City of Sidney v. Municipal Energy Agency of Neb. , 301 Neb. 147 ( 2018 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    10/12/2018 01:10 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    301 Nebraska R eports
    CITY OF SIDNEY v. MUNICIPAL ENERGY AGENCY OF NEB.
    Cite as 
    301 Neb. 147
    City of Sidney, Nebraska, appellee, v. Municipal
    Energy Agency of Nebraska, appellant.
    ___ N.W.2d ___
    Filed September 28, 2018.   No. S-17-471.
    1.	 Nebraska Power Review Board: Arbitration and Award: Appeal and
    Error. On an appeal from the decision of an arbitration board convened
    under Neb. Rev. Stat. § 70-1301 et seq. (Reissue 2009), trial in the
    appellate court is de novo on the record.
    2.	 Nebraska Power Review Board: Arbitration and Award: Evidence:
    Appeal and Error. Despite de novo review, when credible evidence is
    in conflict on material issues of fact, the appellate court will consider
    and may give weight to the fact that the arbitration board observed the
    witnesses and accepted one version of the facts over another.
    3.	 Nebraska Power Review Board: Arbitration and Award: Contracts.
    Where contractual issues are intertwined with a rate dispute, such con-
    tractual issues are within the jurisdiction of an arbitration board con-
    vened under Neb. Rev. Stat. § 70-1301 et seq. (Reissue 2009).
    4.	 Nebraska Power Review Board: Arbitration and Award: Notice.
    Under Neb. Rev. Stat. § 70-1306 (Reissue 2009), an arbitration board is
    authorized to permit amendments to a notice, substantive or not, at any
    time in the arbitrative proceedings.
    5.	 Public Utilities: Proof. The purchaser of energy has the burden of prov-
    ing that the transmission rate it is being charged is unfair, unreasonable,
    or discriminatory.
    6.	 Contracts. In interpreting a contract, a court must first determine, as a
    matter of law, whether the contract is ambiguous.
    7.	 ____. A contract written in clear and unambiguous language is not sub-
    ject to interpretation or construction and must be enforced according to
    its terms.
    8.	 Contracts: Substantial Performance. To establish substantial perform­
    ance under a contract, any deviations from the contract must be rela-
    tively minor and unimportant.
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    CITY OF SIDNEY v. MUNICIPAL ENERGY AGENCY OF NEB.
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    301 Neb. 147
    9.	 ____: ____. Substantial performance is shown when the following
    circumstances are established by the evidence: (1) The party made an
    honest endeavor in good faith to perform its part of the contract, (2) the
    results of the endeavor are beneficial to the other party, and (3) such
    benefits are retained by the other party.
    10.	 ____: ____. Substantial performance is a relative term, and whether it
    exists is a question to be determined in each case with reference to the
    existing facts and circumstances.
    11.	 Appeal and Error. An appellate court is not obligated to engage in an
    analysis which is not needed to adjudicate the controversy before it.
    Appeal from the Public Power Review Board. Reversed.
    John M. Guthery, Derek A. Aldridge, and Richard D.
    Sievers, of Perry, Guthery, Haase & Gessford, P.C., L.L.O., for
    appellant.
    Stephen M. Bruckner and Alexander D. Boyd, of Fraser
    Stryker, P.C., L.L.O., for appellee.
    Heavican,       C.J.,    Miller-Lerman,          Cassel,     Stacy,     and
    Funke, JJ.
    Funke, J.
    This is an appeal from an arbitration board’s decision under
    Neb. Rev. Stat. § 70-1301 et seq. (Reissue 2009). The City
    of Sidney, Nebraska, initiated this dispute against its whole-
    sale energy provider, Municipal Energy Agency of Nebraska
    (MEAN), regarding its monthly transmission rate charges. The
    board ruled that MEAN breached the parties’ “Service Schedule
    M” (SSM) supplemental agreement, by unnecessarily and uni-
    laterally changing the transmission path for the electric power
    and energy it provided to Sidney and by charging Sidney for
    the increased transmission rates. Because of these breaches, the
    board ruled that the transmission rate MEAN charged Sidney
    was excessive, unfair, and unreasonable.
    On our de novo review, we conclude that the increased
    monthly transmission rate charges were not incurred arbitrarily
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    CITY OF SIDNEY v. MUNICIPAL ENERGY AGENCY OF NEB.
    Cite as 
    301 Neb. 147
    by MEAN but, instead, were required for continued per­
    formance of the SSM, after the parties learned they had insuf-
    ficient contractual rights to complete the transmission path to
    Sidney. We hold that MEAN substantially complied with the
    SSM in transmitting energy to Sidney and that MEAN was
    permitted to charge Sidney the increased transmission rate
    under the SSM. Therefore, we reverse the decision of the arbi-
    tration board.
    I. BACKGROUND
    1. R elevant Entities
    Sidney is a political subdivision and the operator of the
    retail electric system within its municipality and Fort Sidney,
    which serves approximately 3,900 customers. Sidney’s peak
    energy need ranges from 12 megawatts (MW) in the winter to
    18.5 MW in the summer.
    MEAN is a Nebraska political subdivision and a not-for-
    profit wholesale energy provider, created under Nebraska’s
    Municipal Cooperative Financing Act.1 It is composed of over
    60 member communities—in Nebraska, Iowa, Colorado, and
    Wyoming—who have signed an Electrical Resources Pooling
    Agreement, which is the master agreement that governs all
    supplemental contracts between the parties. MEAN supplies
    its members’ wholesale energy by contracting for generation
    rights, with other members and third-party energy providers,
    and transmission rights, with third-party transmission service
    providers. MEAN is governed by a board of directors and a
    management committee, both of which consist of appointed
    representatives from each member community.
    MEAN has served as Sidney’s primary wholesale energy
    supplier since 1982. At all relevant times, MEAN has served
    Sidney’s energy needs through the Sidney West switchyard
    (Sidney West). Sidney West is composed of several substations
    1
    Neb. Rev. Stat. § 18-2401 et seq. (Reissue 2012).
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    CITY OF SIDNEY v. MUNICIPAL ENERGY AGENCY OF NEB.
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    301 Neb. 147
    and facilities owned by different entities: The Western Area
    Power Administration (WAPA) owns a substation containing
    its 115 kilovoltage (kV) bus and attached transmission lines;
    Sidney owns transmission lines and a 115 kV/13.2 kV trans-
    former, which are located within WAPA’s substation and con-
    nect to the national power grid only through WAPA’s 115 kV
    bus; and Tri-State Generation and Transmission Association,
    Inc. (Tri-State), owns a substation containing a 230 kV bus, a
    230 kV/115 kV transformer, and transmission lines connecting
    its bus and transformer to WAPA’s 115 kV bus.
    WAPA is a federal power marketing administration within
    the U.S. Department of Energy. WAPA allocates federally gen-
    erated hydroelectric energy to municipalities and other political
    subdivisions. WAPA also operates as a wholesale energy pro-
    vider and transmission service provider, through its Loveland
    Area Project (LAP) Network Integrated Transmission System
    (NITS). Additionally, WAPA contracts with other transmission
    service providers as a tariff administrator to ensure compli-
    ance with Federal Energy Regulatory Commission regulations
    and monitor electronic tag (e-tag) registration in “OASIS,”
    the electronic system for registering transmission paths and
    scheduling energy transmissions across those paths. E-tags
    are electronic transaction records that document the planned
    flow of energy across one or more transmission systems in the
    wholesale market.
    The Missouri Basin Power Project (MBPP) owns the
    Laramie River Station (LRS), a power-generating company,
    and transmission lines used to transmit energy from LRS.
    One of the owners of MBPP is Basin Electric Power West
    (BEPW). Through a displacement agreement with BEPW,
    MEAN has rights to 18 MW of energy from LRS and
    MBPP’s transmission lines connecting to Sidney. The dis-
    placement agreement makes WAPA the tariff administrator
    for BEPW and MEAN regarding their transmissions on the
    MBPP system.
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    CITY OF SIDNEY v. MUNICIPAL ENERGY AGENCY OF NEB.
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    301 Neb. 147
    2. Contractual R elationship
    Between Sidney and MEAN
    In 1995, Sidney accepted bids for its wholesale energy
    needs and resolicited bids in 1996. During the 1996 bid solici-
    tation, MEAN’s bid tied for the lowest, and Sidney chose to
    award MEAN the contract because of the parties’ long history
    and Sidney’s ability to participate in MEAN’s governance,
    as a member community. From 1996 until 2001, Sidney
    and MEAN entered into a series of short-term supplemental
    agreements, under which MEAN provided Sidney its energy
    requirements in excess of WAPA’s approximately 2 MW
    energy allocation to Sidney.
