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HomeMy WebLinkAbout04-29-1982 Regular Meeting371 STATE OF ALABAMA COUNTY OF BALDWIN The City Council, City of Fairhope, met in regular session at 5:30 p.m. City Administration Building, 387 Fairhope Avenue, Fairhope, Alabama 36532 on Thursday, 29 April 1982. The Council postponed its regular session scheduled for Monday, April 26, 1982, to this date due to the absence of all members(attending the annual League of Municipalities convention) on the regular date. Present were Mayor James P. Nix; Councilmembers C.O. McCawley Trisha Nelson, and David Ed Bishop; City Attorney Jim Reid and City Clerk Evelyn Phillips. Councilmam Roy C. White and Sam E. Box were both absent. All unanimous votes here recorded include a vote by the Mayor. Minutes of the 12 April regular session and the 22 April special session were duly approved. The following bids on a riding Lawn Mower, to be purchased by the Water & Sewer Department, were opened: Tieco, Inc. Pensacola Diesel 8,430.00 Gasoline - Gulf Shores Turf 9,588.47 8,967.00 Pensacola Shoreline Turf 9,379.50 7,782.00 Milton, Fla. Councilman Bishop moved to accept the low bid, provided all specifications are met. Seconded by Councilwoman Nelson, motion passed unanimously. Councilman McCawley introduced, and moved for the adoption of, the following Resolution, prepared by Councilman White. Seconded by Councilwoman Nelson, motion passed unanimously: Resolution No. 34-82 WHEREAS, the City of Fairhope has embarked on the construction of a Civic Center to better serve the needs of the community and environs; and WHEREAS, certain individuals and organizations have expressed, a desire to place certain furnishirgs or equipment in the facility as memorials or honorariums: and WHEREAS, the City recognizes the benefit for its citizens in receiving such gifts; and WHEREAS, the City shall identify all such gifts and the giver by the placement of an adequate plaque, and to indicate the names of those remembered unless instructed not to do so by the giver; 4/29/82 372 THEN THEREFORE IT IS RESOLVED by the City Council of the City of Fairhope that, by adopting this Resolution, the City promises to receive on behalf of the citizens of Fairhope gifts from all per- sons, organizations, clubs, associations and others who are desirous of giving such gifts provided that such gifts meet the need and scheme of record and are given in the time frame that permits complete util- ization of such gifts. ADOPTED THIS 29thday of April , 1982. Q - City Cl k Mayor Nix proclaimed May 9th through 15th, 1982, as Municipal Clerks Week. The Mayor and Council congratulated City Clerk Evelyn Phillips on her achievement of the designation "Certified Municipal Clerk". Mrs. Phillips expressed her appreciation for the support and encouragement of the Mayor and Council and also expressed a special thank you to her staff of assistants at City Hall. The Recreation Board presented a request to Council from Ms. Susan Smith for the use of the Municipal Pier Oval and the south end of the beach by the Olympic Sports and Performing Arts Center for one day, June 5th, from 7:00 a.m. to 7:00 p.m. The Center wants to present a fund-raising exhibition. Councilman Bishop moved to approve this request. Seconded by Councilwoman Nelson, motion passed unanimously. Councilwoman Nelson, other Councilpersons and the audience expressed Congratulations and said how proud we are that Mayor Nix was elected President of the Alabama League of Municipalities during the recent League Convention, April 24-27. A reception honoring the Mayor is planned for May 7th, hosted by the Fairhope Business & Professional Women's Club, to which the public will be cordially invited. Mr. Thad Ingram, Moore Engineering Company, advised Council that a final inspection was scheduled for the following day on the recently completed $2,192,000 Waterline(FHA) Project and that Phase B had been approved and advertisements for bids within the next 2 or 3 weeks were being prepared. The CEIP Grant -South Section Street project was also complete and a final inspection has been requested. BULK POWER SUPPLY SERVICES AGREEMENT between ALABAMA MUNICIPAL ELECTRIC'AUTHORITY and CITY OF FAIRHOPE Dated as of March , 1982 OIA-- 1 (2) JgR2 BULK POWER SUPPLY SERVICES AGREEMENT between ALABAMA MUNICIPAL ELECTRIC AUTHORITY, a public corporation organized and existing under the laws of the State of Alabama, party of the first part, and the CITY OF FAIRHOPE, a municipal corpo- ration organized and existing under the laws of the State of Alabama, party of the second part, , W I T N E S S E T H: That in consideration of the respective representa- tions and agreements herein contained, the parties hereto agree as follows: _ ARTICLE I DEFINITIONS AND USE OF PHRASES Section 1.1. Definitions. The following words and phrases and others evidently inten ed as the equivalent there- of shall, in the absence of clear implication herein other- wise, be given the following respective interpretations here- in: "Act" means (a) Act No. 81-681 enacted at the 1981 Regular Ses is on of the Legislature of Alabama (codified as sections 11-50A71 through 11-50A-33 of the Code of Alabama 1975, as amended), 'and (b) all future acts of the Legislature of Alabama supplemental thereto or amendatory thereof. "Allocated Cost" means an amount determined by the Authority to be equal to that portion of the Costs of Bulk Power Supply Services which bears the same -relationship to the total Costs of Bulk Power Supply Services that the aggregate number of kilowatt hours of electric energy purchased from all sources by a Participant during the next preceding Fiscal Year bears to the total aggregate number of kilowatt hours of elec- tric energy purchased from all sources by all Participants during the next preceding Fiscal Year. "Annual Budget" means the budget adopted or in effect for a particular Fiscal Year, or portion thereof, describing in reasonable detail the Bulk Power Supply Services expected to be performed during such Fiscal Year (or portion thereof) and stating the estimated Costs of Bulk Power Supply Services in connection. therewith during such Fiscal Year (or portion thereof) and the estimated Allocated Cost of each Participant, as said Annual Budget may from time to time be amended or supplemented. "Authority" means the party of the first part hereto and its successors and assigns. "Board" means the Board of Directors of the Author- ity. "Bulk Power Su ly Plan" means a plan or plans from time to time prepared, develoFed and presented by the Au- thority to. the Participants, recommending the manner in which each Participant's future electric power requirements may be met, and containing estimates of capital and operating costs and, where appropriate, projections of comparisons with reasonably available alternative'sources of power. "Bulk Power Supply Services" means the services to be provide y the Authority to t e Participants under the Contracts and described in Section'3.1 hereof. "Contract" means the the Authority and a Member of and conditions substantially herein. agreement entered into between the Authority containing terms identical to those contained "Costs of Bulk Power Supply Services" means the costs incurred v the Aut ority in prove ing Bu Power Supply Services under the Contracts, including (without limitation) engineering, consultant and legal fees and expenses; costs of audits; costs of administrative and general overhead; costs of maintaining financial records and accounts and preparing reports required by the Contracts; the costs of reimbursing Municipal Electric Utility Association of Alabama for any moneys that may, prior to the issuance of. the Notes, have been advanced to the Authority by Municipal Electric Utility Asso- ciation of Alabama for payment of costs incurred by the Au- thority in providing Bulk Power. Supply Services to Members of the Authority prior to the execution of the Contracts; the principal -of and interest on the Notes and any other obliga- tions issued by the Authority to finance the provision -of Bulk Power Supply Services (whether or not the proceeds thereof are actually expended for such purposes), and the fees and ex- penses of fiduciaries and other items of expense incurred in connection with the issuance of any such obligations; pro- vided, however, that no such cost, fee or expense (or portions thereof) paid out of moneys derived by the Authority from the issuance of any of its obligations shall be considered a "Cost of Bulk Power Supply Services"; and provided further, that in the event the principal of or interest on any obligations issued by the Authority to finance the provision of Bulk Power Supply Services is paid by the Authority out of moneys derived from (a) such obligations (including any income earned by the Authority from the investment of the proceeds thereof) or (b) the issuance of other obligations by the Authority, the prin- cipal of or interest on the obligations so paid shall not be considered a "Cost of Bulk Power Supply Services". "Fiscal Year" means the twelve month period begin- ning on October 1 o one calendar year and ending on September MAE 30 of the next succeeding calendar year, or any other twelve month period subsequently designated by the Board as the Fis- cal Year of the Authority. "Members of the Authority" means the Cities of Alex- ander City, Dothan, Fairhope, Lafayette, Lanett, Opelika, Piedmont, and Troy, Alabama, the Electric Board of the City of Luverne, Alabama, and the Utilities Boards of the Cities of Foley, Sylacauga, and Tuskegee, Alabama.. "Municipality" means the party of the second part hereto and its successors and assigns. "Note Resolution" means the resolution duly_ adopted by the Board on Marc , 1982, a copy of which is -attached hereto as Exhibit "A", authorizing the execution and delivery of this Agreement, the borrowing of the principal sum of not exceeding $3,000,000, and the issuance of the Notes in evi- dence thereof. "Notes" means the Bulk Power Supply Services Revenue Notes of the Authority to