BILL NO. 2020-*** ORDINANCE NO. AN ORDINANCE OF THE ...

BILL NO. 2020-*** ORDINANCE NO.

AN ORDINANCE OF THE COUNCIL OF THE CITY OF NIXA, MISSOURI,

AUTHORIZING AND DIRECTING THE CITY ADMINISTRATOR TO

EXECUTE AN AGREEMENT WITH EVERGY KANSAS CENTRAL, INC.

REGARDING ENERGY MANAGEMENT SERVICES

WHEREAS, Evergy Kansas Central, Inc. (“Evergy”) is an electric utility existing under the laws of

the State of Kansas and is engaged in the supply, transmission and sale of electric power and energy;

WHEREAS, the City of Nixa, Missouri is a municipality and is engaged in the supply, transmission

and sale of electric power and energy; and

WHEREAS, the City of Nixa, Missouri desires to procure certain energy management services from

Evergy as further described in the contract attached to this ordinance and incorporated herein by

reference; and

NOW THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF NIXA,

MISSOURI, AS FOLLOWS: Section I. The City Administrator is authorized and directed to execute the Energy Management

Agreement with Evergy Kansas Central, Inc. attached hereto and incorporated herein by reference.

Section II. The City Administrator is also authorized and directed to execute any documents necessary

to enter into the attached Agreement.

Section III. That this ordinance shall be in force from the date of its passage.

READ TWO (2) TIMES AND PASSED BY THE CITY COUNCIL FOR THE CITY OF NIXA,

MISSOURI THIS 27th DAY OF JANUARY 2020.

__________________________

PRESIDING OFFICER

ATTEST:

_____________________

CITY CLERK

APPROVED THIS ___ DAY OF JANUARY 2020.

____________________________________

MAYOR

ATTEST:

____________________________

CITY CLERK

APPROVED AS TO FORM

_________________________

CITY ATTORNEY

1111 W. Kathryn P.O. Box 395 Nixa, Missouri 65714 Direct 417.724.5670 [email protected]

Nixa Utilities & Public Works Nixa, Missouri 417.725.2352

www.nixa.com

MEMORANDUM

To: Mayor and City Council

Cc: Jimmy Liles, CA

From: Doug Colvin

Date: 01.07.2020

RE: Introduce Ordinance for Energy Ancillary Services

The attached draft Ordinance would authorize the City Administrator to execute an agreement with Evergy

Kansas Central to provide energy management (ancillary) services for the procurement and balancing of our

power supply needs on the transmission system.

This service was originally proposed to you in a form where it would be provided as a part of the energy

purchase component for our new supply. As a more flexible and more cost‐effective way to obtain these

services, I’m recommending we enter this agreement which is a flat monthly rate for three years, with annual

roll‐over provisions. This cost is considerably less than other proposals that were tied to energy volumes. Since

the previous plan would have been a part of the baseload energy agreement of 10 years, this separate

agreement allows us the opportunity to seek services from another agency if desired for any reason as early as

2023.

I am available to answer any questions you may have.

BILL NO ___________ ORDINANCE NO. ___________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NIXA, MISSOURI, AUTHORIZING AND DIRECTING THE CITY ADMINISTRATOR TO EXECUTE AN

AGREEMENT WITH EVERGY KANSAS CENTRAL, INC. REGARDING ENERGY MANAGEMENT SERVICES

WHEREAS, Evergy Kansas Central, Inc. (“Evergy”) is an electric utility existing

under the laws of the State of Kansas and is engaged in the supply, transmission and sale of electric power and energy;

WHEREAS, the City of Nixa, Missouri is a municipality and is engaged in the

supply, transmission and sale of electric power and energy; and WHEREAS, the City of Nixa, Missouri desires to procure certain energy

management services from Evergy as further described in the contract attached to this ordinance and incorporated herein by reference; and

NOW THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF

NIXA, MISSOURI, AS FOLLOWS: Section I. The City Administrator is authorized and directed to execute the Energy

Management Agreement with Evergy Kansas Central, Inc. attached hereto and incorporated herein by reference.

Section II. The City Administrator is also authorized and directed to execute any documents necessary to enter into the attached Agreement.

Section III. That this ordinance shall be in force from the date of its passage.

Passed and approved this ____ day of January 2020.

