements of the Public Utility Holding Company Act of
1935, as amended, the undersigned companies have duly caused this Application or
Declaration filed herein to be signed on their behalf by the undersigned
thereunto duly authorized.
ALLIANT ENERGY CORPORATION
By: /s/ Erroll B. Davis, Jr.
----------------------------------
Name: Erroll B. Davis, Jr.
Title: Chief Executive Officer
IES UTILITIES, INC.
By: /s/ Erroll B. Davis, Jr.
----------------------------------
Name: Erroll B. Davis, Jr.
Title: Chief Executive Officer
Date: June 1, 1999
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Exhibit B-1
SERVICES AGREEMENT
BETWEEN
ALLIANT ENERGY RESOURCES, INC.
AND
NUCLEAR MANAGEMENT COMPANY, LLC
<PAGE>
TABLE OF CONTENTS
ARTICLE 1 DEFINITION OF TERMS . . . . . . . . . . . . . . . . 1
ARTICLE 2 SCOPE OF SERVICES . . . . . . . . . . . . . . . . 3
2.1 General . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 NMC Shared Officers . . . . . . . . . . . . . . . . . . . 3
2.3 Scope of Services . . . . . . . . . . . . . . . . . . . . 3
2.4 Implementation of Services . . . . . . . . . . . . . . . . 5
2.5 Compliance and Qualifications . . . . . . . . . . . . . . 5
2.6 No Discrimination . . . . . . . . . . . . . . . . . . . . 6
2.7 Agency Appointment for Procurement of Goods and Services . 6
2.8 Restrictions on Agency Procurement Authority . . . . . . . 6
ARTICLE 3 COSTS AND BUDGETS . . . . . . . . . . . . . . . . . 7
3.1 Cost Reimbursement . . . . . . . . . . . . . . . . . . . . 7
3.2 NMC Budgets . . . . . . . . . . . . . . . . . . . . . . . 7
3.3 Plant Budget . . . . . . . . . . . . . . . . . . . . . . . 7
3.4 Invoicing and Payment . . . . . . . . . . . . . . . . . . 8
3.5 Audit Rights . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 4 GENERAL RESPONSIBILITIES OF CONTRACTING OWNER . . . 8
4.1 Applicable Owner Policies . . . . . . . . . . . . . . . . 8
4.2 Delegation of Procurement Authority . . . . . . . . . . . 8
4.3 Plant Costs . . . . . . . . . . . . . . . . . . . . . . . 9
4.4 Contracting Owner and Operator . . . . . . . . . . . . . . 9
4.5 Access . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.6 Duty to Provide Resources to NMC . . . . . . . . . . . . . 9
ARTICLE 5 TERM AND TERMINATION . . . . . . . . . . . . . . 10
5.1 Term . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.2 Renewal . . . . . . . . . . . . . . . . . . . . . . . . 11
5.3 Termination Without Cause . . . . . . . . . . . . . . . 11
5.4 Termination Because of Governmental or Judicial Acts . . 11
5.5 Termination For Cause . . . . . . . . . . . . . . . . . 11
5.6 Mutual Agreement . . . . . . . . . . . . . . . . . . . . 12
5.7 Limitation on Remedies for Breach . . . . . . . . . . . 12
5.8 Limitation of Contracting Owner's Liability . . . . . . 12
5.9 Transition . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 6 FORCE MAJEURE . . . . . . . . . . . . . . . . . . 13
ARTICLE 7 INSURANCE AND NUCLEAR LIABILITY PROTECTION . . . 13
7.1 NMC Coverage . . . . . . . . . . . . . . . . . . . . . . 13
7.2 Nuclear Protection . . . . . . . . . . . . . . . . . . . 14
ARTICLE 8 LIMITATIONS ON LIABILITY; INDEMNIFICATION . . . . 15
8.1 Exclusive Warranties and Remedies . . . . . . . . . . . 15
8.2 Waiver and Disclaimer of Damages . . . . . . . . . . . . 15
8.3 Indemnity . . . . . . . . . . . . . . . . . . . . . . . 15
8.4 Survival . . . . . . . . . . . . . . . . . . . . . . . . 15
8.5 Disclaimer of Warranties . . . . . . . . . . . . . . . . 16
ARTICLE 9 COMPLIANCE WITH LAWS, REGULATIONS AND
SITE REQUIREMENTS . . . . . . . . . . . . . . . . . . . 16
9.1 General . . . . . . . . . . . . . . . . . . . . . . . . 16
9.2 Energy Reorganization Act . . . . . . . . . . . . . . . 16
ARTICLE 10 REPRESENTATIONS AND WARRANTIES . . . . . . . . . 16
10.1 Representations of NMC . . . . . . . . . . . . . . . . . 16
10.2 Representations of Contracting Owner . . . . . . . . . . 17
ARTICLE 11 CONFIDENTIALITY . . . . . . . . . . . . . . . . 18
11.1 Nondisclosure . . . . . . . . . . . . . . . . . . . . . 18
11.2 Notification . . . . . . . . . . . . . . . . . . . . . . 18
11.3 Permitted Disclosures . . . . . . . . . . . . . . . . . 18
ARTICLE 12 MISCELLANEOUS . . . . . . . . . . . . . . . . . 19
12.1 Governing Law . . . . . . . . . . . . . . . . . . . . . 19
12.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . 19
12.3 Amendments . . . . . . . . . . . . . . . . . . . . . . . 19
12.4 Hearings . . . . . . . . . . . . . . . . . . . . . . . . 19
12.5 Non-Waiver . . . . . . . . . . . . . . . . . . . . . . . 19
12.6 Survival . . . . . . . . . . . . . . . . . . . . . . . . 19
12.7 Assignment . . . . . . . . . . . . . . . . . . . . . . . 19
12.8 Intellectual Property Rights . . . . . . . . . . . . . . 20
12.9 Third Party Beneficiaries . . . . . . . . . . . . . . . 20
12.10 Arbitration . . . . . . . . . . . . . . . . . . . . . . 20
12.11 Entire Agreement . . . . . . . . . . . . . . . . . . . 20
12.12 Regulatory Effectiveness . . . . . . . . . . . . . . . 20
EXHIBITS
Exhibit A Services
Exhibit B Process for Cost Assessment
Exhibit C Preexisting Contracts
Exhibit D Various Exceptions to Representations and Warranties
If Any
<PAGE>
SERVICES AGREEMENT
This Agreement is made as of April , 1999, by and
----
between Alliant Energy Resources, Inc., a Wisconsin corporation
(hereinafter referred to as "Contracting Owner"), and Nuclear
Management Company, LLC, a Wisconsin limited liability company
(hereinafter referred to as "NMC").
WHEREAS, NMC is a limited liability company formed for
the purpose of providing nuclear plant support services; and
WHEREAS, Contracting Owner owns and operates the Duane
Arnold Energy Center, 15 miles northwest of Cedar Rapids, Iowa
(hereinafter the "Plant"); and
WHEREAS, Contracting Owner desires to receive services
from NMC, and NMC desires to provide services to Contracting
Owner, in accordance with the terms set forth in this Agreement.
NOW, THEREFORE, it is hereby agreed as follows:
ARTICLE 1
Definition of Terms
-------------------
The following terms, when used in this Agreement, shall
have the meanings indicated below:
1.1 "Applicable Contracting Owner Policies" refers to
Contracting Owner's policies and procedures, Plant operating
plans, budgets and procedures agreed upon by the parties and
adopted by the Contracting Owner's Governing Board pursuant to
Section 2.1 as applicable to NMC Service Personnel and the
Services to be provided by NMC.
1.2 "Basic Services" shall mean the nuclear power
plant support services to be provided by NMC identified pursuant
to the process described in Section_2.4.
1.3 "Cost" shall mean:
a) With respect to Services provided Contracting
Owner by NMC, (i) the actual cost to NMC of providing such
services which shall include the allocable charges for resources
provided by an Owner to NMC as described in Section 1.3(b) below;
(ii) direct cost of non-Owner contractors; (iii) the salaries and
personnel overheads (benefits) of NMC employees; (iv) a return on
and of the NMC's investment in any capital item associated with
providing Services, based on a composite of the Owner's
authorized returns on equity; and (v) an allocation of the NMC's
own administrative and general costs. The methodology for
charging items (iii), (iv) and (v) shall be established in the
NMC Budget pursuant to Section 3.1.
b) With respect to resources provided by an
Owner to NMC, (i)_the direct cost of any contractors retained by
an Owner; (ii)_the salaries and personnel overheads (benefits) of
Owner's employees; (iii)_the fully allocated administrative and
overhead costs associated with provision of an Owner's employees;
and (iv) a return on and of the Owner's investment in any capital
item required to provide such resource. Items (ii), (iii) and
(iv) shall be determined in accordance with normal and standard
allocation methods generally used by Owner for transactions with
affiliates.
1.4 "FERC" means the Federal Energy Regulatory
Commission or its successor regulatory body.
1.5 "INPO" means the Institute of Nuclear Power
Operations.
1.6 "Market Price" means the generally prevailing
price for similar services or products in the region served by
NMC.
1.7 "Member" means a person who is a member, as
defined in Section 183.0102(15), Wis. Stats., of NMC.
1.8 "NMC Budgets" refers to the preliminary budget and
the subsequent budget for each service, and revisions thereto,
for the Costs of NMC in providing Services to Contracting Owner
pursuant to this Agreement as further described in Section 3.2,
including any Costs for the account of Contracting Owner pursuant
to third-party contracts entered into by NMC as Contracting
Owner's agent pursuant to Section 2.7.
1.9 "NMC Service Personnel" shall mean NMC officers,
employees, leased employees, agents and contractors who may
provide any portion of Services to Contracting Owner.
1.10 "NMC Shared Officers" refers to individuals who
are or may become and/or remain officers of NMC but shall also be
officers of Owner.
1.11 "NRC" means the United States Nuclear Regulatory
Commission or its successor having responsibility for
administration of the licensing and regulation of the operation
of nuclear utilization facilities under the Atomic Energy Act of
1954 and any amendments thereto.
1.12 "Optional Services" shall mean nuclear power plant
support services that are not Basic Services.
1.13 "Owner" means a person which owns an interest in a
nuclear power plant facility located in the United States and
which is a Member or an Affiliate of a Member (other than solely
by reason of the relationship of such Person and a Member with
NMC).
