EX-10.3
MAPP CENTER AGREEMENT
THIS AGREEMENT ("Agreement") is dated and executed on December 2,
1996, (the "Effective Date") between MAPPCOR, a Minnesota nonprofit
corporation, and Interstate Power Company ("Member"), a Delaware
Corporation, under the laws of the State of Minnesota.
W I T N E S S E T H:
WHEREAS, Member is a party to the Restated Agreement and is a
member of MAPP;
WHEREAS, MAPPCOR will provide services to Member as described in
this Agreement; and
WHEREAS, the Restated Agreement requires each member of MAPP to
enter into an agreement with MAPPCOR for the services to be provided by
MAPPCOR under the Restated Agreement; and
WHEREAS, Member desires to receive the services to be provided by
MAPPCOR;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. Capitalized terms used in this
Agreement, but not defined herein, shall have the meaning assigned to
such terms in the Restated Agreement.
ARTICLE TWO
MAPP CENTER
Section 2.01. MAPP Center. MAPPCOR shall maintain and operate
the MAPP Center, which shall furnish the facilities, equipment,
personnel and services appropriate to carrying out the Restated
Agreement, including assisting the MAPP committees, councils, task
forces, subcommittees, working groups, and other persons or entities to
satisfy the obligations and responsibilities of the Members of MAPP
under the Restated Agreement, and providing educational programs,
material and information to the public, MAPP Members, government
regulatory bodies, NERC and others.
ARTICLE THREE
LIMITATION OF LIABILITY; RELEASE
Section 3.01. Limitation of Liability. Member shall retain sole
responsibility for the operation of its system and the utilization of
information provided by MAPPCOR. MAPPCOR makes no warranties, express
or implied, or representations as to the accuracy of the information
supplied by it, MAPPCOR shall not be liable to Member whether in
contract, tort, warranty, or otherwise, for any claims by Member that
result in any manner whatsoever from the operation of the MAPP Center,
or the information provided, or the services rendered hereunder, except
claims resulting from willful acts or omissions of MAPPCOR.
Section 3.02. Schedule F, Release. In consideration of the
provision by MAPPCOR of the services specified in Schedule F of the
Restated Agreement, Member as a Transmission Provider or a Transmission
Customer, as the case may be, to the maximum extent permitted by law,
releases and discharges, and shall indemnify and hold harmless, MAPPCOR
from any and all liability for any and all damage or other claim Member
may have, or that may be asserted on behalf or in the name of Member,
to the extent any such claim arises out of or relates to the
administration of this Schedule F, or otherwise relates to transmission
service provided or sought under such Schedule, including but not
limited to (i) unintentional, consequential, direct, compensatory,
punitive, special, indirect, or incidental damages, (ii) damages
arising from loss of or damage to property and loss of life or personal
injury, or (iii) any claims arising from any loss of interchange or
coordination sales or revenues, loss of profits, costs or substitute
power or transmission service, costs or additional operating expenses,
or suits by third parties; provided, however, that MAPPCOR shall not be
released, discharged, indemnified or held harmless with respect to any
liability for damages or other claims arising from any action by
MAPPCOR that is unlawful, undertaken in bad faith, grossly negligent or
the product of willful misconduct.
ARTICLE FOUR
FINANCIAL
Section 4.01. Billing for Costs. MAPPCOR shall bill Member for
dues, and costs as allocated and assigned by the Executive committee of
MAPP in accordance with and at the times provided in the Restated
Agreement.
Section 4.02. Payment. Member shall pay each bill submitted by
MAPPCOR within the time provided in the Restated Agreement; or, if no
time is so provided, within 30 days of the date of the bill.
Section 4.03. Accounting. MAPPCOR will maintain its books and
records in accordance with generally accepted accounting practices and
procedures. Member, at its sole expense, may audit the books and
records of MAPPCOR relevant to the transactions contemplated by this
Agreement, during normal business hours of MAPPCOR.
Section 4.04. Credit. For the purpose of determining the ability
of Member to meet its obligations under this Agreement, MAPPCOR may
from time to time require reasonable credit review procedures in
accordance with standard commercial practices, including, without
limitation, audited or unaudited financial statements. Member
authorizes MAPPCOR to conduct such credit investigation of Member as
MAPPCOR, in its sole discretion, deems necessary and appropriate.
ARTICLE FIVE
SUCCESSORS; ASSIGNS
Section 5.01. Successors. This Agreement shall be binding upon
the successors of Member, and upon the surviving entity in any merger,
consolidation, or acquisition involving Member in which Member is not
a surviving entity.
Section 5.02. Assignment. Except for the assignment or pledge of
an interest in this Agreement to the United States acting through the
Rural Utilities Service, Member shall not assign this Agreement without
the consent, in writing, of the board of directors of MAPPCOR, which
consent shall only be withheld if the assignee is not a member of MAPP,
or upon a determination that there is a substantial likelihood that the
assignee will not fulfill the obligations of Member under this
Agreement, or that the Executive Committee of MAPP has not consented to
the assignment of Member's interest in the Restated Agreement.
