4.2. ERMUSR 07-12-2011S'
Elk River~~
Municipal Utilities
1.3069 Orono Parkway • P.O. Boz 430
Elk River, MN 55330-0430
UTILITIES COMMISSION MEETING
Phone: 763.441.2020
Eax: 763.441.8099
TO: FROM:
Ells River Municipal Utilities Commission Troy Adams, P.E. -Utilities Director
John Dietz -Chair
Daryl Thompson -Vice Chair
Al Nadeau -Trustee
MEETING DATE: AGENDA ITEM NUMBER:
Jul 12, 2011 4.2
SUBJECT:
CAPX2020 Brookin s Project Update
BACKGROUND:
In May 2006, the Utilities Commission authorized joining Midwest Municipal Transmission
Group (MMTG) to explore the potential to obtain ownership in the transmission system. In
February 2007, ERMU entered into an agreement to participate through Central Minnesota
Municipal Power Agency (CMMPA) in the CAPX2020 Brookings-Twin Cities Transmission
Project. In March 2011, the Commission and Council both approved Resolutions authorizing the
Utilities participating in the Brookings Project through CMMPA for an amount not to exceed
$7,140,953 without further action. This maximum investment amount was based on CMMPA
being awarded an increased project share from 2.2% to 5%. In May it was finalized that
CMMPA would be awarded an increase project share from 2.2% to 3.6%. This results in ERMU
shaze increasing from $1,993,134 to approximately $4,961,495.
Delano Municipal Utilities (Delano), a participant in the CAPX2020 Brookings project through
CMMPA, has requested to be released from the project contract. Six of the participants
investing in this project through CMMPA, including ERMU, have expressed interest in acquiring
Delano's share. For ERMU, acquiring a share of Delano's ownership would not cause ERMU to
exceed the maximum investment amount of $7,140,953 approved by the Commission and
Council. If the same allocation method used for the project investment share is applied to
Delano's share, ERMU would acquire approximately $687,679 of Delano's available
$1,581,822. This would bring ERMU's share to approximately $5,649,174, well under the
maximum approved $7,140,953. The method for the allocation of Delano's share has not been
decided by the six participants yet. In June 2011, the Utilities Commission approved execution
of the Delano transfer agreement contingent upon ERMU legal counsel review.
DISCUSSION:
A consensus on acceptable terms for the transfer of Delano's shaze has been accepted by the six
participants, Delano, and CMMPA. A transfer agreement based on these terms has been drafted
and is currently being circulated for legal counsels' and governing bodies' approval. This
transfer agreement is attached for review. This agreement has already been reviewed by
ERMU's and the City of Elk River's legal counsel and already reflects the recommended
changes. This agreement is not yet final as all participating parties have not submitted
comments, but it is believed to be substantially complete. One item to note is the termination
date specified in Sections 501(a) and (b) of the agreement is subject to change to sometime in
2012 due to a delay in a MISO ruling being deferred to December 2011.
This transfer agreement has been submitted to the City Council on the July 11~' consent agenda
for their review and approval.
ACTION REQUESTED:
No Action required at this time.
Agreement to Transfer Election Share
TABLE OF CONTENTS
ARTICLE 1 ........................................................................................................................2
Section 101. Tenn .....................................................................................................2
Section 102. Definitions ............................................................................................2
ARTICLE 2 ........................................................................................................................4
Section 201. Assignment of Transferred Rights .......................................................4
Section 202. Acceptance and Assumption of Transferred Rights;
Consideration ....................................................................................................4
Section 203. Obligations Retained by Delano ..........................................................5
ARTICLE 3 ........................................................................................................................5
Section 301. Apportionment of Transferred Rights, Assumed
Development Costs, and Reimbursement Amount ...........................................5
Section 302. CMMPA Financing and Billing Treatment of
Reimbursement Amount and Assumed Development Costs ...........................5
ARTICLE 4 ........................................................................................................................6
Section 401. Waivers and Releases by Delano .........................................................6
Section 402. Waivers and Releases by the Acquiring Cities ....................................6
Section 403. Consent, Waivers, and Releases by CMMPA ......................................7
ARTICLE 5
7
Section 501. Definition of Termination Conditions ..................................................7
Section 502. Effect of the Occurrence of a Termination Condition ..........................8
ARTICLE 6 ........................................................................................................................8
Section 601. Termination, Amendment, and Waiver ...............................................8
Section 602. Notices and Communications ...............................................................8
Section 603. Arbitration ............................................................................................9
Section 604. Governing Law and Venue ..................................................................9
Agreement to Transfer Election Share
EXHIBIT A APPORTIONMENT OF TRANFERRED RIGHTS,
REIMBURSEMENT AMOUNT, AND ASSUMED
DEVELOPMENT COSTS AMONG ACQUIRING CITIES
EXHIBIT B CONTACT INFORMATION FOR NOTICES
EXHIBIT C FORM OF OPINION
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Agreement to Transfer Election Share
THIS AGREEMENT is executed by and among the City of Elk River, Minnesota -Elk
River Municipal Utilities; the City of Granite Falls, Minnesota, the City of Independence,
Iowa -Independence Light and Power, the City of Mountain Lake, Minnesota -
Mountain Lake Municipal Utilities, the City of Sleepy Eye, Minnesota -Sleepy Eye
Public Utilities, and the City of Springfield, Minnesota -Springfield Public Utilities
Commission, (the foregoing, collectively, the "Acquiring Cities"); the City of Delano,
Minnesota -Delano Water, Light & Power Commission ("Delano"); and Central
Minnesota Municipal Power Agency ("CMMPA"). Capitalized terms used in this
preamble and in the recitals that follow have the meanings given in the preamble or in
Section 102 of this Agreement.