    After winning the bid in 1996, MEAN and Tri-State entered
    into the “Sidney Facilities Service Agreement” (Tri-State
    Agreement), which enabled MEAN to transmit 7 MW of energy
    through the portions of Sidney West “own[ed], operate[d],
    and maintain[ed]” by Tri-State for $2,367.40 per month, with
    the option to increase the capacity at the cost of $338.18 for
    each of the MW transmitted per month. With this agreement,
    MEAN was able to transmit LRS-generated energy to Sidney
    through MBPP, which connects to Sidney West at Tri-State’s
    230 kV bus.
    In 2005, MEAN’s manager of electric operations was con-
    tacted by WAPA concerning the transmission arrangement
    MEAN used to serve Sidney. He informed WAPA that MEAN
    served Sidney using Tri-State’s transformer, under the Tri-
    State Agreement, which he believed WAPA found acceptable.
    He later informed Sidney that if Sidney could no longer rely
    solely on the Tri-State Agreement for its energy transmission,
    then Sidney would have to be put on WAPA’s LAP NITS
    for transmission at a nearly $300,000 annual transmission
    rate increase.
    In 2007, MEAN’s manager of electric operations encour-
    aged Sidney to enter into the SSM, instead of continuing with
    its then-current supplemental agreement, ending in 2011. He
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    CITY OF SIDNEY v. MUNICIPAL ENERGY AGENCY OF NEB.
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    301 Neb. 147
    explained several benefits of the SSM to Sidney: long-term
    energy rate stability, saving Sidney over $100,000 in 2008
    alone for its current agreement; savings of more than $1.6 mil-
    lion in 2008, compared to full tariff service with Tri-State; and
    extending Sidney’s long-term relationship with MEAN as a
    participating member in MEAN’s governance. He also stated
    that Sidney’s energy rates were lower than other MEAN mem-
    bers, in part because of the low transmission costs enabled by
    the Tri-State Agreement.
    In 2008, the parties entered into the SSM, effective from
    February 1, 2008, until at least 2041. The SSM is a standard
    form agreement used with other members of MEAN and
    includes attachments specific to the member community. It
    requires MEAN to provide Sidney its energy requirements,
    less WAPA allocations, and Sidney to pay MEAN for such
    energy under the provisions of exhibit B, the rate schedule.
    The SSM also states that the energy supplied by MEAN shall
    be delivered to the “Point of Delivery” (POD) specified in
    exhibit A, which may be modified only “by a revised Exhibit
    A signed by an authorized officer of [Sidney] and accepted
    by MEAN.”
    Exhibit A includes the following diagram:
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    CITY OF SIDNEY v. MUNICIPAL ENERGY AGENCY OF NEB.
    Cite as 
    301 Neb. 147
    From 1996 until December 1, 2014, under each of the
    parties’ supplemental agreements, MEAN provided Sidney’s
    energy requirements through its generation rights in LRS and
    transmission rights on MBPP’s transmission lines, which con-
    nected to Sidney’s facilities in Sidney West through Tri-State’s
    and WAPA’s facilities. The only fee for transmission charged
    to Sidney by MEAN under this transmission path was the
    $2,367.40-per-month base fee in the Tri-State Agreement.
    3. Policy Changes R egarding
    Energy Transmissions
    (a) MEAN Policy Changes
    In 2013, MEAN entered into a settlement with the
    Southwestern Power Pool to compensate it for MEAN’s unre-
    served use of its facilities, which is the use of a facility to
    transmit energy without any contractual rights to do so. Tariff
    administrators establish the penalties for unreserved use of
    facilities, which generally include compensating the owner of
    the facility for any use at double the rate normally charged.
    MEAN’s board of directors decided to pay the costs of this
    settlement by socializing the amount across all of its members,
    even though Sidney and other members had not directly ben-
    efited from the unreserved use.
    In response to the incident with the Southwestern Power
    Pool, MEAN’s executive director proposed a directive imple-
    menting a culture of compliance for MEAN to the board
    of directors, which it approved. Consequently, there was an
    expectation that MEAN would do whatever was necessary to
    comply with all regulations. By 2013, MEAN had begun exten-
    sively reviewing energy contracts to ensure they were comply-
    ing with applicable regulations.
    (b) WAPA Changes to Use of
    E-Tags on MBPP Lines
    As Sidney’s energy provider, MEAN scheduled all e-tags
    for the transmission of its generated energy resources to
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    Sidney on OASIS. Historically, e-tags were very general
    in that MEAN was required to specify only the start and
    end points of an entire transmission path and label it as
    grandfathered.
    In January 2013, however, WAPA informed MEAN that it
    intended to discontinue the use of grandfathered e-tags effec-
    tive March 26, 2013. As a result, MEAN was now required to
    schedule each transmission segment along the complete path
    through specific e-tags. These specific e-tags were required to
    specify the start and end points of each transmission segment,
    the transmission service provider that owned the segment, and
    the capacity level of the energy. The capacity level of energy is
    rated on a 1-to-7 scale. Level 7 is the highest priority, the last
    level to be curtailed in the case of overscheduling, classified
    as “firm” capacity.
    OASIS rejects a registered e-tag if there is insufficient
    capacity on a particular segment of the transmission line or if
    it does not recognize the registering entity as having a contrac-
    tual right for its scheduled transmission. Conversely, when an
    entity had used a grandfathered e-tag, OASIS’ system for veri-
    fying whether the registering entity had sufficient contractual
    rights to transmit energy across each segment of a complete
    transmission path was bypassed.
    Upon announcing the change, Raymond Vojdani, a transmis-
    sion policy advisor at WAPA, informed MEAN that its trans-
    mission capacity on the MBPP line to Sidney West would be
    reduced to 4 MW of firm capacity, from the 18 MW of firm
    capacity available with the grandfathered e-tag. Vojdani also
    suggested that MEAN’s transmission path to Sidney, under
    the displacement agreement, would consist of the follow-
    ing three segments: the LRS generating facility to the MBPP
    transformer converting energy to 230 kV, BEPW LRS>LRS
    230; MBPP’s transformer to the Stegall, Nebraska, switchyard,
    LAPT LRS 230>SGW; and the Stegall switchyard to Sidney
    West, BEPW SGE>SCSW.
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    CITY OF SIDNEY v. MUNICIPAL ENERGY AGENCY OF NEB.
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    4. MEAN’s Internal R esponse
    to WAPA’s Changes
    In December 2013, MEAN internally discussed a problem
    with its transmission path for Sidney within Sidney West.
    MEAN found that the three-segment path, provided by Vojdani,
    was insufficient to deliver energy to Sidney, because it resulted
    in a gap within Sidney West, and that it could only create a
    complete transmission path by adding a fourth segment, LAPT
    SCSW>SCSW. “LAPT” referred to the Loveland Area Power
    Transmission, which encompassed WAPA’s 115kV bus located
    within Sidney West.
    Rather than scheduling transmissions to Sidney with this
    fourth segment, MEAN used point-to-point transmission capac-
    ity (PtP) to create a complete transmission path. PtP is the
    purchase of transmission rights for a single segment of a trans-
    mission system, but it must be purchased for the peak MW
    capacity required at any point regardless of whether or not the
    entity needs such capacity at all times. MEAN relied on 10
    MW of its existing organizational PtP and acquired additional
    PtP at a cost of over $30,000 in 2013 and 2014.
    MEAN initially attributed the gap in its transmission path
    to Tri-State’s 230 kV/115 kV transformer. They asked Vojdani
    whether a Tri-State-to-Sidney West, TSGT SCSW>SCSW,
    e-tag could be created, under the Tri-State Agreement, to
    resolve the gap, but Vojdani stated that no e-tag across Sidney
    West should be required, because all parties were aware of
    MEAN’s agreement to use Tri-State’s 230 kV/115 kV trans-
    former. During this same period, Billy Cutsor, a MEAN
    employee, provided Vojdani with incorrect information regard-
    ing the number of MW MEAN could transmit through Tri-
    State’s facilities, under the Tri-State Agreement. Based upon
    the incorrect information, Vojdani recommended that Sidney
    be placed on LAP NITS so that MEAN could transmit a suf-
    ficient amount of energy to Sidney to fulfill Sidney’s needs.
    After this recommendation, MEAN targeted placing Sidney on
    LAP NITS on October 1, 2014.
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    CITY OF SIDNEY v. MUNICIPAL ENERGY AGENCY OF NEB.
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    Still having issues with creating a complete transmission
    path to Sidney, MEAN contacted Tri-State in February 2014.
