LEGAL | NOTE 18 – LEGAL Other than as disclosed below, we do not expect any litigation or proceeding pending or threatened against us to have a potential material effect on our financial condition, results of operations or cash flows. Transmission Agreement: Pursuant to a long-term transmission agreement with another utility, such utility pays for and has firm rights to transfer power and energy across a transmission path in Colorado. Such right to payment and obligation to provide the transfer is borne equally by us and another entity. Due to the current capacity of the transmission path, such utility’s firm rights have been curtailed. The utility disputes its obligation to pay due to the current capacity of the transmission path and claims we, along with the other entity, are in breach of such transmission agreement. The utility notified us and the other entity of its intent to arbitrate in accordance with the agreement and claimed damages caused by the alleged breach of approximately $6.9 million, plus interest, attorney fees, and any future damages. The other entity filed a cross-claim against us claiming we are responsible for such entity’s share of any damages. The matter was scheduled for arbitration to commence in January 2020. The arbitration was suspended and the parties have reached a resolution of this matter without us incurring any liability. The resolution of this matter is subject to FERC approval. On October 20, 2020, an unexecuted version of an amended and restated transmission agreement to resolve this matter was filed with FERC for approval. It is not possible to predict if FERC will approve this agreement. FERC Tariff and Declaratory Order: At our July 2019 Board meeting, our Board authorized us to take action to place us under wholesale rate regulation by FERC. On September 3, 2019, a membership agreement with a Non-Utility Member, MIECO, Inc., became effective. The admission of the new Non-Utility Member that was not an electric cooperative or governmental entity resulted in us no longer being exempt from FERC wholesale rate regulation pursuant to the Federal Power Act (“FPA”). In December 2019, we filed our tariff filings, including our stated rate cost of service filing, market based rate authorization, and transmission Open Access Transmission Tariff. The request was made to FERC to make the new tariffs retroactive to September 3, 2019. In addition, on December 23, 2019, we filed our Petition for Declaratory Order (“PDO”) with FERC asking FERC to confirm our jurisdiction under the FPA and that FERC’s jurisdiction preempts the jurisdiction of the Colorado Public Utilities Commission (“COPUC”) to address any rate related issues. On March 20, 2020, FERC issued orders regarding our PDO and our tariff filings. FERC’s orders generally accepted our tariff filings and recognized that we became FERC jurisdictional on September 3, 2019, but did not make the tariffs retroactive to September 3, 2019. However, FERC specifically provided that no refunds are due on our Utility Member rates and our transmission service rates prior to March 26, 2020. FERC did not impose any civil penalties on us. FERC also did not determine that our Utility Member rates and transmission service rates were just and reasonable and ordered a 206 proceeding to determine the justness and reasonableness of our rates and wholesale electric service contracts. FERC also rejected our Board Policy 115 (“BP 115”) and member project contracts related our Utility Member’s election to provide up to 5 percent of its electric power requirements pursuant to their wholesale electric service contracts on the grounds that the initial filing was incomplete without Board Policy 101 (“BP 101”) related to the self-supply in excess of the 5 percent annual allowance. The tariff rates were referred to an administrative law judge to encourage settlement of material issues and to hold a hearing if settlement is not reached. The settlement proceedings are continuing and settlement offers are being exchanged under the FERC administrative law judge’s guidance and in participation with FERC staff. Any refunds to the applicable tariff rates would only apply to after March 26, 2020. FERC’s March 20, 2020 order regarding our PDO denied our requested declaration regarding the preemption of two of our Utility Members proceedings at the COPUC stating they are not currently preempted. On April 13, 2020, we filed a request for rehearing limited to the issue of preemption of the COPUC related to the contract termination payment amount as described in our PDO. Requests for rehearing related to both the PDO and tariff filings were filed with FERC by other parties. On August 28, 2020, FERC issued an order on rehearing related to our PDO which modified its March 20, 2020 decision by finding exclusive jurisdiction over our contract termination payments and preempting the jurisdiction of the COPUC as of September 3, 2019 (“August 28 Order”). The August 28 Order also set aside requests for rehearing filed with FERC by other parties related to the PDO. Requests for rehearing related to FERC’s August 28 Order were filed with FERC by two of our Utility Members. On October 28, 2020, FERC issued an order denying the requests for rehearing filed by two of our Utility Members. On July 1, 2020, we re-submitted our BP 101, BP 115, and all existing member project contracts with FERC for acceptance and on August 28, 2020 FERC accepted the filings effective August 31, 2020. FERC also ordered a 206 proceeding to determine whether our July 1 filed documents are just and reasonable and set them for settlement and hearing procedures, which were consolidated with the ongoing settlement and hearing procedures in effect for our member rates docket. FERC also established a refund effective date related to our July 1 filed documents of September 1, 2020. Requests for rehearing related to this FERC order has been filed with FERC by one of our Utility Members. On July 13, 2020, we filed a petition for review with the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit Court of Appeals”) to protect our interest, and requested review of FERC’s order granting in part and denying in part our PDO and FERC’s order granting rehearings for further consideration. Petitions for review related to both the PDO and tariff filings have been filed with the D.C. Circuit Court of Appeals by other parties. On September 18, 2020, FERC filed to hold the appeals in abeyance. On September 29, 2020, an order was filed considering the motion to hold the case in abeyance, directing the parties to file motions to govern future proceedings by January 11, 2021. It is not possible to predict if FERC will require us to refund amounts to our customers for sales after March 26, 2020, if FERC will approve our current practices regarding use of regulatory assets are just and reasonable, or to estimate any liability associated with these matters. In addition, we cannot predict the outcome of the 206 proceedings, any requests for rehearing filed with FERC, or our petition for review or any other petitions for review filed with the D.C. Circuit Court of Appeals. United Adams District Court Complaint: On May 4, 2020, United Power, Inc. (“United”) filed a Complaint for Declaratory Judgement and Damages in the Adams County District Court against us and our three Non-Utility Members alleging, among other things, that the April 2019 Bylaws amendment that allows our Board to establish one or more classes of membership in addition to the then existing all-requirements class of membership is void, the April 2020 Board approvals related to a “Make-Whole” methodology for a contract termination payment and buy-down payment formula are also void, that we have breached the wholesale electric service contract with United, and that we and our three Non-Utility Members conspired to deprive the COPUC of jurisdiction over the contract termination payment of our Colorado Utility Members. On June 20, 2020, we filed our answer denying United’s allegations and request for relief, and asked the court to dismiss United’s claims. We asserted counterclaims against United, and are seeking relief from United’s breach of our Bylaws and declaratory judgement that the April 2019 Bylaws amendment and the April 2020 Board approvals related to a “Make-Whole” methodology for a contract termination payment and buy-down payment formula are valid. On June 20, 2020, the three Non-Utility Members filed a joint motion to dismiss. United filed its response on July 30, 2020. It is not possible to predict the outcome of this matter or whether we will incur any liability in connection with this matter. |