WHEREAS, Delano wishes to assign to the Acquiring Cities, and the Acquiring Cities
wish to accept assignment of and assume from Delano, the Transferred Rights on the
terms set forth in this Transfer Agreement; and
WHEREAS, pursuant to the terms of the CMMPA -Delano Development Project
Agreement, Delano's assignment or other disposition of the Transferred Rights is subject
to written consent of CMMPA and CMMPA is willing to consent to assignment in
accordance with the terms of this Transfer Agreement; and
WHEREAS, the parties desire to enter into this Transfer Agreement to establish the terms
governing Delano's assignment to the Acquiring Cities of the Transferred Rights.
Now, THEREFORE, the parties hereto agree as follows
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Agreement to Transfer Election Share
ARTICLE 1
TERM AND DEFINITIONS
Section 101. Term.
This Agreement shall take effect on the Effective Date and, unless terminated by written
agreement of all of the parties or as provided in Section 502, shall remain in effect until
all obligations of the parties hereunder have been fully satisfied.
Section 102. Detnitions.
As used in this Agreement (including its preamble, recitals, and exhibits), capitalized
terms (whether used in the singular or the plural) shall have the meanings specified
below:
(a) "Acquiring Cities" means the City of Elk River, Minnesota -Elk River
Municipal Utilities; the City of Granite Falls, Minnesota; the City of
Independence, Iowa -Independence Light and Power; the City of Mountain Lake,
Minnesota -Mountain Lake Municipal Utilities; the City of Sleepy Eye,
Minnesota -Sleepy Eye Public Utilities; and the City of Springfield, Minnesota -
Springfield Public Utilities Commission, collectively.
(b) "Additional Brookings Project Participant" means any party, other than one of
the Acquiring Cities, that enters into a Downstream Project Agreement with
CMMPA.
(c) "Assumed Development Costs" has the meaning set forth in Section 202(b) (ii)
of this Transfer Agreement.
(d) "Brookings Transmission Project" means that portion of the Brookings -
Southeast Twin Cities transmission project, as described in the Upstream Project
Agreement, with respect to which, pursuant to the Upstream Project Agreement,
CMMPA holds ownership and other rights. The term "Brookings Transmission
Project" includes (i) any rights held by CMMPA with respect to the development
of the Brookings - Southeast Twin Cities transmission project; and (ii) all
replacements, restoration, rebuilding, upgrades, capital additions, or modifications
to maintain facility transfer capability or reliability after initial commercial
operation of the Brookings -Southeast Twin Cities transmission project.
(e) "CapX 2020 Brookings Development Agreement" means the CapX Brookings
- Southeast Twin Cities Transmission Project Development Agreement, dated as
of March 7, 2007, among CMMPA and such other parties as are identified as
"Participants" in such CapX Brookings -Southeast Twin Cities Transmission
Project Development Agreement, as the same has been amended and may be
further amended from time to time.
(t) "Claims" has the meaning set forth in Section 401 of this Transfer Agreement.
(g) "Closing Date" means the date as of which the Upstream Project Agreement
becomes effective.
