20240423Application.pdf

0IQAW POWER.
DONOVAN WALKER RECEIVED
Lead Counsel
dwalker(Mclahopower.com Tuesday,April 23,2024 3:44 PM
IDAHO PUBLIC
UTILITIES COMMISSION
April 23, 2024
VIA ELECTRONIC FILING
Monica Barrios-Sanchez, Secretary
Idaho Public Utilities Commission
11331 W. Chinden Blvd., Bldg 8,
Suite 201-A (83714)
PO Box 83720
Boise, Idaho 83720-0074
Re: Case No. IPC-E-24-18
In the Matter of Idaho Power Company's Application for Approval of a Clean
Energy Your Way Construction Agreement with the City of Boise and the
First Amendment Thereto
Dear Ms. Barrios-Sanchez:
Attached for electronic filing please find Idaho Power Company's Application in the
above matter.
Please feel free to contact me directly with any questions you might have about
this filing.
Very truly yours,
Donovan E. Walker
DEW:sg
Attachment

DONOVAN E. WALKER (ISB No. 5921)
Idaho Power Company
1221 West Idaho Street (83702)
P.O. Box 70
Boise, Idaho 83707
Telephone: [phone]
Facsimile: [phone]
dwalker(a-)idahopower.com
Attorney for Idaho Power Company
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF IDAHO POWER )
COMPANY'S APPLICATION FOR ) CASE NO. IPC-E-24-18
APPROVAL OF A CLEAN ENERGY YOUR )
WAY CONSTRUCTION AGREEMENT WITH ) APPLICATION
THE CITY OF BOISE AND THE FIRST )
AMENDMENT THERETO. )
Idaho Power Company ("Idaho Power" or "Company"), in accordance with RP 52
and Idaho Code §§ 61-502 and 61-503, hereby requests that the Idaho Public Utilities
Commission ("Commission") issue an order approving the Clean Energy Your Way
("CEYW") Renewable Construction Agreement with the City of Boise City ("City of Boise"
or "City"), as well as the First Amendment thereto, which authorizes the City to purchase
up to 10 megawatts ("MW") from the existing and active Power Purchase Agreement
("PPA") between Idaho Power and Black Mesa Energy, LLC ("Black Mesa" or"Renewable
Resource"). The Black Mesa PPA was previously approved by the Commission in Order
No. 35482 on August 1, 2022.' The Renewable Construction Agreement is included
'Case No. IPC-E-22-06, In the Matter of Idaho Power Company's Application for Approval of a
Replacement Special Contract with Micron Technology, Inc. and a Power Purchase Agreement with
Black Mesa Energy, LLC.
APPLICATION - 1

herewith as Attachment 1. The First Amendment is included herewith as Attachment 2.
In this Application, the Company seeks the Commission's approval to commence
the CEYW Renewable Construction Agreement, as amended, with the City of Boise
beginning September 1, 2024, and in accordance with the pricing terms listed in Revised
Exhibit 1 included with Attachment 2 of this Application. The Agreement under review in
this case leverages CEYW pricing already approved by the Commission and formalizes
contract provisions in Micron, Technology, Inc.'s ("Micron") Commission-authorized
Special Contract to share a portion of the Black Mesa project with an interested third-
party customer of Idaho Power.
Idaho Power's Application is based on the following:
I. BACKGROUND
1. The City of Boise has adopted a goal of 100 percent clean electricity use
across city government operations by 2030. The City has engaged in discussions with
Idaho Power dating back to 2019 to determine what Idaho Power programs, if any, could
be accessed to support the City in achieving its clean energy objectives. The City of Boise
was an active participant in the development of the CEYW program via the regulatory
process and has continued to work with Idaho Power on ways to participate in the CEYW
program, most recently through the execution of the Renewable Construction Agreement
for which the Company seeks authorization in this Application.
2. The Renewable Construction Agreement between Idaho Power and the
City is consistent with the CEYW Construction framework, as proposed by the Company
in Case No. IPC-E-21-40 and approved by the Commission in Order No. 35893.2
2 In the Matter of Idaho Power Company's Application to Expand Clean Energy Offerings Through the
Clean Energy Your Way Program.
APPLICATION - 2

Additionally, the Renewable Construction Agreement leverages a provision in Micron's
Commission-approved Special Contract that allows for another Idaho Power customer to
purchase a share of generation from Black Mesa3:
Micron and Idaho Power agree that 10 MW of the Project Output from
the Black Mesa Renewable Resource PPA may be reserved and
potentially dedicated to another customer of Idaho Power, at the
election of Idaho Power. If such an election is exercised, then the
"Project Output" for the Black Mesa Renewable Resource PPA [for
Micron] shall be 30 MW.
3. While the Renewable Construction Agreement between the City and Idaho
Power is consistent with the framework for the CEYW Construction option, it has two
notable differences from the previous CEYW Construction agreements authorized by the
Commission for Brisbie, LLC ("Brisbie") and Micron. First, the City of Boise agreement
does not contemplate procuring a new resource. Rather, the Renewable Construction
Agreement formalizes the City as a purchaser of up to 10 MW—or 25 percent of the
generation—of the existing and already authorized Black Mesa PPA.
4. Second, the Renewable Construction Agreements for Brisbie and Micron
exist within those large customers' broader Special Contracts. This Special Contract
vehicle is not available for the City of Boise because the City is not a Special Contract
customer. The City has accounts of various sizes, including three (3) Schedule 19, Large
Power Service ("Schedule 19"), accounts that are eligible for the CEYW Construction
Option provision contained in Schedule 62, Clean Energy Your Way Program ("Schedule
62"). The City seeks to apply the Schedule 62 CEYW Construction option to two (2) of
the City's three (3) Schedule 19 accounts. As such, this Application is Idaho Power's first
request to authorize a Schedule 62 CEYW Renewable Construction Agreement with a
3 Case No. IPC-E-22-06, Direct Testimony of Connie Aschenbrenner, Exhibit 1, Section 9.3, p 20-21.
APPLICATION - 3

customer billed under Schedule 19.
5. Consistent with the Commission-authorized framework for the CEYW
Construction option, the Company does not propose to modify any aspect of the City of
Boise's existing pricing under Schedule 19. Rather, the Company proposes to authorize
additional charges and credits associated with the Renewable Resource and consistent
with the charges for CEYW customers on Schedule 19, as listed in Schedule 62.
II. CITY OF BOISE CEYW TERMS AND PROVISIONS
6. CEYW Contract Overview. As introduced above, the Renewable
Construction Arrangement between Idaho Power and the City of Boise builds upon a
third-party customer off-taker provision in Micron's Special Contract. Within the
Renewable Construction Arrangement under review in this case, the City is positioned as
a "Buyer" of generation and environmental attributes from the Black Mesa PPA. More
specifically, the Renewable Construction Agreement defines the City's purchase authority
and staggered timeline in Section 1.6 under the "Buyer's Share" definition:
"Buyer's Share" means up to 25%. All generation and Environmental
Attributes from the Black Mesa Renewable Resource PPA will be
allocated up to a 75% - 25% basis according to the ramp referenced
below in this Section, 25% representing the Buyer's Share and 75%
representing the share of another Idaho Power customer. The initial
Buyer's Share, effective September 1, 2024, shall be up [to] [sic] 8
MW or 20%. Effective September 1, 2025, Buyer's Share shall be 9
MW or 22.5%. Effective September 1, 2026, and each year
thereafter, Buyer's Share shall be 10 MW or 25%.
7. The "ramp" schedule as referenced above in the "Buyer's Share" definition
was designed to align with the load growth forecast for the City's two Schedule 19
accounts to which this Renewable Construction Agreement applies: the Boise Airport and
the Lander Street Water Renewable Facility ("Lander Facility"). The load forecast for
APPLICATION -4

these two facilities was provided by the City of Boise, reviewed by Idaho Power, and then
matched with an amount of generation from Black Mesa such that renewable generation
supporting these facilities would not exceed 110 percent of these facilities' forecast
annual energy use.
8. While the City of Boise has three Schedule 19 accounts, the City, in
consultation with Idaho Power, selected the Boise Airport and the Lander Facility as the
best options for this Renewable Construction Arrangement. As a highly visible location,
the Airport is an important public facility for the City to associate with its clean electricity
goal. Meanwhile, the Lander Facility is a major source of the City's electric demand.
9. As this Renewable Construction Agreement builds off an existing
agreement between Idaho Power and Micron, the treatment of the Renewable Resource
remains the same. That is, Black Mesa does not serve Micron directly nor will it serve the
City directly. Rather, Black Mesa is connected directly to the Company's transmission
system. Micron is currently paying for the full output from Black Mesa at the PPA contract
rate and is credited for the established value the resource brings to Idaho Power's system.
Similarly, beginning September 1, 2024 (a date that aligns with the start of Micron's fiscal
year), the City of Boise will begin taking a share of Black Mesa, also at the PPA contract
rate and receiving an associated share of credit for the Renewable Resource's value to
Idaho Power's system. Finally, the environmental attributes associated with Black Mesa—
in the form of Renewable Energy Certificates ("REC")—associated with the City's Buyer's
Share of generation will be fully claimed by the City of Boise.
10. Pricing and Billing. Pricing and billing are detailed in Exhibit 1 as part of
Attachment 2 to this Application. At a high level, pricing and credit treatment described
APPLICATION - 5

herein aligns with the structure outlined for the CEYW Construction option in Idaho
Power's Application in Case No. IPC-E-21-40 and the Commission's associated Order
No. 35893. The City's two Schedule 19 accounts associated with this Renewable
Construction Agreement will continue to be billed under Schedule 19, which includes
payment for all standard services not associated with the Renewable Resource. When
the Renewable Resource is not generating, the City will pay for energy under the two
facilities' standard Schedule 19 energy charges. When the Renewable Resource is
generating, the City will pay for its total share of output at the PPA contract rate.
11. In addition, the City will be billed a fixed cost charge on a per-kilowatt-hour
basis for the amount of energy the City of Boise is no longer purchasing from Idaho
Power; in other words, the amount of energy the City will no longer purchase from Idaho
Power is the amount of generation the City will purchase associated with its share of
Black Mesa. The fixed cost charge for Schedule 19 customers with a CEYW Construction
agreement is detailed in Schedule 62.
12. The City will also be credited for the benefits derived from its share of the
resource through a Renewable Energy Facility Credit. The methodology to derive this
credit is based on the authorized methodology used in Micron's Special Contract.
13. Finally, the City of Boise will receive an Excess Generation Price for any
amount of its share of generation that exceeds the energy requirements of the City's two
applicable facilities in a given hour. The Excess Generation Price will be the lesser of the
Commission-authorized Mid-Columbia ("Mid-C") market forecast prices stemming from
Idaho Power's most recently filed Integrated Resource Plan ("IRP") or actual Mid-C heavy
or light load hourly prices. This Excess Generation Price construct is consistent with the
APPLICATION - 6

