Exhibit 10.10
LINE EXTENSION AGREEMENT
This Agreement made and entered into 7-21-00 by and between the Sioux
Valley Southwestern Electric Cooperative, Inc., Colman, South Dakota
(hereinafter called the COOPERATIVE) and the Dakota Ethanol, L.L.C., Wentworth,
South Dakota (hereinafter called the CUSTOMER).
Witnesseth:
Whereas, the CUSTOMER is constructing an ethanol plant located in
Section 21 of Wentworth Township, Lake County, South Dakota (hereinafter called
the FACILITY); and
Whereas, the CUSTOMER desires to have the COOPERATIVE provide
three-phase construction power and limited contingency back-up capability to the
FACILITY and the COOPERATIVE is willing and able to provide these requirements.
Now, Therefore, in consideration of the mutual promises, covenants and
conditions contained herein, the COOPERATIVE and CUSTOMER agree as follows:
1.0 DESCRIPTION OF FACILITY
The FACILITY shall include the CUSTOMER-owned ethanol plant and related
facilities located in the west half of the northeast quarter of Section
21, Township 106 North, Range 51 West, Lake County, South Dakota.
2.0 AGREEMENT TO CONSTRUCT AND MAINTAIN THREE-PHASE LINE
2.1 LINE EXTENSION - The COOPERATIVE hereby agrees to construct
and maintain approximately three miles of three-phase 12.5 kV
distribution line originating from existing COOPERATIVE lines
and extending to the FACILITY.
2.2 FUNCTION - The new line will be available for use by the
FACILITY for construction power and back-up to the commercial
operation and to the COOPERATIVE for any utility purpose.
2.3 CAPACITY - Electrical service delivery capacity to the
FACILITY under this Agreement shall be approximately 1,000
kVA.
2.4 COOPERATIVE OWNED FACILITIES - Electric service equipment
furnished, installed, operated and maintained by the
COOPERATIVE shall remain the property of the COOPERATIVE.
3.0 CUSTOMER CONTRIBUTION AND PAYMENT TERMS
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3.1 CONTRIBUTION-IN-AID TO CONSTRUCTION - The CUSTOMER agrees to
pay to the COOPERATIVE a non-refundable contribution to the
cost of construction in the amount of $100,000.
3.2 PAYMENT TERMS - The CUSTOMER shall have the option: (A) - to
pay the entire $100,000 within 30 days of completion of the
line construction, or (8) - to pay $15,000 within 30 days of
completion of the line construction, plus $1,183 per month for
a period of 120 months beginning with the commercial operation
of the FACILITY or October 1, 2001, whichever occurs first.
The amortization includes a carrying charge rate of 11.25% per
year.
4.0 SECURITY AGREEMENT FOR CUSTOMER OBLIGATIONS
To secure the CUSTOMER's performance of its obligations to the
COOPERATIVE under this Agreement, the CUSTOMER hereby agrees that, in
the event of non-payment, any unpaid balance will be transferred to the
FACILITY's electric service account and will be subject to the electric
energy collection terms associated with such account. In addition, the
CUSTOMER hereby grants the COOPERATIVE a security interest in any of
the COOPERATIVE's patronage capital credits owned or hereafter accrued
by the CUSTOMER.
5.0 AGREEMENT TERM AND TERMINATION
5.1 DELIVERY OBLIGATION - The COOPERATIVE shall provide back-up
service to the FACILITY, as described in paragraph 2 above,
until such time as the CUSTOMER ceases to purchase the
electric energy requirements of the FACILITY from the
COOPERATIVE.
5.2 OBLIGATION FOR REIMBURSEMENT OF COOPERATIVE INVESTMENT - The
CUSTOMER is responsible for paying for the COOPERATIVE's cats
associated with installing the facilities described in
paragraph 3 above. In the event that the CUSTOMER ceases to
use the COOPERATIVE'S facilities, the CUSTOMER agrees to pay
to the COOPERATIVE any unpaid balance of financed amount.