    Tri-State offered various e-tag alternatives, but each proved
    ineffective. Tri-State suggested using the TSTG SGW>SCSW
    230 e-tag, but it did not work, because it contained the same
    gap within Sidney West. MEAN requested that Tri-State fill
    the gap in its path by creating an e-tag representing its contrac-
    tual rights under the Tri-State Agreement, suggesting TSTG
    SCSW 230>SCSW 115, but this also did not work.
    Tri-State then suggested using the LAPT SCSW>SCSW
    e-tag. However, MEAN expressed concern that this e-tag
    would indicate it was using WAPA’s system, which Vojdani
    confirmed. Subsequently, MEAN, Tri-State, and Vojdani sched-
    uled a conference call to discuss the e-tag issue further. Based
    on the call, MEAN concluded that WAPA’s 115 kV bus was the
    gap in its transmission path to Sidney and that it would need
    to contract with WAPA to create a complete transmission path
    using WAPA’s bus.
    In June 2014, MEAN began working on an application to
    WAPA to determine whether there was sufficient capacity on
    LAP NITS to serve Sidney’s energy needs. MEAN submitted
    its application to WAPA on July 21.
    5. MEAN Communications
    With Sidney and Change
    to Transmission Path
    In the spring of 2014, Cutsor mentioned to a Sidney
    employee that some issues had arisen with the transmission
    arrangement MEAN used to serve Sidney, explaining what
    had changed and some options for solving the issue. Then, in
    July 2014, Cutsor sent an email to another Sidney employee
    explaining that the use of e-tags had recently become more
    transparent, that the Federal Energy Regulatory Commission
    now monitored e-tags, and that a complete transmission path to
    Sidney would require additional transmission service. Cutsor
    recommended that Sidney obtain LAP NITS and cancel the
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    Tri-State Agreement effective October 1, 2014, which would
    result in about a $500,000 annual increase in transmission
    fees. During a subsequent conference call in July, MEAN com-
    municated that WAPA would not impose any penalty for the
    unreserved use of its facilities if Sidney obtained LAP NITS
    service by October 1.
    In August 2014, MEAN provided Sidney with a price com-
    parison for Tri-State and LAP NITS, the only entities with sub-
    stations at Sidney West. MEAN determined that the use of LAP
    NITS would cost $576,000 per year and that full tariff service
    with Tri-State would cost about $630,000 per year. Sidney
    responded that it would be examining its options further before
    accepting MEAN’s proposal. Later, MEAN informed Sidney
    that Tri-State’s full tariff service would not include rights to
    WAPA’s 115 kV bus and that WAPA offered only full tariff
    service on LAP NITS, not a limited contract for the 115 kV
    bus only.
    Both MEAN and WAPA estimated that keeping the exist-
    ing transmission path with MBPP and adding PtP to transmit
    energy across WAPA’s bus would be a similar or higher cost
    than obtaining LAP NITS full tariff service. Further, PtP
    would be subject to curtailing when there was insufficient
    capacity on WAPA’s 115 kV bus and would continue to pro-
    vide Sidney with only 4 MW firm energy. Conversely, WAPA
    informed MEAN that as part of the full tariff service with
    LAP NITS, Sidney could be provided with its full energy
    needs at firm capacity by WAPA’s generating sources. MEAN
    also learned from WAPA that LAP NITS could transmit
    energy to Sidney independent of the rights in the Tri-State
    Agreement and over various lines, which would reduce the
    risk of interruptions.
    During a meeting in September 2014, MEAN discussed
    with Sidney the changes in 2013 that led to the identifica-
    tion of the gap in the transmission path, how the Tri-State
    Agreement was insufficient to close the gap, and its final
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    determination that obtaining LAP NITS and canceling the
    Tri-State Agreement, effective October 1, 2014, would be
    the best option to provide Sidney a complete transmission
    path. Sidney, however, refused to accept any rate change until
    60 days after MEAN provided it notice pursuant to the cor-
    rect SSM procedure. The next week, MEAN advised Sidney
    regarding the use of “non-firm” energy transmission and the
    higher costs of doing so with PtP and explained how LAP
    NITS costs were calculated.
    On September 25, 2014, MEAN sent formal notice to
    Sidney of its intent to implement the changes, which would
    affect Sidney’s transmission charges, on December 1. On that
    same day, MEAN sent a notice to Tri-State terminating the Tri-
    State Agreement, effective as of December 1.
    In October 2014, WAPA informed MEAN that WAPA could
    have charged Sidney for the unreserved use of its 115 kV at
    double the rate going back several years but opted not to do so.
    WAPA also informed MEAN that it would provide an initial
    discount to Sidney for obtaining LAP NITS.
    Effective December 1, 2014, Sidney’s energy needs began
    being served by LAP NITS. Due to a billing error, MEAN did
    not start billing Sidney for the LAP NITS charges until March
    2015. Over the next 12 months, WAPA phased in the increased
    costs for Sidney’s service on LAP NITS. Once the full charges
    for LAP NITS were phased in, Sidney’s transmission costs
    had increased from $28,408.80 per year to approximately
    $576,000 per year.
    After Sidney was placed on LAP NITS, WAPA took over the
    scheduling of e-tags to transmit energy to Sidney. According to
    an unexecuted contract between MEAN and WAPA and com-
    munications with WAPA, MEAN concluded that WAPA sched-
    ules Sidney’s energy through the Archer, Nebraska, switchyard,
    which connects directly to WAPA’s 115 kV bus in Sidney West.
    However, LAP NITS connects to Sidney West with four differ-
    ent transmission sources, two of which connect to Tri-State’s
    230 kV bus.
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    6. Proceedings Before
    A rbitration Board
    In early 2015, Sidney sent MEAN a notice of election to
    dispute charges, under § 70-1304. The parties failed to settle
    the dispute, and arbitration proceedings were initiated, under
    § 70-1306. Sidney filed an amended notice at the first meeting
    with the arbitration board that alleged MEAN had breached the
    SSM by charging an unfair, unreasonable, and discriminatory
    transmission rate; the SSM by unilaterally changing the POD;
    and the implied covenant of good faith and fair dealing by act-
    ing in a manner that injured Sidney. The arbitration proceed-
    ings occurred in March 2017.
    (a) Transmission Gap in Sidney West
    MEAN called several of its employees to testify about the
    gap in the transmission path identified in Sidney West. The
    employees testified that they had concluded WAPA’s 115 kV
    bus was the gap in the transmission path at Sidney West.
    MEAN staff admitted that neither WAPA nor the Federal
    Energy Regulatory Commission had threatened to penalize
    Sidney or MEAN for unreserved use of WAPA’s facilities.
    However, they stated that MEAN had to obtain contractual
    rights to use WAPA’s bus, because using WAPA’s bus without
    a contract violated the regulatory commission’s regulations and
    MEAN’s culture-of-compliance directive. They also testified
    that once Vojdani became aware of the issue, he acknowledged
    that WAPA could have penalized MEAN for its unreserved use
    of WAPA’s facilities but would not do so if Sidney obtained
    sufficient rights.
    Sidney called an expert who testified that there was no
    gap in the transmission path MEAN had been using to serve
    Sidney, because “[b]us transfers are not charged for in general
    . . . .” MEAN’s expert agreed that the bus did not create a gap
    in transmission service by stating that the convention in the
    “west” is that there is no charge for energy crossing a substa-
    tion if it enters and exits at the same voltage, as a professional
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    courtesy. Instead, he stated that an entity has to pay only for
    the use of a transformer to change voltage levels, which gener-
    ally covers the expense of going across a bus.
    MEAN’s expert also acknowledged that there was no path
    for WAPA’s Sidney West facilities posted on OASIS. Pursuant
    to the Federal Energy Regulatory Commission regulations,
    all transmission paths are to be registered on OASIS along
    with the total transfer capability and the available transfer
    capability. However, MEAN’s expert qualified his statement
    by stating that only line segments needed to be registered.
    Additionally, Vojdani testified that LAP NITS would include
    access to transmission facilities like its 115 kV bus.
    Vojdani testified that WAPA first became aware of a problem
    with MEAN’s transmission path to Sidney in February 2014, as
    a result of MEAN’s questions regarding its problems with its
    transmission path. Vojdani stated that at that time, he realized
    WAPA’s 115 kV bus was the last segment of the transmission
    path to Sidney and that WAPA needed to be compensated for
    the use of its bus, because the Tri-State Agreement did not
    provide such a right. He testified that he informed MEAN of
    this during the February 2014 conference call with MEAN
    and Tri-State staff. Vojdani also stated that WAPA considered
    penalizing MEAN for its unreserved use of WAPA’s 115 kV
    bus but decided not to do so.