Commission's decisions in both the Brisbie and Micron cases, Order Nos. 35777 and
35482, respectively.
14. Contingency Fund. The Renewable Construction Agreement between the
City of Boise and Idaho Power contains provisions intended to financially protect Idaho
Power and its customers in the unlikely event of a default by the City of Boise. Section 8
of the Renewable Construction Agreement outlines the Contingency Fund that has been
established by the City of Boise.
15. The Contingency Fund would be used to cover energy costs associated
with the City of Boise's share of the PPA if the City defaulted on this contract. The
Contingency Fund amount of $810,000, which is equivalent to $81,000 per MW for the
City's maximum 10 MW share of Black Mesa, is sized to cover any differences between
the Renewable Resource PPA contract value and the amount for which Idaho Power
could sell the City's share of Black Mesa generation on the market. The methodology for
establishing the Contingency Fund is consistent with the per MW of nameplate approach
used to develop the credit support mechanisms for both Brisbie and Micron.
16. No-Harm Financial Analysis. In consultation with Commission Staff, Idaho
Power completed an analysis to evaluate any impact on non-participants due to the
proposed change in the allocation of Black Mesa from Micron to the City of Boise. The
proposed arrangement, with as much as 25 percent of Black Mesa allocated to the City
of Boise, was compared against the current arrangement with 100 percent of Black Mesa
allocated to Micron.
17. The Company considered each pricing component under the existing
Micron arrangement and the proposed City of Boise arrangement. Idaho Power began
APPLICATION - 7

the impact analysis by identifying the pricing components that would not be impacted or
change due to a pro-rata allocation of Black Mesa and then isolating the pricing
components that could change under the proposed arrangement.
18. The Company identified three pricing components that remain unchanged
under either arrangement and, therefore, have no impact on non-participants:
• The Black Mesa PPA will continue to be paid and guaranteed in full under either
arrangement.
• The capacity credit value included in Idaho Power's Power Cost Adjustment
will not change under the proposed arrangement with the City of Boise—
allocation of the generation of the project does not change the overall capacity
contribution of the Renewable Resource.
• The fixed cost of energy would be collected in full under both arrangements—
via the Embedded Energy Fixed Cost for Micron and the Schedule 19 fixed cost
charge identified in Schedule 62 for the City of Boise.
19. Idaho Power identified two components of the proposed arrangement with
the City of Boise that would be different:
• Micron's embedded energy rate is lower than the City of Boise and, therefore,
would result in a change to Idaho Power's revenue collection.
• Micron will not have any excess generation associated with Black Mesa,
considering the size of the resource relative to Micron's total load. The City of
Boise's share of Black Mesa, however, will create excess generation at its two
(2) Schedule 19 facilities in some hours.
APPLICATION - 8

20. Considering only the two items that will change under the proposed City of
Boise arrangement, Idaho Power evaluated the impact on non-participates using a two-
step analysis, each with a "pass/fail" determination.
21. For the first step, Idaho Power analyzed whether the City of Boise's
reduction in embedded energy collection would exceed the additional energy collection
from Micron. In each of the ten years evaluated (beginning September 1, 2024, with the
City taking an allocation of Black Mesa), the additional energy sales from Micron
exceeded the reduced energy sales for the City of Boise. As a result of this outcome of
additional energy sales-based revenue, there is no impact on non-participants, awarding
this first-step screen a "pass" rating.
22. For the second step, Idaho Power considered the cost of excess generation,
using the IRP Mid-C forecast from the Company's 2021 and 2023 IRPs.4 Using both Mid-
C forecasts from the two IRPs to price excess generation, the value of the excess
generation created from the City of Boise's share of Black Mesa was less than the value
of additional energy sales from the first step of this impact evaluation, creating no negative
financial impact on non-participants and giving this second step of the analysis a "pass"
rating.
23. The Company recognizes that the outcome of this second analysis will
depend on what actual market prices are in the future, with higher market prices having
the potential to create a negative impact on non-participants. Mid-C actuals are
unavailable for any forward-looking analysis, but to test the sensitivity of this second
analysis to higher market prices, the Company also evaluated potential Mid-C prices at
4 Actual Mid-C prices are unavailable for any forecast view.
APPLICATION - 9

2.25x higher than the Mid-C forecasts from the 2021 and 2023 IRPs. Under this high-
market cost sensitivity over 10 years, each year of the analysis showed an overall benefit
(that is, the additional energy sales revenue exceeding the cost of excess generation),
thus indicating that the proposed pro-rata share to the City of Boise passes the no-harm
analysis in both steps of the analysis and under a high market price sensitivity scenario.
III. CITY OF BOISE PARTICIPATION IN BLACK MESA
24. On February 16, 2022, Idaho Power and Black Mesa entered into a PPA for
the sale and purchase of 40 MW of renewable solar electric generation from the Black
Mesa project for the period of 20 years from a commercial operation date of June 1, 2023.
The Commission approved the Black Mesa PPA in Order No. 35482 on August 1, 2022.
25. The City of Boise's participation in Black Mesa (that is, purchasing a share
of the generation) does not modify any aspect of the existing and active PPA. The
Renewable Construction Agreement that is the subject of this Application is focused
entirely on the terms of the City of Boise's CEYW Construction arrangement with Idaho
Power.
26. The City of Boise's stake in purchasing a share of Black Mesa would begin
on September 1, 2024, a date determined to be optimal by Micron. Micron's fiscal year
begins on September 1, making this a logical and efficient transition date for the City of
Boise to begin its participation in the Black Mesa CEYW Construction option.
27. As stated in Section 1.6 of the Renewable Construction Agreement between
the City of Boise and Idaho Power, the City will have a staggered purchase schedule of
Black Mesa generation, beginning with 8 MW of nameplate capacity (or 20 percent of
generation) in the first year, 9 MW of nameplate capacity (or 22.5 percent of generation)
APPLICATION - 10

in year two, and the maximum 10 MW of nameplate capacity (or 25 percent of generation)
from year three until the contractual end date of the PPA.
28. First Amendment. On April 16, 2024, Idaho Power and the City executed
the First Amendment to the Renewable Power Purchase Agreement Between Idaho
Power Company and the City of Boise. The First Amendment made several clarifying
corrections to the Renewable Construction Agreement to: (1) add "Project Output " to the
list of defined terms in Section 1 — Definitions and Interpretation, which is a term that is
used in the Agreement but was inadvertently not included in Section 1; (2) add a definition
for "Supplemental Energy", which is erroneously noted in Section 1 of the Agreement as
being defined in Exhibit 1, and correct that reference elsewhere in the Agreement; and
(3) modify Exhibit 1, which sets forth the details of the all rate components and pricing
under the Agreement, to incorporate language for clarity and to provide for necessary
flexibility in administering the Agreement while ensuring that changes in rates are
considered in a separate proceeding, per the Commission's directives in Order Nos.
35482 and 35777.
IV. MODIFIED PROCEDURE
29. Idaho Power believes that a hearing is not necessary to consider the issues
presented herein and respectfully requests that this Application be processed under
Modified Procedure (i.e., by written submissions rather than by hearing). RP 201, et seq.
Additionally, as previously stated, the City of Boise's participation in and purchase of a 25
percent share of the Black Mesa project aligns with the beginning of Micron's fiscal year
of September 1, 2024, as well as the beginning load ramp period in section 1.6 of the
City's Renewable Construction Agreement. Consequently, Idaho Power respectfully
APPLICATION - 11

requests the Commission consider a procedural schedule that would allow for a final
Order prior to September 1, 2024.
V. COMMUNICATIONS AND SERVICE OF PLEADINGS
30. Communications and service of pleadings with reference to this Application
should be sent to the following:
Donovan E. Walker Tim Tatum
Regulatory Dockets Alison Williams
Idaho Power Company Idaho Power Company
1221 West Idaho Street (83702) 1221 West Idaho Street (83702)
P.O. Box 70 P.O. Box 70
Boise, Idaho 83707 Boise, Idaho 83707
dwalker idahopower.com ttatumCcDidahopower.com
docketsCaMdahopower.com awilliams(c-)idahopower.com
VI. CONCLUSION
31. Approval of the City of Boise's CEYW Construction Agreement, as
amended, is consistent with prior Commission orders related to CEYW and in the public
interest. Idaho Power and the City of Boise have worked together to establish a contract
that represents meaningful progress toward accomplishing the City's clean energy goals,
while ensuring the related pricing appropriately assigns the costs and benefits of a share
of the Renewable Resource to the City. The structure presented in this case is also
consistent with the elements presented in the CEYW Construction option. All costs
associated with the City's agreed-upon share of Black Mesa will be paid for by the City,
which ensures other customers are not harmed by the arrangement. The City's rates
associated with service under Schedule 19 will not change, and the added rates, charges,
and credits associated with the City's Renewable Construction Agreement, as amended,
and Schedule 62 are just, reasonable, and consistent with past CEYW orders.
APPLICATION - 12

THEREFORE, Idaho Power respectfully requests that the Commission issue an
Order before September 1, 2024, approving the attached CEYW Renewable Construction
Agreement and the First Amendment thereto between the City of Boise and Idaho Power.
Respectfully submitted this 23rd day of April 2024.
DONOVAN E. WALKER
Attorney for Idaho Power Company
APPLICATION - 13

BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
CASE NO. IPC-E-24-18
IDAHO POWER COMPANY
ATTACHMENT NO. 1
RENEWABLE POWER PURCHASE AGREEMENT