be issued pursuant to the Note Reso- lution, bearing such rate or rates of interest, fixed or floating, as may be specified by the Authority in a resolution of the Board. "Participant" means any Member of the Authority that executes an agreement with the Authority substantially iden- tical to these presents, notice of termination of which such agreement shall not have been given by the Member of the Au- thority as provided for'under such Agreement. "Permitted Prior Lien Pledges" means pledges here- tofore or hereafter made by the Municipality of the- revenues of its System for the benefit of obligations of the Munici- pality heretofore issued and any that may be hereafter issued on a parity of lien with a pledge of revenues of the System to such outstanding obligations but only to the extent that such obligations are on the date of this agreement permitted to be so issued under -existing resolutions, ordinances or trust in- dentures respecting the borrowing of money. "Projejectt" shall have the same meaning which is as- cribed to such term in the Act. "�S stem__" means the electric distribution system of the Municipality serving consumers of electricity at retail. Section 1.2. Use of Phrases. "Herein," "hereby," " " hereunder, hereof, herein a ore, hereinafter and other equivalent words refer to this agreement as an entirety and not solely to the particular portion hereof in which any such word is used. The definitions set forth in Section 1.1 hereof include both singular and plural. Whenever used herein, any - 3 - pronoun shall be deemed to include both singular and plural and to cover all genders. ARTICLE II REPRESENTATIONS Section 2.1. Representations by the Authority. The Authority makes the following representations as the basis for the undertakings on its part herein contained: (a) The Authority is duly incorporated under the provisions of the Act by application duly filed for record in the office of the Secretary of State of Alabama and by Certi- ficate of Incorporation duly made and issued by the said Secretary of State of Alabama, and is not in default under any of the provisions contained in said Certificate of Incorpora- tion or in the laws of Alabama; (b) Neither the execution and delivery of this agreement, the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the terms and conditions hereof, conflict or will conflict with, or result or will result in a breach of, any of the terms, con- ditions or provisions of any corporate restriction or limita- tion now applicable to the Authority or any agreement, instrument or court or other governmental order to which the Authority is now a party or by which it is bound, or constitute or will constitute a default under any of the foregoing; (c) Under the provisions of the Act, the Authority has the power to enter into the transactions contemplated by this agreement and to -carry out its obligations hereunder; and (d) The execution and delivery of this agreement on its part have been duly authorized by all necessary corporate action. Section 2.2. Representations by the Municipality. The Municipality makes the tollowing representations as the basis for the undertakings on its part herein contained: (a) The Municipality is a Member of the Authority and has power to enter into, and to perform and observe the agreements and covenants on its part contained in, this agree- ment; (b) Neither the execution and delivery of this agreement, the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the terms and conditions hereof, conflict or will conflict with, or re- sult or will result in a breach of, any of the terms, condi- tions or provisions of any restriction or limitation appli- - 4 - cable to the Municipality or any agreement, instrument or court or other governmental order to which the Municipality is now a party or by which it is bound, or constitute or will, constitute a default under any of the foregoing; (c) The execution and delivery of -this agreement on its part have been duly authorized by all necessary action of its governing body; (d) The Municipality on the effective date of the Act owned, maintained and operated or caused to be owned, maintained or operated the System and presently has the legal title to and the beneficial interest- in and is lawfully pos- sessed of the System; and _ (e) The Municipality does not now have outstanding any bonds or other obligations nor do there exist any con- tracts or agreements payable from the revenues of the System (other than contracts entered into in the ordinary course of business) or any outstanding pledges of said revenues other than Permitted Prior Lien Pledges. ARTICLE III SERVICES TO BE PROVIDED Section 3.1. Bulk Power Su 1 Services. The Authority shall.provide or cause to be provided to or for the benefit of the Municipality and the other Participants the following services: (a) Bulk electric power and energy planning, in- cluding preparation and presentation of engineering, environ- mental, siting and related studies; (b) Preparation and presentation of