_________________________ MAYOR Attest: _____________________ City Clerk

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Restricted – Confidential

ENERGY MANAGEMENT AGREEMENT

Between

EVERGY KANSAS CENTRAL, INC.

and

CITY OF NIXA, MO

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Restricted – Confidential

This ENERGY MANAGEMENT AGREEMENT (hereinafter "Agreement") is made and

entered into this 1st day of February 2019 ("Effective Date"), by and between Evergy Kansas Central,

Inc., a Kansas corporation ("Evergy") and City of Nixa ("Customer"), organized under the laws of the

State of Missouri. Customer and Evergy may be referred to in this Agreement collectively as "Parties"

and individually as "Party."

RECITALS

WHEREAS, Evergy is an electric utility existing under the laws of the State of Kansas and is

engaged in the supply, transmission and sale of electric power and energy;

WHEREAS Customer is a municipality and is engaged in the supply, transmission and sale of

electric power and energy; and

WHEREAS, Customer desires to procure certain energy management services from Evergy as

further described herein,

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein, the

Parties agree as follows:

AGREEMENT

This Agreement sets forth the nature and structure of the services that Evergy will perform for

Customer, and the form, structure and legal requirements of the Parties. An operations manual will be

created and maintained by Evergy, with Customer approval, while this Agreement is in place. This

operations manual will contain detailed information about the day-to-day operations for the services

being performed in this Agreement but will remain a separate document from this Agreement which

can be revised from time to time upon documented agreement by the Parties.

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Restricted – Confidential Restricted – Confidential

1. DEFINITIONS

1.1. "Applicable Law" means any federal, state or local laws (including common law and criminal

law), codes, statutes, directives, ordinances, by-laws, regulations, rules, judgments, consent

orders and agreements with Governmental Authorities, proclamations or delegated or

subordinated legislation of any Governmental Authority that are applicable to this Agreement or

the Parties.

1.2. "ARR " means Auction Revenue Right as defined by the Southwest Power Pool.

1.3. "Bankrupt" means with respect to any entity, when such entity (i) files a petition or otherwise

commences, authorizes or acquiesces in the commencement of a proceeding or cause of action

under any bankruptcy, insolvency, reorganization or similar law, or has any such petition

filed or commenced against it, (ii) makes an assignment or any general arrangement for the

benefit of creditors, (iii) otherwise becomes bankrupt or insolvent (however evidenced), (iv)

has a liquidator, administrator, receiver, trustee, conservator or similar official appointed

with respect to it or any substantial portion of its property or assets, or (v) is generally unable

to pay its debts as they fall due.

1.4. "Business Day" means any day except Saturday, Sunday, a Federal Reserve Bank holiday

or a NERC holiday. A Business Day shall open at 8:00 a.m. and close at 5:00 p.m. local

time for the relevant Party's principal place of business. The relevant Party, in each instance

unless otherwise specified, shall be the Party that is to receive the notice or payment or

delivery.

1.5. "Customer Resources" means those resources listed as follows:

A. capacity and/or energy available for delivery to Customer pursuant to one or

more contracts between Customer and any other supplier; and/or

B. capacity and/or energy owned by or otherwise available to Customer.

1.6. "EEI Agreement" means the Master Power Purchase & Sale Agreement and the

accompanying Collateral Annex to the EEI Agreement executed by the Parties.

1.7. "Good Utility Practice" means any of the practices, methods and acts engaged in or

approved by a significant portion of the electric utility industry during the relevant time

period, or any of the practices, methods and acts which, in the exercise of reasonable

judgment in light of the facts known at the time the decision was made, could have been

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expected to accomplish the desired result at a reasonable cost consistent with good business

practices, reliability, safety and expedition. Good Utility Practice is not intended to be

limited to the optimum practice, method or act to the exclusion of all others, but rather to

be acceptable practices, methods, or acts generally accepted in the region.

1.8. "Governmental Authority" means any federal, state, local or municipal government,

governmental department, commission, board, bureau, agency or instrumentality, or any

judicial, regulatory or administrative body, having jurisdiction as to the matter in question.

1.9. "Interest Rate" means, for any date, the lesser of (a) the per annum rate of interest equal to

the prime lending rate as may from time to time be published in The Wall Street Journal

under "Money Rates" on such day (or if not published on such day on the most recent

preceding day on which published), plus two percent (2%) and (b) the maximum rate

permitted by Applicable Law.

1.10. "Market Participant" means an entity responsible for registered loads and/or resources and

settlements with SPP. Evergy shall be the designated Market Participant for this Agreement

for SPP activity.

1.11. "Market Protocols" means the set rules established by SPP and approved by the Federal

Energy Regulatory Commission regarding the operation of the Integrated Marketplace.