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RENEWABLE POWER PURCHASE AGREEMENT
BETWEEN
IDAHO POWER COMPANY AND
CITY OF BOISE —
CLEAN ENERGY YOUR WAY "CONSTRUCTION OPTION"
THIS RENEWABLE POWER PURCHASE AGREEMENT ("Agreement") is
executed on October 10th , 2023 (the "Execution Date"), by the CITY OF BOISE CITY an
Idaho municipal corporation ("City of Boise") and IDAHO POWER COMPANY, an Idaho
Corporation ("Idaho Power"). The City of Boise and Idaho Power are hereinafter referred
to as a "Party" and collectively as the "Parties".
WHEREAS, the City of Boise is an existing retail customer of Idaho Power with
multiple accounts, taking service under Schedules 1,7, 9, 15, 18 19, 24, 40, 41 , 42 and
84 ; and
WHEREAS, the City of Boise desires to meet a portion of its annual energy
requirements with energy generated by a Renewable Resource; and
WHEREAS, the City of Boise and Idaho Power have agreed that Idaho Power will
procure and dedicate Buyer's Share of Renewable Resource generation and associated
Environmental Attributes from the Black Mesa Solar project as provided for herein and
pursuant to Schedule 62 to assist the City of Boise in meeting a portion of the annual
energy requirements for two of its Schedule 19 accounts, specifically the Boise Airport
and the City of Boise — Lander Street Wastewater Treatment Facility; and
NOW, THEREFORE, in consideration of the promises and of the mutual covenants
herein set forth, and other good and valuable consideration, the receipt, sufficiency and
adequacy of which are hereby acknowledged, the City of Boise and Idaho Power, each
intending to be legally bound, agree as follows:
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SECTION 1. — DEFINITIONS AND INTERPRETATION
1.1 Defined Terms. Unless otherwise required by the context in which any term
appears, initially capitalized terms used herein have the meanings set forth in this
Section 1.
1.2 "Applicable Law" means all (a) constitutions, treaties, statutes, laws, codes,
ordinances, rules, regulations, judgments, decrees, injunctions, writs, orders, decisions,
interpretations and requirements of any Governmental Authority; and (b) rules, listing
requirements, decisions and interpretations of any stock exchange or trading market on
which securities issued by Idaho Power or any of their respective Affiliates are listed or
quoted.
1.3 "Applicable Program" means any mandatory or voluntary domestic or international
Renewable Portfolio Standard or other program, scheme or organization, with respect to
a market, registry or reporting for Environmental Attributes that applies to Environmental
Attributes that Idaho Power has agreed to transfer and retire pursuant to this Agreement.
As of the Execution Date, WREGIS is an Applicable Program. If the State of Idaho
develops or becomes subject to a Renewable Portfolio Standard, then the "Applicable
Program" also shall be the program applicable to such standard.
1.4 "Bankruptcy Proceeding" occurs, with respect to any Person, if: (a) such Person
shall institute a voluntary case seeking liquidation or reorganization under the United
States Bankruptcy Code, or shall acquiesce to the institution of an involuntary case
thereunder against it; (b) such Person shall file a petition or shall otherwise institute any
similar proceeding under any other Applicable Law, or shall acquiesce thereto; (c) such
Person shall apply for the appointment, or by consent or acquiescence there shall be an
appointment, of a receiver, liquidator, sequestrator, trustee or other Person with similar
powers for itself or any substantial part of its assets; (d) such Person shall make an
assignment for the benefit of its creditors; (e) such Person shall admit in writing its inability
to pay its debts generally as they become due; (f) such Person has an involuntary case
commenced against it seeking liquidation or reorganization of such Person under the
United States Bankruptcy Code or any similar proceedings shall be commenced against
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such Person under any other Applicable Law, and (i) the petition commencing the
involuntary case is not timely controverted, (ii) the petition commencing the involuntary
case is not dismissed within thirty (30) Days of its filing, (iii) an interim trustee is appointed
to take possession of all or a portion of the property, and/or to operate all or any part of
the business, of such Person and such appointment is not vacated within thirty (30) Days,
or (iv) an order for relief shall have been issued or entered therein; (v) a decree or order
of a court having jurisdiction in the subject assets for the appointment of a receiver,
liquidator, sequestrator, trustee or other Person having similar powers, of such Person or
all or a part of its property shall have been entered, or any other similar relief shall be
granted against such Person under any Applicable Law; or(vi)such Person has a secured
party take possession of all or substantially all of its assets or has a distress, execution,
attachment, sequestration or other legal process levied, enforced or sued on or against
all or substantially all of its assets and such secured party maintains possession, or any
such process is not dismissed, discharged, stayed, or restrained, in each case within
thirty (30) Days thereafter.
1.5 "Billing Demand" means the kilowatts supplied to the City of Boise Facilities during
the coincident 15-consecutive-minute period of maximum use during the monthly billing
period, adjusted for power factor, as measured by the metering equipment located at the
Points of Delivery.
1.6 "Buyer's Share" means up to 25%. All generation and Environmental Attributes
from the Black Mesa Renewable Resource PPA will be allocated up to a 75% - 25% basis
according to the ramp referenced below in this Section, 25% representing the Buyer's
Share and 75% representing the share of another Idaho Power customer. The initial
Buyer's Share, effective September 1, 2024, shall be up 8 MW or 20%. Effective
September 1 , 2025, Buyer's Share shall be 9 MW or 22.5%. Effective September 1, 2026,
and each year thereafter, Buyer's Share shall be 10 MW or 25%.
1.7 "Business Day" means any Day other than a Saturday, Sunday or federal holiday.
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1.8 "City of Boise Facilities" means the two (2) City of Boise Schedule 19 accounts
taking service at 3201 W Airport Way #1000, Boise, Idaho 83705 and 790 Lander Street,
Boise, Idaho 83703.
1.9 "Claim" means any claim, demand, action, duty, suit, controversy, or dispute of any
kind or nature, whether threatened or filed, and whether groundless, false or fraudulent,
and including, without limitations, any claim regardless of how or when it is brought (e.g.,
as an initial claim, counterclaim, cross-claim, interpleading, or third-party claim).
1.10 "Claiming Jurisdiction" means any jurisdiction or balancing authority area (other
than Idaho Power in Idaho Power's balancing authority area) that will claim or purport to
claim for the importer, recipient, or jurisdiction, through compliance mechanisms or
otherwise, the carbon or greenhouse gas characteristics of the energy or capacity so
delivered, or create a circumstance that could lead to retirement or questioning the non-
retirement of RECs, for example in the nature of the Oregon Department of Energy's June
23, 2017, request for stakeholder comment.
1.11 "Commercial Operation" means "Commercial Operation" as defined in the
applicable Renewable Resource PPA.
1.12 "Commercially Reasonable Efforts" means a level of effort which, in the exercise
of reasonable judgment in light of facts known or which should be known with the exercise
of reasonable care and the circumstances existing at the time a decision is made, can be
expected to accomplish the desired result at a reasonable cost to the Party which is
obligated to exercise "Commercially Reasonable Efforts."
1.13 "Contingency Fund" is defined in Section 8.1(a).
1.14 "Costs" means, with respect to the Non-Defaulting Party, (a) brokerage fees,
commissions and other similar third-party transaction costs and expenses reasonably
incurred by such Party either in terminating any arrangement entered into pursuant to this
Agreement or entering into new arrangements which replace this Agreement and (b) all
reasonable attorneys' fees and expenses incurred by the Non-Defaulting Party in
connection with the termination of this Agreement.
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1.15 "Credit Rating" means for any Person, the senior unsecured and long term debt
rating of such Person by Moody's or S&P.
1.16 "Developer" means Black Mesa Energy LLC and Redwood Energy, a third-party
who owns or controls the Project, its Metered Output and Environmental Attributes, and
is the counterparty to Idaho Power in the Renewable Resource PPA.
1.17 "Energy Imbalance Market" or "EIM" means the California Independent System
Operator's Western Energy Imbalance Market.
1.18 "Environmental Attributes" means the environmental and other attributes as may
exist from time to time that differentiate the Project or its Metered Output from energy
generated by fossil fuel or nuclear powered generating units, and any and all credits,
benefits, emissions reductions, offsets, and allowances, howsoever entitled, attributable
to the generation from the Project, and its displacement of conventional energy
generation, or resulting from the avoidance of any gas, chemical, or other substance to
the air, soil or water. Environmental Attributes include but are not limited to: (a) any
avoided emissions of pollutants to the air, soil or water such as sulfur oxides (SOx),
nitrogen oxides (NOx), carbon monoxide (CO), and other pollutants designated; (b) any
avoided emissions of carbon dioxide (CO2), methane (CH4), or other greenhouse gases
(GHGs) that have been determined by the United Nations Intergovernmental Panel on
Climate Change or any Governmental Authority to contribute to the actual or potential
threat of altering the earth's climate by trapping heat in the atmosphere, (c) and Emissions
Reductions Credits; (d) any cryptocurrency, blockchain, and similar or related matters,
items commodities, tokens, or anything of actual, potential, or theoretical value related to,
measured by, or associated with anything produced by the Project's Metered Output and
(e) credits, benefits or allowances resulting from the compliance of the Project or its
Metered Output with the laws, rules and standards of the United Nations Framework
Convention on Climate Change (the "UNFCCC") or the Kyoto Protocol of the UNFCCC
or crediting "early action" with a view thereto. Environmental Attributes do not include (i)
the ITC or any other Tax Credits, or any other tax incentives existing now or in the future
associated with the construction, ownership or operation of the Project, (ii) matters
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designated by Idaho Power as sources of liability, or (iii) adverse wildlife or environmental
impacts.
1.19 "Environmental Attribute Reporting Rights" means the exclusive right of a
purchaser of Environmental Attributes to report ownership of Environmental Attributes in
compliance with federal or state Applicable Law, if applicable, and to federal or state
agencies or other parties at such purchaser's discretion, and includes reporting under
Section 1605(b) of the Energy Policy Act of 1992, or under any mandatory or voluntary
present or future, domestic, international, or foreign emissions trading program or
Renewable Portfolio Standard.
1.20 "Execution Date" is defined in the preamble to this Agreement.
1.21 TERU means the Federal Energy Regulatory Commission, or its success in
function.
1.22 "Final Regulatory Approval" means the approvals of this Agreement and the
Renewable Resource procurement by the IPUC and OPUC pursuant to orders the terms
of which are fully satisfactory to both Idaho Power and City of Boise.
1.23 "Force Majeure" means any event or circumstance that prevents a Party from
performing its obligations under this Agreement, which event or circumstance (a) is not
reasonably foreseeable as of the Execution Date, (b) is not within the reasonable control
of, or the result of the negligence of, the Party affected and (c) such Party is unable to
overcome or avoid or cause to be avoided by the exercise of due diligence. Force Majeure
shall include the following to the extent the foregoing conditions are met: acts of God, riot,
insurrection, war (declared or not); explosion fire, civil disturbance, labor dispute, labor or
material shortage, vandalism, sabotage, act of the public enemy, terrorism, pandemic,
civil disturbances, strike, labor disturbances, work slowdown or stoppage, blockades,
sabotage, national emergency, and any action or restraint by court order or public or