studies, inves- tigations, and analyses of financial, legal, technical and other matters related to each Participant's bulk electric power and energy supply; (c) Preparation, development and presentation of the Bulk Power Supply Plan; (d) Subject to the provisions of Section 3.3 here- of_, the preparation and adoption of an Annual Budget and the filing thereof with each Participant; (e) Furnishing each, Participant with periodic re- ports in such detail as the Participants shall reasonably re- quest relating to the expenditures of the Authority pursuant to the Contracts and the use by the Authority of the proceeds of any borrowing or other indebtedness incurred by it, and such other reports, evaluations, plans, analyses, studies, statements, accounts, records, drawings_, specifications and - 5 - approvals and other documentation or material as shall be necessary or desirable in the provision of Bulk Power Supply Services, provided that all such documentation and material, together with any other records and data pertaining to the Authority and its operations under the Contracts, shall be kept on file at the Authority's principal office and shall be available for inspection at any reasonable time by the Municipality; (f) Preparation and presentation of studies re- specting load control applications and methodologies, and con- servation programs; and (g) Such other services as the Authority may from time to time determine to be necessary or desirable in connec- tion with the provision of Bulk Power Supply Services, specif- ically including, but without being limited to, (i) acting for Participants in connection with the financing of Projects, and (ii) negotiating purchase and other agreements with respect thereto. Section 3.2. Information to be Provided by Munici- pality. The Municipality will, a ter une I and on or a ore September 1 of each year, furnish to the Authority a projec- tion or estimate of its bulk electric power and energy re- quirements for the then ensuing Fiscal Year or such other period as the Authority may designate, and will promptly inform the Authority of any changes in such projection or estimate and any other events which could have a material effect on the Bulk Power Supply Plan. Upon request of the Municipality, the Authority will provide the Municipality with .such assistance as the Municipality may require in furnishing to the Authority such projections or estimates. In addition, the- Municipality shall provide to the Authority and to the holders of the Notes such certificates, statements, reports and information as the Authority or such holders shall reason- ably require in connection with any borrowing of moneys by the Authority or the issuance of any obligations by the Authority payable from- or secured by payments of the Municipality's Allocated Cost to be made by it under this agreement. Section 3.3. Annual Budget. Within ninety days after the commencement of the term of this agreement, the Au- thority shall adopt and file with the Municipality an Annual Budget for the remainder of the then current Fiscal Year; and, prior to the beginning of each Fiscal Year thereafter, the Authority shall adopt and file with the Municipality an Annual Budget for the then ensuing Fiscal Year. At the end of the sixth month of each Fiscal Year (except the Fiscal Year during which the term of this agreement begins), the Board shall review (or cause to be reviewed) the estimate of the Costs of Bulk Power Supply Services for such Fiscal Year as well as the estimate of the Municipality's Allocated Cost contained in the Annual Budget pertaining to such Fiscal Year, and in the event such estimates do not substantially correspond with the actual Costs of Bulk Power Supply Services incurred to date or with the Municipality's Allocated Cost (as the case may be), or if there are at any time during such Fiscal Year extraordinary payments for Bulk Power Supply Services, the Authority shall amend and file with the Municipality a revised Annual Budget for the remainder of such Fiscal Year. The Authority may at any time make any other amendment to the Annual Budget that it may deem necessary or advisable. The Authority will permit the Municipality or the duly authorized agents or attorneys thereof to examine and inspect all books, records and accounts and data of the Authority relative to the Annual Budget. Section 3.4._ Other Services. The Municipality may request the Authority to provide, in addition to the Bulk Power Supply Services, specific studies and investigations in connection with the System and to assist in presentations in connection with the Bulk Power Supply Plan before appropriate governmental bodies, but the Authority shall comply with any such request only at its option and only to the extent it may reasonably do so with available staff and other resources. The Municipality will pay to the Authority, as compensation for such additional services, such amounts as shall be agreed upon by the Authority and the Municipality prior to the ren- dering of such services. In no event