1.14 "Plant Operating License" means the facility
Operating License for the Plant, and amendments thereto as may be
issued from time to time by the NRC.
1.15 "Services" shall mean the nuclear power plant
support Basic Services and Optional Services ordered pursuant to
Section 2.3. Services ordered shall be described in exhibits to
be attached to this Agreement by amendment.
ARTICLE 2
Scope of Services
-----------------
2.1 General. During the term of this Agreement, NMC
-------
agrees to provide the Basic Services regarding the Plant and all
or that portion of Optional Services as Contracting Owner may
request; provided, however, that ultimate responsibility for
day-to-day plant operation, budgetary controls, operating plans,
and management and overall direction of the Plant shall be
retained and reserved exclusively for Contracting Owner. NMC's
provision of Services shall be dependent upon Contracting Owner
and other Owners fulfilling their obligations to provide
resources under Section 4.6 of this Agreement. Services shall be
provided in accordance with the specifications established by NMC
and Contracting Owner.
2.2 NMC Shared Officers. NMC may have one or more
-------------------
officers who may be officers of both NMC and Contracting Owner,
or who may be officers of NMC and another Owner to which the NMC
is providing Services. An officer of Contracting Owner shall be
an NMC Shared Officer if and for so long as Owner agrees.
2.3 Scope of Services.
-----------------
(a) Basic Services. Contracting Owner agrees to
--------------
use good faith efforts to take, on a timely basis, the Basic
Services identified pursuant to Section 2.4 as the recommended
offerings to Contracting Owner by NMC. Contracting Owner further
agrees that it shall use good faith efforts to take such Basic
Services on an exclusive basis. However, Contracting Owner shall
not be required to take Basic Services which would conflict with
(i) preexisting contracts between Contracting Owner and
unaffiliated third parties, or (ii) collective bargaining
agreements involving Contracting Owner's workforce. In such
event, Contracting Owner agrees to use best efforts to remove or
reduce any such conflicts.
(b) Optional Services. NMC may offer Optional
-----------------
Services to Contracting Owner which Contracting Owner may choose
to order, but it shall not be required to do so.
(c) Reliability. If, (i)_for whatever reason NMC
-----------
lacks or loses, or reasonably believes that in the near future it
may lack or lose, the ability or resources to provide agreed upon
Services, it shall promptly notify Contracting Owner; or (ii) if
Contracting Owner, at any time, reasonably believes that NMC's
provision of Services may jeopardize the safety, integrity or
reliability of the Plant's operation, or compliance with
government regulations, then Contracting Owner may obtain such
services from sources other than or in addition to NMC, and shall
promptly notify NMC of its intent to do so.
(d) Cost and Budgets.
----------------
(i) As more fully described in Section 3.1,
NMC shall provide Services at the lower of Market Price or NMC's
Cost. The Parties agree that, unless established to the
contrary, NMC's Cost of providing Services shall be deemed to
reflect Market Price.
(ii) In the event it is determined that
Services being provided by NMC would likely result in
reimbursable amounts in excess of the approved NMC Budget for
such Services, the NMC shall immediately inform Contracting
Owner. The NMC shall not have authority to order or perform any
Services which would cause the applicable NMC Budget to be
exceeded without express approval from Contracting Owner or until
the NMC Budget has been appropriately amended and approved by the
Contracting Owner in accordance with Section 3.2.
(e) Limitations on NMC. NMC and NMC Service
------------------
Personnel shall have no authority to undertake any of the
following activities:
(i) sales, marketing or disposition of
capacity or energy of the Plant;
(ii) decisions or announcements relative
to the economic life of the Plant or retirement or the timing of
decommissioning of the Plant;
(iii) filings on behalf of Contracting
Owner with any regulatory commissions; and
(iv) entering into any agreement
relating to brokering, pricing, marketing or sale of electricity
from the Plant.
2.4 Implementation of Services.
--------------------------
(a) Process. Service Process Teams (SPTs) shall
-------
promptly evaluate Services listed on Exhibit_A and such other
Services as may be agreed to by Owners. The SPTs shall determine
which of such Services, or group of such Services, can be
provided by the NMC to Owners in a manner that will enhance
safety and reliability of the Owners' nuclear facilities and be
provided in a cost effective and efficient manner. Each SPT
shall be comprised of a representative from Alliant Energy (until
December_31, 1999, unless Alliant Energy Resources, Inc. becomes
an NMC Member prior to such date), Northern States Power Company,
Wisconsin Electric Power Company and Wisconsin Public Service
Corporation, to the extent such companies remain Owners and are
Members or are affiliated with Members. Each SPT shall recommend
to the NMC and the Owners the Services which it believes, based
on agreement of its members, can be provided in a manner that
will enhance safety and reliability and be provided in a cost
effective manner as well as the method and schedule for
providing such Services. In the event an SPT cannot reach
agreement on which Services, if any, can be provided to Owners in
such manner, the matter shall be referred to the Chief Nuclear
Officers ("CNOs") of Alliant Energy (until December_31, 1999,
unless Alliant Energy Resources, Inc. becomes an NMC Member prior
to such date), Northern States Power Company, Wisconsin Electric
Power Company and Wisconsin Public Service Corporation, who shall
promptly review the matter and take such action regarding a
recommendation to the NMC as all of the CNOs deem appropriate.
NMC shall consider the SPT or CNO recommendations in offering
Services to Owners. The NMC shall be responsible at its expense
for overseeing the activities of the SPT's and coordinating
timely completion of the evaluation and recommendation process.
Owners agree, at each Owner's expense, to make personnel
available to participate in SPT's and to provide other resources
as reasonably required, as well as information concerning their
plants.
(b) Implementation Schedule. NMC shall offer
-----------------------
such services selected pursuant to Section 2.4(a) to Owners as
NMC believes can enhance reliability and safety and be provided
in a cost effective and efficient manner, i.e. the Basic
Services, and shall propose a schedule for implementation of such
services so identified. NMC and Owners shall work in good faith,
and in consideration of Owners' commitment to use good faith
efforts to take Basic Services on a timely basis, to agree to an
implementation schedule, consistent with obtaining all necessary
regulatory approvals and Owner resources. At least thirty (30)
days prior to implementation of one or more specific services,
NMC shall prepare revised Budgets for the specific services to be
implemented. Nothing in this subsection shall be construed to
mean that each Owner must begin dedicating resources to or taking
services at precisely the same time, unless otherwise agreed to
in the implementation schedule.
2.5 Compliance and Qualifications. NMC shall and will
-----------------------------
cause NMC Service Personnel to comply with Applicable Contracting
Owner Policies, including without limitation procedures
applicable to personnel granted unescorted access to the Plant.
NMC Service Personnel providing services under this Agreement
shall all be qualified by education, training, or experience, and
shall be capable of performing to industry and/or applicable
professional standards. Such personnel also shall meet all
applicable NRC operating license, technical specifications, and
other applicable regulatory requirements and commitments.
Qualification shall be subject to audit and nonqualifying NMC
Service Personnel shall not engage in activities for which they
are not qualified.
2.6 No Discrimination. NMC agrees that it shall not
-----------------
knowingly take or fail to take any action in connection with the
Plant where such action or inaction would be reasonably expected
to put Contracting Owner or the Plant at a disadvantage to any
other plant to which NMC provides Services or which jeopardizes
the safety, integrity, or reliability of Contracting Owner's
plant operations. NMC agrees that in providing Services, NMC
will comply with all applicable governmental rules and
regulations regarding Contracting Owner's Plant. If NMC believes
it may not be able to fulfill its obligations under this
Agreement, it shall promptly notify Contracting Owner pursuant to
Section 2.3
2.7 Agency Appointment for Procurement of Goods and
-----------------------------------------------
Services. In connection with that portion of the Services which
--------
NMC is to provide pursuant to Section 2.3 and subject to Section
2.8 below, Contracting Owner hereby appoints and employs NMC as
Owner's procurement agent for the acquisition of materials,
equipment or supplies for the Plant, and the retention, on
Contracting Owner's behalf, of third party services for the
efficient and safe management and operation of the Plant. NMC
accepts such agency appointment and agrees that such procurement
services, as agent of Contracting Owner, shall comply with
applicable laws and shall include: (i) preparation of
specifications, requests for bids, purchase orders, contracts,
and revisions, using NMC best efforts to negotiate terms and
conditions favorable to Contracting Owner; (ii) analysis of bids
and the award of contracts and issuance of purchase orders in the
name of the Contracting Owner relating to the operation of the
Plant; and (iii) execution, modification, amendment, or
termination of any contracts, including, without limitation,
leases, agreements, purchase orders, or rental agreements
relating to the operation of the Plant. All such contracts shall
clearly identify Contracting Owner as the principal party with
responsibility for payment thereunder.
2.8 Restrictions on Agency Procurement Authority.
--------------------------------------------
Notwithstanding Section 2.7 above, NMC shall have no authority
under this Agreement without the prior written approval of
Contracting Owner, (i) to obligate Contracting Owner in excess of
the budgeted amounts set forth in NMC Budgets approved by
Contracting Owner established pursuant to Section 3.2(ii) to
sell, encumber, or otherwise dispose of any real property or any
equipment or personal property owned by Contracting Owner and
comprising the Plant, except for Plant equipment that has been
determined by Contracting Owner to be obsolete, surplus, or that
is considered a part of the Plant spare parts inventory that is
regularly replaced in the normal course of business; or (iii) to
purchase or contract for any goods or services that are priced
above Cost from any of NMC's Members or affiliated companies.
ARTICLE 3
Costs and Budgets
-----------------
3.1 Cost Reimbursement. That portion of the Services
------------------
provided by or through NMC pursuant to Article 2 of this
Agreement shall be charged to Contracting Owner at lower of Cost
or Market Price, and Contracting Owner will reimburse NMC for
such services in accordance with Section 3.4 during the term of
this Agreement; provided, however, that such reimbursable amounts
shall not exceed the then-current applicable NMC Budget approved
pursuant to Section 3.2 below, without the prior written approval
of the Contracting Owner. The methods of determining the Costs
and allocation of Costs incurred for the benefit of multiple
Owners to be reimbursed by Contracting Owner are set forth in
Exhibit B attached hereto and made a part hereof. The method of
determining the composite return , the specific allocation
methodology of Owner, and the salaries and benefits (including
whether the Owner will charge a blended rate for different
classifications of leased employees) shall be established in the
NMC Budget pursuant to Section 3.2 below.