Governmental Authority (so long as the affected Party has not applied for or assisted in
the application for, and has opposed where and to the extent reasonable, such
government action). Force Majeure under this Agreement shall also include a valid claim
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of Force Majeure (or a similar term) by Developer pursuant to any Renewable Resource
PPA that prevents Idaho Power from performing its obligations under this Agreement.
Notwithstanding the foregoing, under no circumstances shall the following constitute an
event of Force Majeure: (i) any increase of any kind in any cost; (ii) delays in or inability
of a Party to obtain financing or changes in market conditions or other economic hardship
of any kind affecting the economics of either Party; (iii) the COVID-19 pandemic or the
effects or impacts of the COVID-19 pandemic; and (iv) general constraints on the global
supply chain.
1.24 "Force Majeure Notice" is defined in Section 9.2.
1.25 "FTC" means the Federal Trade Commission.
1.26 "Gains" means, with respect to a Non-Defaulting Party, an amount equal to the
present value of the economic benefit to it, if any (exclusive of Costs), resulting from the
termination of this Agreement, determined in a commercially reasonable manner.
1.27 "Governmental Authority" means (a) any federal, state, local, municipal or other
government, including the IPUC, OPUC and any other Idaho regulatory body with
jurisdiction over a Party or (b) any other governmental, quasi-governmental, regulatory or
administrative agency, commission or other authority lawfully exercising or entitled to
exercise any administrative, executive, judicial, legislative, police, policy, regulatory or
taxing authority or power, including FTC, FERC, NERC and any applicable regional
reliability entity, and any successor entity with applicable jurisdiction; provided, however,
that "Governmental Authority" shall not in any event include either Party.
1.28 "Green Guides" means the FTC's "Green Guides," 77 Federal Register 62122, 16
Code of Federal Regulations, Part 260, relating to communications concerning
Environmental Attributes (currently 16 C.F.R. §260.15).
1.29 "Hour" means a sixty(60) minute period coinciding with a clock hour in the pertinent
time zone.
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1.30 "Installed Nameplate Capacity" means, as of any date of measurement, the
nameplate capacity of all PV Modules installed, interconnected, operating and capable of
producing the Metered Output at the Project.
1.31 "IPUC" means the Idaho Public Utilities Commission.
1.32 "IRP" means the most recent Integrated Resource Plan acknowledged by the
IPUC.
1.33 "Line Losses" means electrical energy consumed or lost in the transmission of
electrical energy and/or electrical energy which is not available for useful purposes at the
intended points of final consumption.
1.34 "Losses" means, with respect to a Non-Defaulting Party, an amount equal to the
present value of the economic loss to it, if any (exclusive of Costs), resulting from
termination of this Agreement, determined in a commercially reasonable manner,
including any above-market costs of the Renewable Resource PPA in the case of Idaho
Power as the Non-Defaulting Party and the cost of a replacement resource (including
Replacement Environmental Attributes) in the case of City of Boise as the Non-Defaulting
Party
1.35 "Metered Output" means the electrical output and capacity of the Project delivered
to Idaho Power by the Renewable Resource, multiplied by Buyer's Share.
1.36 "Monthly Payment" for any Month during the Term is the net sum for such Month
of all charges and credits owed by the City of Boise to Idaho Power as provided under
Exhibit 1 and listed in Schedule 19. In the event that the net sum of bill amounts for any
Month result in a net credit owed by Idaho Power to the City of Boise, such amounts will
be reflected as a financial credit to be applied as an offset to a future Monthly Payment.
In no event will Idaho Power make payment to the City of Boise for any net credit amounts
unless the net credit is associated with the Termination Payment.
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1.37 "Mutual Nondisclosure Agreement" means that certain Mutual Nondisclosure
Agreement by and between Idaho Power and the City of Boise dated as of October 15,
2021 .
1.38 "NERC" means the North American Electric Reliability Corporation.
1.39 "Non-Defaulting Party" is defined in Section 14.1.
1.40 "OPUC" means the Oregon Public Utility Commission.
1.41 "Person" means an individual, corporation, limited liability company, voluntary
association, joint stock company, business trust, partnership, Governmental Authority or
other entity.
1.42 "Points of Delivery" means the locations specified in paragraph 1.8 and 3.3 where
the electrical facilities owned by the City of Boise are interconnected to the electrical
facilities owned by Idaho Power and where power and energy are delivered by the City of
Boise Facilities.
1.43 "Project" means the Black Mesa Energy LLC solar generation facility located in
Elmore County, Idaho, with an expected nameplate capacity of 40 MW (up to 10 MW
representing Buyer's anticipated share of the expected nameplate capacity), the Metered
Output and Environmental Attributes of which is purchased as a simultaneously bundled
product by Idaho Power under the Renewable Resource PPA.
1.44 "Prudent Electrical Practices" means those practices, methods, and equipment
that are commonly and ordinarily used in electrical engineering and utility operation to
operate electrical equipment and deliver electric power and energy with safety,
dependability, efficiency and economy.
1.45 "Qualified Issuer" means a U.S. commercial bank or the U.S. branch office of a
foreign bank with a Credit Rating of "A-" (or future equivalent) or higher by S&P or "AY
(or future equivalent) or higher by Moody's.
1.46 "Qualified Reporting Entity" is defined in the WREGIS Operating Rules.
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1.47 "RECs" means (a) the Environmental Attributes associated with Metered Output,
together with (b) the Environmental Attribute Reporting Rights associated with such
energy and Environmental Attributes, however commercially transferred or traded under
any of these or other product names, such as "Renewable Energy Credits," "Renewable
Energy WREGIS Certificates," "Green-e Certified," "Green Tags," WREGIS Certificates,
or otherwise.
1.48 "Renewable Portfolio Standard" or "RPS" means any Applicable Law that requires
a Person to deliver to load, or to serve load with, a minimum percentage or quantity of
electricity generated from resources that include a Renewable Resource.
1.49 "Renewable Resource" means (a) an electric generating facility utilizing solar
photovoltaic (PV), wind, energy storage or other mutually-agreed technology, or
combination thereof from which Idaho Power purchases the bundled Metered Output and
Environmental Attributes bundled under a Renewable Resource PPA with a Developer,
and that will be newly constructed and made operational after the Renewable Resource
PPA execution date.
1.50 "Renewable Resource Contract Price" means the total price of Metered Output and
Environmental Attributes under the Renewable Resource PPA.
1.51 "Renewable Resource PPA" and "Black Mesa Renewable Resource PPA" means
the February 16, 2022, power purchase agreement entered into between Idaho Power
and Black Mesa Energy LLC, a third-party Developer, for the purpose of acquiring
Metered Output and Environmental Attributes in connection with this Agreement.
1.52 "Renewable Resource PPA Default" is defined in Section 7.2(a).
1.53 "Replacement Environmental Attributes" means, Western Electricity Coordinating
Council (WECC) RECs from a solar Renewable Resource and other Environmental
Attributes of the type and quality as the Project would be capable of producing but for the
Idaho Power Renewable Resource PPA Default or the Event of Default, as applicable.
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1.54 "Sanctions" means any economic or trade sanctions administered or enforced by
any Government Authorities of the United States, (including the Office of Foreign Assets
Control of the U.S. Department of the Treasury ("OFAC") and the U.S. Department of
State), the United Nations, the European Community or, Her Majesty's Treasury or any,
and each other sanctions authority which has jurisdiction in respect of any Party or the
Project.
1.55 "Sanctioned Person" means any person (a)that is the target of Sanctions or owned
or controlled by any such person(s), or (b) located, organized or resident in, or directly or
indirectly owned or controlled by the government of any Sanctioned Territory.
1.56 "Schedule 19" means the then-current Idaho Power tariff schedule of rates
applicable to City of Boise on file with the IPUC.
1.57 "Schedule 62" means the then-current Idaho Power tariff schedule for Clean
Energy Your Way on file with the IPUC.
1.58 "Supplemental Energy" is defined in Exhibit 1 hereto.
1.59 "Term" is defined in Section 2.1.
1.60 "Termination Payment" means, with respect to the Non-Defaulting Party, the net
sum of the Losses or Gains, and Costs, expressed in U.S. Dollars, which such Party
incurs as a result of the liquidation of this Agreement.
1.61 "Third Party Market Expert(s)" means a Person whose primary business is
assessing the value of environmental commodities mutually acceptable to both Parties;
provided, however, if the Parties are unable to agree upon two Third Party Market Experts
as required by Section 14.2, then each Party may select a Third Party Market Expert
meeting the foregoing requirements.
1.62 "Total Supply Obligation" means the full capacity and energy requirements of the
City of Boise Facilities adjusted for Line Losses.
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1.63 "WREGIS" means the Western Renewable Energy Generation Information
System, or its successor organization, or other renewable energy tracking program
mutually agreeable to Idaho Power and City of Boise.
1.64 "WREGIS Certificate" means a "WREGIS Certificate" as defined by the WREGIS
Operating Rules.
1.65 "WREGIS Operating Rules" means the operating rules of WREGIS.
1.66 Interpretation. Unless the context otherwise requires:
a. Words singular and plural in number shall be deemed to include the
other, and pronouns having masculine or feminine gender shall be deemed to
include the other.
b. Any reference in this Agreement to any Person includes its
successors and permitted assigns and, in the case of any Governmental Authority,
any Person(s) succeeding to its functions, authority, and capabilities.
C. Any reference in this Agreement to any section, subsection,
attachment, article, schedule, or exhibit means and refers to the section or article
contained in, or attachment, schedule, or exhibit attached to, this Agreement. All
attachments, schedules, and exhibits referred to herein are hereby incorporated
by reference.
d. Other grammatical forms of defined words or phrases have
corresponding meanings.
e. A reference to writing includes typewriting, printing, lithography,
photography and any other mode of representing or reproducing words, figures or
symbols in a lasting and visible form, including writing communicated
electronically.
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f. A reference to a specific time for the performance of an obligation is
a reference to that time in the place where that obligation is to be performed unless
the text indicates otherwise.
g. A reference to a Party includes that Party's successors and permitted
assigns.
h. A reference to a document or agreement, including this Agreement,
includes a reference to that document or agreement (including any attachments,
schedules, and exhibits thereto) as novated, amended, supplemented, restated,
or replaced from time to time.
i. Unless otherwise expressly provided herein, any consent,
acceptance, satisfaction, cooperation or approval required of a Party under this
Agreement shall not be unreasonably withheld or delayed.
j. Unless otherwise expressly provided herein, "including" (and with
correlative meaning "include") means including without limiting the generality of
any description preceding such term.
k. The words "hereof," "herein," "hereunder," and other words of similar
import shall refer to this Agreement as a whole and not to any particular provision
of this Agreement.
I. The words "shall" and "will" mean "must," and shall and will have
equal force and effect and express an obligation.
M. References to "or" are disjunctive but not necessarily exclusive;
unless the context dictates otherwise, "or" is to be interpreted as "and/or" rather
than "either/or".
n. References to any statute, code or statutory provision are to be