1.12. "MW" means megawatt.

1.13. "MWh" means megawatt-hour.

1.14. "NERC" means the North American Electric Reliability Corporation or its successor entity.

1.15. "Performance Assurance" means a letter of credit, cash, or other security reasonably

acceptable to the requesting Party.

1.16. "Person" means any individual, partnership, corporation, association, business, trust, limited

liability company, Governmental Authority, or other legal entity.

1.17. "Regional Entity" means any one of the eight regional entities which NERC works with to

improve and monitor the reliability of the bulk power system and which has its own NERC

compliance program and standards for compliance monitoring and enforcement.

1.18. "SPP" means the Southwest Power Pool or its successor as to any function.

1.19. "SPP Integrated Marketplace" as defined by the SPP; that includes, but is not limited to, a)

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an annual, seasonal or monthly TCR market, b) a day-ahead market, c) a reliability unit

commitment process, d) a real-time balancing market, e) the incorporation of price-based

operating reserves procurement, and e) a consolidated balancing authority.

1.20. "SPP Integrated Marketplace Charges" are those fines, fees, penalties, charges, debits, offsets, or costs

identified in the SPP OATT.

1.21. "SPP OATT" means SPP’s Open Access Transmission Tariff, including the rules, protocols,

procedures and standards attached thereto (as the same may be amended or modified from time-to-

time and approved by the Federal Energy Regulatory Commission).

1.22. "SPP Permitted Manager Transition Date" means a date on which a change in the provider of the

services in respect of the Facility that are contemplated by this Agreement is permitted, pursuant to

the rules of SPP, to become effective.

1.23. "TCR" means Transmission Congestion Rights as defined by the SPP.

1.24. "Termination Notice" means any notice of termination provided by Evergy pursuant to

Section 5.3 or by Customer pursuant to Section 5.2.

1.25. "Third Party" means any Person other than Customer or Evergy.

1.26. "Uncontrollable Forces" means an event or circumstance which prevents one Party from

performing its obligations under one or more transactions, which event or circumstance is

not within the reasonable control of, or the result of the negligence of, the claiming Party,

and which by the exercise of due diligence the claiming Party is unable to avoid, cause to

be avoided, or overcome.

2. SCOPE OF ENERGY MANAGEMENT SERVICES

2.1. As hereinafter described, Evergy shall perform the following services for Customer:

2.1.1. market registration

2.1.2. generator outage scheduling

2.1.3. resource offer submittals

2.1.4. coordinate for optimal fuel supply

2.1.5. wind optimization (margin sharing agreement)

2.1.6. demand bids

2.1.7. load forecasting

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2.1.8. interchange transactions

2.1.9. around-the-clock communications between SPP and Customer including

ICCP data transfer

2.1.10. pre-settlements

2.1.11. shadow settlements

2.1.12. settlement disputes

2.1.13. submit meter data to SPP

2.1.14. ARR I TCR processes

2.1.15. consulting services for optimizing of assets, load, and transmission

2.1.16. create and maintain reports for real-time and day-ahead activities

2.2. If Customer desires, Evergy can establish a margin sharing arrangement for managing

Customer's applicable resources. The margin sharing arrangement will be covered under a

separate agreement signed by the Parties.

2.3. If Customer prefers to perform any of these Section 2 services themselves, Evergy will

discontinue providing the service, or serve as a back-up for providing the service, until

otherwise notified by the Customer.

2.4. At such time that the Customer desires Evergy to begin performing fuel management

services, such as natural gas procurement and nomination, the Parties shall work together

to execute an amendment to this Agreement to incorporate applicable definitions or

additional terms as may be necessary.

2.5. All such responsibilities shall be discharged by the Parties in a manner consistent with Good

Utility Practice, the currently-effective governing documents applicable to the SPP

Integrated Marketplace, applicable law, and the requirements of any Governmental

Authority, including approvals and permits. Evergy agrees to establish policies and

procedures, satisfactory to Customer, designed to assure that Evergy's responsibilities and

obligations under this Agreement are performed under the direction of, and for the sole benefit

of, Customer without regard to consideration of the ownership assets of, or the economic benefit to

Evergy.