    (b) Compliance With Exhibit A
    Sidney employees provided testimony regarding their
    understanding of exhibit A and MEAN’s actions in placing
    Sidney on LAP NITS. They testified that the favorable and
    stable transmission rate provided by MEAN under the Tri-
    State Agreement was a primary motivation in Sidney’s enter-
    ing the SSM. Sidney employees testified that they believed
    exhibit A represented a contractual requirement that MEAN
    transmit Sidney’s energy through the MBPP line and the
    Tri-State facilities, under the Tri-State Agreement. They also
    stated that Sidney never consented to amending exhibit A and
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    that MEAN unilaterally decided to place Sidney on LAP NITS
    and cancel the Tri-State Agreement, without providing Sidney
    with any alternative options.
    Sidney’s expert testified that the POD in exhibit A was
    located at the fence of Tri-State’s substation at Sidney West
    on the MBPP line and that MEAN was in breach of exhibit
    A because WAPA had no right to deliver energy on MBPP’s
    line. He stated that typically, a transmission line owned by one
    entity would connect to a transmission line at the fence line of
    another entity’s facilities so that the first entity would not have
    to enter the second’s facilities to service its transmission line.
    The expert acknowledged that the diagram of Sidney West in
    evidence did not show a change in line ownership at the fence
    line to Tri-State’s substation but explained that it was likely
    because the diagram was created by WAPA and not Tri-State
    or MBPP.
    MEAN’s expert testified that MEAN had not breached
    exhibit A, because the POD was Tri-State’s 230 kV bus and
    LAP NITS had transmission lines connecting to the bus and
    rights to transmit energy through it. He explained that a POD
    is the end point of transmission service and is generally an
    entire substation but, occasionally, a bus if there is an internal
    voltage transfer within a substation. The expert, and Vojdani,
    testified that a POD cannot be located on a transmission
    line itself, because energy cannot be forced to travel along
    a specific path; instead, energy travels on the path of least
    resistance, which could be any transmission line regardless
    of ownership. Sidney’s expert contested that WAPA did not
    have the ability to transmit energy to serve Sidney across Tri-
    State’s transformer.
    MEAN staff detailed their several communications with
    Sidney staff regarding the issue and recommending the option
    it had determined would be the most cost-effective solution,
    discussed above. They also detailed the price comparisons
    that they had made, and shared with Sidney staff, in reaching
    their conclusion regarding the most cost-effective solution.
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    MEAN’s expert agreed with the recommendation of MEAN
    staff that the lowest cost option for Sidney was being placed
    on LAP NITS and canceling the Tri-State Agreement.
    (c) Charges Under LAP NITS
    MEAN staff testified that under the SSM, transmission
    charges are to be passed through to the customer at the cost
    charged by the third party. They admitted that as of the hearing,
    MEAN still had not executed an agreement with WAPA plac-
    ing Sidney on LAP NITS, but that Sidney was receiving and
    being charged for energy and transmission on LAP NITS. They
    explained that WAPA charges customers based on the number
    of MW transferred through LAP NITS, not by the distance
    energy is transmitted.
    MEAN staff testified that WAPA calculated the charges for
    all of MEAN’s members under the same formula and passed
    the single charge to MEAN. They testified that MEAN then
    used the same formula as WAPA to determine each of its
    community’s charges, which it passed on to each community
    without markup. MEAN staff stated that Sidney’s transmis-
    sion costs for using LAP NITS are about 10 percent of its
    total energy costs, which is the same average transmission
    cost ratio for all 54 of MEAN’s members with an SSM agree-
    ment. MEAN staff also testified that Sidney’s transmission
    costs under the Tri-State Agreement alone were extremely low,
    amounting to transmission costs of less than 1 percent of total
    energy costs.
    7. A rbitration Board’s Decision
    The arbitration board concluded that MEAN breached the
    SSM because it had unilaterally changed the POD and charged
    Sidney the increased transmission rate. Consequently, it ruled
    that the transmission rate MEAN was charging Sidney for
    electric wholesale service to Sidney was excessive, unfair,
    and unreasonable. The board ruled that it was not autho-
    rized to terminate or rescind the SSM, under § 70-1314,
    so it set the fair, reasonable, and nondiscriminatory rate for
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    transmission charges at $2,367.40 per month, the rate charged
    before MEAN’s breach. The board did not make any finding
    regarding the alleged breach of the implied covenant of good
    faith and fair dealing.
    The board ruled that the POD in exhibit A was located on
    the MBPP line at the fence of the Tri-State substation and that
    MEAN had breached exhibit A, because WAPA had no rights
    on the MBPP line, could not use Tri-State’s transformer to
    serve Sidney, and served Sidney from the Archer switchyard
    at 115 kV. It found that MEAN changed the path without
    consulting with Sidney and that Sidney did not consent to
    the change.
    The board determined that MEAN’s breach of exhibit A
    damaged Sidney because changing the transmission path was
    unnecessary. It ruled there was no gap in the transmission
    path to Sidney by making the following findings: The trans-
    mission path had been sufficient before December 2014, and
    neither WAPA nor the Federal Energy Regulatory Commission
    required the change; both parties’ experts testified that there
    was no cost to use WAPA’s bus; and the evidence showed
    that Tri-State had the right to use WAPA’s 115 kV bus at no
    charge. The board determined that the entirety of Vojdani’s
    testimony was not entitled to weight, because it was partially
    based on incorrect facts from Cutsor.
    The board also ruled that MEAN breached the SSM’s
    requirement that it charge Sidney energy rates that were fair,
    reasonable, and nondiscriminatory. It determined that the rate
    was unfair, because it interpreted the SSM to require MEAN to
    contract for a complete transmission path to Sidney at its own
    expense, and discriminatory, because MEAN’s board of direc-
    tors inconsistently socialize transmission costs.
    MEAN appealed the decision of the arbitration board to the
    Nebraska Court of Appeals, under § 70-1326. We then granted
    MEAN’s petition to bypass the Court of Appeals.2
    2
    See Neb. Rev. Stat. § 24-1106(2) (Supp. 2017).
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    II. ASSIGNMENTS OF ERROR
    On appeal, MEAN assigned—reordered, restated, and con-
    solidated—that the arbitration board erred in (1) concluding
    that it had subject matter jurisdiction to hear breach of contract
    claims; (2) allowing Sidney to amend its notice of dispute; (3)
    finding WAPA’s facilities did not create a “‘gap’” in the trans-
    mission path to Sidney, because they could be used without
    charge; (4) finding LAP NITS was unnecessary and not the
    lowest cost alternative to transmit energy to Sidney; (5) finding
    that MEAN breached the SSM by changing the POD; (6) find-
    ing that MEAN breached the SSM by passing unfair, unrea-
    sonable, and discriminatory transmission charges to Sidney;
    (7) receiving exhibit 100 into evidence; and (8) altering and
    modifying the parties’ contract in setting the fair, reasonable,
    and nondiscriminatory rate for transmission service.
    III. STANDARD OF REVIEW
    [1,2] On an appeal from the decision of an arbitration board
    convened under § 70-1301 et seq., trial in the appellate court
    is de novo on the record.3 Despite our de novo review, when
    credible evidence is in conflict on material issues of fact, the
    appellate court will consider and may give weight to the fact
    that the arbitration board observed the witnesses and accepted
    one version of the facts over another.4
    IV. ANALYSIS
    1. A rbitration Board H ad
    Subject M atter Jurisdiction
    MEAN argues the arbitration board, as a statutorily created
    body, lacked subject matter jurisdiction to decide Sidney’s
    contract-based claims. Instead, it argues the statutes expressly
    limit the arbitration board’s jurisdiction to deciding rate dispute
    3
    § 70-1327; In re Application of Northeast Neb. Pub. Power Dist., 
    300 Neb. 237
    , 
    912 N.W.2d 884
    (2018).
    4
    
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    claims by determining whether the rate charged is adequate,
    fair, reasonable, and nondiscriminatory.
    [3] We recently considered whether an arbitration board,
    created under § 70-1301 et seq., had jurisdiction to consider
    breach of contract and breach of an implied covenant of good
    faith and fair dealing claims, in In re Application of Northeast
    Neb. Pub. Power Dist.5 We stated that “[t]he Legislature clearly
    contemplated the existence of power contracts” in the statutes
    and that rate disputes are often intertwined with contrac-
    tual issues of the rights and obligations regarding the rate.6
    Accordingly, we held that where “contractual issues are inter-
    twined with a rate dispute, such contractual issues are within
    the arbitration board’s jurisdiction.”7
    Section 70-1302 explicitly states that a board’s authority
    to “resolve wholesale electric rate disputes [includes] rate
    disputes relating to transmission and delivery of electrical
    energy.” Therefore, the board had subject matter jurisdiction
    to consider whether MEAN breached the SSM or the implied
    covenant of good faith and fair dealing to the extent that such
    breaches resulted in transmission rate charges that are unfair,
    unreasonable, and discriminatory.