construed as a reference to the same as it may have been, or may from time to
time be, amended, modified, or reenacted, and include references to all bylaws,
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instruments, orders, and regulations for the time being made thereunder or
deriving validity therefrom unless the context otherwise requires.
SECTION 2. — TERM OF AGREEMENT
2.1 The term of this Agreement (the "Term") shall commence on the Execution Date
and, unless terminated in accordance with the terms hereof, shall continue in full force
and effect until the expiration or termination of the Renewable Resource PPA.
SECTION 3. — SALE OF ENERGY
3.1 Sale and Delivery of Energy. During the Term and in each Hour of the Term,
Idaho Power shall, on the terms and conditions set forth in this Agreement, furnish to
City of Boise the Total Supply Obligation for such Hour. Idaho Power shall satisfy
the Total Supply Obligation energy requirement first with Metered Output, but if the
Metered Output during any hour is less than the Total Supply Obligation energy
requirement for such Hour, Idaho Power shall provide Supplemental Energy in the
amount of such deficit. Idaho Power and the City of Boise intend for Idaho Power to
provide Metered Output and Environmental Attributes from the Black Mesa Renewable
Resource PPA to supply the Total Supply Obligation as further described herein.
3.2 Idaho Power will dedicate and convey the entire Metered Output to Buyer and will
convey title to and risk of loss of the Metered Output, free and clear of any liens or
encumbrances, to Buyer at each of the Points of Delivery.
3.3 Points of Delivery. Electric power and energy shall be delivered by Idaho Power
to the City of Boise's Facilities (each, a "Point of Delivery").
3.4 Description of Electric Service. Idaho Power shall supply electric service
consistent with the terms and conditions of Schedule 19 electric service.
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SECTION 4. — CHARGES TO BE PAID BY CITY OF BOISE TO IDAHO POWER
4.1 Rates and Charges. The rates and charges for electrical power, energy and other
service provided by Idaho Power to the City of Boise Facilities are set forth in the pricing
attached as Exhibit 1 and are identified by component in Schedule 62-1.
SECTION 5. — PAYMENT OF BILLS/SETTLEMENTS
5.1 Billing Data. City of Boise shall pay Idaho Power the Monthly Payment as
consideration for all services provided under this Agreement. Invoices for payment of the
Monthly Payment shall be prepared and submitted by Idaho Power to City of Boise
monthly. All invoices or bills shall contain such data as may be reasonably required to
substantiate the Monthly Payment, including statements of the meter reading at the
beginning and end of the billing period and consumption during the billing period. Such
invoice shall also include an itemized summary of the Metered Output and Environmental
Attributes delivered onto the Idaho Power system by the Project on an Hourly basis during
the Month immediately preceding the applicable invoice.
5.2 Payment Procedure. The Monthly Payment owed by City of Boise to Idaho Power
hereunder shall be due and payable within fifteen (15) days following City of Boise's
receipt of the monthly invoice from Idaho Power. Payment will be made by electronic
transfer of funds. Idaho Power shall provide City of Boise with current ASA routing
numbers and any other necessary instructions to facilitate the electronic transfer of funds.
SECTION 6. — ENVIRONMENTAL ATTRIBUTES
6.1 Environmental Attributes.
a. Idaho Power shall, or shall cause the Developer to, as soon as
practicable but in any case on or before March 31 of each calendar year, retire, on City
of Boise's behalf, all Environmental Attributes associated with Metered Output through
the Applicable Program. If any Environmental Attributes have not been received by Idaho
Power from a Developer, Idaho Power, following consultation with City of Boise, shall
enforce its contractual rights against the Developer in accordance with such Renewable
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Resource PPA. The Parties shall execute all additional documents and instruments
reasonably requested by City of Boise in order to further document the transfer of the
Environmental Attributes to City of Boise or its designees. Idaho Power will cooperate
with City of Boise in the transfer of such Environmental Attributes. City of Boise
acknowledges that Idaho Power does not own or control the Project and cannot control
or optimize the ability of the Project to generate Environmental Attributes beyond the
rights set forth in the Renewable Resource PPA.
b. Clean Title. Idaho Power represents and warrants that, at the time of
delivery or retirement of any Environmental Attributes, (i) Idaho Power has good and
marketable title to such Environmental Attributes, (ii) such Environmental Attributes have
not been sold to any other Person or used to meet compliance requirements of any other
regulatory or voluntary renewable energy program or standard, including any greenhouse
gas reduction requirements, and (iii) Idaho Power has transferred to City of Boise all right,
title to and interest in such Environmental Attributes, free and clear of any liens or other
encumbrances.
6.2 Exclusive Right to Environmental Attributes. Idaho Power represents that it has
not claimed and agrees that it will not hereafter claim any Environmental Attributes, or
"renewable energy," "clean energy," "green energy,"
gy, gy, g gy, or similar attributes from the Project
or associated with the Metered Output as belonging or attributable to Idaho Power or any
Project generation or facilities, and agrees it will report to City of Boise any such claims
made by third parties of which Idaho Power becomes aware. As of the Execution Date
and the date of entry into a Renewable Resource PPA, Idaho Power represents that it is
not actually aware of any such claims made by third parties. To the extent that any such
public communication is allowed hereunder, in any public communication concerning the
Project, Metered Output, or Environmental Attributes, Idaho Power must at all times be
fully compliant with the applicable requirements of the Green Guides. Idaho Power must
not claim in any public communication, or under any Applicable Program, that any of the
Environmental Attributes associated with the Metered Output purchased by Idaho Power
belong to any Person other than City of Boise. In no event will Idaho Power permit any
other Idaho Power customer to claim ownership or use of any Environmental Attributes,
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or make any claim that contravenes City of Boise's exclusive rights of ownership of the
Environmental Attributes. If Idaho Power or Idaho Power's Affiliates originate any
marketing claim, public statement or representation that City of Boise reasonably
determines may diminish the value, marketability or use of the Environmental Attributes,
City of Boise will have the right to require Idaho Power (or Idaho Power's Affiliates) to
cause any public statement to be retracted, removed, ceased, revised, corrected, or
updated from or on any public forum promptly upon written notice to Idaho Power to avoid
a double counting claim. Idaho Power will work in good faith with City of Boise to mitigate
any damages to, or rehabilitate, Environmental Attributes that are impaired by such Idaho
Power (or Idaho Power's Affiliates) statements. Idaho Power will not dispute or interfere
with City of Boise's ability to claim that City of Boise, and only City of Boise, catalyzed
and caused the additionality of Buyer's Share of the Project. Idaho Power shall include
in the Renewable Resource PPA a representation and covenant from the Developer that
the Developer has not and will not claim any Environmental Attributes as belonging to the
Developer.
6.3 Attestations. Without limiting the generality of Section 6.1 , Idaho Power shall, on
or before March 31 of each calendar year deliver to City of Boise an Environmental
Attributes Attestation and Bill of Sale in the form attached as Exhibit 2 for all
Environmental Attributes received by Idaho Power under a Renewable Resource PPA
and retired on behalf of City of Boise in the preceding year, along with any attestation that
is then-current with the Applicable Program.
6.4 Warranties. THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 6
AND IN THIS AGREEMENT ARE THE EXCLUSIVE WARRANTIES WITH RESPECT TO
THE ENVIRONMENTAL ATTRIBUTES PROVIDED UNDER THIS AGREEMENT, AND
IDAHO POWER MAKES NO OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS
OR IMPLIED, WITH RESPECT TO THE ENVIRONMENTAL ATTRIBUTES DELIVERED,
WHETHER AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
COMPLIANCE WITH ANY RENEWABLE STANDARD OR ANY OTHER MATTER.
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SECTION 7. — RENEWABLE RESOURCE PPA ADMINISTRATION
7.1 Administration of Renewable Resource PPA. Idaho Power shall administer the
daily operation and administration of the Renewable Resource PPA consistent with
Prudent Electrical Practices and Idaho Power's administration of its other non-Qualifying
Facility (as defined in the Public Utility Regulatory Policies Act) renewable resource power
purchase agreements. Idaho Power shall monitor the Developer's compliance with the
applicable Renewable Resource PPA, and require the Developer to deliver directly to City
of Boise periodic reports on Project performance and factors affecting Project
performance, and other information reasonably requested by City of Boise. Idaho Power
will regularly update City of Boise, and require Developer to directly update City of Boise,
on major milestones in Project development and promptly notify City of Boise of the
Project achieving Commercial Operation. Idaho Power shall provide City of Boise with
any notices or communications received from the Developer with respect to the
Renewable Resource PPA. Idaho Power will not, without the prior written consent of City
of Boise, (i) sell, assign, or transfer the Renewable Resource PPA to any Person other
than to City of Boise or City of Boise's designee; (ii) amend, modify, extend the term of,
or change in any respect the Renewable Resource PPA; (iii) terminate the Renewable
Resource PPA; (iv) waive any material performance obligation or default under the
Renewable Resource PPA; (v) settle or resolve any pending or threatened proceeding
with respect to the Renewable Resource PPA which would have a material impact upon
City of Boise; or (vi) agree in advance to any of the foregoing. Such consent of City of
Boise will not be unreasonably withheld, conditioned or delayed. City of Boise shall
cooperate with Idaho Power to resolve any conflicts delaying consent where time is of the
essence.
7.2 Developer Defaults Under Renewable Resource PPA.
a. If an event of default or termination event attributable to Developer,
or an event or circumstance that, with the giving of notice or passage of time, would
constitute an event of default or termination event attributable to Developer,
however so described, occurs under a Renewable Resource PPA (a "Renewable
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Resource PPA Default"), then Idaho Power shall notify City of Boise of such
Renewable Resource PPA Default (a "Notice of Renewable Resource PPA
Default"). Idaho Power shall not suspend performance or terminate the
Renewable Resource PPA without the prior written consent of City of Boise (which
consent shall not be unreasonably withheld, conditioned or delayed) unless failure
to terminate or suspend performance of such Renewable Resource PPA is
reasonably likely to endanger people or property. No later than fifteen (15)
Business Days after receipt of a Notice of Renewable Resource PPA Default, City
of Boise shall notify Idaho Power of its consent or withholding of consent to
terminate or suspend the Renewable Resource PPA. Following response from City
of Boise to the Notice of Renewable Resource PPA Default, Idaho Power shall
enforce its contractual rights (including, if City of Boise has provided written
consent, the right to suspend performance and/or terminate) in accordance with
the terms of such Renewable Resource PPA and Prudent Electrical Practice.
Idaho Power shall enforce the terms of the Renewable Resource PPA and collect
from the Developer any Termination Payment or damages owed as a result of such
Renewable Resource PPA Default; provided, that, assuming Idaho Power has
used Commercially Reasonable Efforts to enforce the terms of the Renewable
Resource PPA, Idaho Power shall not be obligated to pay to City of Boise
termination damages due from but not paid by the Developer. Any delay damages
or cover damages received from the Developer, minus any reasonable costs
incurred by Idaho Power in recovering such delay damages or cover damages