2.6. Customer will provide to Evergy all necessary information, documentation, and contracts which

are relevant, important and/or necessary for Evergy to timely, accurately, and efficiently provide

the services listed in Section 2.1. Evergy shall not be liable for any deficiencies in services

provided pursuant to this Agreement or for any SPP Integrated Marketplace Charges assessed

against Evergy as a result of: (a) Customer's failure to timely provide Evergy with all such

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relevant information, documentation or contracts; or (b) Customer’s failure to comply with

Customer’s SPP OATT obligations or operational requirements not otherwise provided by

Evergy pursuant to this Agreement. Additionally, Evergy will provide Customer with: (i)

Customer's weekly SPP settlement information after it is made available to Evergy, (ii) copies

of any relevant and material correspondence with SPP related to activities pursuant to this EMA,

and (iii), any other specific Customer data, documentation, or information available to Evergy

upon Customer's written request.

2.7. Evergy will reasonably and promptly cooperate with Customer to provide Customer any

information requested by Customer to comply with any requirements or requests of a

Governmental Authority related to this Agreement.

2.8. Except as may be expressly authorized herein, Evergy may not (i) pledge the credit of Customer,

(ii) make any representation or warranty on behalf of Customer beyond those representations

required by Evergy as the designated Market Participant for Customer, (iii) settle, transfer or

release any claim or right of Customer, (iv) transfer or encumber any asset of Customer, or (v)

refuse to follow Customer instructions except to the extent such instructions are inconsistent

with this Agreement (including applicable Market Protocols).

3. CHARGES, BILLING AND PAYMENTS

3.1. Charges for Service

3.1.1. Compensation for services provided under this Agreement shall begin on February 1,

2019 in the amount of $3,650 per month payable in advance in equal monthly payments

of $3,650; provided, however, upon Customer's load being registered with SPP, the

Monthly Management Fee shall increase to $7,300 per month payable in advance in equal

monthly payments of $7,300 through the remainder of the term of the Agreement (the

"Monthly Management Fee"). In the event that the Customer's load is registered with SPP

intra-month, Evergy will prorate the Monthly Management Fee for that month and the extra

Monthly Management Fee amount owed by Customer to Evergy will be included on the

following month's Monthly Management Fee payment invoice.

3.1.2. The Energy Management Fee shall be adjusted, starting twelve months after successful load

registration, by the CPI Inflation Factor each Agreement year during the Term of the

Agreement prior to issuance of the invoice for monthly charges.

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3.1.3. Evergy shall charge Customer $30,000 for a one-time set-up fee payable to Evergy. This

set-up fee will be invoiced by Evergy and due by January 31, 2020.

3.1.4. Pursuant to Section 2.2., if applicable, any compensation for margin sharing will be

covered and invoiced under a separate agreement executed between the Parties.

3.2. Billing and Payment

3.2.1. Evergy shall provide to Customer a written invoice for any amounts payable by Customer

to Evergy pursuant to this Agreement. Such invoices for power purchases or sales,

including SPP settlement activity, shall be rendered weekly unless otherwise specified.

Weekly market settlement payment of invoices rendered by Evergy shall be due on the

later of: (a) one (1) Business Day prior to Evergy's payment obligations, as the Market

Participant pursuant to this Agreement, to SPP, as such payment date is identified in the

applicable weekly invoice; or (b) two (2) Business Days after Customer's receipt of the

invoice. If the invoice received by Customer is not paid by the applicable due date,

Customer shall pay Evergy any invoiced interest on such unpaid amounts, which shall

accrue daily at the Interest Rate from the due date until the date upon which payment is

made.

3.2.2. Evergy shall provide to Customer a weekly report with the settled invoice amounts for the

weekly settlement between Market Participant and SPP for the Customer's settlement

activity. Evergy will transact with SPP on a weekly basis per the SPP Market Protocols.

Customer will transact with Evergy on a weekly basis for the amount of the weekly

settlement between Evergy and SPP in accordance with Section 3.2.1 above.

3.2.3. In the event of a discrepancy between the shadow settled amount and the amount

indicated on the settlement statement provided by SPP which is larger than a threshold

amount mutually agreed upon by the Parties, (provided, however, in the event the Parties

cannot mutually agree upon such threshold amount, the threshold amount shall be

$1,000.00), Evergy shall submit to SPP the initial disputes on Customer's behalf

pertaining to settlement statements under review. Evergy will then assist Customer with

the disputed settlement statement after the initial dispute pursuant to commercially

reasonable terms.

3.2.4. If Customer disputes the correctness of any invoice, Customer shall pay the entire invoice

along with a written statement detailing the items disputed. The Parties will work together

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in good faith to resolve the dispute promptly, and, in addition to negotiation, will consider

alternatives to litigation such as mediation and/or arbitration. Upon resolution of the

dispute, any required payment shall be made within five (5) Business Days of such

resolution along with interest accrued at the Interest Rate from and including the due date

to but excluding the date paid.