    2. A rbitration Board Did Not Err
    in A llowing Sidney to File
    A mended Notice
    MEAN contends that the arbitration board erred in allow-
    ing Sidney to file an amended notice, because § 70-1301 et
    seq. does not provide a mechanism for amending a notice
    of dispute.
    When a purchaser elects to dispute a wholesale electric
    charge, § 70-1304 requires that the purchaser “shall give
    notice in writing to the supplier stating such election. The
    5
    In re Application of Northeast Neb. Pub. Power Dist., supra note 3.
    6
    
    Id. at 248,
    912 N.W.2d at 892.
    7
    
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    notice shall fully describe the basis for the dispute and set
    forth a detailed statement of disputed issues and the relief
    sought by the purchaser.” Section 70-1318 states that “[t]he
    arbitration board shall be bound by the rules of evidence appli-
    cable in district court.” Section 70-1306 provides the default
    procedural rules governing the arbitration, stating, in part,
    the following:
    Except as otherwise provided in sections 70-1301
    to 70-1329, the Commercial Arbitration Rules of the
    American Arbitration Association, as amended and in
    effect March 1, 1977, shall be used to the extent that they
    are determined by the arbitration board to be applicable to
    the procedures set forth in sections 70-1301 to 70-1329.
    The Commercial Arbitration Rules address the ability of a
    party to amend its claim, or notice in this case. Rule R-6(b)
    provides that “[a]fter the arbitrator is appointed, . . . no new or
    different claim may be submitted except with the arbitrator’s
    consent.”8 This provision’s grant of authority to the arbitrator
    to allow substantive changes to the claims before him or her
    necessarily includes the lesser power to permit nonsubstan-
    tive changes.
    [4] Section 70-1301 et seq. does not otherwise provide for
    amendments of a notice or prohibit such. Accordingly, we find
    that under § 70-1306, an arbitration board is authorized to per-
    mit amendments to a notice, substantive or not, at any time in
    the arbitrative proceedings.
    At the arbitration board’s first meeting, the board ruled
    that the Commercial Arbitration Rules would be inapplicable
    regarding the rules of evidence but made no similar ruling
    regarding procedural matters. Sidney later moved to file an
    amended notice of election to dispute, and the board con-
    sidered whether the arbitration rules would permit Sidney to
    amend its notice. The arbitration board ultimately found that it
    8
    American Arbitration Association, Commercial Arbitration Rules and
    Mediation Procedures R-6(b) at 13 (Oct. 1, 2013).
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    had the power to allow Sidney to amend its notice and ruled
    that Sidney could, after concluding that the issues presented in
    the amended notice were not a substantial deviation from those
    in the original notice.
    Because the arbitration board had the authority to allow
    Sidney to amend its notice and did allow the amendment, this
    assignment of error is without merit.
    3. Sidney’s Claims
    The board did not consider Sidney’s implied covenant of
    good faith and fair dealing claim. In addition, Sidney did not
    file a motion for rehearing or a cross-appeal on this issue, so
    we do not consider it.
    Sidney’s breach of contract claims, in the limited context of
    this dispute, depend on showing that MEAN’s breach resulted
    in an unfair, unreasonable, or discriminatory rate. The board
    determined that there was no gap in the transmission path serv-
    ing Sidney, so it ruled that MEAN’s unilateral and unneces-
    sary change to the transmission path, in breach of exhibit A,
    was unfair to Sidney to the extent that it increased Sidney’s
    transmission rate. The board also found that the rate increase
    to Sidney was unfair because the SSM required MEAN to bear
    that expense and discriminatory because MEAN inconsistently
    socialized transmission costs. Upon our de novo review, we
    find that the arbitration board erred in its ultimate conclusions
    on the breach of contract claims and certain underlying fac-
    tual findings.
    (a) MEAN’s Change to Transmission
    Path Substantially Complied
    With Exhibit A
    (i) MEAN Could Not Transmit
    Energy Across WAPA’s Facilities
    Without Contractual Rights
    The crux of this claim is whether WAPA’s 115 kV bus con-
    stituted a gap in the transmission path serving Sidney. As the
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    arbitration board found, if there was no gap, then MEAN’s
    action of placing Sidney on LAP NITS was unnecessary.
    However, if there was a gap, at least some additional cost was
    required for performance of the SSM.
    MEAN contends that the arbitration board erred in deter-
    mining WAPA’s facilities did not constitute a gap in the
    transmission path. It contends that Vojdani testified to telling
    MEAN that MEAN could not transmit energy across WAPA’s
    115 kV bus without contractual rights to do so and that the
    Tri-State Agreement did not provide such rights. Further, it
    argues that the fact that WAPA had not charged for the usage
    of its facilities in the past did not preclude it from penalizing
    for that unreserved use or charging for any future use.
    Sidney contends that there was no gap in the transmission
    path. It argues that MEAN staff admitted that a complete trans-
    mission path could be created with the LAPT SCSW>SCSW
    e-tag, which proved that the Tri-State Agreement itself pro-
    vided MEAN the right to use WAPA’s facilities and that
    no charge was necessary—based on both experts’ testimony.
    Sidney also argues that the board found Vojdani’s testimony
    was not entitled to weight, because it was based on the incor-
    rect information about the Tri-State Agreement provided to him
    by Cutsor.
    We disagree with Sidney and the arbitration board that
    Vojdani’s testimony was not entitled to weight. Vojdani tes-
    tified there were two independent bases for placing Sidney
    on LAP NITS: (1) MEAN had insufficient firm capacity on
    the MBPP line and insufficient total capacity on the Tri-
    State facilities to serve Sidney, and (2) MEAN had no right
    to transmit energy across WAPA’s 115 kV bus. Vojdani’s
    testimony regarding insufficient capacity on the Tri-State
    facilities was clearly based on erroneous information from
    Cutsor. However, as Cutsor acknowledged, that incorrect
    information had no relevance to Vojdani’s determination that
    MEAN lacked any right to transmit energy across WAPA’s
    bus. Accordingly, we find that Vojdani’s testimony regarding
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    such is entitled to significant weight based on his employment
    with WAPA.
    The communications between MEAN, Tri-State, and WAPA
    while troubleshooting the transmission issue and the testimony
    of MEAN staff also support a conclusion that the WAPA bus
    constituted a gap in the transmission path. Vojdani and MEAN
    staff testified that they were unaware of any contractual insuf-
    ficiency in the transmission path to Sidney before the grandfa-
    thered e-tag was discontinued. After grandfathered e-tags were
    discontinued, however, the evidence shows MEAN was unable
    to complete a transmission path without relying on PtP or the
    LAPT SCSW>SCSW e-tag.
    While MEAN initially believed the gap was caused by Tri-
    State’s transformer, its understanding evolved as a result of
    Tri-State’s being unable to offer any solution to the gap other
    than recommending MEAN use the LAPT SCSW>SCSW e-tag,
    which Vojdani confirmed would express a contractual right to
    use WAPA’s bus. On a conference call to discuss the issue
    further, Vojdani informed MEAN that it could not schedule a
    complete transmission path to Sidney without using WAPA’s
    115 kV bus and that MEAN had no contractual right to do so.
    MEAN staff testified that they obtained LAP NITS for Sidney
    to acquire the right to transmit energy to Sidney across WAPA’s
    115 kV bus.
    The board discounted Cutsor’s testimony that the WAPA
    bus was the gap in transmission service, because he also testi-
    fied that the gap was the Tri-State transformer. This statement,
    however, stood in contradiction to his identification of the
    WAPA bus as the gap during at least two other portions of his
    testimony and his description of the development of his under-
    standing regarding the gap.
    Sidney argues that Tri-State’s suggestion that MEAN use
    the LAPT SCSW>SCSW e-tag was either an acknowledg-
    ment that the Tri-State Agreement assigned MEAN a license
    to use WAPA’s facilities or that the suggestion itself assigned
    MEAN the right to do so. The Tri-State Agreement, however,
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    provides MEAN a right to use only those facilities that Tri-
    State “owns, operates, and maintains.” There is no language
    granting or assigning any right to use WAPA’s facilities at
    Sidney West or even mentioning WAPA. Additionally, Tri-
    State’s suggestion that MEAN schedule its transmissions on
    WAPA’s facilities cannot be construed as a contractual assign-
    ment of any right that Tri-State may have had.