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Agreement to Transfer Election Share
(h) "CMMPA" means the Central Minnesota Municipal Power Agency, which has
heretofore been duly created and incorporated as a municipal corporation and a
political subdivision of the State of Minnesota under provisions of the Minnesota
Municipal Power Agency Act, Minnesota Statutes, Chapter 453, Sections 453.51
to 453.62, as the same has been heretofore or may be hereinafrer amended.
(i) "CMMPA-Delano Development Project Agreement" means the Development
Project Agreement between CMMPA and Delano.
(j) "Delano" means the City of Delano, Minnesota -Delano Water, Light & Power
Commission.
(k) "Delano Election Share" means the rights granted to Delano pursuant to the
CMMPA-Delano Development Project Agreement.
(1) "Development Project Agreement" means one or more Brookings -Twin Cities
Development Project Agreements, dated as of February 28, 2007, between
CMMPA and a participating city, which establishes terms to facilitate CMMPA's
pursuit of development activities related to the Brookings Transmission Project,
in each case as the same may be amended from time to time.
(m) "Downstream Project Agreement" means one or more Brookings -Twin Cities
Transmission Project Agreements between CMMPA and a participating city,
which establishes the terms of the participating city's participation in the
Brookings Transmission Project, in each case as the same may be amended from
time to time.
(n) "Effective Date" means June 21, 2011.
(o) "Reimbursement Amount" has the meaning set forth in Section 202(b)(i) of this
Transfer Agreement.
(P) "Released Parties" has the meaning set forth in Section 401 of this Transfer
Agreement.
(q) "Termination Conditions" has the meaning set forth in Section 501 of this
Transfer Agreement.
(r) "Transfer Agreement" mean this Agreement to Transfer Election Shaze among
the City of Elk River, Minnesota -Elk River Municipal Utilities; the City of
Granite Falls, Minnesota; the City of Independence, Iowa -Independence Light
and Power; the City of Mountain Lake, Minnesota -Mountain Lake Municipal
Utilities; the City of Sleepy Eye, Minnesota -Sleepy Eye Public Utilities; and the
City of Springfield, Minnesota -Springfield Public Utilities Commission; the
City of Delano, Minnesota -Delano Water, Light & Power Commission; and
Central Minnesota Municipal Power Agency (including all Exhibits), as it may be
amended from time to time.
(s) "Transferred Rights" has the meaning set forth in Section 201(6) of this
Transfer Agreement.
(t) "Upstream Project Agreement" means the CapX Brookings -Southeast Twin
Cities Project Participation Agreement among CMMPA and such other parties as
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Agreement to Transfer Election Share
are identified as "Owners" in such CapX Brookings -Southeast Twin Cities
Project Participation Agreement, as the same may be amended from time to time.
ARTICLE 2
ASSIGNMENT AND ASSUMPTION OF TRANFERRED RIGHTS
Section 201. Assignment of Transferred Rights.
(a) In consideration of the obligations undertaken by the Acquiring Cities pursuant to
Section 202(b) of this Transfer Agreement, and subject to Section 502 of this
Transfer Agreement, Delano, effective as of the Closing Date, (i) assigns to the
Acquiring Cities (collectively, with apportionment among the Acquiring Cities as
set forth in Exhibit A to this Transfer Agreement) the Transferred Rights, and
(ii) grants the waivers and releases as set forth in Section 401 of this Transfer
Agreement.
(b) For purposes of this Transfer Agreement, the term "Transferred Rights" means all
of Delano's rights under the CMMPA-Delano Development Project Agreement,
including (without limitation) Delano's Election Share, and any other rights
related to the Brookings Transmission Project, including (without limitation) any
rights that might have been granted to or acquired by Delano had Delano entered
into a Downstream Project Agreement with CMMPA.
Section 202. Acceptance and Assumption of Transferred Rights; Consideration
(a) Subject to Section 502 of this Transfer Agreement, the Acquiring Cities
(collectively, with apportionment among the Acquiring Cities as set forth in
Exhibit A to this Transfer Agreement), effective as of the Closing Date, accept
assignment of and assume the Transferred Rights.