5.3 DEFAULT AND TERMINATION - The CUSTOMER shall be in default if
it fails to timely pay for service under this Agreement, If it
breaches any other of its obligations to the COOPERATIVE, or
if it becomes the subject of bankruptcy or insolvency
proceedings. If the CUSTOMER fails to cure that default within
ten (10) days after the CUSTOMER receives written notice of
default from the COOPERATIVE, the COOPERATIVE may, at its sole
option, suspend or terminate its further performance under
this Agreement, disconnect electric service to the CUSTOMER,
terminate this Agreement, or take other action to address the
CUSTOMER's default. This provision shall not limit the
COOPERATIVE's right to take immediate action to suspend
service if the CUSTOMER's act or omission interferes with the
safe and efficient operation of the COOPERATIVE's electric
system, nor shall it limit the COOPERATIVE's right to pursue
any other or further remedy available to it by law.
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6.0 DISCLAIMER OF WARRANTY AN LIMITATION OF LIABILITY
Each party shall be responsible for its own facilities and personnel
provided or used in the performance of this Agreement. Neither
COOPERATIVE nor CUSTOMER shall be responsible to the other party for
damage to or loss of any property, wherever located, unless the damage
or loss is caused by its own negligence or intentional conduct or by
the negligence or intentional conduct of that party's officers,
employees, or agents, in which case the damage or loss shall be borne
by the responsible party. The COOPERATIVE shall not be responsible or
liable to the CUSTOMER or to any other party for any indirect, special
or consequential damages, or for loss of revenues from any cause.
7.0 GENERAL
7.1 GOVERNING LAW - This Agreement and the rights and obligations
of the parties hereunder shall be construed in accordance with
and shall be governed by the laws of the State of South
Dakota.
7.2 NOTICES - All notices under this Agreement shall be given in
writing and shall be delivered personally or mailed by first
class U.S. mail to the respective parties as follows:
(a) To CUSTOMER:
Manager
Dakota Ethanol, L.L.C.
X.X. Xxx 000
Xxxxxxxxx, Xxxxx Xxxxxx 00000
(b) To COOPERATIVE:
Manager
Sioux Valley Southwestern Electric Cooperative, Inc.
X.X. Xxx 000
Xxxxxx, Xxxxx Xxxxxx 00000
7.3 NO WAIVER - No course of dealing nor any failure or delay on
the part of a party in exercising any right, power or
privilege under this Agreement shall operate as a waiver of
any such right, power or privilege. The rights and remedies
herein expressly provided are cumulative and not exclusive of
any rights or remedies, which a party would otherwise have.
7.4 ENTIRE AGREEMENT/AMENDMENT - This Agreement represents the
entire Agreement between the parties with respect to the
matters addressed in this Agreement, except as provided in the
COOPERATIVE's Bylaws, rules, and regulations applicable to
similarly situated customers, which are incorporated herein.
This Agreement may be
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changed, waived, or terminated only by written agreement
signed by both parties as set forth herein.
7.5 ASSIGNMENT/BENEFIT OF AGREEMENT - Neither party may assign
this agreement without the expressed written approval of the
other party, which consent shall not be unreasonably withheld.
7.6 SEVERABILITY - If any provision of this Agreement is held
invalid under any applicable laws, that invalidity shall not
affect any other provision of this Agreement that can be given
an effect without the invalid provision, and to this end the
provisions are severable. If any term or condition of this
Agreement is unenforceable under applicable law, such term or
condition shall nevertheless be deemed enforceable to the
fullest extent permissible and the applicable court is
requested to reform the offending term or condition.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives, all as of the day and year
first above written.
Attest: SIOUX VALLEY SOUTHWESTERN
----------------------------------- ELECTRIC COOPERATIVE, INC.
-----------------------------------
Title: By /s/ Don L.
-----------------------------
Title: General Manager
===================================
Attest: DAKOTA ETHANOL, L.L.C.
/s/ Xxxxxx Xxxxxxx By /s/ Xxxx Xxx Xxxx
Title: Project Coordinator Title: President
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