    Both MEAN’s and Sidney’s experts testified that transmit-
    ting energy across a bus at the same voltage level is gener-
    ally not charged for as a professional courtesy in the “west”
    region of the country. However, neither expert claimed to do
    any work or to have specific knowledge of the customs in the
    Rocky Mountain region, where the parties and the relevant
    division of WAPA are located. Accordingly, regardless of the
    accuracy of these statements, they provide no insight regard-
    ing WAPA’s policies, as a tariff administrator, concerning the
    use of facilities at the same voltage level or WAPA’s practices,
    as a transmission service provider, in charging for the use of
    its own facilities. In addition, Vojdani explicitly testified that
    the transmission across its facilities to serve Sidney at Sidney
    West would require a contractual right and compensation to do
    so. This testimony was uncontested and more persuasive than
    the experts’ generalities.
    Sidney also argues that WAPA’s 115 kV bus is not an asset
    that WAPA can charge for the use of, because the bus was
    not a posted path on OASIS. The arbitration board agreed
    that the failure to list the bus as a posted path was incon­
    sistent with the claim that WAPA could charge for the use
    of the bus. However, MEAN’s expert qualified his testimony
    on this subject by stating that registering the available trans-
    fer capability is applicable only to line segments. We also
    find the limited testimony on this issue contradicted by the
    undisputed testimony that WAPA had registered the LAPT
    SCSW>SCSW e-tag.
    Based on the preceding evidence, we conclude, on our de
    novo review, that there was a gap in the transmission path
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    serving Sidney’s energy at the WAPA 115 kV bus and that it
    was necessary for MEAN to acquire contractual rights for any
    future use.
    We reject Sidney’s attempt to fault MEAN for acting in
    compliance with federal regulations that prohibit the unre-
    served use of transmission facilities. While it is undisputed
    that MEAN alerted WAPA to its unreserved use of WAPA’s
    facilities, MEAN did so in a good faith attempt to obtain a
    valid transmission path to serve Sidney. The actions of MEAN
    staff were also motivated by the directive of MEAN’s board
    of directors, which Sidney is represented upon, implement-
    ing a culture of compliance. The evidence shows that MEAN
    could have incurred an unreserved-use penalty of approxi-
    mately $1.16 million annually for scheduling transmission on
    WAPA’s bus.
    Further, although WAPA had not charged MEAN for using
    its bus for 18 years, Sidney provides no support for its con-
    tention that WAPA would have been precluded from charging
    MEAN for that unreserved use or any future use. Vojdani testi-
    fied that he considered penalizing MEAN for its use of the bus,
    but did not because of MEAN’s active and immediate action to
    correct the issue once it discovered it, but that any future use
    of WAPA facilities required compensation. Additionally, the
    evidence shows Sidney was fully informed of the unreserved-
    use issue before being placed on LAP NITS.
    (ii) LAP NITS Was Lowest
    Cost Transmission Path
    MEAN argues that LAP NITS was the most cost-effective
    solution to create a complete transmission path to Sidney. It
    asserts that it diligently considered alternate options but that
    each would have cost more and been unable to provide Sidney
    with all of its energy at firm capacity.
    WAPA’s 115 kV bus constituted a gap in the transmission
    service to Sidney, and Sidney’s facilities connected only to
    WAPA’s bus, so a solution had to be implemented in order for
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    Sidney to continue receiving energy. Accordingly, the parties’
    arguments concerning whether the existing transmission path
    could have been utilized by simply waiving any firm energy
    requirement imposed by the SSM are without merit. Instead,
    the limited options available to create a complete transmis-
    sion path to Sidney included obtaining rights to WAPA’s bus,
    connecting Sidney’s facilities to the facilities of an entity
    other than WAPA, or making Sidney self-sufficient regarding
    energy generation.
    [5] MEAN admitted that it did not consider using Sidney’s
    existing generators as an option to serve Sidney’s energy
    needs. However, Sidney admitted the energy rate from its
    generators was substantially higher than under the rate sched-
    ule, there would have been substantial costs to fix and make
    its generators compliant with federal regulations, and at full
    capacity, the generators could produce only 8 MW of energy.
    The evidence does not suggest the cost of fixing the existing
    generators or acquiring sufficient additional generators and
    facilities to produce the other 8 MW of energy Sidney needs.
    There was also no evidence about the costs or ability of Sidney
    to build facilities that could connect directly to those owned by
    Tri-State or another entity. Sidney had the burden of proving
    that the transmission rate charged by MEAN was unfair, unrea-
    sonable, or discriminatory.9 Thus, Sidney failed to prove these
    to be viable alternatives to LAP NITS.
    The record shows that MEAN considered several alternative
    options to LAP NITS for serving Sidney. MEAN staff testified
    that WAPA would not offer any service less than full tariff
    service, that full tariff service with Tri-State would still require
    LAP NITS, and that PtP service over WAPA’s bus would have
    cost more than LAP NITS and been less reliable. MEAN’s
    expert also testified that he examined whether other entities
    could have served Sidney’s energy needs and concluded that
    9
    See In re Application of Northeast Neb. Pub. Power Dist., supra note 3.
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    service from any other entity would have been infeasible
    because each would have run into at least three points requiring
    additional transmission contracts.
    Based on the evidence presented, we conclude that LAP
    NITS was the lowest cost solution for transmitting energy
    to Sidney.
    (iii) Sidney Is Responsible
    for Costs of Transmission
    Rights at Sidney West
    MEAN contends that the arbitration board erred in find-
    ing the POD was located on the MBPP transmission line at
    the fence of Tri-State’s facilities and not on Tri-State’s 230
    kV bus. MEAN argues that the language of the SSM defines
    a POD as the “outlet of the interconnected transmission sys-
    tem,” which cannot logically be located on a transmission
    line, and that based on its nature, energy cannot be forced on
    a specific transmission line. It also argues that the SSM does
    not require it to transmit Sidney’s energy along any specific
    path. Instead, it asserts that the POD is relevant only because
    it represents the change in the possession of energy and that
    the SSM makes Sidney responsible for all transmission costs
    after the POD.
    Sidney argues that exhibit A depicts the POD at the MBPP
    and Tri-State interconnect on the MBPP line, which testimony
    established was at the fence around Tri-State’s substation. It
    argues that exhibit A ensured MEAN would transmit Sidney’s
    energy on the MBPP line at 230 kV and across the Tri-
    State transformer. Sidney also argues that the contract requires
    MEAN to contract, at its own expense, for all transmission
    rights necessary to reach Sidney’s facilities.
    [6,7] In interpreting a contract, a court must first deter-
    mine, as a matter of law, whether the contract is ambiguous.10
    10
    Frohberg Elec. Co. v. Grossenburg Implement, 
    297 Neb. 356
    , 
    900 N.W.2d 32
    (2017).
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    A contract written in clear and unambiguous language is not
    subject to interpretation or construction and must be enforced
    according to its terms.11 A contract is ambiguous when a
    word, phrase, or provision in the contract has, or is suscep-
    tible of, at least two reasonable but conflicting interpretations
    or meanings.12
    The SSM defines the POD as that point “at the outlet of
    the interconnected transmission system . . . at which MEAN
    is obligated to deliver, and [Sidney] is obligated to accept
    delivery of, [energy].” Exhibit A places the symbol indicated
    as the POD on the MBPP line prior to a place identified as Tri-
    State’s 230 kV/115 kV transformer. The POD is identified as
    the “MBPP/Tri-State 230 kV Interconnection.”
    The clear and unambiguous meaning of the SSM’s definition
    of the POD is that it is the point where the MBPP line ends—
    the outlet—and connects to the facilities owned by Tri-State.
    Sidney argues that the contract would have specified the 230
    kV bus if it had intended for the bus to be the POD, as opposed
    to the interconnect which was actually listed. In fact, there is
    no 230 kV bus depicted on exhibit A.
    The contract is ambiguous regarding where the interconnect
    between MBPP and Tri-State is located. While Sidney’s expert
    testified that the interconnect is generally located at the fence
    line of the substation being entered, he acknowledged that
    there was no change of possession depicted on the diagram
    in evidence. Nevertheless, it is not necessary to determine
    the exact location of the POD, whether it is on the transmis-
    sion line or the specific breaker of Tri-State’s 230 kV bus
    that the MBPP line connects to, because the contract makes
    the POD relevant only regarding the change of ownership of
    energy. Therefore, it is sufficient to conclude that the contract
    places all of Tri-State’s facilities on Sidney’s side of the point
    of delivery.
    11
    
    Id. 12 Id.
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    The contract contains no provision specifying a generating
    source or transmission path required to serve Sidney or any
    reason for requiring a specific path. However, the placement
    of the POD in exhibit A does constitute a requirement that
    MEAN deliver energy to the interconnect of the MBPP and
    Tri-State facilities. While MEAN argues that it is impossible
    to actually ensure energy would be transmitted on the MBPP
    line, there is nothing in the contract that would support devi-
    ating from the clear language describing the POD. Instead,
    MEAN’s argument, at best, supports an interpretation that the
    POD in exhibit A was established for the purely administrative
    purpose of allocating ownership of the energy and separation
    of costs.