(b) In consideration of the assignment of the Transferred Rights and the waivers and
releases as set forth in Section 401 of this Transfer Agreement, and subject to
Section 502 of this Transfer Agreement, the Acquiring Cities (collectively, with
apportionment among the Acquiring Cities as set forth in Exhibit A to this
Transfer Agreement):
(i) shall pay to the Delano Water, Light & Power Commission, promptly
following the Closing Date, the sum of $50,000 (the "Reimbursement
Amount") as partial reimbursement for amounts expended or incurred by
CMMPA that have been allocated and billed to Delano pursuant to the
CMMPA-Delano Development Project Agreement as of the Effective
Date;
(ii) assume, effective as of the Closing Date, (A) all of Delano's future debt
service obligations to CMMPA with respect to amounts that have been
expended or incurred by CMMPA and allocated to Delano pursuant to the
Development Agreement as of the Effective Date, but have not, as of the
Effective Date, been billed to Delano, and (B) all payment and debt
service obligations arising from Delano's share of any future amounts
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Agreement to Transfer Election Share
expended or incurred by CMMPA pursuant to the CMMPA-Delano
Development Project Agreement, including (without ]imitation) any
amounts required to fund the "true-up" of amounts owed by CMMPA to
the other parties to the CapX 2020 Brookings Development Agreement
resulting from CMMPA electing, pursuant to the CapX 2020 Brookings
Development Agreement, to participate in the Brookings -Southeast Twin
Cities transmission project at a percentage greater than 2.2% (clauses (A)
and (B) of this subpazagraph (ii) together, the "Assumed Development
Costs"); and
(iii) grant the waivers and releases as set forth in Section 402 of this Transfer
Agreement
Section 203. Obligations Retained by Delano.
Except for the Reimbursement Amount and Assumed Development Costs as set forth in
Section 202(b) of this Transfer Agreement and except to the extent released pursuant to
Sections 402 and 403 of this Transfer Agreement, Delano retains all obligations and
liabilities arising under the CMMPA-Delano Development Project Agreement before the
Effective Date, including (without limitation) responsibility for the balance of amounts
expended or incurred by CMMPA that have been allocated and billed to Delano pursuant
to the CMMPA-Delano Development Project Agreement as of the Effective Date.
ARTICLE 3
APPORTIONMENT, FINANCING, AND BILLING
Section 301. Apportionment of Transferred Rights, Assumed Development Costs,
and Reimbursement Amount.
The Transferred Rights and Assumed Development Costs shall be apportioned among the
Acquiring Cities in the manner set forth in Part 1 of Exhibit A to this Transfer
Agreement; provided, however, that payment by the Acquiring Cities to CMMPA with
respect to the Assumed Development Costs shall be made in accordance with paragraph
(b) of Section 302 of this Transfer Agreement. Each Acquiring City shall be responsible
for that portion of the Reimbursement Amount set forth opposite its name in Part 2 of
Exhibit A to this Transfer Agreement; provided, however, that CMMPA shall make
delivery of the Reimbursement Amount to the Delano Water, Light & Power
Commission as provided in Section 302(a) of this Transfer Agreement, and payment by
the Acquiring Cities to CMMPA with respect to the Reimbursement Amount shall be
made in accordance with paragraph (b) of Section 302 of this Transfer Agreement.
Section 302. CMMPA Financing and Billing Treatment of Reimbursement Amount
and Assumed Development Costs.
(a) Promptly following the Closing Date, CMMPA shall deliver to the Delano Water,
Light & Power Commission, on behalf of the Acquiring Cities and subject to
pazagraph (b) of this Section 302, the Reimbursement Amount.
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Agreement to Transfer Election Share
(b) From the Effective Date to and through the Closing Date, CMMPA shall not
include, in amounts billed by CMMPA to any Acquiring City pursuant to such
Acquiring City's Development Project Agreement, any portion of either the
Reimbursement Amount or the Assumed Development Costs, but rather shall
treat such Acquiring City's portion of each the Reimbursement Amount and the
Assumed Development Costs as constituting a portion of the "Monthly
Transmission Project Costs" (as that term is defined in the Downstream Project
Agreement) to be paid by such Acquiring City pursuant to the terms of its
Downstream Project Agreement. For the avoidance of doubt, nothing in this
Transfer Agreement shall preclude CMMPA from billing, or limit CMMPA's
rights to bill, any Acquiring City for costs other than the Reimbursement Amount
or the Assumed Development Costs in accordance with the terms of such
Acquiring City's Development Project Agreement.
ARTICLE 4
WAIVERS AND RELEASES; CMMPA CONSENT
Section 401. Waivers and Releases by Delano.