3.2.5. Invoices for any amounts payable to Customer hereunder shall be sent to Customer

at the following address:

City of Nixa Attention: Finance Department

P.O. Box 395

Nixa, MO 65714

All Customer questions concerning the billing and payment of invoices under this

Agreement shall be directed to the following:

Evergy Energy, Inc.

Attention: Manager, Power Accounting

P.O Box 889

Topeka, Kansas 66601-0889

3.3. The Parties will continue to remain liable for a period of five (5) years after the

termination of this Agreement for any SPP resettlement calculations issued by SPP

relating to transactions hereunder where Evergy is the Market Participant. If any such

resettlements total more than $1,000 during such 5 year term, the Party notified of the

resettlement calculation amount will notify the other Party of such resettlement and an

invoice or refund will be issued accordingly.

4. ACCESS TO RECORDS AND AUDIT RIGHTS

4.1. To the extent necessary to verify that the provisions of this Agreement are satisfied

fully as provided therein, each Party shall have the right to inspect and audit the records,

accounts, documents, and data of the other Party that pertain to this Agreement. In the

event that any information, if divulged, would result in a breach of confidentiality with

a Third Party, the Party in possession of that information will make reasonable efforts

to attempt to obtain permission to share such relevant confidential information. Any

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such inspection shall occur during normal business hours and shall be subject to

conditions consistent with the regular business affairs and responsibilities of the Party

whose records are being inspected. Such right of access and inspection shall not include

books, records or other documents subject to a valid claim of privilege by such Party.

4.2. Any non-public information obtained through a Party's exercise of its right of access

under Section 4.1 shall be treated as confidential, and any such information thereby

obtained shall be subject to the terms of Section 14 below.

4.3. The Party inspecting records and/or conducting an audit pursuant to Section 4.1 shall

bear the cost of any copying, review or audit of such books and records.

5. TERM OF AGREEMENT

5.1. This Agreement shall be effective as of the Effective Date with an initial term ending on

May 31, 2023 and then continuing year-to-year thereafter unless or until terminated in

accordance with the provisions of Section 5.2 or 5.3 or by mutual agreement of the Parties.

5.2. Customer's Termination Events.

5.2.1. Customer may terminate this Agreement for cause by providing notice in accordance

with Section 5.4 if any of the following events occur: (i) a payment default arising

under this Agreement, in respect of an undisputed payment obligation owed by

Evergy that is not cured within three (3) Business Days after Evergy has received

written notice by Customer of such default; (ii) an event of default by Evergy under

the EEI Agreement; (iii) Evergy becomes Bankrupt; (iv) Evergy has failed to perform

any of its material obligations (other than a payment default covered by (i) above) under

this Agreement, the EEI Agreement, or otherwise is in material breach of this Agreement,

or the EEI Agreement, including Evergy's failure to provide Customer with Performance

Assurance in accordance with Section 16, and such failure or breach has continued for a

period of three (3) Business Days following notice from Customer demanding cure of

such failure or breach; or (v) absent termination of this Agreement, Customer will lose tax

exempt status for bonds it has issued.

5.2.2. Customer may terminate this Agreement for convenience at any time after the first

thirty-six (36) months of this Agreement by:

5.2.2.1. Providing at least six (6) months' prior written notice of termination of this

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Agreement to Evergy, which notice shall include the Customer's proposed

termination date; and

5.2.2.2. Prior to Customer's designated termination date, paying Evergy a

termination fee equal to the sum of the previous six (6) months' fees

(excluding the one-time set-up fee) as specified in Section 3.1.1.

5.3. Evergy's Termination Events.

5.3.1. Evergy may terminate this Agreement for cause by providing notice in accordance

with Section 5.4 if any of the following events occur: (i) a payment default arising

under this Agreement, in respect of an undisputed payment obligation owed by

Customer that is not cured within three (3) Business Days after Customer has received

written notice by Evergy of such default; (ii) an event of default by Customer under the

EEI Agreement; (iii) Customer becomes Bankrupt; or (iv) Customer has failed to perform

any of its material obligations (other than a payment default covered by (i) above) under

this Agreement, the EEI Agreement, or otherwise is in material breach of this Agreement,

or the EEI Agreement, including Customer's failure to provide Evergy with Performance

Assurance in accordance with Section 16, and such failure or breach has continued for a

period of three (3) Business Days following notice from Evergy demanding cure of such

failure or breach.