    Sidney argues, and the arbitration board decided, that the
    SSM requires MEAN to contract for all facilities necessary to
    connect to Sidney’s facilities at its own expense.
    Section 5.01 of the SSM states: “MEAN shall furnish,
    install, lease, contract for and maintain, at its own expense,
    all equipment and facilities necessary for connecting elec-
    tric lines and facilities to [Sidney’s] facilities at the [POD],
    including stepdown transformers where service is supplied at
    [Sidney’s] distribution voltage, unless [Sidney] otherwise pro-
    vides such facilities.”
    Section 5.04 of the SSM, “[Sidney’s] Lines and Equipment,”
    states that “[a]ll lines, substations and other electrical facilities
    . . . located on [Sidney’s] side of the [POD] shall be furnished,
    installed and maintained by [Sidney].”
    The SSM also requires Sidney to pay MEAN for energy
    in accordance with the provisions of the rate schedule and
    states that any additional charges for supplying energy through
    an intervening agency’s system, incurred beyond the service
    included in the rate schedule, will be paid by MEAN and billed
    to Sidney. The rate schedule specifies that “[t]ransmission serv­
    ice charges . . . for delivery of [Sidney’s entire energy needs in
    excess of its WAPA allocation] shall be billed at the transmis-
    sion service provider’s then-current transmission rates.”
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    The provisions of the standard form SSM regarding the
    POD indicate that the POD is typically located at the facili-
    ties owned by the city that MEAN is contracting with. In this
    case, however, exhibit A places the POD at a place requiring
    at least some contractual rights with intervening transmis-
    sion service providers to get the energy to Sidney’s facili-
    ties. Because the contract states that MEAN will contract for
    the facilities necessary to connect to Sidney’s facilities, the
    arbitration board determined that the right to transmit energy
    across WAPA’s bus to Sidney’s facilities was MEAN’s respon-
    sibility to acquire at its own expense. It was also persuaded
    by the fact that the contract did not state that Sidney had any
    requirement to contract for facilities in the article discuss-
    ing facilities.
    However, a complete reading of § 5.01 provides that MEAN
    is only responsible for contracting facilities connecting “to
    [Sidney’s] facilities at the [POD].” While the SSM only dis-
    cusses requirements for Sidney to provide and maintain facili-
    ties on its side of the POD, the contract also clearly envisions
    circumstances where Sidney will be responsible for reimburs-
    ing MEAN for transmission charges incurred to deliver its
    energy. The arbitration board’s reading of the contract ignores
    both the qualifying language regarding MEAN’s responsibility
    to bear the expense for acquiring transmission rights and ren-
    ders all language regarding Sidney’s responsibility to pay for
    transmission cost superfluous.
    The SSM discusses the POD only as a mechanism for shift-
    ing ownership of the energy, which also shifts the responsibil-
    ity for the transmission. Accordingly, we find that the plain
    language of the SSM allows MEAN to contract for trans-
    mission rights on Sidney’s side of the POD and pass those
    expenses on to Sidney. Therefore, the SSM allowed MEAN to
    contract for transmissions right within Sidney West and pass
    those expenses to Sidney.
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    (iv) Transmission Path With
    LAP NITS Is in Substantial
    Performance of Exhibit A
    MEAN argues that its delivery of energy to Sidney through
    LAP NITS is in substantial compliance with the SSM. It
    asserts that LAP NITS was required to complete a transmission
    path to Sidney and that once Sidney was on LAP NITS, the
    Tri-State Agreement was an unnecessary additional expense.
    Further, it asserts that the SSM does not require it to deliver
    energy on any specific path, so its delivery through a new path
    at a higher capacity level and without unnecessary expenses
    complies with the SSM.
    Sidney argues that exhibit A required MEAN to deliver
    its energy through the MBPP line and the Tri-State facilities,
    because that path was highly favorable to Sidney, and that
    MEAN’s change to the POD caused it to incur the additional
    transmission charges. However, its argument is prefaced on its
    conclusion that there was no gap in the transmission path.
    [8-10] To establish substantial performance under a contract,
    any deviations from the contract must be relatively minor and
    unimportant.13 Substantial performance is shown when the fol-
    lowing circumstances are established by the evidence: (1) The
    party made an honest endeavor in good faith to perform its
    part of the contract, (2) the results of the endeavor are benefi-
    cial to the other party, and (3) such benefits are retained by the
    other party.14 Substantial performance is a relative term, and
    whether it exists is a question to be determined in each case
    with reference to the existing facts and circumstances.15
    Based on the facts of this case, we conclude that the spe-
    cific transmission line the POD was placed on is irrelevant
    13
    RM Campbell Indus. v. Midwest Renewable Energy, 
    294 Neb. 326
    , 
    886 N.W.2d 240
    (2016).
    14
    VRT, Inc. v. Dutton-Lainson Co., 
    247 Neb. 845
    , 
    530 N.W.2d 619
    (1995).
    15
    
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    to MEAN’s performance under the SSM; instead, the POD is
    relevant only to the extent that, as we stated above, it places
    all financial risk for transmitting energy through Sidney West
    on Sidney. Thus, we need not consider where the new POD is
    located specifically, beyond concluding its placement on the
    interconnect of a transmission line to a facility in Sidney West
    would be of the same effect.
    Sidney elicited extensive testimony regarding the extremely
    low transmission rate enabled by the transmission path memo-
    rialized in exhibit A and Sidney’s belief that exhibit A was
    an agreement with MEAN that ensured a continuation of this
    low rate. However, the SSM does not protect Sidney from any
    changes to its transmission path from the third parties who own
    facilities in Sidney West. Instead, unlike the “Service Schedule
    J,” a previous supplemental agreement which placed all facili-
    ties in Sidney West on MEAN’s side of the POD and required
    MEAN to maintain the Tri-State Agreement, the SSM placed
    the Tri-State facility on Sidney’s side of the POD. This change
    required Sidney to accept all financial risks for changes with
    the Tri-State Agreement.
    Before the SSM was executed, Cutsor specifically informed
    Sidney that the Tri-State Agreement was terminable at will and
    that the consequence of termination by Tri-State would be a
    $300,000 increase in transmission costs. While aware of this
    issue, Sidney chose to not continue with the previous arrange-
    ment which placed all facilities in Sidney West on MEAN’s
    side of the POD and required MEAN to maintain the Tri-State
    Agreement. By executing the SSM, Sidney accepted the full
    financial burden of the ever-looming possibility that Tri-State
    could terminate its favorable transmission path. While the
    expense for transmitting energy across WAPA facilities was
    unforeseen, it was another risk for which Sidney accepted
    financial responsibility.
    As we concluded above, Sidney’s facilities connect only to
    WAPA’s 115 kV bus, which created a gap in the transmission
    path to Sidney, and MEAN billed Sidney for the costs of the
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    lowest cost option to close the gap, placing Sidney on LAP
    NITS, pursuant to the SSM. Under exhibit A, Sidney had the
    financial risk for an issue with WAPA’s facilities and had to
    incur this expense. After placing Sidney on LAP NITS, MEAN
    was able to continue transmitting energy to Sidney as required
    by exhibit A, if Sidney waived any firm capacity requirements.
    Thus, Sidney’s increased transmission costs did not result from
    a change in the transmission path but, instead, were incurred
    because it accepted the financial risk for WAPA’s facilities
    within Sidney West.
    Only after Sidney was scheduled to incur the costs to close
    the gap on its side of the POD with LAP NITS did MEAN
    decide to change the transmission path required in exhibit A.
    This change offered substantial benefits to Sidney, which it has
    since retained. First, Sidney saves the monthly costs of the Tri-
    State Agreement, which provided rights that were unnecessar-
    ily duplicative to transmission rights provided by LAP NITS.
    Second, Sidney receives all of its energy at firm capacity and
    has additional protection against curtailment, because WAPA
    has several lines connecting to Sidney West. Third, LAP NITS
    includes generation and transmission resources to Sidney,
    which allows MEAN to redirect LRS and MBPP resources to
    lower energy rates for all members.
    Because Sidney’s increased transmission costs resulted
    solely from its agreement to bear the financial risk for trans-
    mission right changes in Sidney West and because MEAN’s
    decision to use a new transmission path only benefited Sidney
    and MEAN, we conclude its decision to change the transmis-
    sion path was a good faith effort to perform its duty under the
    SSM. Thus, we hold that MEAN substantially complied with
    the SSM and actually provided Sidney benefits by changing
    the POD.