shall any cost incurred by the Authority in connection with the services provided pur- suant to this -Section 3.4 be deemed a Cost of Bulk Power Supply Services, and any payment thereof by the Municipality shall be in addition to the payments of the Municipality's Allocated Cost required to be made hereunder. ARTICLE IV OBLIGATIONS OF MUNICIPALITY Section 4.1. Payment of Allocated Cost. For and in consideration of the provision by the Authority to the Munici- pality of Bulk Power Supply Services, the Municipality agrees to pay to the Authority an amount equal to the Municipality's Allocated Cost. The Authority shall from time to time, but not less often than once each Fiscal Year, bill the Munici- pality for the Allocated Cost of the Municipality theretofore paid by the Authority during the period of time covered by such bill; provided that, in order to assure the timely pay- ment of the principal of or interest on the Notes and any other obligations of the Authority issued to finance the pro- vision of Bulk Power Supply Services, the Authority may bill the Municipality for its share of such principal or interest not more than sixty (60) days prior to the date such principal or interest shall become due and payable. The Municipality shall remit payment to the Authority within thirty (30) days after receipt of the Authority's bill. In the event that the Municipality fails to pay the amount of any such bill as herein provided, the Municipality shall be obligated to pay - 7 - interest thereon the rate of 20% then permitted by from the due date per annum or the law, whichever is of such bill until paid at highest non -usurious rate less. Section 4.2. Assignment. The Authority may assign in whole or in part its interest in this Agreement and may pledge any moneys receivable hereunder (other than amounts payable under Section 3.4 hereof) as security for payment of the principal of and the interest (and premium, if any) on any obligations issued, or other instrument evidencing money borrowed, by the Authority to finance the provision of Bulk Power Supply Services, including the Notes. The Municipality hereby consents to such assignment, when as and if made, and covenants and agrees in such event to pay its Allocated Cost directly to the assignee of said interest for the account of the Authority. The obligation of the Municipality to make payments of its Allocated Cost shall not be subject to any defense (other than payment) or any right of setoff, counter- claim or recoupment arising out of any breach by the Authority of any agreement with the Municipality whether hereunder or otherwise, or out of any indebtedness or liability at any time owing to the Municipality by the Authority, and shall not be subject to any abatement, reduction, offset, defense, counter- claim or recoupment due or alleged to be due by reason of any past, present or future claim which the Municipality may have against the Authority, the holders of the Notes, or any other person for any reason whatsoever. Section 4.3. Source of Payment. The Allocated Cost of the Municipality shalT-'Fe—treated as an expense of operat- ing the System and shall be payable solely out of the revenues to be derived by the Municipality from the operation of the System for the Fiscal Year during which payment of its Allo- cated Cost becomes due as provided in Section 4.1 hereof. The obligations of the Municipality hereunder are expressly made subject to the Permitted Prior Lien Pledges. Neither the Mu- nicipality's obligation to pay its Allocated Cost nor any of the other agreements on the part of the Municipality herein contained shall constitute an indebtedness of the Municipality within the meaning of Section 225 of the Constitution of Ala- bama of 1901, as amended, or any other constitutional or stat- utory provision or limitation. Section 4.4. Limited Liability. The parties hereto recognize, acknowledge an agree that the liability of the other Participants under their respective Contracts for the payment of the Costs of Bulk Power Supply Services to the Authority is and shall be several and not joint, and that the Municipality shall therefore be obligated to pay to the Au- thority only its Allocated Cost and the other costs (if any) required 'to be paid by the Municipality pursuant to the provisions of Section 3.4 hereof. Section 4.5. Obligations of the Municipality are Unconditional. Except as provided in Section 4. 