3.2 NMC Budgets. The preliminary estimate of costs to
-----------
be reimbursed to NMC for provision of Services by NMC (including
direct Contracting Owner amounts payable to third parties
pursuant to Contracting Owner contracts executed by NMC as agent
for Contracting Owner) for the Plant for the period of
, 1999 through December 31, 1999 shall be provided to
-----------
Contracting Owner following selection of Services pursuant to
Section 2.4, for its approval. No later than September 1 of any
year, NMC shall submit to Contracting Owner for its approval a
proposed budget on reimbursable charges to be incurred by NMC in
providing Services for the next year of this Agreement. In the
event that charges expected to be incurred by NMC in providing
Services hereunder are anticipated to exceed the previously
agreed upon NMC Budget, NMC shall notify Contracting Owner of the
anticipated excess and the reason for the excess, and obtain
written approval of Contracting Owner of the addition to the NMC
Budget prior to incurring charges in excess of the applicable NMC
Budget. NMC shall provide monthly budget variance reports.
3.3 Plant Budget. The portions of the existing 1999
------------
budget for capital costs and costs of operation of the Plant that
has been approved by the Contracting Owner, and are necessary for
preparation of NMC Budgets, will be provided to NMC following
selection of Services pursuant to Section 2.4. These portions of
the Plant budget shall be used by NMC to develop NMC Budgets for
services pursuant to Section 2.4. For any subsequent Owner
budget years during the term of this Agreement, portions of
annual Plant budgets necessary for preparation of NMC Budgets,
will be submitted by Contracting Owner to NMC for its comments by
no later than July_1, and the final Plant budget will be adopted
thereafter by the Contracting Owner in its sole discretion. This
budget will be used by NMC to develop future NMC Budgets. The
parties recognize that adjustments may be made by the Contracting
Owner to previously approved Plant budgets from time to time
during any contract year to reflect changes and unforeseen
circumstances. Such changes will not be deemed to authorize a
change in NMC Budgets without obtaining the prior written
approval of Contracting Owner pursuant to Section 3.2
3.4 Invoicing and Payment. Unless other invoicing
---------------------
intervals are agreed upon in writing by the parties, NMC will
prepare and submit to Contracting Owner monthly invoices by the
last day of a month for reimbursable charges within the NMC
Budget incurred by NMC during the preceding month subject to the
limitations in Section 3.1, and each invoice shall be itemized
and shall be supported by documentation as Contracting Owner may
reasonably require. Payments shall be made by Contracting Owner
to NMC within twenty (20) days after receipt of any properly
rendered invoice. If Contracting Owner disputes any amount shown
on said invoice, it shall nevertheless pay such amount, subject
to refund with interest, and the parties shall promptly seek to
resolve the disputed amount. Any dispute regarding an invoice
must be raised within one year after the due date of such invoice
or shall be waived.
3.5 Audit Rights. NMC shall keep records and books of
------------
account supporting reimbursable charges invoiced pursuant to
Section 3.4. NMC will make such books and records available for
inspection by Contracting Owner so as to enable Contracting Owner
to verify the accuracy of charges at reasonable and mutually
agreeable times during the term of this Agreement and for a
period of three years from termination or expiration of this
Agreement or such longer term as may be required by NRC rules.
NMC shall make its records and books of account related to this
Agreement available to applicable regulatory authorities to the
extent required by law.
ARTICLE 4
General Responsibilities of Contracting Owner
---------------------------------------------
4.1 Applicable Contracting Owner Policies.
-------------------------------------
Contracting Owner agrees that NMC's obligations hereunder are
conditioned upon Contracting Owner providing NMC with its
Applicable Contracting Owner Policies as are proposed to be
applicable to the NMC and/or NMC Service Personnel for review.
NMC may propose changes to Applicable Contracting Owner Policies
if deemed necessary. If both parties agree in writing to changes
of Applicable Contracting Owner Policies, Contracting Owner
agrees to take all action as may be required to adopt any new or
revised Applicable Contracting Owner Policies as agreed upon by
the parties and as may be necessary or appropriate to describe
the specific duties and limited authority of the NMC and to
provide NMC with Plant information as necessary and appropriate
to enable it to perform its responsibilities and duties. NMC
shall be entitled to rely upon such corporate and Plant
information provided by Contracting Owner.
4.2 Delegation of Procurement Authority. Subject to
-----------------------------------
the restrictions set forth in Sections 2.7, 2.8 and 3.2,
Contracting Owner shall take such further actions as may be
necessary to delegate authority to NMC, as agent, to procure
certain materials, equipment or supplies for the Plant that
become Contracting Owner's property and acquire third party
services for the efficient and safe management and operation of
the Plant and to notify suppliers and contractors of such agency
delegation. All contracts or orders for such goods or services
shall clearly identify Contracting Owner as the principal party
and must be approved in accordance with all Applicable
Contracting Owner Policies, including, without limitation,
procurement policies and procedures.
4.3 Plant Costs. Contracting Owner shall remain
-----------
solely responsible for all costs of capital improvements and
additions at the Plant and all costs of operating the Plant, as
well as any fines, penalties, or other liabilities arising out of
Plant operations, whether based on negligence, breach of
warranty, tort, strict liability, or otherwise. Neither NMC, its
officers or employees, nor any of its Members nor NMC Service
Personnel shall incur any liability for Plant costs or debts or
other obligations of Contracting Owner or arising from Plant
operations.
4.4 Contracting Owner and Operator. Contracting Owner
------------------------------
at all times during the term of this Agreement shall remain the
licensed owner of the Plant, shall retain ultimate control over
Plant operations, shall hold the Plant Operating License, and
shall be entitled to all of the capacity and energy from the
Plant. Contracting Owner shall retain exclusive authority, and
NMC shall have no authority, to sell or otherwise dispose of
capacity and energy from the Plant.
4.5 Access. Contracting Owner agrees that, subject to
------
nondisclosure restrictions as may be imposed by preexisting
contracts and applicable legal requirements, it will provide NMC
with access to the Plant, its personnel, its books, records,
studies, reports, contracts, data and other information relating
to the Plant. NMC agrees that all such information to which it
is provided access during the course of this Agreement shall
remain the property of Contracting Owner and shall not be
disclosed to third parties except as permitted by Section 11.3 of
this Agreement.
4.6 Duty to Provide Resources to NMC.
--------------------------------
(a) Commitment. Contracting Owner shall make
----------
available to the NMC such resources as are reasonably necessary
for NMC to provide Basic Services to participating Owners.
Personnel resources shall be provided either through employee
leases, direct employee charges, transfer of employees to NMC or
a combination thereof. Other resources to be made available
include, but are not limited to, office space, vehicles,
furniture, equipment, informational systems and computer time.
Resources made available by Contracting Owner pursuant to this
Agreement must remain available to NMC for a sufficient period of
time to allow the NMC to efficiently provide to any or all of the
participating Owners the Basic Services. If defective or
inadequate resources are provided by Contracting Owner on a
recurring basis, such action shall be deemed to constitute a
failure to provide resources pursuant to this Section 4.6 and
shall constitute a material breach under Section 5.5(b).
(b) Termination of Duty. In the event of
-------------------
termination of this Agreement under Article 5 prior to the end of
the term, the Parties agree that the notice period set forth in
Section 5.3 is sufficient to fulfill Contracting Owner's
obligations under Section 4.6(a). However, if NMC terminates
this Agreement pursuant to Section 5.5 as a result of Contracting
Owner's breach, Contracting Owner shall nonetheless be required
to make resources available to NMC for the longer of a period of
180 days following such termination or until the end of the
calendar year. This obligation relating to a Contracting Owner's
breach under Section 5.5 shall survive termination of this
Agreement.
(c) Preemption. Nothing is this Section 4.6
----------
shall require any Contracting Owner to commit resources to the
NMC if such action would, in the sole judgment of Contracting
Owner, jeopardize the safety, reliability or integrity of
Contracting Owner's Plant or cause Contracting Owner to be out of
compliance with any regulatory requirement applicable to
Contracting Owner's Plant. This Section 4.6 shall not be
construed so as to impact or impair Contracting Owner's
contractual rights or obligations to persons which are not
participating Owners for provision of any of the services offered
by NMC, if such contract was entered into prior to this
Agreement. Such preexisting contracts are identified on Exhibit
C.
(d) Reimbursement for Resources. Contracting
---------------------------
Owner shall be reimbursed by NMC for resources provided pursuant
to Section 4.6(a) at the lower of Contracting Owner's Cost or
Market Price. The determination and allocation of Cost,
invoicing and payments shall be made substantially as provided in
Sections 3.1 and 3.4 and subject to Section 3.5.
(e) Pre-existing Contracts. This Section 4.6
----------------------
shall not be construed so as to impact or impair Contracting
Owner's contractual rights or obligations to persons for
provision of nuclear management services also offered by the NMC
if such contract was entered prior to or within three months
after the execution date of this Agreement. Such pre-existing
contracts in place as of the date of execution of this Agreement
are identified on Exhibit C. Nor shall this Agreement limit the
ability of Contracting Owner from offering to provide nuclear
management services to non-Owner third parties prior to the time
that such service is offered to be provided by the NMC. In the
event that Contracting Owner enters agreements for such third
party services prior to such service being offered by the NMC,
such contract will be deemed to be an Exhibit C contract.
ARTICLE 5
Term and Termination
--------------------
5.1 Term. The initial term of this Agreement shall
----
commence on the later of , 1999 or the first day of
------------
the month following receipt of all necessary regulatory approvals
and shall terminate on December 31, 2000, subject to prior
termination or extension in accordance with this Article.
5.2 Renewal. The initial term of this Agreement may
-------
be extended only upon mutual written agreement of the parties
prior to expiration of the then-current term for successive
renewal periods of duration as may be agreed upon in writing by
both parties ("Renewal Terms").
5.3 Termination Without Cause. Contracting Owner may
-------------------------
terminate this Agreement with or without cause by providing NMC
with written notice of intent to terminate at the end of the
current calendar year or 180 days following the date of
notification, whichever is longer. Upon such termination,
Contracting Owner shall pay to NMC reimbursable charges and
overheads pursuant to Article 3, incurred prior to the effective
date of termination, and its share of NMC overhead costs for the
remainder of the year in which termination occurs.