Except as otherwise provided in Section 502 of this Transfer Agreement, Delano
irrevocably and forever (a) releases each of the Acquiring Cities, CMMPA, and each
Additional Brookings Project Participant (collectively, the "Released Parties"), from any
damages, losses, liability, claims, demands, remedies, and causes of action of any kind
whatsoever (collectively, "Claims"), (b) waives any rights it may have pursuant to the
terms of the CMMPA-Delano Development Project Agreement or otherwise to participate
or claim any interest in the Brookings Transmission Project ,and (c) covenants not to sue
the Released Parties with respect to any Claims, in each case arising from or related to the
Brookings Transmission Project. The foregoing release, waiver, and covenant not to sue
includes, without limitation, (i) all Claims for reimbursement with respect to amounts
(other than the Reimbursement Amount) paid by Delano pursuant to the CMMPA-
Delano Development Project Agreement, and (ii) all Claims based on corporate law, tort,
tortious course of conduct, contract, obligations of "good faith," public policy, common
law, equity, or any other legal theory and applies to all actual, direct, special, punitive,
exemplary, consequential, incidental, and indirect losses and damages, including those
based on lost or prospective profits, expenses, fines, penalties, interest, assessments,
judgments, attorneys' and investigative fees and costs, and all other equitable,
compensatory, or punitive relief.
Section 402. Waivers and Releases by the Acquiring Cities.
Except as otherwise provided in Section 502 of this Transfer Agreement, the Acquiring
Cities irrevocably and forever (a) release Delano from and waive any Claims, and
(b) covenant not to sue Delano with respect to any Claims, in each case arising from or
related to Delano's decision not to enter into a Downstream Project Agreement or
otherwise further participate in the Brookings Transmission Project. The foregoing release,
waiver, and covenant not to sue includes, without limitation, (i) all Claims for damages for
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Agreement to Transfer Election Share
breach of Section 202 of the CMMPA-Delano Development Project Agreement, and
(ii) all Claims based on corporate law, tort, tortious course of conduct, contract,
obligations of "good faith," public policy, common law, equity, or any other legal theory
and applies to all actual, direct, special, punitive, exemplary, consequential, incidental, and
indirect losses and damages, including those based on lost or prospective profits, expenses,
fines, penalties, interest, assessments, judgments, attomeys' and investigative fees and
costs, and all other equitable, compensatory, or punitive relief.
Section 403. Consent, Waivers, and Releases by CMMPA.
Consistent with Section 1006 of the CMMPA-Delano Development Project Agreement,
CMMPA consents to the assignment by Delano to the Acquiring Cities of the Transferred
Rights, effective as of the Closing Date, provided that the assignment is made in
accordance with this Transfer Agreement. Except as otherwise provided in Section 502 of
this Transfer Agreement, CMMPA irrevocably and forever (a) releases Delano from and
waives any Claims, and (b) covenants not to sue Delano with respect to any Claims, in each
case arising from or related to Delano's decision not to enter into a Downstream Project
Agreement or otherwise further participate in the Brookings Transmission Project. The
foregoing release, waiver, and covenant not to sue includes, without limitation, (i) all
Claims for damages for breach of Section 202 of the CMMPA-Delano Development
Project Agreement, and (ii) all Claims based on corporate law, tort, tortious course of
conduct, contract, obligations of "good faith," public policy, common law, equity, or any
other legal theory and applies to all actual, direct, special, punitive, exemplary,
consequential, incidental, and indirect losses and damages, including those based on lost or
prospective profits, expenses, fines, penalties, interest, assessments, judgments, attomeys'
and investigative fees and costs, and all other equitable, compensatory, or punitive relief.
ARTICLE 5
TERMINATION CONDITIONS
Section 501. Definition of Termination Conditions.
As used in this Transfer Agreement, the term "Termination Conditions" means the
occurrence of any one or more of the following:
(a) a determination made on or before December 31, 2011 by the parties to the CapX
2020 Brookings Development Agreement that the Brookings -Southeast Twin
Cities transmission project will not proceed;
(b) the failure of the Closing Date to occur on or before December 31, 2011; or
(c) the failure of any one or more of the Acquiring Cities to execute and become
bound by, as of the Closing Date, a Downstream Project Agreement, unless those
Acquiring Cities that have executed Downstream Project Agreements elect to
assume all of the Transferred Rights that would have otherwise been transferred
to those Acquiring Cities that failed to execute and become bound by
Downstream Project Agreements.
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Agreement to Transfer Election Share
Section 502. Effect of the Occurrence of a Termination Condition.