(including, but not limited to, the cost of all Supplemental Energy as defined in
Exhibit 1 that is provided by Idaho Power in lieu of the Metered Output and
Environmental Attributes), shall be forwarded by Idaho Power to City of Boise, as,
when and to the extent such delay damages or cover damages are actually
received by Idaho Power. If during the pendency of a Renewable Resource PPA
Default, Idaho Power does not acquire the Metered Output and Environmental
Attributes of the Renewable Resource PPA due to a Renewable Resource PPA
Default, Idaho Power shall provide Supplemental Energy, and City of Boise shall
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pay the cost of all Supplemental Energy as defined in Exhibit 1 that is provided by
Idaho Power in lieu of the Metered Output.
b. Upon termination of the Renewable Resource PPA as a result of a
Renewable Resource PPA Default as contemplated by Section 7.2(a): (i) Idaho
Power shall calculate the Termination Payment, if any, due and owing under the
Renewable Resource PPA; (ii) Idaho Power shall exercise any rights Idaho Power
may have against any collateral or security posted by the Developer and held by
or on behalf of Idaho Power, (iii) Idaho Power may, to the extent allowed under the
terms of the Renewable Resource PPA, apply the proceeds of collateral posted by
the Developer against any Termination Payment owed by the Developer, and (iv)
if Idaho Power is owed such Termination Payment from the Developer, Idaho
Power shall forward to City of Boise any such Termination Payment and other
amounts recovered minus any reasonable and documented costs incurred by
Idaho Power in recovering such Termination Payment, not to exceed the
Termination Payment recovered, as, when and to the extent such Termination
Payment and other amounts are actually received by Idaho Power.
7.3 Payments Subject to Reclaim. In the event that any payments received from
Developer and forwarded to City of Boise, including any delay damages, cover costs or
Termination Payment, must subsequently be returned to Developer or any Person acting
in the Developer's or its creditor's interest or is reclaimed by any Governmental Authority
as a preference or upon a fraudulent transfer action, then unless such requirement to
return or such reclamation is the result of an act or omission of Idaho Power, such amount
shall be returned by City of Boise to Idaho Power.
7.4 No Greenhouse Gas-Specific or REC-Retiring Imports. Idaho Power will ensure
that the Metered Output and Project capacity to be provided to Idaho Power is not
delivered into a Claiming Jurisdiction. This includes not delivering Metered Output or
Project capacity into California or into any California balancing authority area, through a
sale of resource adequacy capacity to any California load serving entity, by participation
in any California Independent System Operator market, participation in the Energy
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Imbalance Market, as an import of "specified source" energy within the meaning of
California's Regulation for the Mandatory Reporting of Greenhouse Gas Emissions, or
otherwise. Nothing in this Agreement prohibits Idaho Power from being a participating
resource in EIM supplying energy to non-California, non-Claiming Jurisdiction
participants. In the event that Idaho Power participates in any California Independent
System Operator market, Idaho Power shall not claim any Environmental Attributes, or
"renewable energy," "clean energy," "green energy,"
gy, gy, g or similar attributes from the Project
or associated with the Metered Output as belonging or attributable to Idaho Power or any
Project generation or facilities, and agrees it will report to City of Boise any such claims
made by third parties of which Idaho Power becomes aware.
SECTION 8. — CITY OF BOISE CONTINGENCY FUND
8.1 City of Boise Contingency Fund.
a. Within fifteen (15) Business Days of the Execution Date of this
Agreement, City of Boise will deposit cash into an escrow account pursuant to an
escrow agreement with an Escrow Account Holder in form and substance
satisfactory to City of Boise and Idaho Power in an amount of $810,000.00
("Contingency Fund"). Subject to 8.1(c) of this Agreement, the Escrow Account
Holder will hold the full amount of funds in an interest-bearing Contingency Fund
account for a period of ten (10) years from the Execution Date of this Agreement.
Upon the ten (10) year anniversary of the effective date of this Agreement, if the
City of Boise remains in compliance under the terms of this Agreement, the Escrow
Agent will disburse 50% of the principal and accrued interest of the Contingency
Fund, less any fees of the Escrow Account Holder, to the City of Boise and
thereafter retain and hold the remainder of the Contingency Fund for the remaining
term of this Agreement. Upon expiration of the Term of this Agreement, provided
that the City of Boise has performed all of its obligations under this Agreement, the
Escrow Account Holder shall distribute the remaining funds in the Contingency
Fund, inclusive of accrued interest and less any fees of the Escrow Account
Holder, to the City of Boise.
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b. In the event of an Early Termination in which the City of Boise is the
Defaulting Party, Idaho Power will recover its calculated damages suffered from
the Early Termination ("Idaho Power Early Termination Damages") from the
Contingency Fund. Idaho Power must make commercially reasonable efforts to
mitigate its damages from the Early Termination, and such mitigation amounts will
be offset in calculating the Idaho Power Early Termination Damages recovered
from the Contingency Fund. To recover the Idaho Power Early Termination
Damages from the Contingency Fund, within 180 days following an Early
Termination in which the City of Boise is the Defaulting Party, Idaho Power may
make an application to the Escrow Agent for disbursement of the Idaho Power
Early Termination Damages from the Escrow Account Holder. The application
must be served upon the City of Boise and must contain a statement showing the
efforts made to mitigate damages and quantifying any required mitigation offset for
the Idaho Power Early Termination Damages. The City of Boise shall have thirty
(30) days within which to review the escrow disbursement request and if
appropriate lodge any objection with the Escrow Account Holder to disbursement
of the City of Boise Contingency Fund to Idaho Power. If no objection is made
within the prescribed period, the Escrow Account Holder will disburse the
requested Idaho Power Early Termination Damages to Idaho Power, and the
balance of any remaining funds from the Contingency Fund will be disbursed to
the City of Boise. If an objection is lodged by the City of Boise, the Escrow Account
Holder shall hold the disputed amount in the escrow until the dispute is resolved
by the Parties.
C. If this Agreement becomes null and void pursuant to section 13.1 of
this Agreement, the Escrow Account Holder will return the funds in the
Contingency Fund, inclusive of accrued interest and less any fees of the Escrow
Account Holder, to the City of Boise.
8.2 Adequate Assurances. The Parties agree that to the extent that Section 2-609 of
the Uniform Commercial Code or any analogous common law right might apply to this
Agreement: (a) the City of Boise Contingency Fund is adequate assurance of the City of
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Boise's due performance, and (b) the Parties stipulate that they have considered and
specifically negotiated the terms set forth herein and, except as may arise in the context
of a Bankruptcy Proceeding with respect to one of the Parties, no additional security or
collateral posting shall be required with respect to performance under this Agreement.
SECTION 9. — FORCE MAJEURE
9.1 Force Majeure. A Party shall not be considered a Defaulting Party in the
performance of any of its obligations under this Agreement when and to the extent such
Party's performance is prevented by a Force Majeure that, despite the exercise of due
diligence, such Party is unable to prevent or mitigate, provided the affected Party has
given the Force Majeure Notice pursuant to the timelines set forth in Section 9.2. Nothing
contained herein shall be construed to require a Party to settle any strike or labor dispute
in which it is involved. The suspension of performance due to an event of Force Majeure
shall be of no greater scope and of no longer duration than is required by such event of
Force Majeure.
9.2 The Party claiming the occurrence of a Force Majeure event that prevents it from
performing its obligations under this Agreement shall give the other Party notice of the
Force Majeure event, including the nature, cause and date and time of commencement
of such event, and the anticipated scope and duration of the delay (the "Force Majeure
Notice") as soon as practicable after the affected Party becomes aware that such Force
Majeure event affects its performance and in any event, no later than ten (10) days after
the affected Party becomes aware that such Force Majeure event affects its performance
hereunder. The affected Party shall prepare a Force Majeure cure plan describing the
actions reasonably expected to be necessary to overcome the Force Majeure event and
the time reasonably anticipated to perform such actions. Thereafter, such Party shall
provide progress reports to the other Party at least every thirty (30) days describing
actions taken to remedy the consequences of the Force Majeure event, the schedule for
future actions and the expected date by which performance shall no longer be affected
by the Force Majeure event. When such Party has overcome such Force Majeure event
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and is ready to resume full performance under this Agreement, notice shall be provided
to the other Party and full performance shall resume.
SECTION 10. —ASSIGNMENT
10.1 This Agreement shall be binding upon the heirs, legal and personal
representatives, successors and assigns of the parties hereto.
10.2 Assignment.
a. Except as otherwise expressly set forth in this Section 10.2, neither
Party may assign either this Agreement or any of its rights or obligations hereunder
without the written consent of the other Party, which consent shall not be
unreasonably withheld. This Agreement may not be assigned by either Party to a
Sanctioned Person. Neither Party may suffer a change of ownership or control,
whether direct or indirect, voluntary or by operation of law, such that the Party
becomes a Sanctioned Person.
b. Non-Complying Transfers Void. Upon any assignment by either
Party in accordance with the provisions of Section 10.2(a), such Party shall be
relieved of and released from its obligations under this Agreement to the extent of
such assignment. Except as specifically provided for in Section 10.2(a), any
assignment or transfer of this Agreement or any rights, duties, or interest
hereunder or any portion thereof by any Party without the prior written consent of
the other Party shall be void and of no force or effect.
SECTION 11. — LIABILITY AND INSURANCE
11.1 Each Party agrees to protect, defend, indemnify and hold harmless the other party
and its officers, directors, and employees against and from any and all liability, suits, loss,
damage, claims, actions, costs, and expenses of any nature, including court costs and
attorney's fees, even if such suits or claims are completely groundless, as a result of injury
to or death of any person or destruction, loss or damage to property arising in any way in
connection with, or related to, this Agreement, but only to the extent such injury to or
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death of any person or destruction, loss or damage to property is not due to the
negligence or other breach of legal duty of such other party; provided, however, that each
party shall be solely responsible for claims of and payment to its employees for injuries
occurring in connection with their employment or arising out of any workman's
compensation law.
11.2 Idaho Power acknowledges that City is a governmental entity as defined in the
Idaho Tort Claims Act and the City's liability is at all times limited as required by Idaho
law, including the Idaho State Constitution and the Idaho Tort Claims Act, Idaho Code
Sections 6-901 through 6-929, inclusive, and any limitation of City's liability,
indemnifications, or hold harmless provisions shall be void to the extent such provision
violates applicable laws. Nothing in this agreement shall be deemed to be a waiver by
City of any privilege, protection, or immunity otherwise afforded it under the Idaho
Constitution, Idaho Tort Claims Act, or any other applicable law or a waiver of its