ARTICLE SIX
TERM
Section 6.01. Term. The term of this Agreement shall commence on
the Effective Date and shall continue until the termination of Member's
membership in MAPP, subject, however, to Member continuing financial
obligations upon suspension, withdrawal or termination, or the
successor to Member that ceases to be a Member of MAPP as a result of
a merger or consolidation pursuant to Section 5.3.2 of the Restated
Agreement.
ARTICLE SEVEN
MEMBER'S REPRESENTATIONS
Section 7.01. Representations. Member represents and warrants
that the following are true in all respects:
(a) Member is an entity described in the preamble of this
Agreement, duly organized, validly existing, and in good
standing under the laws specified in the preamble.
(b) The execution, delivery and performance of this Agreement by
Member has been duly authorized by all necessary governance
action and is enforceable in accordance with its terms.
(c) Such execution, delivery and performance does not, and the
transactions contemplated will not (i) result in a material
breach or constitute a material default under any agreement
or instrument to which Member is a party or by which it is
bound, or (ii) require the consent or approval of any other
person or governmental agency or authority.
ARTICLE EIGHT
NEGOTIATION; ARBITRATION
Section 8.01. Negotiation. The parties shall attempt in good
faith to resolve any controversy or claim arising out of or relating to
this Agreement promptly by negotiation between representatives
appointed by the parties who have authority to settle the controversy.
The disputing party shall give the other party written notice of the
dispute. Within 20 days after receipt of said notice, the receiving
party shall submit to the other a written response. The notice and
response shall include (a) a statement of each party's position and a
summary of the evidence and arguments supporting its position, and (b)
the name and title of the person who will represent that party.
The representatives shall meet at a mutually acceptable time and
place within 30 days of the date of the disputing party's notice and
thereafter as often as they reasonably deem necessary to exchange
relevant information and to attempt to resolve the dispute.
Section 8.02. Arbitration. If the dispute has not been resolved
within 60 days of the disputing party's notice, or if the party
receiving the notice will not meet within 30 days, any remaining
unresolved controversy or claim arising out of or relating to this
Agreement shall be settled by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association by
three arbitrators, and judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction. The place
of arbitration shall be Hennepin County, Minnesota. The arbitrators
are not empowered to award damages in excess of actual damages,
including punitive damages, nor are the arbitrators empowered to modify
or alter any express condition or provision of this Agreement or to
render an award that by its terms has the effect of altering or
modifying any express condition or provision of this Agreement. The
provisions of this Section 8.02 are not applicable to a party that does
not have legal authority to engage in binding arbitration.
ARTICLE NINE
GENERAL PROVISIONS
Section 9.01. Choice of Law. Subject to the provisions of
Sections 13.15 (compliance with Applicable Laws) and 13.16 (Effect of
Canadian Laws) and to the extent permitted by law, the laws of the
State of Minnesota, with the exception of its laws governing choice of
law, or United States federal law or Canadian Laws as applicable, shall
control the obligations established by this Agreement and the
performance and enforcement thereof.
Section 9.02. Incorporation by Reference. The provisions of
Sections 13.15 (Compliance with Applicable Laws) and 13.16 (Effect of
Canadian Laws) are incorporated herein by reference and made a part
hereof.
Section 9.03. Waiver. The waiver of any of the rights or
remedies arising pursuant to this Agreement on any one occasion by any
party shall not constitute a waiver of any rights or remedies in
respect to any subsequent breach or default of the terms of this
Agreement.
Section 9.04. Entire Agreement. This Agreement supersedes any
prior agreements and contains the entire agreement of the parties and
all representations with respect to the subject matter hereof. Any
prior correspondence, memoranda or agreements are replaced in total by
this Agreement, including any agreement entitled "Coordination Center
Agreement".
Section 9.05. Amendments. Any amendments to this Agreement shall
be in writing and signed by all parties hereto.
Section 9.06. Counterparts. This Agreement may be executed in
counterparts, any one of which shall be deemed to be an original, but
such counterparts when taken together shall constitute but one
agreement.
Section 9.07. Captions. Captions are for convenience only and
shall not be deemed part of the contents of this Agreement.
Section 9.08. Parties in Interest. This Agreement shall be
binding upon and enure solely to the benefit of the parties hereto and
their permitted assigns, and nothing in this Agreement, expressed or
implied, is intended to confer upon any other person any rights or
remedies of any nature under or by reason of this Agreement.
Section 9.09. Currency. All payment to be made pursuant to this
Agreement shall be in lawful money of the United States.
Section 9.10. Uncontrollable Forces. A party shall not be
considered to be in default in respect of any obligation hereunder if
prevented from fulfilling such obligation by reason of Uncontrollable
Forces, except that the obligation to pay money in a timely manner is
absolute and shall not be subject to this section. A party unable to
fulfill any obligation by reason of Uncontrollable Forces will exercise
due diligence to remove such debility with reasonable dispatch, but
such obligation shall not require the settlement of a labor dispute
except in the sole discretion of the party experiencing such labor
dispute.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their authorized representatives.
MAPPCOR
By: /s/ James Van Epps
Name: James Van Epps
Title: General Manager
INTERSTATE POWER COMPANY
By: /s/ Dale R. Sharp
Name: Dale R. Sharp
Title: Vice President-Engineering