5.4 Termination Because of Governmental or Judicial
-----------------------------------------------
Acts. If any term or provision of this Agreement should be
----
declared invalid or unenforceable by a court of competent
jurisdiction or by other governmental or regulatory action or
policy or if performance hereof by either party is prohibited or
substantially impaired by an order of a regulatory or
governmental body having jurisdiction, the parties agree that, to
the extent practical, they will renegotiate this Agreement in
good faith to permit this Agreement to be performed or the terms
to be implemented as close as possible to the original intent and
in a manner that will be consistent with applicable laws,
regulations, and court or regulatory agency rulings. However, if
such renegotiation is not possible or practical, or the parties
cannot reach agreement on the terms of the revised agreement,
either party may immediately terminate this Agreement effective
upon providing written notice to the other party. Any such
termination, however, shall not relieve a party from its
obligation to pay for services provided, incurred or committed to
prior to the date of termination.
5.5 Termination For Cause. Either party may terminate
---------------------
this Agreement if the other party commits a "material breach" of
its obligations under this Agreement, provided that the
terminating party must first provide written notice of the
"material breach" as defined herein and must allow the other
party at least 30 days to cure or provide a remedy for any such
"material breach." If after the applicable cure period, the
"material breach" has not been remedied or if the parties agree
in writing that a longer period of time is to be allowed to
remedy such "material breach," then if it is not corrected within
such reasonable time as may be agreed upon by the parties, this
Agreement may be terminated immediately by written notice of
termination. For purposes of this paragraph, the term "material
breach" shall mean the following:
(a) the failure of either party to make any
payment required to be made in accordance with the terms hereof;
or
(b) the failure of either party to perform, keep
or fulfill any other material undertakings, obligations or
conditions set forth in this Agreement, including without
limitation, the obligations by Contract Owner to take Basic
Services exclusively from NMC pursuant to Section 2.3 and to
provide resources to NMC pursuant to Section 4.6, and the
obligations of the parties regarding compliance with Applicable
Owner Policies, record-keeping requirements, insurance and
indemnification requirements, confidentiality requirements and
warranties.
5.6 Mutual Agreement. This Agreement shall be
----------------
terminated at any time and for any reason if mutually agreed upon
in writing by duly authorized representatives of both parties.
5.7 Limitation on Remedies for Breach.
---------------------------------
(a) Contracting Owners Material Breach. NMC's
----------------------------------
sole and exclusive remedy against Owner for material breach of
this Agreement as defined in Section 5.5 are:
(i) for breach of Contracting Owner's
payment obligations: the ability to sue to collect amounts owed
under the terms of the Agreement plus reasonable interest;
(ii) for breach of Contracting Owner's
obligations to provide resources pursuant to Section 4.6: the
ability to recover expenses in excess of Contracting Owner's cost
of providing resources reasonably incurred to provide Services to
Owners under then existing NMC contracts for the longer of a
period not to exceed 180 days and until the end of the year in
which the breach occurred.;
(iii) for Contracting Owner's failure to take
Services exclusively from NMC pursuant to Section 2.3, or any
other material breach by Contracting Owner: the right to
terminate this Agreement and recover amounts which Contracting
Owner would have been liable for upon termination under Section
5.3.
(b) NMC's Breach. Contracting Owner's sole and
------------
exclusive remedy against NMC for its material breach of this
Agreement as defined in Section 5.5 is to terminate this
Agreement, however for breach by NMC of its obligation to pay
Contracting Owner for resources provided, Contracting Owner may
recovery such amounts with interest.
5.8 Limitation of Contracting Owner's Liability. NMC
-------------------------------------------
expressly agrees that Contracting Owner shall not be liable to
NMC for any monetary damages arising out of the performance of
this Agreement, except as expressly described in Section 5.7 and
that Contracting Owner shall not be liable for any indirect,
special or consequential damages, economic losses or lost profits
even if Contracting Owner has been notified of the possibility of
such damages or losses and regardless of whether such damages or
losses are based upon Contracting Owner's negligence, breach of
warranty, breach of contract, tort, strict liability or any other
legal theory.
5.9 Transition. Prior to termination for any reason,
----------
the parties shall work in good faith to insure a satisfactory
transfer of responsibility and work in process and obtaining
approval from any regulatory agency or judicial or governmental
body if required for such transfer.
ARTICLE 6
Force Majeure
-------------
Without limiting rights of termination pursuant to
Section 5.3 and Section 5.4 above, either party shall be excused
from any failure or delay in performing its obligations under
this Agreement, except for delay in payment of compensation owed
for Services previously performed or resources previously
provided pursuant to this Agreement, where the delay or failure
is caused by an event beyond the affected party's reasonable
control, including but not limited to events such as inability to
obtain any necessary regulatory approvals, accidents, explosions,
acts of God, and acts of any governmental body mandating the
termination or delay of performance of this Agreement.
ARTICLE 7
Insurance and Nuclear Liability Protection
------------------------------------------
7.1 NMC Coverage. NMC shall provide and maintain in
------------
full force and effect, the following insurance coverages, or its
equivalent satisfactory to Contracting Owner, with minimum limits
as indicated, (which may also be revised to reasonable amounts
consistent with similar industry practice at the Contracting
Owner's discretion from time to time) at all times during the
term of this Agreement, and beyond, as required.
(a) NMC shall maintain worker's compensation and
employer's liability insurance as required by appropriate State
Law.
(b) NMC shall maintain commercial general
liability (CGL) insurance (or its equivalent satisfactory to
Contracting Owner) and, if necessary, commercial umbrella or
excess insurance with a total limit of not less than $2,000,000
each occurrence. Contracting Owner shall be included as an
additional insured under the CGL insurance.
(c) NMC shall maintain automobile liability
insurance (or its equivalent satisfactory to Contracting Owner)
and, if necessary, commercial umbrella or excess liability
insurance with a combined single limit (or equivalent) of not
less than $2,000,000 each accident. Contracting Owner shall be
included as an additional insured.
(d) NMC waives all rights against Contracting
Owner and its agents, officers, directors, and employees for
recovery of damages to the extent these damages are covered by
any of the insurance required above.
NMC shall furnish the Contracting Owner with duly
executed Certificates of Insurance certifying that such insurance
has been provided and that the insurance companies will give the
Contracting Owner thirty (30) days prior written notice of any
material change in, or cancellation of, such insurance coverage.
Such certificate shall also specify the dates when such insurance
commences and expires. Certificates should be delivered to the
Contracting Owner's contract manager.
The NMC agrees that such insurance shall be maintained
throughout the entire term of this Agreement.
7.2 Nuclear Protection. At no cost to NMC,
------------------
Contracting Owner will maintain or cause to be maintained nuclear
liability financial protection and property damage insurance in
forms and amounts required by the NRC or other regulatory bodies.
Such insurance shall expressly exclude subrogation of claims
arising out of a nuclear incident as defined in Section 170 of
the Atomic Energy Act of 1954 as amended. Contracting Owner
further hereby waives rights of recovery, including any right to
which another may be subrogated, for loss or damage to property
at the Plant as is or may be insured under its property damage
insurance policies arising directly or indirectly out of Services
provided pursuant to this Agreement.
NMC shall promptly inform Contracting Owner in writing
of every employee's workers compensation or tort liability claim
for bodily injury allegedly caused by a nuclear energy hazard
arising out of the nuclear facility, or in the course of
transporting nuclear material to or from the nuclear facility.
NMC's written notice shall provide:
1. Name and address of claimant;
2. Time and place of alleged exposure to nuclear
energy hazard, if known; and
3. Description of alleged bodily injury.
The notice shall be provided to the Risk Management
Department at Contracting Owner's principal offices.
ARTICLE 8
Limitations on Liability; Indemnification
-----------------------------------------
8.1 Exclusive Warranties and Remedies. NMC shall
---------------------------------
provide well qualified and experienced personnel to perform
Services pursuant to this Agreement. Names and backgrounds of
personnel providing Services shall be provided to Contracting
Owner upon request. All Services provided by NMC hereunder shall
be performed in a professional and competent manner. If any
Services provided by NMC to Contracting Owner fail to conform to
this standard, NMC shall, at the option of Contracting Owner,
either correct or reperform such deficient services at
Contracting Owner's sole cost, and such reperformance or
correction shall be the sole and exclusive remedy available to
Contracting Owner hereunder for defective Services, regardless of
whether any claims are based on negligence, breach of warranty,
tort, strict liability or any other legal theory.
8.2 Waiver and Disclaimer of Damages. Contracting
--------------------------------
Owner expressly agrees and acknowledges that NMC, its member
companies, NMC Service Personnel, and any officers, directors or
employees of NMC shall not be liable to Owner for any monetary
damages arising out of the performance of this Agreement,
including direct, indirect, special or consequential damages,
economic losses or lost profits even if NMC has been notified of
the possibility of such damages or losses and regardless of
whether such damages or losses are based upon NMC's negligence,
breach of warranty, tort, strict liability or any other legal
theory, except as provided in Section 5.7(b).
8.3 Indemnity. Contracting Owner hereby agrees to
---------
indemnify and hold harmless NMC, its Members, NMC Service
Personnel, and any officers, directors, employees and agents of
NMC and its Members from any and all expenses, losses,
liabilities or damages of any kind whatsoever, and regardless of
whether based upon NMC's negligence, breach of warranty, breach
of contract, tort, strict liability or any other legal theory in
connection with or related to any claim brought by any third
party in connection with Services provided by or through NMC
pursuant to this Agreement; provided, however, that the indemnity
obligation of Contracting Owner shall not apply to:
(a) any failure of NMC to make appropriate
federal and state employment tax withholding and contributions as
may be required; or
(b) any claims for personal injuries suffered by
NMC Service Personnel to the extent such personal injuries are
covered by the proceeds of the Workers' Compensation Policy
required to be maintained by NMC; or
(c) any other claims to the extent covered by
insurance proceeds of either party.
8.4 Survival. The provisions of this Article 8 shall
--------
specifically survive the expiration or termination of this
Agreement for any reason.
8.5 Disclaimer of Warranties. EXCEPT AS PROVIDED IN
------------------------
SECTION 8.1 ABOVE, NO WARRANTIES OF ANY KIND, WHETHER STATUTORY,
WRITTEN, ORAL OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE SHALL
APPLY TO SERVICES PERFORMED HEREUNDER.