sovereign immunity, which is hereby expressly retained. Furthermore, City shall at no
time be liable for more than the pro rata share of the total damages awarded in favor of a
claimant that is directly attributable to the negligent or otherwise wrongful acts or
omissions of City or its employees.
11.3 Minimum Insurance Requirements. Idaho Power shall maintain, and specifically
agrees that it will maintain, throughout the term of this Agreement, liability insurance, in
which the City shall be named an additional insured in the minimum amount of one million
dollars ($1,000,000.00) per occurrence, or as specified in the Idaho Tort Claims Act set
forth in Title 6, Chapter 9 of the Idaho Code, whichever is higher. Idaho Power shall
provide City with a Certificate of Insurance, or other proof of insurance evidencing Idaho
Power's compliance with the requirements of this paragraph and file such proof of
insurance with the City. In the event the insurance minimums are changed, Idaho Power
shall promptly submit proof of compliance with the changed limits.
11.4 Workers Compensation. Idaho Power shall have and maintain during the life of
this Agreement, statutory workers compensation and include employer's liability with
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minimum limits of: Bodily injury by accident - $500,000.00 each accident; bodily injury by
disease - $500,000.00 each employee; bodily injury by disease - $500,000.00 policy limit.
SECTION 12. — IDAHO PUBLIC UTILITIES COMMISSION JURISDICTION
12.1 This Agreement and the respective rights and obligations of the parties hereunder,
shall be subject to (a) Idaho Power's General Rules and Regulations as now or hereafter
in effect and on file with the IPUC and (b) to the jurisdiction and regulatory authority of the
IPUC and the laws of the State of Idaho.
12.2 The rates set forth in this Agreement and Schedules 19 and 62-1 are subject to
the continuing jurisdiction of the IPUC. The rates under this Agreement are subject to
change and revision by order of the IPUC upon a finding, supported by substantial
competent evidence, that such rate change or revision is just, fair, reasonable, sufficient,
non-preferential, and nondiscriminatory. It is the parties' intention by such provision that
the rate making standards to be used in making any revisions or changes in rates, and
the judicial review of any revisions or changes in rates, will be the same standards that
are applicable to Idaho intrastate tariff rates.
SECTION 13. — REGULATORY APPROVAL
13.1 Final Regulatory Approval. This Agreement is subject to and is expressly
conditioned upon the approval by the IPUC of all terms and provisions hereof without
change or condition. This Agreement shall become null and void should Idaho Power not
obtain all regulatory approvals deemed appropriate by Idaho Power and City of Boise.
Idaho Power will file a case seeking approval of this Agreement with the IPUC.
SECTION 14. — DEFAULT AND TERMINATION
14.1 Event of Default. "Event of Default" means the occurrence of any of the following
events with respect to a Party (the "Defaulting Party," and the other Party, the "Non-
Defaulting Party"):
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a. The failure by the Defaulting Party to make, when due, payment of
any amount required under this Agreement if such failure is not remedied within
fifteen (15) Business Days after written notice of such failure is given to the
Defaulting Party by the Non-Defaulting Party;
b. The failure by the Defaulting Party to perform or observe any material
obligation or covenant set forth in this Agreement (other than obligations which are
otherwise specifically covered in this Section 14.1 as a separate Event of Default),
and such failure is not cured within thirty (30) Days after written notice of such
default is given by the Non-Defaulting Party to the Defaulting Party;
C. Any representation or warranty of the Defaulting Party pursuant to
this Agreement shall prove to have been false or misleading in any material respect
when made or deemed made unless (i) the fact, circumstance or condition that is
the subject of such representation or warranty is made true within fifteen (15) Days
after notice thereof has been given to the Defaulting Party; and (ii) such cure
removes any adverse effect on the Non-Defaulting Party of such fact, circumstance
or condition being otherwise than as first represented;
d. City of Boise shall become subject to a Bankruptcy Proceeding;
e. Idaho Power shall become subject to a Bankruptcy Proceeding and,
at any time during the pendency of such Bankruptcy Proceeding, Idaho Power
shall fail to deliver the Total Supply Obligation or Environmental Attributes required
to be delivered under this Agreement in circumstances where such failure was not
excused by Force Majeure;
f. The Defaulting Party consolidates or amalgamates with, or merges
with or into, or transfers all or substantially all of its assets to, another entity and,
at the time of such consolidation, amalgamation, merger or transfer, the resulting,
surviving or transferee entity fails to assume all the obligations of such Party under
this Agreement to which it or its predecessor was a party by operation of Applicable
Law or pursuant to an agreement reasonably satisfactory to the other Party;
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g. With respect to Idaho Power, Idaho Power knowingly (i) sells
Environmental Attributes from the Project to a Person other than City of Boise in
breach of this Agreement and does not permanently cease such sale, (ii) otherwise
fails to transfer Environmental Attributes from the Project to City of Boise as
required by this Agreement, or (iii) makes a public statement or otherwise takes
an action that any Governmental Authority or the administrators of an Applicable
Program determine is a retirement, double counting, double sale, double use or
double claim of Environmental Attributes, and upon notice by City of Boise, does
not permanently cease the making of such public statement or action;
h. Either Party is or becomes a Sanctioned Person;
i. City of Boise fails to maintain the Contingency Fund required by
Section 8.1 of this Agreement.Remedies. If an Event of Default with respect to a
Defaulting Party shall have occurred and be continuing, then the Non-Defaulting
Party shall have all rights and remedies available at law or in equity, including the
right, but not the obligation, to take one or more of the following actions:
(a) designate a Day, no earlier than the Day such notice is effective and no later
than twenty (20) Days after such notice is effective, as an early termination date
("Early Termination Date") to terminate this Agreement and (i) settle and bring
current all outstanding amounts owing between the Parties as of the Early
Termination Date (whether or not such amounts have been previously invoiced),
without regard to whether such amounts are owing to or from the Non-Defaulting
Party, which amount shall be payable within fifteen (15) Business Days after notice
of the amount is effective, and (ii) as of such Early Termination Date, accelerate
all amounts owing between the Parties and calculate a single liquidated
Termination Payment in accordance with Section 1.6, (b) withhold any payments
due to the Defaulting Party under this Agreement, (c) suspend performance, and
(d) in the case of City of Boise as the Non-Defaulting Party, if City of Boise is not
receiving Environmental Attributes from a Project as a result of the Event of
Default, then in lieu of termination of this Agreement and demand for payment of
the Termination Payment, demand that Idaho Power either (i) no later than sixty
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(60) days after the end of each calendar year, deliver to City of Boise Replacement
Environmental Attributes in an amount equal to the number of RECs from the
applicable project at such project's 8760 generation profile that would have been
delivered to City of Boise hereunder and other Environmental Attributes from the
applicable project that would have been delivered to City of Boise hereunder but
for the Event of Default, or (ii) if Idaho Power has used commercially reasonable
efforts to provide Replacement Environmental Attributes in accordance with clause
(i) above but has been unable to do so within sixty (60) days after the end of any
calendar year, then, no later than ninety (90) days after the end of such calendar
year, pay to City of Boise liquidated damages in an amount equal to the market
value of such quantity of RECs and other Environmental Attributes, in each case,
as of the last day of such calendar year; provided that such market value of RECs
and Environmental Attributes shall be the average of the market value determined
by two Third Party Market Experts. In the case of clause (d), such remedy shall
apply until the earlier of (1) the end of the Term, and (2) the date on which Idaho
Power recommences the delivery of all Environmental Attributes from the
applicable Project to City of Boise.
14.3 Termination Payment. If this Agreement is terminated as a result of an Event of
Default, the Termination Payment shall be calculated by the Non-Defaulting Party as of
the Early Termination Date. The Termination Payment, if any, shall be paid only to the
Non-Defaulting Party and shall be due only from the Defaulting Party. If the City of Boise
is the Non-Defaulting Party, it may, in addition to pursuing any and all other remedies
available at law or in equity, proceed against collateral or other security held by the
Defaulting Party in whatever form to reduce any amounts arising from such Event of
Default. If City of Boise is the Defaulting Party, Idaho Power may proceed against the
collateral held in the Contingency Fund; subject to Section 16.12.
14.4 Notice of Termination Payment. As soon as practicable, notice shall be given by
the Non-Defaulting Party to the Defaulting Party of the amount of the Termination
Payment. Such notice shall include a written statement explaining in reasonable detail
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the calculation of such amount. The Termination Payment, if any, shall be made by the
Defaulting Party within fifteen (15) Business Days after such notice is effective.
14.5 Disputes with Respect to Termination Payment. If the Defaulting Party disputes
the Non-Defaulting Party's calculation of the Termination Payment, in whole or in part,
the Defaulting Party shall, within fifteen (15) Business Days of receipt of Non-Defaulting
Party's calculation of the Termination Payment, provide to the Non-Defaulting Party a
detailed written explanation of the basis for such dispute.
14.6 Closeout Setoff. After calculation of a Termination Payment in accordance with
Section 14.3, if the Defaulting Party would be owed the Termination Payment, the Non-
Defaulting Party shall be entitled, at its option and in its discretion, to set off against such
Termination Payment, and all outstanding amounts due to the Defaulting Party as of the
Early Termination Date, any amounts due and owing by the Defaulting Party to the Non-
Defaulting Party under this or any other agreements, instruments or undertakings
between the Defaulting Party and the Non-Defaulting Party. The remedy provided for in
this Section shall be without prejudice and in addition to any right of setoff, combination
of accounts, lien or other right to which any Party is at any time otherwise entitled (whether
by operation of law, contract or otherwise).
14.7 Duty to Mitigate. Each Party agrees that it has a duty to mitigate damages and
covenants that it will use Commercially Reasonable Efforts to minimize any damages it
may incur as a result of the other Party's performance or non-performance hereof.
SECTION 15. — REPRESENTATIONS AND WARRANTIES
15.1 Mutual Representations and Warranties. As of the Execution Date, or as of such
other date as set forth below, each Party represents, covenants, and warrants to the other
that:
a. Organization. It is duly organized and validly existing under the laws
of its State of organization.
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b. Authority. It has the requisite power and authority to enter hereinto
and to perform according to the terms hereof.
C. Corporate Actions. It has taken all corporate actions required to be
taken by it to authorize the execution, delivery and performance hereof and the
consummation of the transactions contemplated hereby.
d. No Contravention. The execution, delivery, performance and
observance by it of its obligations hereunder do not (a) contravene any provision
of, or constitute a default under, (i) any indenture, mortgage, security instrument
or undertaking, or other material agreement to which it is a party or by which it is
bound, (ii) any valid order of any court, or any regulatory agency or other body