5.3.2. Evergy may terminate this Agreement for convenience at any time after the first

twelve (12) months of this Agreement by providing Customer at least six (6) months'

prior written notice of termination of this Agreement, which notice shall include

Evergy's proposed termination date.

5.4. A Termination Notice for cause as specified in 5.2.1 and 5.3.1 shall specify the date on which

the termination of this Agreement shall be effective (which date shall be no earlier than the first

SPP Permitted Manager Transition Date to occur after the date of such notice), shall be given at

least sixty (60) days in advance of the termination date specified in the Termination Notice, and

shall specify in reasonable detail the circumstances giving rise to the Termination Notice and,

as appropriate to the circumstances of the termination, shall specify whether transactions are to

be terminated or continue to term. Subject to Section 5.6, this Agreement shall terminate on the

date specified in the Termination Notice. The obligations of the Parties hereunder shall remain

in effect until the effective date of termination.

5.5. Notwithstanding any other provision of this Agreement, if a Party is in default under this

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Section 5, then the non-defaulting Party, upon written notice to the defaulting Party, shall

have the right: (i) to suspend performance under this Agreement unless and until sufficient

Adequate Assurance has been posted with the non-defaulting Party if deemed necessary by

the non-defaulting Party, and (ii) to exercise any remedy available at law or in equity.

5.6. In the event of the expiration or termination of this Agreement, the Parties will work in good

faith to adhere to all applicable SPP OATT and Market Protocols to effectuate the transfer of

the Market Participant obligations to the new market participant designated by Customer and

registered with SPP as a “Market Participant.” Notwithstanding anything herein to the contrary

and without regard to any designated termination date, this Agreement shall not terminate, and

the Parties shall remain responsible for all applicable obligations herein, unless and until such

time as Customer’s Market Participant obligations are successfully transferred, as confirmed by

SPP, to Customer’s designated SPP “Market Participant.”

6. ASSIGNMENT.

6.1. This Agreement shall be binding upon and inure to the benefit of the permitted

successors and assigns of the Parties hereto. Neither Party shall assign its interest in

this Agreement in whole or in part without the prior written consent of the other Party,

which consent shall not be unreasonably withheld, other than assignments for collateral

purposes for which no consent shall be required.

6.2. Any purported assignment in contravention of this Section 6 shall be void.

7. WAIVERS. Any waiver at any time by either Party of its rights with respect to a default

under this Agreement, or with respect to any other matter arising in connection with this

Agreement, shall not be deemed a waiver of the rights of such Party with respect to any other

default or matter or of a subsequent occurrence of a similar default or other matter. Any delay

short of the statutory period of limitation in asserting or enforcing any right shall not be

deemed a waiver of such right.

8. UNCONTROLLABLE FORCES. If one Party wishes to claim relief from the performance

of its obligations arising under this Agreement on account of any event or circumstance of an

Uncontrollable Force (the "Affected Party"), then the Affected Party shall give written notice

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to the other Party of such event or circumstance as soon as reasonably practicable after

becoming aware of such event or circumstance and shall use commercially reasonable efforts

to mitigate or resolve the Uncontrollable Force.

9. GOVERNING LAW. This Agreement shall be governed by, and construed in accordance

with, the laws of the State of Missouri.

10. AMENDMENT. Amendments, if any, to this Agreement shall be in writing, and expressly

agreed to and properly executed by the Parties.

11. ANTITRUST PROVISION. It is the intent of the Parties not to enter into any agreement or

transaction that would be deemed to violate any state or federal antitrust statute, rule or

regulation. It is the further intent of the Parties to design transactions that increase economic

efficiency and render markets more, rather than less, competitive. To the extent that any

transaction or agreement of the Parties hereunder may be found to violate any such antitrust

statute, rule or regulation, such transaction or agreement shall be deemed null and void ab

initio.

12. RELATIONSHIP OF THE PARTIES.

12.1. Notwithstanding any provision of this Agreement, the Parties do not intend to create

hereby any joint venture, partnership, association taxable as a corporation, or other

entity for the conduct of any business for profit, and, if it should appear that one or

more changes to this Agreement would be required in order not to create an entity

referred to above, the Parties agree to negotiate promptly and in good faith with respect to

such changes.

12.2. Upon the request of a Party, the other Party agrees to take, in a timely manner, all

voluntary action as may be necessary to be excluded from treatment as a partnership

under the Internal Revenue Code of 195 4, as amended. Upon a Party' s request, the

other Party agrees to take, in a timely manner, all voluntary action as may be necessary

to obtain a ruling from the Internal Revenue Service: (a) that no association taxable as a

corporation has been created by this Agreement and (b) that this Agreement would not

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cause the loss of the tax-exempt status of the bonds of Customer.