    While Sidney argues, and the board concluded, that MEAN
    acted in bad faith by unilaterally changing the POD, the evi-
    dence presented shows that MEAN’s unilateral action to place
    Sidney on LAP NITS was required because of the use of the
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    WAPA 115 kV bus. We are not unsympathetic to the conse-
    quences of the parties’ mistake of fact regarding the transmis-
    sion path and the fact that MEAN may have been able to better
    communicate the issue to Sidney. However, the record shows
    numerous communications from MEAN to Sidney from July
    through October 2014, in which MEAN communicated the
    issue with the transmission path, how it arose, a recommenda-
    tion for the best solution, justification for its recommendation,
    the consequences of inaction, and the results of obtaining
    LAP NITS.
    Sidney staff responded that they would make their own
    independent investigations, but the record does not show that
    Sidney did so. Further, Sidney refused to accept the changes on
    the schedule WAPA required to avoid unreserved-use penalties,
    which MEAN complied with and seemingly convinced WAPA
    to accept. While Sidney staff testified that MEAN had provided
    them with no alternatives, the record does not support that tes-
    timony. Instead, MEAN exercised its right to incur additional
    transmission expenses on Sidney’s behalf only after Sidney had
    made no suggestions for alternative options and expressed an
    unwillingness to accept that a material change in circumstances
    had occurred.
    We conclude that Sidney’s rate dispute based on its allega-
    tion that MEAN changed the POD in breach of the SSM is
    without merit. Thus, the arbitration board erred in finding that
    MEAN breached exhibit A of the SSM to Sidney’s detriment.
    (b) MEAN Did Not Breach SSM by
    Charging Unfair, Unreasonable, or
    Discriminatory Transmission Rate
    The arbitration board made two findings that supported
    a conclusion that MEAN breached the SSM by charging an
    unfair, unreasonable, or discriminatory transmission rate: (1)
    The contract required MEAN to acquire any transmission rights
    necessary to connect to Sidney’s facilities at its own expense,
    and (2) MEAN inconsistently passed through transmission
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    charges. As discussed above, the plain language of the SSM
    made Sidney responsible for all transmission costs on its side
    of the POD. Therefore, the arbitration board erred in conclud-
    ing that MEAN was required to pay the transmission costs
    incurred from LAP NITS.
    MEAN argues that it cannot socialize the transmission costs
    incurred solely to transmit energy to Sidney, because doing
    such would result in discriminatory charges to its other mem-
    bers. It argues that the charges passed through to Sidney were
    fair because they are incurred exclusively for Sidney’s benefit,
    reasonable because they are based on the number of MW trans-
    mitted to Sidney, and nondiscriminatory both because they are
    calculated the same by WAPA and MEAN as the charges for
    every member on LAP NITS and because they were consistent
    with the average transmission cost ratio for all MEAN mem-
    bers on LAP NITS.
    Sidney argues that MEAN should have socialized the cost
    of its LAP NITS, because MEAN has socialized other commu-
    nities’ transmission costs and MEAN is now benefiting from
    Sidney’s no longer using the LRS and MBPP resources. It also
    argues that the transmission costs MEAN charges it is discrimi-
    natory because its transmission cost ratio had been 1 percent
    but is now 10 percent of total energy costs.
    The arbitration board cited MEAN’s socialization of the
    LRS and MBPP resource costs, the Southwestern Power Pool
    settlement costs, and the PtP costs for serving Sidney’s trans-
    mission needs after the 2013 e-tag changes to conclude that
    MEAN could have socialized the increased transmission costs
    to Sidney. However, we find that each of these circumstances is
    distinguishable from the LAP NITS expenses incurred to solely
    benefit Sidney.
    First, the LRS and MBPP resources were obtained for
    the benefit of all MEAN members, not just Sidney. MEAN
    obtained about 28 MW of energy from LRS in the early
    1980’s. The Electrical Resources Pooling Agreement explic-
    itly authorizes MEAN to purchase generation capacity, upon
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    approval by the member communities, for the benefit of mem-
    bers. Sidney and the arbitration board seem to presume that
    because some of these resources served Sidney for 18 years,
    Sidney is entitled to them, or that they were acquired solely for
    Sidney’s benefit. The board of directors approved the acquisi-
    tion of these resources and the socialization of their costs to
    obtain lower energy rates for all of the member communities,
    so socializing the costs to obtain them across all members was
    nondiscriminatory.
    Second, the costs of the Southwestern Power Pool settle-
    ment and PtP used to serve Sidney for 10 months represent
    expenses incurred because of the actions of MEAN staff, so it
    is reasonable to socialize them as an organizational expense.
    While Sidney might not have directly benefited from the
    unreserved use that led to the Southwestern Power Pool settle-
    ment, MEAN staff were responsible for the scheduling of that
    unreserved use. Accordingly, this expense may be traced to the
    actions of MEAN as an organization, just as an unreserved-
    use penalty for the use of WAPA’s 115 kV bus for Sidney
    could have been. In recognition of this organizational risk,
    the board of directors passed the culture-of-compliance direc-
    tive to help ensure that the organization would not again incur
    such expenses.
    Additionally, the PtP costs were seemingly incurred because
    MEAN staff did not act timely in addressing the issue with
    Sidney’s transmission path. MEAN was unable to e-tag a
    complete path to Sidney for nearly 20 months. It took MEAN
    staff almost 11 months to even determine what the problem
    was and another almost 5 months to start working with Sidney
    on a solution. The record does not establish how MEAN’s
    transmitting energy to Sidney for 10 of the 20 months but
    the costs of the PtP for the other 10 months, while serving
    Sidney exclusively, is attributable to an organization expense
    of MEAN’s insufficient response to the problem. Despite the
    arbitration board’s findings, the evidence shows that the PtP
    was acquired to sell excess organizational energy to lower
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    energy rates. The fact that the PtP benefited Sidney exclu-
    sively for a justifiable reason did not entitle Sidney to exclu-
    sively benefit from the service for the remainder of the SSM.
    Therefore, the arbitration board erred in ruling that MEAN
    could have socialized the costs for transmitting energy to
    Sidney on LAP NITS.
    The evidence also shows that the costs of LAP NITS was
    fair, reasonable, and nondiscriminatory. Sidney is paying for
    transmission service that solely benefits Sidney and is neces-
    sary to transmit Sidney’s energy. As MEAN argues, the fact
    that Sidney had benefited from low transmission costs because
    of its location historically does not entitle it to such benefit in
    perpetuity. The evidence shows that WAPA charges all custom-
    ers based on MW used, not distance traveled. Accordingly,
    the charges were reasonably based on MEAN’s usage of LAP
    NITS and nondiscriminatory because all LAP NITS customers
    are charged under the same formula.
    4. We Do Not Consider MEAN’s
    R emaining Assignments of Error
    The arbitration board and the parties considered exhibit
    100 relevant to establishing whether (1) Tri-State had a right
    to use WAPA’s 115 kV bus and (2) WAPA had a right to use
    Tri-State’s transformer to transmit energy to serve Sidney.
    Regardless of whether or not Tri-State had a right to use
    WAPA’s bus, there was no evidence that it ever assigned such
    a right to MEAN for transmitting Sidney’s energy. Further,
    we concluded that MEAN has substantially complied with
    the SSM even if it transmits Sidney’s energy from the Archer
    switchyard to WAPA’s 115 kV bus directly without going
    through Tri-State’s facilities. Accordingly, even if exhibit 100
    was inadmissible, it had no relevance to our decision.
    MEAN’s remaining assignments of error concern the rem-
    edy ordered by the arbitration board. Because we hold that the
    arbitration board erred by ruling in favor of Sidney, we need
    not address the remaining assignments of error.
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    [11] An appellate court is not obligated to engage in an
    analysis which is not needed to adjudicate the controversy
    before it.16
    V. CONCLUSION
    We conclude that Sidney’s increased transmission rate was
    incurred due to its unauthorized use of WAPA’s facilities.
    Sidney’s current transmission costs are approximately 10 per-
    cent of Sidney’s total energy costs, which is the same average
    transmission cost ratio for all of MEAN’s members. We further
    conclude that MEAN’s actions to gain authorized access to
    WAPA’s facilities, in order to ensure stable energy to Sidney,
    substantially complied with the requirements of the SSM and
    that MEAN properly passed the increased transmission rate
    to Sidney, pursuant to the terms of the SSM. Therefore, we
    reverse the decision of the arbitration board.
    R eversed.
    Wright and K elch, JJ., not participating.
    16
    Eadie v. Leise Properties, 
    300 Neb. 141
    , 
    912 N.W.2d 715
    (2018).