Delano acknowledges and agrees that (a) the Acquiring Cities' willingness to accept
assignment of and assume the Transferred Rights is contingent, among other things, upon
execution of the Upstream Project Agreement providing for the construction, ownership,
and operation of the Brookings -Southeast Twin Cities transmission project, and (b)
CMMPA's willingness Co consent to the transfer to the Acquiring Cities of the
Transferred Rights is contingent, among other things, upon execution of Downstream
Project Agreements by all of the Acquiring Cities. Accordingly, if any of the
Termination Conditions occur, then (i) this Transfer Agreement shall be void as if never
entered into, (ii) all rights, obligations, and liabilities of Delano under the CMMPA-
Delano Development Project Agreement shall be retained by Delano, and (iii) neither the
Acquiring Cities nor CMMPA shall have any obligations to Delano with respect to the
Transferred Rights, except those obligations of CMMPA specifically set forth in the
CMMPA-Delano Development Project Agreement at the time of its execution.
ARTICLE 6
MISCELLANEOUS PROVISIONS
Section 601. Termination, Amendment, and Waiver.
(a) This Transfer Agreement shall not be subject to termination by any party under
any circumstances, whether based upon the default of another party under this
Transfer Agreement, or any party's default under any other instrument, or
otherwise, except as specifically provided in this Transfer Agreement.
(b) This Transfer Agreement (including its Exhibits) may be amended only by a
written instrument specifically referring to this Transfer Agreement, executed and
delivered by all of the parties.
(c) No term, condition, warranty, representation, or covenant contained in this
Transfer Agreement may be waived except by a written instrument executed by
the party waiving compliance. Any such waiver shall be effective only in the
specific instance and for the specific purpose for which it was given and shall not
be deemed a waiver of any other provision or of the same breach or default upon
any recurrence. No failure on the part of any party to exercise, and no delay in
exercising, any right conferred by this Transfer Agreement shall operate as a
waiver thereof nor shall any single or partial exercise of any right preclude any
other or further exercise thereof or the exercise of any other right.
Section 602. Notices and Communications.
Any formal notice, demand, approval, proposal, protest, direction or request provided for
in this Transfer Agreement to be delivered, given, or made to a party shall be deemed
delivered, given, or made if delivered in writing in person or mailed by registered or
certified mail, postage prepaid, return receipt requested, addressed to the party and at the
address specified in Exhibit B to this Transfer Agreement or delivered in such other
manner as may be agreed upon from time to time by the parties. A party may change
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Agreement to Transfer Election Share
such designation, at any time and from time to time, by giving notice to the other parties
in accordance with this Section 602. Any formal notice; demand or request to be
delivered, given or under this Transfer Agreement must specifically reference this
Transfer Agreement.
Section 603. Arbitration.
In the event that a dispute arises among any of the parties as to the interpretation or
performance of this Transfer Agreement, then upon written request of a party,
representatives with settlement authority for each of the parties shall meet in person and
confer in good faith to resolve the dispute. Any dispute under this Transfer Agreement
may be submitted to arbitration at the request of any party provided that all of the other
parties agree. Copies of any such request shall be given to all parties and shall specify
the issue or issues in dispute. Within ten days after receipt of such a request the parties
shall confer and attempt to agree upon appointment of a single arbitrator. If such
agreement is not accomplished, any party may request the American Arbitration
Association to appoint an arbitrator. The arbitrator shall conduct a heazing within thirty
days thereafter, unless such time is extended by agreement of parties, shall notify the
parties of his or her decision, stating his or her reasons for such decision, in writing, and
separately listing his or her findings of fact and conclusions of law. The arbitrator shall
not have power to amend, add to, or remove provisions from this Transfer Agreement.
Subject to such limitation, the decision of the arbitrator shall be final and binding on the
parties except that either party may exercise available statutory rights under Minnesota
law to petition a court of competent jurisdiction for review of the arbitrator's decision.
The prevailing party or parties in a disputed matter shall be entitled to recover from the
other party or parties its or their reasonable legal fees and other costs of azbitration and
court proceedings.
Section 604. Governing Law and Venue.
This Transfer Agreement is made under and shall be governed by the law of the State of
Minnesota, exclusive of principles related to choice of law. Venue for any proceeding
concerning this Transfer Agreement shall be in any state or federal court of competent
jurisdiction located in the State of Minnesota.
Section 605. Obligations of Good Faith and Fair Dealing.