12.3. Customer acknowledges that Evergy, as an electric utility, supplies electric power and

energy and provides energy related services to other counterparties for Evergy's benefit.

Customer confirms its understanding that conflicts of interest may arise as a result of

Evergy engaging in these activities for Evergy's benefit at the same time Evergy is

performing its obligations under this Agreement for the benefit of Customer and Evergy.

Customer agrees that Evergy will not be liable for breach of this Agreement due to such

conflicts of interest provided that Evergy's conduct meets the standard of performance

as stated in Section 2 of this Agreement. Nothing in this Agreement shall limit Evergy's

rights and obligations to operate as an electric utility, as power marketer, or in its business

of providing energy related services to other Third Parties.

13. NERC RESPONSIBILITES. Nothing contained in this Agreement shall be construed to

require Evergy to take on responsibility otherwise reserved to Customer for which Customer

is registered in the NERC compliance registry related to generating facilities owned by

Customer, including the reporting of any bulk power system disturbances or unusual

occurrences required by the applicable Regional Entity or NERC (including , but not limited

to, any event analysis program reporting requirement not otherwise covered by applicable

NERC and regional reliability standards and other requirements). Evergy shall use

commercially reasonable efforts to assist Customer in any audit conducted or initiated by

NERC or SPP, provided that Evergy shall not be required to participate, formally or

informally, in any aspect of a NERC audit, unless such audit specifically requires Evergy to

participate in the audit and then only in a manner confined to the specific NERC audit

requirements. Nothing contained in this Agreement shall be construed to make Evergy

subject to any classification under applicable NERC rules as a result of Evergy's execution

of this Agreement or Evergy's performance of the services provided hereunder.

14. CONFIDENTIALITY. Information relating to the conduct and pricing of transactions under

this Agreement is deemed by the Parties to be confidential in nature. The Parties therefore

will use commercially reasonable efforts to maintain the confidentiality of information

relating to the conduct and pricing of transactions under this Agreement; provided, however,

that (a) any information relating to the conduct and pricing of transactions under this

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Agreement may be disclosed upon receipt of authorization from the non-requesting party,

(such authorization not to be unreasonably withheld) , to a representative of a Third Party who

needs to know such information for the purpose of evaluating possible business relationships

which might be governed by or rely on the provisions of this Agreement and (b) that each

Party, upon giving the other Party written notice of the obligation to disclose, may disclose

any information relating to the conduct or pricing of transactions hereunder as required by a

Governmental Authority having jurisdiction or as otherwise required by local, state or federal

law. For purposes hereof, "Party" shall include employees, officers, directors,

representatives, agents and consultants.

15. NOTICES. All notices required or desired to be given hereunder shall be in writing and shall

be deemed given if delivered personally or mailed by certified mail, postage prepaid,

addressed to a Party at its last known address. Unless otherwise notified by one Party to the

other, notices shall be sent as follows:

City of Nixa Attn: Director,

Nixa Utilities

P.O. Box 395

Nixa, MO 65714


Attn: Director, Market Operations

818 S. Kansas Ave.

Topeka, KS 66612

16. CREDIT REQUIREMENTS.

16.1. Upon Evergy's written request, and if not otherwise publicly available, Customer shall

deliver, within 30 days following completion, its audited consolidated financial statements

for a fiscal year. The statements shall be for the most recent accounting period and prepared

in accordance with generally accepted accounting principles; provided, however, that

should such statements not be available on a timely basis due to a delay in preparation or

certification, such delay shall not be a default with respect to Customer so long as Customer

diligently pursues the delivery of the statements.

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16.2. Upon Customer's written request and if not otherwise publicly available, Evergy shall

deliver, within 30 days following completion, its audited consolidated financial statements

for a fiscal year. The statements shall be for the most recent accounting period and prepared

in accordance with generally accepted accounting principles; provided, however, that should

such statements not be available on a timely basis due to a delay in preparation or certification,

such delay shall not be a default with respect to Evergy so long as Evergy diligently pursues the

delivery of the statements.

16.3. If either Party has reasonable grounds for insecurity regarding the creditworthiness or

performance of any obligation of the other Party under this Agreement, and such insecurity

is not capable of being remedied pursuant to the performance assurance obligations of the

EEI Agreement, a Party may request performance assurance from the other in a form,

amount and term reasonably acceptable to the requesting Party. The responding Party shall

have five (5) Business Days to provide such performance assurance to the requesting Party.