ARTICLE 9
Compliance with Laws, Regulations and Site Requirements
-------------------------------------------------------
9.1 General. Both parties shall observe and comply
-------
with all applicable Plant health, safety and security rules,
programs or procedures and shall abide by all applicable laws,
federal, state and local and the rules and regulations of any
lawful regulatory body in connection with Services provided
pursuant to this Agreement.
9.2 Energy Reorganization Act. Without limiting the
-------------------------
generality of Section 9.1 above, both parties specifically agree
to comply with Section 211 of the Energy Reorganization Act of
1974, as amended (the "Act"), that prohibits NRC licensees and
their contractors and subcontractors from discharging or
otherwise discriminating against any employee engaging in
protected activities described in the Act. If either party's
employees, agents, subcontractors or suppliers makes any
allegations or files a complaint with the Department of Labor
pursuant to the provisions of Section 211 of the Act and if such
allegation or complaint is made either directly or indirectly in
connection with Services performed pursuant to this Agreement,
then the party first obtaining knowledge or receiving notice of
such allegation or complaint shall promptly notify the other
party of the complaint and the parties shall keep each other
advised as to all significant developments regarding such
allegation or complaint. Both parties further agree that neither
party will enter into any agreement affecting compensation,
terms, conditions and privileges of employment, including any
agreement to settle any claim, allegation or complaint filed by
an employee with the Department of Labor pursuant to Section 211
of the Act that contains any provisions prohibiting or otherwise
discouraging an employee from providing the NRC with information
on hazardous conditions, potential violations or any other
matters within the NRC's regulatory responsibilities.
ARTICLE 10
Representations and Warranties
------------------------------
10.1 Representations of NMC. NMC hereby represents and
----------------------
warrants to Owner as follows:
(a) NMC is a limited liability company, duly
organized under the laws of the State of Wisconsin.
(b) NMC has taken all action necessary to enter
into this Agreement and to perform its obligations hereunder.
(c) This Agreement has been duly authorized,
executed and delivered and constitutes the valid and binding
obligation of NMC, enforceable against NMC in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, moratorium and other similar laws affecting the
rights of creditors generally and as may be set forth on Exhibit
hereto.
---
(d) The execution and delivery of this Agreement
and the performance by NMC of its obligations hereunder will not
violate any contract to which NMC or any of its affiliated
companies is a party, or any law, order, judgment or decree of
any federal, state or local court, or require any regulatory
approval, except as set forth on Exhibit hereto.
---
(e) Except as may be set forth on Exhibit
----
hereto, there are no actions, suits, or proceedings pending or
threatened against NMC before any federal, state, local or other
governmental department, regulatory agency or judicial body that
would, if decided adversely have a material adverse affect on
NMC, its business or its ability to perform this Agreement.
10.2 Representations of Contracting Owner. Contracting
------------------------------------
Owner represents and warrants to NMC as follows:
(a) Contracting Owner is a corporate body, duly
organized and existing under the laws of the State of Wisconsin.
(b) Contracting Owner has taken all official
action necessary to enter into this Agreement, to perform its
obligations hereunder and to consummate the transactions
contemplated by this Agreement.
(c) This Agreement has been duly executed and
delivered by Contracting Owner and constitutes the valid and
binding obligation of Contracting Owner, enforceable against
Contracting Owner in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
moratorium and other similar laws affecting the rights of
creditors generally and as may be set forth on Exhibit
---
hereto.
(d) The execution and delivery of this Agreement,
the performance by Contracting Owner of its obligations hereunder
will not violate any contract or agreement to which Contracting
Owner or any of its affiliates is a party or any law, order,
judgment or decree of any federal, state or local court or
require any regulatory approval, except as set forth on Exhibit
hereto.
---
(e) Except as set forth on Exhibit hereto,
---
there are no actions, suits or proceedings pending or threatened
against Owner before any federal, state, municipal or any other
governmental department, regulatory agency or judicial body that
would if decided adversely have a material adverse affect on
Contracting Owner, its business or its ability to perform this
Agreement.
ARTICLE 11
Confidentiality
---------------
11.1 Nondisclosure. In order for NMC to carry out the
-------------
purposes of this Agreement, Contracting Owner may need to share
confidential and proprietary business information with NMC but
shall do so only to the extent needed to carry out the purposes
of the Agreement. For purposes of this Agreement, such
information shall be limited to plant specific cost information
related to the services which may be offered by the NMC and
procedures or operations regarding such services, as well as
information on cost or price of items to be jointly procured by
NMC on behalf of Owners. NMC shall maintain the confidentiality
of all proprietary, non-public data and information relating to
the business affairs of Contracting Owner which NMC may have
access to or receive from Contracting Owner. NMC shall treat all
data, reports and other written documents developed by NMC and
provided to Contracting Owner as part of Services pursuant to
this Agreement as the proprietary information of NMC. NMC shall
not publish or otherwise disclose to any third parties except to
its agents, attorneys or consultants who are under obligations of
confidentiality, without the prior written consent of Contracting
Owner, any of the proprietary, non-public information provided to
NMC by Contracting Owner or developed by NMC pursuant to this
Agreement. NMC shall take steps to assure that proprietary
information of Contracting Owner is reviewed only by NMC Service
Personnel with a need to see such information to carry out these
duties described herein.
11.2 Notification. The parties further agree to notify
------------
each other of any requests by a third party, including any
regulatory body, for the disclosure of any information to be
treated as confidential pursuant to this Article and to
reasonably cooperate with each other in attempting to preserve
the confidentiality of such information to the greatest extent
consistent with applicable court orders, laws and/or regulations.
11.3 Permitted Disclosures. Notwithstanding anything
---------------------
to the contrary herein, neither party nor the employees of either
of them shall be restricted in any way from providing (i) safety
or other information to the NRC on matters within the NRC's
regulatory responsibilities or (ii) from disclosing information
to INPO or (iii) from disclosing information to the extent
required for compliance with court orders, laws or regulatory
requirements.
ARTICLE 12
Miscellaneous
-------------
12.1 Governing Law. This Agreement shall be governed
-------------
and construed in accordance with the laws of the State of
Wisconsin.
12.2 Notices. All notices required to be given
-------
pursuant to this Agreement shall be in writing and shall be
deemed to have been delivered when delivered by hand or by
facsimile (followed by mail). Facsimile numbers, mailing
addresses and persons designated to receive notices pursuant to
this Agreement are as follows:
TO: NMC
-------------------------------
-------------------------------
-------------------------------
TO: Contracting Owner
-------------------------------
-------------------------------
-------------------------------
12.3 Amendments. No amendment, modification or waiver
----------
of any term or provision of this Agreement shall be effective
unless in writing and signed on behalf of both parties by their
authorized representatives.
12.4 Headings. Headings used in this Agreement are for
--------
convenience only and shall not be considered a part of the terms
and conditions of this Agreement.
12.5 Non-Waiver. The failure of either party to insist
----------
upon or enforce in any instance, performance by the other party
of any of the terms of this Agreement or to exercise any rights
conferred herein shall not be construed as a waiver or
relinquishment of its rights to assert or rely upon such terms or
rights on any future occasion.
12.6 Survival. Obligations of payment, indemnity and
--------
releases undertaken pursuant to this Agreement shall survive
termination or expiration of this Agreement.
12.7 Assignment. This Agreement shall not be assigned
----------
in whole or in part by either party without the prior written
consent of the other party except that this Agreement may be
assigned by Contracting Owner to a third party to whom all or
substantially all of the Plant's assets has been transferred.
12.8 Intellectual Property Rights. Any trade secrets,
----------------------------
technology, software applications or other intellectual property
developed by NMC Service Personnel on behalf of NMC in the course
of performing duties to provide Services to Owners pursuant to
this and other Services Agreements with Owners (collectively
referred to herein as "Intellectual Property") shall be owned
jointly by each of the NMC Members that have funded (directly or
indirectly) NMC operations during or prior to the development of
such Intellectual Property by NMC; provided however, that NMC
shall retain a nonexclusive license to use such Intellectual
Property at any plants at which NMC may provide Services. Any
trade secrets, technology, software applications or other
intellectual property developed by Owner prior to the effective
date of this Agreement are the Intellectual Property of Owner,
and to the extent NMC wishes to utilize such property to carry
out the Services, Owner and NMC agree to negotiate in good faith
a separate license agreement to allow for such use by the NMC.
12.9 Third Party Beneficiaries. Owners shall have the
-------------------------
rights of third party beneficiaries with respect to the
obligation of Contracting Owner to provide resources to NMC
pursuant to Section 4.6.
12.10 Arbitration. Any dispute or controversy
-----------
arising out of or relating to this Agreement shall be determined
and settled by third party arbitration and judgment upon the
award rendered by the Arbitrator(s) may be entered in any court
of competent jurisdiction. Such arbitration shall be conducted
with three arbitrators in accordance with the then effective
Commercial Arbitration Rules of the American Arbitration
Association.
12.11 Entire Agreement. This Agreement contains
----------------
the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior agreements or
understandings with respect to the subject matter hereof.
12.12 Regulatory Effectiveness. This Agreement
------------------------
shall not become effective until all required regulatory
approvals have been obtained and have been determined by
Contracting Owner to not contain any condition, limitation or
requirement which Contracting Owner, in its sole discretion deems
unsatisfactory.
IN WITNESS WHEREOF, Contracting Owner and NMC have
executed this Agreement effective as of the date first mentioned
above.
CONTRACTING OWNER
BY:__________________________________
TITLE:_______________________________
DATE:________________________________
NMC
BY:__________________________________
TITLE:_______________________________
DATE:________________________________
<PAGE>
EXHIBIT A
SERVICES
SERVICE DESCRIPTIONS
--------------------
1. Fuels Management
The following lists the major areas to be covered by the
Fuel Management Services:
. Negotiate and administer fuel commodity contracts
. Negotiate and administer fuel assembly fabrication
contracts
. Provide fuel accounting and financial planning support
. Provide coordinated fuel cycle management
. Develop and maintain common methods (where
cost-effective)
. Perform core design and safety analysis
. Provide technical support on fuels and core safety
issues
2. Procurement and Warehousing
The following lists the major areas to be covered by the
Procurement and Warehousing Services:
. Serve as procurement agent for goods and services
. Provide receipt, inspection, and return to supplier
controls
. Handle and store materials
. Provide inventory, issuance, and return to stock controls
. Provide for maintenance of materials and equipment in
stock
. Conduct inventory audits
. Provide housekeeping and maintenance of warehouse
facilities and environmental controls
3. Licensing
The following lists the major areas to be covered by
Licensing Services:
. Provide a central point of coordination for all NRC
licensing correspondence
. Coordinate/assist in contacts with industry groups such
as INPO, NEI and EPRI
. Prepare common and/or consistent responses to NRC
Generic Letters, Bulletins, Information Notices,
Requests for Additional Information, proposed
rulemaking, asset transfer, and operating license
transfer submittals, etc.