Each party acknowledges and agrees that in performing this Transfer Agreement, it has
an obligation of good faith and fair dealing. The provisions of this Section 605 shall
apply, without limitation, to the governing bodies, employees, and consultants of each of
the parties.
Section 606. Severability.
If any section, paragraph, clause or provision of this Transfer Agreement shall be finally
adjudicated by a court of competent jurisdiction to be invalid, the remainder of this
Transfer Agreement shall be unaffected by such adjudication and all of the remaining
provisions of this Transfer Agreement shall remain in full force and effect as though such
section, paragraph, clause or provision or any part thereof so adjudicated to be invalid
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Agreement to Transfer Election Share
had not been included herein. However, the parties shall attempt to negotiate provisions
that reasonably substitute for the invalid provision in order to place the parties in the
position that they would have been had the stricken clause or provision not been found
invalid.
Section 607. Assignment of Transfer Agreement.
This Transfer Agreement shall inure to the benefit of, and shall be binding upon the
parties to this Transfer Agreement and their respective successors and assigns; provided,
however, no party may take any action to effect an assignment, lease, sale, or other
transfer of this Transfer Agreement, or any interest or rights conferred herein, without the
prior written consent of all of the other parties.
Section 608. Confidentiality of Information.
The parties shall cooperate in good faith to reasonably protect the confidentiality of
information exchanged by the parties under this Transfer Agreement that is (i) treated by
the providing party as non-public, and (ii) labeled or otherwise clearly identified as
confidential.
Section 609. Duly Authorized Signatories; Binding Effect of Execution.
Each party, as to its signatory, hereby represents and warrants that the individual
executing this Transfer Agreement on its behalf is duly authorized to do so, and that, by
such execution set forth on the signature page to this Transfer Agreement, such party is
hereby duly and lawfully bound by this Transfer Agreement.
Section 610. Delivery of Opinions.
On or before the Closing Date, each Acquiring City shall famish to CMMPA and to
Delano an opinion by an attorney or firm of attorneys, addressed to CMMPA and Delano,
to the effect of the matters set forth on Exhibit C hereto. On or before the Closing Date,
Delano shall furnish to CMMPA and to each Acquiring City an opinion by an attorney or
firm of attorneys, addressed to CMMPA and the Acquiring Cities, to the effect of the
matters set forth on Exhibit C hereto.
Section 611. Entire Agreement.
This Transfer Agreement constitutes the entire agreement of the parties with respect to its
subject matter, and supersedes all prior oral or written agreements, understandings,
representations and warranties, and courses of conduct and dealings between the parties
with respect to its the subject matter.
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Agreement to Transfer Election Share
IN WITNESS WHEREOF, the parties hereto have executed this Transfer Agreement as
of the day of , 2011.
CENTRAL MINNESOTA MUNICIPAL POWER AGENCY
By
Title: President
By
Title: Secretary
THE CITY OF DELANO, MINNESOTA - DELANO WATER, LIGHT & POWER
COMMISSION
By
Title: Mayor Dale Graunke
By
Title: Chairman Larry Bartels
THE CITY OF ELK RIVER, MINNESOTA -ELK RIVER MUNICIPAL
UTILITIES
By
Title:
By
Title:
THE CITY OF GRANITE FALLS, MINNESOTA
By
Title:
By
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Agreement to Transfer Elecrion Share
THE CITY OF INDEPENDENCE, IOWA -INDEPENDENCE LIGHT AND
POWER
By
Title:
By
THE CITY OF MOUNTAIN LAKE, MINNESOTA -MOUNTAIN LAKE
MUNICIPAL UTILITIES
By
By
Title:
THE CITY OF SLEEPY EYE, MINNESOTA -SLEEPY EYE PUBLIC
UTILITIES
sy
Title:
By
Title:
THE CITY OF SPRINGFIELD, MINNESOTA -SPRINGFIELD PUBLIC
UTILITIES COMMISSION
By
Title:
By
Title
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Agreement to Transfer Election Share
EXHIBIT A
APPORTIONMENT OF TRANFERRED RIGHTS, REIMBURSEMENT AMOUNT,
AND ASSUMED DEVELOPMENT COSTS AMONG ACQUIRING CITIES
Part 1: The Transferred Rights and Assumed Development Costs shall be apportioned among
the Acquiring Cities as set forth in the following table:
Share of
Transferred Rights Resulting Share of
and Assumed Brookings Trans-
Name of Ac uirin Ci Develo ment Costs mission Pro'ect
City of Elk River, Minnesota -Elk River
Munici al Utilities
Cit of Granite Falls, Minnesota
City of Independence, Iowa -Independence