For the purposes of this Section, the amount of performance assurance requested shall not

exceed three (3) months' charges for service in accordance with Section 3.1.1.

16.4. LIMITATION OF LIABILITY. NOTWITHSTANDING ANY PROVISION HEREIN TO

THE CONTRARY, NEITHER PARTY NOR ANY OF THEIR RESPECTIVE

SHAREHOLDERS, PARTNERS, PRINCIPALS, AFFILIATES, SUBSIDIARIES,

OFFICERS, DIRECTORS, ELECTED AND APPOINTED OFFICIALS, AGENTS, OR

EMPLOYEES SHALL BE LIABLE HEREUNDER FOR CONSEQUENTIAL OR

INDIRECT LOSS OR DAMAGE, INCLUDING COST OF CAPITAL, LOSS OF

GOODWILL, OR ANY OTHER SPECIAL OR INCIDENTAL DAMAGES, OR

PUNITIVE OR EXEMPLARY DAMAGES; PROVIDED, HOWEVER, NOTHING IN

THIS SECTION 16.4 SHALL LIMIT EITHER PARTY'S OBLIGATIONS IN RESPECT

OF THE INDEMNIFICATION PROVISIONS SET FORTH IN SECTION 17 HEREOF.

THE PARTIES FURTHER AGREE THAT THE WAIVERS AND DISCLAIMERS OF

LIABILITY, INDEMNITIES, RELEASES FROM LIABILITY, AND LIMITATIONS ON

LIABILITY EXPRESSED HEREIN SHALL SURVIVE TERMINATION OR

EXPIRATION OF THIS AGREEMENT, AND SHALL APPLY AT ALL TIMES,

WHETHER IN CONTRACT, EQUITY, TORT OR OTHERWISE, REGARDLESS OF

THE FAULT, NEGLIGENCE (IN WHOLE OR IN PART), STRICT LIABILITY ,

BREACH OF CONTRACT OR BREACH OF WARRANTY OF THE PARTY

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INDEMNIFIED, RELEASED OR WHOSE LIABILITIES ARE LIMITED ,

ANDSHALL EXTEND TO THE SHAREHOLDERS, PARTNERS, PRINCIPALS,

AFFILIATES, SUBSIDIARIES, MEMBERS, DIRECTORS, OFFICERS, ELECTED AND

APPOINTED OFFICIALS, AND EMPLOYEES, AGENTS AND RELATED OR

AFFILIATED ENTITIES OF SUCH PARTY, AND THEIR SHAREHOLDERS, PARTNERS,

PRINCIPALS, AFFILIATES, DIRECTORS, ELECTED AND APPOINTED OFFICIALS,

OFFICERS, AGENTS AND EMPLOYEES.

17. INDEMNIFICATION. Each Party shall defend, indemnify, and save harmless the other Party

from and against any and all claims or liability for injury or damage to persons or property,

including any related loss, cost or expense, caused by or resulting from the construction,

installation, operation or maintenance of any of the electric facilities owned, operated, or

maintained by the indemnifying Party or by reason of the acts of negligence or willful

misconduct of its agents, servants, or employees in connection therewith.

18. MISCELLANEOUS.

18.1. Severability. The invalidity, in whole or in part, of any of the foregoing Sections or

provisions of this Agreement will not affect the validity of the remainder of such

Sections or provisions.

18.2. No Third Party Beneficiary. This Agreement is for the sole and exclusive benefit of

the Parties hereto and shall not create a contractual relationship with, or cause of action

in favor of, any Third Party.

18.3. Survival of Obligations. Cancellation, expiration, or earlier termination of this

Agreement shall not relieve the Parties of obligations that by their nature should

survive such cancellation, expiration, or termination, prior to the term of the applicable

statute of limitations, including warranties, remedies, or indemnities which obligations

shall survive for the period of the applicable statute(s) of limitation.

18.4. Counterparts. This Agreement may be executed in one or more counterparts each of

which shall be deemed an original and all of which shall be deemed one and the same

Agreement.

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IN WITNESS WHEREOF, the Parties have executed this Agreement in several counterparts as of

the day and year first above written, each of which shall constitute an original.


By:

Title:

CITY OF NIXA, MISSOURI

By:

Title: City Administrator

BILL NO. 2020-*** ORDINANCE NO. AN ORDINANCE OF THE ...

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