. Coordinate and assist with updates and changes to
Technical Specifications and Final Safety Analysis
Reports
4. Outage Support
The following lists the major areas to be covered by Outage
Support Services:
. Create and maintain an integrated schedule of station
activities such as major station improvements,
modifications, scheduled outages, INPO evaluations,
emergency drills, accreditation activities, regulatory
activities, etc.
. Provide planner, scheduler, and activity tracking
support to Plants in refueling and maintenance outages
. Develop consistent outage schedule profiles that
minimize risk
. Conduct site outage meetings to assure all Plant work
groups are aware of schedule status including critical
evolutions
. Conduct outage critiques and incorporate the lessons
learned into planning of future outages
5. Quality Assurance
The following lists the major areas to be covered by the
Quality Assurance Services:
. Determine the adequacy of supplier QA programs
including vendor evaluation and verification,
inspections, audits and reports
. Complete internal QA program audits required by the
NRC, prepare audit reports, identify and track
non-conforming items, and trend assessment results
. Perform inspections and audits of the fire protection
program
. Perform review of purchase orders and material receipt
inspections
. Administer the corporate and Plant QA programs
. Coordinate updates to, and consistency among, the Plant
QA Program Manuals
6. Records Management
The following lists the major areas to be covered by the
Records Management Services:
. Maintain current revisions of Plant working documents
such as operating procedures, surveillance procedures,
technical manuals ,drawings, Final Safety Analysis
Reports, Technical Specifications, etc.
. Maintain history files of completed and superceded
documents and operating records in accordance with the
record retention requirements of the Technical
Specifications and the QA Program
. Provide records access support such as library
functions, correspondence key word search, world-view
type computer access, etc.
. Develop and maintain records archival methods and
facilities such as microfilm processes, storage vaults,
records quality checks, etc.
. Perform periodic records quality and inventory checks
7. Safety Assessment and Oversight
The following lists the major areas to be covered by the
Safety Assessment and Oversight Services:
. Administer the Plant corrective action programs
(typically consisting of conditioning reporting, cause
coding, trending, and root cause analysis)
. Administer the Plant off-site review committee process
and other forms of independent assessment
. Administer, facilitate, and/or conduct Plant
self-assessments
. Provide NMC members to the off-site review committees
and assessment teams
. Provide self-assessment trending and analysis
. Develop and maintain a consistent set of Plant
performance indicators
. Provide rapid response, significant event investigation
teams
8. Security
The following lists the major areas to be covered by the
Security Services:
. Provide background investigations, clearance, and
badging services for workers needed unescorted Plant
access
. Administer the Plant Fitness For Duty programs
. Administer/provide oversight to the security force
contracts and conduct of Plant security activities
. Administer the Plant security program and maintain the
security plan, procedures, equipment and supplies
. Coordinate/conduct security force training and drills
. Identify potential security threat scenarios, develop
contingencies and implement security upgrades to meet
NRC inspection criteria and challenges
9. Training
The following lists the major areas to be covered by the
Training Services:
. Prepare and maintain program documentation and
instructor qualifications for accredited training
programs
. Maintain training facilities, classrooms, laboratories,
and simulators
. Perform upgrades to the Plant simulators and maintain
simulator fidelity
. Provide classroom, laboratory, on-the-job, and
simulator training instruction
. Maintain testing schedules, records and exam histories
. Provide General Employee Training for personnel
requiring unescorted access to the Plants
. Conduct training program self-assessments and prepare
Self-Evaluation Reports for the accredited programs
. Provide corporate required training such as
right-to-know, code of conduct, OSHA, management
development, etc.
10. Special Programs
The following lists the major areas to be covered by the
Special Programs Services that some Member Plants may
normally combine with one of the areas above:
. Probabilistic Risk Assessment
. Non-Destructive Examination
. Quality Control
<PAGE>
EXHIBIT B
PROCESS FOR COST ASSESSMENT
NMC shall utilize the following mechanism to assess
costs to Owner pursuant to this Agreement:
(a) Direct Charges for the Benefit of Contracting Owner.
---------------------------------------------------
NMC shall directly charge Contracting Owner for labor,
disbursements and third party services incurred on behalf of
Contracting Owner at NMC's Cost. This will also include labor
for administrative people at the NMC directly working on
Services.
(b) Direct Charges for the Benefit of More Than One
-----------------------------------------------
Contracting Owner.
------------------
If the NMC incurs direct charges for the benefit of
more than one Contracting Owner, the charges shall be allocated
among the Contracting Owners that benefit based upon labor
dollars incurred or other equitable basis agreed upon by the
Contracting Owners so benefiting.
(c) Indirect Charges for Common Costs.
---------------------------------
NMC will allocate most common costs, such as NMC
overhead/administrative costs not directly assigned to a Service,
through a loading on direct labor dollars charged to Contracting
Owners for services performed. Since this loading will be
estimated at the beginning of the year, it will need to be trued
up annually based on actual indirect charges for common costs
incurred and actual labor dollars charged for Services in that
year. In addition, certain NMC indirect charges for common costs
which provide benefits to support Services for more than the
current year will be allocated to owners evenly. An example of
these costs would be a computer system where costs were not
capitalized.
<PAGE>
EXHIBIT C
PREEXISTING CONTRACTS
<PAGE>
EXHIBIT D
VARIOUS EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
IF ANY
Exhibit B-2
NUCLEAR MANAGEMENT COMPANY, LLC
MASTER EMPLOYEE LEASE AGREEMENT
-------------------------------
This MASTER EMPLOYEE LEASE AGREEMENT is made and entered into
as of April ___, 1999, by ALLIANT ENERGY, INC. ("Employer") and NUCLEAR
MANAGEMENT COMPANY, LLC, a Wisconsin limited liability company ("NMC").
R E C I T A L S
WHEREAS,
A. NMC was formed for the purpose of providing services to nuclear power
generating facilities, which facilities are owned by members or affiliates of
the members of NMC.
B. For purposes of this Agreement, Employer is Alliant Energy
Inc. referred to in the Subscription Agreement entered into on February 24,
1999 between NMC and Employer (the "Subscription Agreement").
C. Workers needed by NMC to perform services contracted for by client
nuclear power generating facilities pursuant to "services agreements" entered
into between such entities (referred to as "Contracting Owners") and NMC may be
leased by NMC from Employer. The terms and conditions of the leasing arrangement
for each leased employee are set forth in this Agreement. NMC shall also enter
into identical Employee Lease Agreements with other Owners (referred to herein
as "Participating Employers"), and such Agreements shall be uniformly applied to
all Employers and leased employees by NMC.
D. Employer wishes to lease to NMC and NMC wishes to lease from
Employer, certain employees pursuant to this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants, contained herein, NMC and Employer, intending to be legally bound,
hereby agree as follows:
1. LEASE OF WORKERS.
----------------
1.1 Leased Workers. During the term and subject to the provisions
---------------
of this Agreement, Employer shall lease to NMC pursuant to this Agreement
certain of its employees, selected in consultation with NMC and reasonably
acceptable to NMC and Employer (such workers are referred to herein as the
"Leased Workers"). For all purposes of this Agreement, references to Leased
Workers with respect to any Employer shall refer only to those employees of
an Employer who have been assigned to work for NMC subject to this
Agreement.
<PAGE>
1.2 Payment and Employment Policies. Employer shall, with respect
--------------------------------
to its Leased Workers, have sole responsibility for (i) assignment of
general duties of employment, (ii) establishment and payment of all wages,
salaries and other forms of compensation, (iii) payment of all payroll,
social security and unemployment taxes, and (iv) establishing personnel
policies and employee benefit programs for Leased Workers. Employer shall
provide the same benefits to the Leased Workers as Employer provides to
other employees of Employer with similar or comparable positions. Employer
shall use its reasonable diligent efforts to ensure that the Leased Workers
perform their services solely in the best interests of NMC. [Subject to the
overall direction and control of Employer, NMC shall have the authority to
direct the Leased Workers with respect to the performance by Leased Workers
of their specific services to 984913710NMC.] It is mutually agreed by
Employer and NMC that the performance of duties by Leased Workers for
Contracting Owners is an integral component of the common business plan of
NMC and Employer.
1.3 Employment of Leased Workers. Employer shall have full
-------------------------------
responsibility and authority for decisions regarding termination of
employment and reassignment of a Leased Worker from the service of NMC. In
the event that NMC provides reasonable evidence to Employer that the
performance of a Leased Worker is unsatisfactory or NMC notifies Employer
that the services of a Leased Worker are no longer needed, then Employer
shall remove the employee from Leased Worker status. In the event NMC
requests the removal of a Leased Worker, or in the event of the
resignation, retirement or other termination of services for NMC by a
Leased Worker, such Leased Worker shall be reassigned to Employer, which
shall be responsible for taking any action with respect to such Leased
Worker's employment by Employer. Employer reserves the right to be present
and to direct employer response with respect to its Leased Employees at any
audits or inspections by governmental agencies, insurers, labor
organizations, media, or other third party.
1.4 Health, Safety, and Workplace Hazards. Employer assigns to NMC
--------------------------------------
the right of direction and control over management of safety, risk, and
hazard control at the work sites affecting its Leased Workers. Employer
shall, however, manage workers' compensation claims, claims filing, and
related procedures. NMC is responsible for submitting to Employer all
reports of accidents and injuries and other material human resource and
employee relations matters affecting Leased Workers which come to its
attention within twenty-four (24) hours after NMC becomes aware of the
occurrence. NMC shall work with Contracting Owners to minimize workplace
hazards (including not only physical hazards but also other matters of
regulatory compliance, such as workplace harassment) and to reasonably
reduce health and safety related risks and costs (including without
limitation return-to-work programs and modified duty positions).
