Subject: MDEA/Clarksdale/Yazoo City
From: [email-masked]
To: [email-masked], [email-masked], [email-masked], [email-masked]
Cc: [email-masked], [email-masked], [email-masked]
Date: Thu, 28 Jun 2001 07:15:33 -0700 (PDT)

I finally got comments back from the customer on the asset management, gas and power contracts.  I'm writing to pass along the comments which pertain to all three contracts:

Governing law must be Mississippi.

Confidentiality is limited under Mississippi law since these are governmental entities.  We are addressing it in the Energy Management Services Agreement, so it could be deleted from the Masters, or I can supercede what's in the Masters in the EMSA, or we can use the language from the EMSA in the Masters.  

Limits of liability/waivers of consequentials/waivers of implied warranties.  None of this is permitted under Mississippi law, in some cases because it is never permitted, in some cases because these are governmental entities.  I want it in the EMSA anyway, just in case the law gets better.  I'll have language for this shortly.  Basically, it is "if and to the extent [Party B] is permitted to do so under applicable law...

Arbitration.  Arbitration must be pursuant to Section 11-15-1 et seq of the Mississippi Code Annotated (1972).  In case this doesn't work they have agreed to venue in the Federal District Court in Jackson Mississippi.

Business Day should exclude State holidays in Mississippi.

Performance Assurance  needs to have "as may be permissible under applicable law", as Mississippi law restricts what they can give.

Payment: governmental entities can't be charged interest until 45 days after they receive the invoice. Also, invoices have to go on a claims docket, so the earliest they can pay is within 5 days after the first meeting of the governing board after receipt of the invoice.

Security interest.  They can't grant a security interest.

They've called a special session of the governing board to approve the documents tomorrow afternoon, so I would appreciate your input on how to handle the integration of these issues into the masters.

I expect to have the risk memo tomorrow morning.

Kay