3 hereof, t e obligations of the Municipality to make all payments provided herein and to perform and observe the other covenants and agreements on its part herein contained shall be absolute and unconditional. The Municipality will not suspend or discon- tinue any payment hereunder for failure of the Authority to perform any of its covenants or agreements contained herein, or terminate this Agreement for any cause whatsoever, includ- ing, without limiting the generality of the foregoing, failure of the Authority to provide a Bulk Power Supply Plan or to perform any Bulk Power Supply Service or any other services required to be performed by it under this Agreement, or any act or_ circumstances that may constitute a failure of consid- eration or commercial frustration of purpose, or the invalid- ity of any provision of this Agreement. The provisions of this Section shall continue in force and effect until payment of the principal of and interest on all of the Notes. Section 4.6. Holders are Third Party Beneficiaries. The Authority has, -in the Note Resolution, provide or t e assignment of its rights to receive payments of Allocated Cost hereunder to the holders of the Notes and has agreed to follow the instructions of those holders in the election and pursuit of any remedies herein vested in it. The holders of the Notes shall have all rights and remedies herein accorded to the Au- thority, and the holders shall be deemed to be third party beneficiaries of the covenants, agreements and representations of the Municipality herein contained. Prior to the payment in full of the Notes or the making of other provision for their payment, the Authority and the Municipality shall have no power to modify, alter, amend or terminate this Agreement without the prior written consent of the holders of the Notes. The Authority will not amend the Note Resolution or any reso- lution supplemental thereto without the prior written consent of the Municipality. Neither the Authority nor the Municipal- ity will unreasonably withhold any consent herein or in the Note Resolution required by either of them. Section 4.7. Reimbursement of Payments of Costs of Bulk Power Supply Services. I t e Authority provides or t e permanent financing of the "Costs" (as said -term is defined in the Act) of a Project, and if. the Municipality shall execute a power sales contract relating to the use and output of such Project, the Authority shall, (a) to the extent permitted by the Act, include as a "Cost" of such Project an amount suffi- cient to provide for the reimbursement to the Municipality of the Allocated Cost theretofore paid by the Municipality, and (b) within a_reasonable period of time following completion of such permanent financing, pay to the Municipality an amount equal to the Allocated Cost theretofore paid by the Municipal- ity. ARTICLE V COVENANTS BY THE MUNICIPALITY WITH RESPECT TO THE SYSTEM Until the principal of and interest on the .Notes shall have been paid in full, or provision shall have been made for such payment, the Municipality hereby covenants and agrees as follows: (a) The Municipality will not, except to the extent of Permitted Prior Lien Pledges, mortgage, pledge or otherwise encumber the System or the revenues therefrom _or any part thereof, unless such encumbrance is junior, secondary and sub- ordinate in all respects to all obligations of the Municipal- ity set forth in this Agreement; (b) The Municipality will not sell, lease, or in any manner dispose of the System or any part thereof necessary to its continued maintenance and operation on a revenue - producing and self-liquidating basis; (c) The Municipality will at all times operate the System in an economical and efficient manner and will maintain it in first-class operating condition and will make all such improvements, replacements and repairs thereto as from time to time are necessary to keep the System in first-class operating condition; (d) The Municipality will at all times insure and keep insured with responsible insurers all of the properties of the System which are of the character usually insured by owners similarly situated in an amount equal to the full insurable value of such property, and the proceeds of all such insurance policies shall be available for and shall, to the extent necessary, be applied to the repair and replacement of the damaged property; (e) The Municipality will fix, publish and maintain such reasonable rates for services furnished by the System at such level as will produce revenues sufficient to provide for the payment of the expenses of administration and operation and such expenses for the maintenance of the System as are necessary, to preserve the same in good repair and working order, to make the payments required to be made under the pro- visions of this Agreement, and to comply with the provisions of all instruments under which Permitted Prior Lien Pledges are made; (f) The Municipality will install and maintain proper books of record and account in accordance with standard accounting practices, separate and apart from all other rec- ords and accounts of the Municipality, in which full and com- plete entries shall. be made of all dealings and transactions - 10 - of or in relation to the properties, business and affairs of the System, and will permit the Authority or its' duly autho- rized agents or attorneys to examine and inspect the System and all books, records and accounts and data of the Municipal- ity relative .to the System; (g) The Municipality will provide the Authority with a copy of each annual audit of the System and such other financial statements and data as the Authority may reasonably request; and .