1.5 No Contract of Employment. The assignment of a Leased Worker to
-------------------------
NMC by Employer shall not be deemed, or construed, to be an express or
implied contract of Employment between NMC and a Leased Worker or between
an Employer and a Leased Worker, nor shall such arrangement alter in any
<PAGE>
way the terms and conditions of the Leased Worker's employment by Employer,
including without limitation, Employer's employment at will policy, which
policy shall continue to apply to a Leased Worker during the period the
Leased Worker provides services to NMC, to the same extent applicable
immediately prior to such assignment of the Leased Worker to NMC.
1.6 Relationship of Parties. The relationship between Employer and
-----------------------
NMC for purposes of this Agreement shall be that of an independent
contractor and not of employment, partnership, or joint venture, and except
to the extent required to enable Employer to perform its duties hereunder,
or as otherwise provided in the Services Agreement, neither party is an
agent of the other. Leased Workers shall be employees of Employer and not
employees of NMC. By entering into this Agreement, neither party to this
Agreement is, in any way, assuming any liabilities, debts or obligations of
the other party whether now existing or hereafter created.
2. PAYMENT FOR LEASED WORKERS.
--------------------------
2.1 Payment Terms. Unless other invoicing intervals are agreed upon
-------------
in writing by the parties, on or before the fifteenth day of each calendar
month, Employer shall issue an invoice to NMC specifying the Employee
Reimbursable Amount (as defined in Section 2.2 below) for the immediately
preceding calendar month. NMC shall pay the Employee Reimbursable Amount
specified in each invoice within sixty (60)) days after receipt of such
invoice.
2.2 Employee Reimbursable Amount. The term "Employee Reimbursable
-----------------------------
Amount" for any period is an amount equal to the costs paid or expenses
accrued (as hereafter provided) by Employer during such period for the
employment by Employer of Leased Workers while in service to NMC as Leased
Workers, including, without limitation, the cost of (i) salaries, wages and
incentive, vacation, holiday, and sick pay, (ii) Employer paid social
security taxes, medicare taxes, and other payroll taxes, (iii) long-term
disability benefits, short-term disability benefits, group term life
insurance, accidental death and disability insurance, business travel
accident insurance, and group health, dental, or vision plans; provided,
however, that costs associated with any self-funded welfare benefit plan
shall be determined taking into account the Employer's overall experience
with all of its employees covered by the same plan or program, (iv) other
employee welfare benefits, fringe benefits, or perquisites, including but
not limited to benefits under any employee welfare benefit plan (as defined
in Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended), reimbursed moving expenses or relocation expenses, supplemental
unemployment compensation plan benefits, or any other fringe benefit
arrangement which does not constitute an employee benefit plan, or Employer
costs under any employment agreement not otherwise described in this
Section 2.2 which have been disclosed to NMC, (v) ad hoc severance pay to
Leased Workers whose services to NMC are terminated at the request of NMC,
which pay is attributable to service as a Leased Worker, (vi) Employer
contributions to any tax-qualified defined contribution plan on behalf of
<PAGE>
Leased Workers (other than employee pretax deferral amounts included in (i)
above, as wages) and a proportionate share of Employer paid administration
costs, (vii) Employer provided benefits under any tax-qualified defined
benefit pension plan and a proportionate share of Employer paid
administration costs, (viii) post-retirement welfare benefits, (ix) any
other government charges relating to the employment of the Leased Workers,
(x) amounts paid for the insurance coverage required under Section 7 below,
and (xi) expenses of complying with and administering any collective
bargaining agreement with respect to Leased Workers. This section is
intended to describe reimburseable costs associated with salary and
benefits of Leased Workers and does not describe all reimburseable costs
for which Employer/Contracting Owner may charge to NMC pursuant to the
terms of the Services Agreement.
2.3 Exclusions From Employee Reimbursable Amount. Notwithstanding
---------------------------------------------
the provisions of Section 2.2 above, the term Employee Reimbursable Amount
shall not include costs accrued with respect to any part of the costs
listed in Section 2.2 which are attributable to a change in the terms of
employment or employee benefit plans or practices applicable to any Leased
Worker from those in affect on the date immediately preceding the first
date on which such Leased Worker is a "Leased Worker" subject to this
Agreement, other than changes which are consistent with changes also
applied to other employees of Employer in the same or comparable positions
and/or changes required under any existing or future collective bargaining
agreement. To the extent that a Leased Worker performs services for NMC for
less than a full year, or less than all of the hours worked by that Leased
Worker during the year, the Employee Reimbursable Amount shall be adjusted
to reflect the costs paid or expenses accrued with respect to a Leased
Worker during the period and for the amount of the time the Leased Worker
provides services to NMC. NMC shall not have any liability to a Leased
Worker in respect of compensation or benefits provided by the Employer. The
sole liability of NMC under this Agreement shall be to reimburse the
Employer for the costs paid or expenses accrued by an Employer with respect
to the items listed in Section 2.2 for the period that a Leased Worker
provides services to NMC consistent with Sections 1.3(b), 2.3(d), 3.1, 3.5
and 4.6 (d) of the Services Agreement. In the event that a Leased Worker
ceases to perform services for NMC for any reason, or in the event of the
expiration or termination of this Agreement, NMC shall be responsible only
for reimbursing the Employer for the costs paid or expenses accrued in
respect of the items in Section 2.2 above through the date that a Leased
Worker ceases to provide services for NMC, the expiration or termination of
NMC or this Agreement, as the case may be.
2.4 Reimbursement Amount Issues. Sections 2.2 and 2.3 above shall
----------------------------
be interpreted consistent with the guidelines set forth in such Sections,
as modified from time to time by mutual written agreement of the parties
hereto. NMC may obtain from Employer, and Employer shall provide to NMC, on
request, whatever information NMC deems appropriate to establish the
correctness of each invoice submitted to NMC by Employer under this
Agreement. If Employer disputes any amount shown on an invoice, it shall
nevertheless pay the amount indicated, subject to refund with interest, and
the parties shall promptly seek to resolve the disputed amount.
3. MAINTENANCE OF RECORDS.
----------------------
NMC and Employer shall each have the following rights with respect
to the maintenance of records and the following rights with respect to the
inspection of the records maintained by the other:
i. NMC shall maintain accurate records of all hours worked
by each Employee in such form as Employer shall reasonably request and, at such
times as Employer shall reasonably request, NMC shall furnish such records to
Employer.
ii. All business records and information relating to the
business activities of either NMC or Employer shall, except as provided in the
NMC Operating Agreement, be the property of that party.
iii. Each of NMC and Employer shall safeguard all records
maintained by it pursuant to this Agreement for a period of six years, or if
longer, as required by applicable law.
Employer will give NMC and its counsel, auditors and
other authorized representatives reasonable access to Employer's books and
records relating to Leased Workers, including, without limitation,
correspondence, accounting records, personnel files, and legal complaints, upon
reasonable notice and during normal business hours, as NMC may, in its
reasonable discretion, determine is necessary for the performance of its duties
hereunder; provided, however, that any review of Employer's books and records
pursuant to this Section 3 shall be conducted in a manner as not to interfere
unreasonably with the conduct of the business of Employer.
4. INCORPORATION BY REFERENCE.
--------------------------
Sections 3.5, 4.5, 4.6, Article 5, Article 6, Article 7,
Article 8, Article 9, Article 11 and Article 12 of the Services Agreement are
hereby incorporated by reference and made a part 984913881hereof.
5. INSURANCE.
---------
Employer shall obtain and maintain general liability, worker's
compensation and casualty insurance, including insurance for any claims, losses,
costs and expenses incurred in connection with the injury or death of any of its
Leased Workers pursuant to this Agreement and insurance for claims, losses,
costs and expenses incurred in connection with the damage or destruction of the
property of NMC caused by a Leased Worker. Such insurance shall be for amounts
and from insurers reasonably acceptable to NMC and, in the case of liability
insurance (including automobile liability insurance), shall (to the extent
commercially reasonable) name NMC as additional named insured persons. Upon
request by NMC, Employer shall from time to time, deliver to NMC a certificate
of insurance confirming that the insurance coverage contemplated under this
Section 5 is in place.
<PAGE>
6. EMPLOYER NOT FIDUCIARY.
----------------------
Nothing set forth in this Agreement shall be deemed to constitute
Employer a fiduciary of NMC.
7. COMPLIANCE WITH EMPLOYMENT LAWS.
-------------------------------
7.1 Employer Warranty of Compliance with Employment Laws. As an
--------------------------------------------------------
inducement to NMC to enter into this Agreement, Employer represents,
warrants and covenants that Employer has complied and will continue to
comply in all material respects with all applicable federal, state and
local laws, rules, regulations and ordinances applicable to its Leased
Workers, their employment by Employer, their performance of services for
NMC to the extent that Employer has exclusive control over a matter or
supervises a Leased Worker with respect to a matter, including without
limitation, those relating to wages, hours, payment of social security,
withholding and other taxes, workers' compensation insurance, labor and
employment relations, and employment discrimination.
7.2 NMC Warranty of Compliance with Employment Laws. As an
------------------------------------------------------
inducement to Employer to enter into this Agreement, NMC represents, warrants
and covenants that NMC will comply in all material respects with all applicable
federal, state and local laws, rules, regulations and ordinances applicable to
NMC with respect to its direction or supervision of activities of the Leased
Workers and their services hereunder.
8. MISCELLANEOUS PROVISIONS.
------------------------
8.1 Change in Ownership of Employer. Employer shall give NMC prompt
-------------------------------
written notice of any material change in the management, ownership or
control of Employer.
8.2 Third Party Beneficiaries. This Agreement is solely for the
---------------------------
benefit of NMC and Employer and no provision of this Agreement shall be
deemed to confer upon third parties any remedy, claim, liability,
reimbursement, claim of action or other right in excess of those existing
without reference to this Agreement.
8.3 Additional Documents. Each of Employer and NMC shall, at any
---------------------
time after the execution of this Agreement, sign, execute and deliver all
such documents and instruments and do or cause to be done all such
other acts or things as may be necessary to carry out the intent and
provisions of this Agreement.
8.4 Counterparts. This Agreement may be executed in counterparts,
------------
each of which shall be deemed an original, but all of which together
shall constitute one (1) and the same document.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
NUCLEAR MANAGEMENT COMPANY, LLC
By
-----------------------------------------
Its
----------------------------------------
EMPLOYER
By
-----------------------------------------
Its
----------------------------------------
EXHIBIT H
FORM OF NOTICE OF PROPOSED TRANSACTIONS
SECURITIES AND EXCHANGE COMMISSION
(Release No. 35- ; 70- )
------- -------
Filings Under the Public Utility Holding Company Act of 1935 ("Act").