Li ht and Power
City of Mountain Lake, Minnesota -Mountain
Lake Munici al Utilities
City of Sleepy Eye, Minnesota -Sleepy Eye
Public Utilities
City of Springfield, Minnesota -Springfield
Public Utilities Commission
Part 2: The Reimbursement Amount shall be apportioned among the Acquiring Cities as set
forth in the following table:
Name of Ac uirin Ci Share of
Reimbursement
Amount
Cit of Elk River, Minnesota -Elk River Munici al Utilities $
Cit of Granite Falls, Minnesota $
Cit of Inde endence, Iowa -Inde endence Li ht and Power $
Cit of Mountain Lake, Minnesota -Mountain Lake Munici al Utilities $
Cit of Slee E e, Minnesota - Slee E e Public Utilities $
Cit of S rin field, Minnesota - S rin field Public Utilities Commission $
Total: $50,000
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Agreement to Transfer Election Share
EXHIBIT B
CONTACT INFORMATION FOR NOTICES
CMMPA: DELANO:
Chief Executive Officer City of Delano
Central Minnesota Municipal Power 234 2°d Street North
Agency PO Box 108
459 South Grove Street Delano, MN 55328
Blue Earth, Minnesota 56013
and:
with a copy to:
Delano Water, Light & Power Commission
Michael M. Gavin 11 West Bridge Avenue
1017 Hennepin Ave. N. PO Box 65
Glencoe, MN 55336 Delano, MN 55328
m ag vinna goslawfirm.com.
ELK RIVER: GRANITE FALLS:
INDEPENDENCE: MOUNTAIN LAKE:
SLEEPY EYE: SPRINGFIELD:
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Agreement to Transfer Election Share
EXHIBIT C
FORM OF OPINION
In accordance with Section 610 of this Transfer Agreement, each of the Acquiring Cities shall
furnish to CMMPA and Delano, and Delano shall furnish to CMMPA and to the Acquiring
Cities, an opinion by an attorney or firm of attorneys to the effect that:
(a) Valid Existence. The City is a municipal corporation or other eligible person or entity
duly created and validly existing pursuant to the Constitution and Statutes of the State of
Minnesota or other State of the United States, or is otherwise organized and authorized as
a party to the Transfer Agreement.
(b) Performance. The City has full legal right and authority to enter into the Transfer
Agreement and to carry out its obligations thereunder.
(c) Authorization, Execution. At meetings duly called and held at which quorums were
present and acting throughout, the governing body of the City duly approved the Transfer
Agreement and its execution and delivery on behalf of the City, the Transfer Agreement
has been duly authorized, executed and delivered by the appropriate officers of the City,
and assuming that the other parties have all the requisite power and authority to execute
and deliver, and has duly authorized, executed and delivered the Transfer Agreement, the
Transfer Agreement constitutes the legal, valid and binding obligation of the City
enforceable in accordance with its terms subject, however, to the effect of, and to
restrictions and limitations imposed by or resulting from, bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting creditors' rights generally.
(No opinion need be rendered as to the availability of any particulaz remedy.)
(d) No Violation, Etc. The execution and delivery of the Transfer Agreement by the City,
the performance by the City of its obligations thereunder and the consummation of the
transactions contemplated therein do not and will not contravene any provision of the
Charter or Certificate of Incorporation or any other organizational document of the City
and any amendment thereto under which the City is organized and presently operating or
any existing law or any existing order, injunction, judgment, decree, rule or regulation of
any court or administrative agency having jurisdiction over the City or its property or
result in a breach or violation of any of the terms and provisions of, or constitute a default
under, any existing bond resolution, indenture, mortgage, deed of trust or other agreement
to which the City is a party or by which it or its property is bound.
(e) Annrovals. All approvals, consents or authorizations of, or registrations or filings with,
any governmental or public agency, authority or person required on the part of the City in
connection with the execution, delivery and performance of the Transfer Agreement have
been obtained or made.
(f) Liti ag lion. To the knowledge of such attorney or firm of attorneys after due inquiry,
there is no litigation or other proceedings pending or threatened in any court or other
tribunal of competent jurisdiction (either State or Federal) questioning the creation,
organization or existence of the City or the validity, legality or enforceability of the
Transfer Agreement.
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