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Contracts Keyed to Dawson
enXco Development Corp. v. Northern States Power Co.
Citation:758 F.3d 940.
In October 2008, enXco and NSP entered into two contracts for a wind-energy-generation project in North Dakota (“Project”): a Developed Wind Project Purchase and Sale Agreement (“PSA”) and an Engineering, Procurement, and Construction Agreement (“EPCA”). Neither party was obligated to proceed under the EPCA until the PSA closed. The PSA included conditions precedent that each party needed to complete prior to the “Long-Stop Date” set for March 31, 2011. During the initial phase of the project, enXco owned all of the Project’s real estate and assets, but NSP would purchase the property only if the PSA closed. Pursuant to the PSA, enXco needed to obtain a Certificate of Site Compatibility permit from the North Dakota Public Service Commission. Generally, in order to obtain the permit, a party must submit a letter to the Commission and then wait one year before submitting an application. The Commission then has six months to consider the permit application. In January 2009, enXco recieved a waiver of the one year requirement, however enXco did not submit its permit application until October 2010. The Commission scheduled a mandatory public hearing for December 21, 2010, but it was postponed until February 10, 2011 due to a snowstorm. Unfortunately the hearing was held in the wrong county and the hearing was not rescheduled until after the Long-Stop Date. On April 1, 2011, NSP terminated the contract. Following termination, enXco relocated the wind turbines it had obtained for the Project to another project in Texas and maintained ownership of the real estate.
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