(h) If the amounts payable by the Municipality hereunder are not paid promptly on the due date thereof, the Municipality will pay to the Authority or to the holders of the Notes all expenses incident to the collection of any un- paid portion thereof, including a reasonable attorney's fee. ARTICLE VI MISCELLANEOUS Section 6.1. No Recourse Against Officers, Direc- tors or Employees of Authority or Municipality. No recourse under or upon any Obligation, covenant or agreement contained herein shall be had against any officer, director, or employee, past, present or future, of the Authority or the Municipality, either directly or through the Authority or the Municipality, respectively, or otherwise; and any and all personal liability of every nature, whether at law or in equity, or by constitution or by statute or otherwise, for the payment of any sum due hereunder or the performance of any obligation, . covenant or agreement hereunder, is hereby expressly waived and released as . a condition of and consideration for the execution of this agreement, it being expressly understood that the obligations provided for hereunder are solely those of the Authority and the Municipality. Section 6.2. Term of Agreement. This agreement shall be in full force and a ect beginning on the date hereof and shall continue in full force and effect until the later of (a) the date the Notes are paid in full or (b) September 30, 1992, unless sooner terminated pursuant to the provisions hereof. This Agreement may be terminated by either party hereto by notice to the other given during the first six months of each Fiscal Year, whereupon this agreement shall terminate on the last day of that Fiscal Year; provided, how- ever, that in no event may this agreement be terminated if any of the Notes is then outstanding or provision for the payment of the principal thereof and interest thereon has not been made. Section 6.3. Amendment and Uniformity of Contracts. The Authority and the Municipality may not amend, mo i y, or change this agreement without the prior written consent of all the other Participants and the holders of the Notes' as provided in Section 4.6 hereof; and no such amendment, modifi- cation or change shall be effective until an identical amend- ment, modification or change shall have been made to the Contract of each Participant which shall; within sixty (60) days after the written notice hereinafter described, have re- quested the Authority to make such amendment, modification or change to the Contract between the Authority and such Partici- pant. Anything in the preceding sentence of this section to the contrary notwithstanding, the Authority and the Municipal- ity may, without the consent of the other Participants, but with the consent of the holders of the Notes as provided in Section 4.6 hereof, (a) amend, change or modify this agreement so as to add to the covenants and agreements of the Authority or the Municipality herein contained other covenants and agreements thereafter to be observed and performed by the Authority or the Municipality (as the case may be), provided that such other covenants and agreements shall not either expressly or impliedly limit or restrict any of the obligations of the Authority or the Municipality hereunder, or of the Authority or another Participant under another Contract, and (b) amend, change or modify this agreement so as to cure any ambiguity or to cure, correct or supplement any defect or inconsistent provision contained herein or to make provision with respect to matters arising hereunder for any other purpose - if such provisions are necessary or desirable, are not inconsistent- with the- provisions of this agreement or any other Contract and do not, in the sole and uncontrolled judgment of the Authority, adversely affect the interests of the other Participants or Members of the Authority. The Authority shall cause a copy of any proposed amendment, modification or change to this agreement to be delivered to each Participant (other than the Municipality) and to the holders of the Notes. The Authority will also cause copies of any amendment, modification or change hereto made without the consent of the other Participants to be delivered to such Par- ticipants and to the holders of the Notes. Section 6.4. Notices and Computation of Time. Any notices, offers, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed, registered or certified mail, postage prepaid, addressed, in the case of the Authority, to Post Office Box 627, Troy, Alabama 36081 (Attention: Secretary - Treasurer); in the case of the Municipality to - 12 - s,. CITY OF FAIRHOPE PO DRAWER 429 FAIRHOPE Alabama 36533 Attention: City Clerk and in t e case of the holders of the Notes, to the addresses specified by them to the Authority. Either the .Authority or the Municipality may, by like notice, designate any further or additional addresses to which subsequent notices shall be sent. A copy of any notice given to the Authority or the Municipality pur- suant to the provisions of