Interstate Energy Corporation ("IEC"), et al.
April , 1999
--
Notice is hereby given that the following filing(s) has/have been made with
the Securities and Exchange Commission (the "Commission") pursuant to provisions
of the Act and rules promulgated thereunder. All interested persons are referred
to the application(s) and/or declaration(s) for complete statements of the
proposed transaction(s) summarized below. The application(s) and/or
declaration(s) and any amendments thereto is/are available for public inspection
through the Commission's Office of Public Reference.
Interested persons wishing to comment or request a hearing on the
application(s) and/or declaration(s) should submit their views in writing by
, 1999 to the Secretary, Securities and Exchange Commission,
- ----------
Washington, D.C. 20549, and serve a copy on the relevant applicant(s) and/or
declarant(s) at the address(es) specified below. Proof of service (by affidavit
or, in case of an attorney at law, by certificate) should be filed with the
request. Any request for hearing shall identify specifically the issues of fact
or law that are disputed. A person who so requests will be notified of any
hearing, if ordered, and will receive a copy of any notice or order issued in
the matter. After said date, the application(s) and/or declaration(s), as filed
or as amended, may be granted and/or permitted to become effective.
* * * * *
IEC, 222 West Washington Avenue, Madison, Wisconsin, 53703-0192, a
registered holding company under the Act, and its wholly-owned public utility
subsidiary, IES Utilities Inc. ("IES"), Alliant Tower, Cedar Rapids, Iowa 52401,
have filed an application or declaration under sections 6(a), 7, 9(a), 10, 12(b)
and 13(b) of the Act and rules 54, 86 through 91, inclusive, 93 and 94
thereunder.
In addition to IES, IEC's public utility subsidiaries are Wisconsin Power &
Light Company ("WP&L"), South Beloit Water, Gas and Electric Company and
Interstate Power Company. IEC indirectly owns undivided interests in two nuclear
power facilities, the Kewaunee Nuclear Power Plant ("KNPP"), and the Duane
Arnold Energy Center ("DAEC"). KNPP is operated by Wisconsin Public Service
Corporation ("WPSC"), a subsidiary of WPS Resources Corporation ("WPS
Resources"), and is jointly owned by WPSC (41.2%), WP&L (41.0%) and Madison Gas
& Electric Company (17.8%). DAEC is operated by IES, which has a 70% ownership
interest in the facility. The remaining 30% is owned by two generation and
transmission cooperatives.
IEC requests approval to acquire all of the voting securities of a new
subsidiary to be organized under Wisconsin law (herein referred to as "Alliant
Nuclear"). Through Alliant Nuclear, IEC proposes to acquire a 25% membership
interest in Nuclear Management Company, LLC, a Wisconsin limited liability
company ("NMC"), that has been organized for the purpose of consolidating into
one organization specialized employees of IES and certain other unaffiliated
nuclear plant owners in order to make available to each such plant owners more
resources than if such plants were independently managed. Initially, NMC will
render services to the NMC Plant Owners, as defined below, and, subsequently, to
Nonaffiliated Companies, as defined below.
Currently, the members of NMC are WEC Nuclear Corp., a subsidiary of
Wisconsin Energy Corporation ("WECN"), WPS Nuclear Corporation, a subsidiary of
WPS Resources and an affiliate of WPSC ("WPSN"), and Northern States Power
Company ("NSP"). Alliant Nuclear proposes to become a 25% member of NMC upon
approval of the Commission. Further, as more fully described below, IES proposes
to enter into and certain agreements with NMC pursuant to which IES would make
available to NMC specialized personnel and, in turn, would purchase from NMC
specified categories of services.
The current members of NMC and IES (hereinafter referred to, collectively,
as the "NMC Plant Owners") collectively own interests in and operate seven
nuclear generating units at five locations. NSP owns and operates the Prairie
Island Units 1 and 2, and the Monticello generating station. Wisconsin Energy
Corporation owns and operates two units at the Point Beach nuclear generating
station. These five units, together with the single unit DAEC and KNPP, are
hereinafter referred to collectively as the "NMC Plants."
NMC will be managed by a Board of Directors, with each member having equal
representation on the Board and will be capitalized through contributions from
each of its members, as provided for in the NMC Limited Liability Company
Operating Agreement (the "Operating Agreement"). It is intended that the capital
contributions of the members will be equal. Under the terms of the Operating
Agreement, the profits and losses of NMC will be allocated to the members in
accordance with their percentage interests, and additional capital contributed
pursuant to a capital call would be on the same basis. The rate on return on
NMC's equity capital deployed to serve the NMC Plants will not exceed the
average of the most recent rates of return allowed by the public service
commissions that regulate the NMC members, i.e., the Iowa Utilities Board, the
Minnesota Public Service Commission and the Public Service Commission of
Wisconsin. The Operating Agreement contemplates the admission of other utilities
as members.
IES's commitments to purchase services from and provide personnel and
resources to NMC are set forth in a Services Agreement (the "Services
Agreement") and Employee Lease Agreement (the "Lease Agreement") (collectively,
the "Agreements"). The Services Agreement and Lease Agreement between NMC and
IES will be substantially identical to those between NMC and WPSN, WECN and NPS.
The Services Agreement lists various categories of support services to be
provided on an integrated basis by NMC. Initially, these services will include:
fuel management; procurement and warehousing; licensing; outage support; quality
assurance; records management; safety assessment and oversight; security;
training and special projects. Other services may be provided in the future.
The Services Agreement allows for a period of time for Service Development
Teams ("SDTs") to further evaluate each of these services to determine if they
are compatible for joint provision through the integration of a particular
service. Once SDTs have recommended that a service can be integrated, then an
implementation plan for transitioning this service to NMC will be developed. The
transition plan will require development of a service specific budget for
providing the service. NMC Plant Owners will be obligated to make good faith
efforts to take the service from NMC. Even when the SDTs agree that a service
can effectively be delivered by NMC, IES will not be obligated to take the
service if it believes that to do so would jeopardize the safety, integrity or
reliability of DAEC or compliance with government regulations. The provisions of
the Services Agreement are intended to promote as much integration among the NMC
Plants as possible while assuring that no one utility is disadvantaged by being
required to take a specific service.
NMC will provide services to the NMC Plant Owners using utility employees
dedicated to NMC pursuant to the Services Agreement. IES would retain the
discretion to withhold employees if to do so would in any way jeopardize
operations. In the near term, it is anticipated that IES employees involved in
the operation and management of DAEC will continue to devote most of their time
to those duties. As NMC develops over time, however, service delivery will
likely become more integrated among the NMC Plant Owners and IES employees will
devote more of their time to the performance of similar functions for units
other than DAEC. The Operating Agreement provides for a member utility to move
toward transferring operational control (including NRC license transfer) over a
particular unit to NMC if it believes this is the most efficient and reliable
means of operating such unit.
NMC will follow the uniform system of accounts for mutual and subsidiary
service companies as prescribed by the Commission, from time to time, in
accordance with Rule 93 under the Act. To the extent that costs incurred by NMC
can be identified to a particular NMC Plant or Plants, those costs will be
directly assigned to the owner or owners of the respective NMC Plant or Plants
as appropriate. It is anticipated that NMC will directly assign substantially
all of its costs. Costs which cannot be directly assigned (e.g., NMC's general
overheads and administrative expenses) will be allocated through a loading on
direct labor dollars charged to each of the NMC Plant Owners for services
performed. Certain other common costs which provide benefits to all NMC Plant
Owners will be allocated ratably to each of the owners. NMC will file Annual
Reports on Form U-13-60 to comply with periodic reporting requirements of Rule
94 under the Act.
All services furnished by NMC to the NMC Plant Owners will be at cost,
fairly and equitably allocated. The costs of NMC to be taken into account will
include all costs of doing business, including reasonable compensation for
necessary capital as permitted by Rule 91 under the Act. NMC will submit monthly
statements to each NMC Plant Owner for the services rendered during the previous
month. NMC will draw upon reserve accounts established from funds advanced by
the members to pay for monthly costs it incurs. In the case of services rendered
by NMC to DAEC and KNPP, which were jointly owned with other utilities, such
costs will be determined and allocated among the owners thereof in proportion to
their respective ownership interests in such plants in the manner provided in
the participation and operating agreements among the owners of those plants.
Subject to the availability of resources and its commitments to the NMC
Plant Owners, NMC may also from time to time offer similar services to
nonaffiliated companies ("Nonaffiliated Companies"). Any services which may be
rendered by NMC to Nonaffiliated Companies will be effected pursuant to service
or operating agreements which provide for billing at negotiated rates. Profits
derived from rendering services to Nonaffiliated Companies will be credited to
accounts 458-1 through 458-4 and applied to reduce NMC's overall cost of
service.
NMC Plant Owners will be committed under the Services Agreement to make
available to NMC such resources as are reasonably necessary to enable NMC to
provide the basic services described above. Personnel resources may be provided
by employee leases (see description below), direct employee charges to NMC or
transfer of employees to NMC. Other resources made available to NMC may include
office space, vehicles, furniture, equipment, informational systems and computer
time. NMC is obligated under the Services Agreement to reimburse the NMC Plant
Owner providing services or other resources at the lower of such company's cost
or market price, where "market price" is defined as the generally prevailing
price for similar services or resources in the region served by NMC. IES
requests an exemption from the cost standards of Section 13(b) and Rules 90
through 92 as applied to such transactions pursuant to the last sentence of
Section 13(b).
The Lease Agreement sets forth the terms and conditions under which each of
the NMC Plant Owners will make its employees available to NMC. The Lease
Agreement confirms that each NMC Plant Owner shall retain direction and control
of its employees and that such employees shall continue to be employed by the
respective NMC Plant Owner, not NMC. The Lease Agreement enumerates all
employee-related expenses which would be included in the determination of a
fully loaded, fully allocated cost and incorporates various terms from the
Services Agreement so as to coordinate the Lease Agreement with the Services
Agreement.
* * * * *
For the Commission, by the Division of Investment Management, pursuant to
delegated authority.
Jonathan G. Katz
Secretary