this agreement shall also be given to each of the other Participants to whom notice is not herein required to be given, but the failure to give a copy of such notice to any Participant shall not invalidate such notice or render it ineffective unless notice to such Participant is .otherwise herein expressly required. Any notice hereunder signed on behalf of the Authority or the Municipality by a duly authorized attorney at law shall be valid and effective to the same extent as if signed on behalf of such party by a duly authorized officer or employee. ,Section 6.5. Default. (a) In the event the Municipality shall default (i) in the due and punctual payment of its Allocated Cost when the same shall become due and payable, or (ii) in the performance of any other of the covenants, conditions or agreements on its part herein contained,, and such default shall have continued for a period of thirty (30) days after written notice thereof shall have been given to the Municipality by the Authority or by the holders of the Notes, the Authority may commence such suits, actions or proceedings, at law or in equity, as may be necessary or appropriate to en- force any obligation, covenant, condition or agreement of the Municipality hereunder. No waiver at any time by the Author- ity of its rights and remedies with respect to any such de- fault shall extend to or affect any subsequent default or shall impair any of its rights or remedies thereon. No delay or omission by the Authority to exercise any right or power accruing upon any such default shall impair any such right or power or shall be construed to be a waiver of any such default or acquiescence therein. (b) In the event of any default by the Authority in the performance of any of its obligations under this agree- ment, the Municipality may bring any suit, action or pro- ceeding that may be necessary or appropriate to enforce such obligation against the Authority, but the same shall not give the Municipality the right to discontinue the performance of any of its obligations hereunder. - 13 - Section 6.6. Assignment of Agreement. This agree- ment shall inure to the benefit of and s ail be binding upon the respective successors and assigns of the parties hereto; provided, however, that neither this agreement nor any inter- est herein shall be transferred or assigned by either party hereto without the consent in writing of the other party hereto, except as otherwise provided in Section 4.2 hereof. Such consent shall not be unreasonably withheld. No -assignment or transfer of this agreement shall relieve the parties of any of their respective obligations hereunder. Section 6.7. Execution. This agreement may be exe- cuted in any number of counterparts, each of which when so executed shall be deemed to be an original, but all together shall constitute but one and the same agreement. Section 6.8. Severability. If any one or more of the terms, provisions, promises, covenants or conditions of this agreement shall to any extent be adjudged invalid, unen- forceable, void or voidable for any reason whatsoever by a court of competent jurisdiction, each and all of the remaining terms, provisions, promises, covenants and conditions of this agreement shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law. Section 6.9. A reement Supersedes Previous Agree- ments. This agreement shall completely andfully supersede all prior or contemporaneous agreements or understand- ings, both written and oral, between the parties hereto relat- ing to the subject matter of this agreement. Neither the Au- thority nor the Municipality shall hereafter have any rights under any such prior or contemporaneous agreement but shall look solely to this agreement for definition and determination of all their respective rights, liabilities and responsibili- ties respecting the subject matter of this agreement. Section 6.10. Article and Section Captions. The article and section headings and captions contained herein are included for convenience of reference only and shall not be considered a part hereof or affect in any manner the construc- tion or interpretation hereof. Section 6.11. Governing Law. It is the intention of the parties hereto that this agreement shall in all re- spects be governed by and construed and enforced in accordance with the laws of the State of Alabama. IN WITNESS WHEREOF, the Authority and the Munici- pality'have caused this Bulk Power Supply Services Agreement to be executed in their respective corporate names, have caused their respective corporate seals to be hereunto af- fixed, and have caused this Bulk Power Supply Services Agree- ment to be attested, all by their duly authorized officers, - 14 - 41 and have caused this Bulk Power Supply Services Agreement to be dated (for convenience) as of 19 although actually executed by the Authority on 19 and actually executed by the Municipality on ALABAMA MUNICIPAL ELECTRIC AUTHORITY [SEAL] Attest: Its Secretary -Treasurer [S-E A L) 'Attest: O Its _L Clerk -Tr surer By: Its CITY OF FAIRHOPE ,�- ts - 15 -