having authority to which it is subject, or (iii) any material Applicable Law presently
in effect having applicability to it, or (b) require the consent or approval of, or
material filing or registration with, any Governmental Authority or other Person
other than such consents or approvals that are not yet required but expected to be
obtained in due course or as contemplated by this Agreement.
e. Valid and Enforceable Agreement. This Agreement is a valid and
legally binding obligation of it, enforceable against it in accordance with its terms,
except as the enforceability hereof may be limited by general principles of equity
or bankruptcy, insolvency, bank moratorium or similar laws affecting creditors'
rights generally and laws restricting the availability of equitable remedies, and
subject to all approvals of Governmental Authorities contemplated by this
Agreement.
f. Litigation. No litigation, arbitration, investigation or other proceeding
is pending or, to the best of such Party's knowledge, threatened against such Party
or any Affiliate with respect hereto and the transactions contemplated hereunder
that would reasonably be expected to have a material adverse effect on its ability
to perform its obligations under this Agreement or the enforceability of this
Agreement against it.
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g. No Brokers. No broker, finder, or investment banker is entitled to
any brokerage, finder's or other fee or commission in connection with this
Agreement based upon any agreements or arrangements or commitment, written
or oral, made by or on behalf of the Party.
h. Bankruptcy Eligible. It is an entity eligible to file as a debtor under
Chapter 7 and/or Chapter 11 of the United States Bankruptcy Code;
i. No Proceedings. There are no Bankruptcy Proceedings pending or
being contemplated by it or, to its knowledge, threatened against it;
j. Full Understanding. It has entered into this Agreement with a full
understanding of the material terms and risks of the same, and it is capable of
assuming those risks;
k. Own Judgment. It has made the decision to enter into this
Agreement based upon its own judgment and upon any advice from such advisors
as it has deemed necessary;
I. No Assurances. Other than as set forth in the terms of this
Agreement with respect to its own performance hereunder, such Party has not
given to the other Party any assurances as to the expected economic outcome of
entering into this Agreement; and
M. Not a Sanctioned Person. It is not a Sanctioned Person.
SECTION 16. — MISCELLANEOUS PROVISIONS
16.1 Notices. All notices, requests, statements or payments shall be made to the
addressee specified on Exhibit 3. Notices shall, unless otherwise specified herein, be in
writing and delivered by hand, certified United States mail (return receipt requested),
reputable overnight courier service or email. For all notices delivered by a method other
than email, the Party giving notice shall, at the time of sending such notice, send an email
copy of the notice to the email addresses provided for such addressee in Exhibit 3. Notice
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by email or hand delivery shall be effective when received, if received during business
hours on a Business Day, and otherwise shall be effective on the next Business Day;
provided that email notice shall not be effective unless and until acknowledged by the
recipient. Notice by overnight United States mail or courier shall be effective upon receipt
or rejection, as specified in the return receipt or tracking report, as applicable. A Party
may change its addresses by providing notice thereof in accordance with this Section.
16.2 Cooperation. Each Party acknowledges that the satisfactory performance and
operation of its various obligations under this Agreement will often require the cooperation
of the other Party. To that end, each Party will make good faith efforts to bring to the
attention of the other Party, or its Affiliates any condition or circumstance that it believes
the other Party is unaware of that may materially impact such Party's performance
hereunder; provided, however, that under no circumstance shall any alleged failure to
comply with the requirements of this Section 16.2 provide the basis for an Event of Default
under Section 14 or an indemnity Claim under Section 11.
16.3 Entirety. This Agreement constitutes the entire agreement between the Parties.
There are no prior or contemporaneous agreements or representations affecting the
same subject matter other than those herein expressed.
16.4 Waivers; Remedies Cumulative. No failure or delay on the part of a Party in
exercising any of its rights under this Agreement or in insisting upon strict performance of
provisions of this Agreement, no partial exercise by either Party of any of its rights under
this Agreement, and no course of dealing between the Parties shall constitute a waiver of
the rights of either Party arising under this Agreement or otherwise. Any waiver shall be
effective only by a written instrument signed by the Party granting such waiver, and such
shall not operate as a waiver of, or estoppel with respect to, any subsequent failure to
comply therewith. Except as otherwise provided herein, the remedies provided in this
Agreement are cumulative and not exclusive of any remedies provided by law.
16.5 Severability. If any term, provision or condition of this Agreement is held to be
invalid, void or unenforceable by a Governmental Authority and such holding is subject to
no further appeal or judicial review, then such invalid, void, or unenforceable term,
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provision or condition shall be severed from this Agreement and the Parties shall
negotiate in good faith to replace such invalid, void or unenforceable provisions with valid
and enforceable provisions which achieve the benefit of the bargain intended by the
Parties to the greatest extent permitted by Applicable Law.
16.6 Confidentiality. Any information disclosed by one Party to the other Party in
connection with this Agreement shall be subject to the Mutual Nondisclosure Agreement,
and the terms and conditions of the Mutual Nondisclosure Agreement are hereby
incorporated herein.
16.7 Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be an original, but all of which together shall constitute one and the
same original instrument. A signature in "PDF" format or electronic signature to this
Agreement shall be deemed an original and binding upon the Party against which
enforcement is sought.
16.8 Modification/Amendment. This Agreement may not be modified or amended
except by a written instrument signed by each of the Parties hereto.
16.9 Exhibits. The Exhibits attached hereto shall form a part of this Agreement and are
hereby incorporated into this Agreement by reference as if fully set forth herein.
16.10 Time. Time is of the essence to the performance of the terms and conditions of
this Agreement; provided, however, that if the final date of any period which is set for a
time provision under this Agreement falls on a Day that is not a Business Day, in such
event the time of such period shall be extended to the next Business Day.
16.11 Governing Law. Unless otherwise expressly provided herein, the terms and
conditions of this agreement shall be governed by, controlled, construed and enforced in
accordance with the laws and decisions of the state of Idaho applicable to agreements to
be made and to be performed in Idaho without regard to principles of conflicts of law.
16.12 Limitations of Remedies, Liability, and Damages. THE PARTIES CONFIRM THAT
THE EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS
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AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. FOR BREACH OF
ANY PROVISION FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES
IS PROVIDED, SUCH EXPRESS REMEDY OR MEASURE OF DAMAGES SHALL BE
THE SOLE AND EXCLUSIVE REMEDY FOR SUCH BREACH UNLESS OTHERWISE
STATED. UNLESS EXPRESSLY HEREIN PROVIDED, NEITHER PARTY SHALL BE
LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR
INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION
DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY
PROVISION OR OTHERWISE (EXCEPT TO THE EXTENT THAT AN INDEMNIFYING
PARTY PURSUANT TO THE PROVISIONS OF SECTION 11 HEREOF IS OBLIGATED
TO INDEMNIFY AGAINST THIRD PARTY CLAIMS FOR CONSEQUENTIAL,
INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES OR LOST PROFITS
OR BUSINESS INTERRUPTION DAMAGES); PROVIDED, HOWEVER, THAT THE
FOREGOING LIMITATION SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM
A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT NOR LIMIT A
PARTY'S RIGHT TO ANY DAMAGES PURSUANT TO THE MUTUAL NON-
DISCLOSURE AGREEMENT. EXCEPT AS OTHERWISE PROVIDED IN THIS
SECTION, IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN
IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT
REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE
NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR
CONCURRENT, OR ACTIVE OR PASSIVE. TO THE EXTENT ANY DAMAGES
REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, THE PARTIES
ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO
DETERMINE, OTHERWISE OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT
AND THE LIQUIDATED DAMAGES CONSTITUTE A REASONABLE APPROXIMATION
OF THE HARM OR LOSS. THE PROVISIONS OF THIS SECTION 16.12 SHALL
SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO
EVENT WILL THE CITY OF BOISE BE LIABLE FOR DAMAGES IN EXCESS OF THE
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BOISE CONTINGENCY FUND FOR ANY BREACH OR TERMINATION OF THIS
AGREEMENT.
16.13 Third Party Beneficiaries. This Agreement is not intended to, and does not, confer
upon any Person other than the Parties hereto and their respective successors and
permitted assigns, any rights or remedies hereunder.
16.14 No Partnership. This Agreement shall not be interpreted or construed to create an
association, joint venture, or partnership between the Parties or between any Party and
the other Party's Affiliates or members, Idaho Power or to impose any partnership
obligation or liability upon either Party or their Affiliates or members. Neither Party shall
have any right, power or authority to enter into any agreement or undertaking for, or act
on behalf of, or to act as or be an agent or representative of, or to otherwise bind.
16.15 No Personal Liability. Each Party acknowledges and agrees that in no event shall
any Affiliate, partner, member, shareholder, owner, attorney, consultant, officer, director
or employee of either Party be personally liable to the other Party for any payments,
obligations, or performance due under this Agreement or any breach or failure of
performance of either Party.
16.16 Further Assurances. If any Party reasonably determines or is reasonably advised
that any further instruments or any other things or actions are necessary or desirable to
carry out the terms of this Agreement, then the other Party shall perform and execute and
deliver, or cause to be performed, executed and delivered, all such further actions,
instruments and things reasonably necessary and proper to carry out the terms of this
Agreement.
16.17 Event of Non-Appropriation. If the City Council of the City of Boise fails or declines
to appropriate funds for this Agreement for any City Fiscal Year during the Term of this
Agreement, this Agreement shall terminate on the last day of the City Fiscal Year for
which funds have been appropriated, which shall also be the Early Termination Date.
Such event shall be an Event of Default under Section 14 of this Agreement. The City of
Boise staff managing this Agreement will make reasonable efforts to obtain an
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appropriation from the City Council in the full amount required under this Agreement,
including the submission of budget requests each year that are sufficient to cover the City
of Boise's payment obligations under this Agreement for the next City fiscal year._
16.18 Anti-Boycott. Pursuant to Idaho Code § 67-2346, Idaho Power certifies that it is
not currently engaged in and will not for the duration of this Agreement engage in, a
boycott of goods or services from Israel or territories under its control.
16.19 Government of China Certification. Idaho Power certifies that it is not currently
owned or operated by the government of China and will not, for the duration of this
Agreement, be owned or operated by the government of China.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by the duly authorized representatives as of the date first set forth above.
CITY OF BOISE
By:
Name: Lauren McLean 10/10/2023 �^ `
Title: Mayor �f 7
[CITY CLERK ATTEST]
IDAHO POWER COMPANY
By:
Uaw K(Lvus
Adam Richins
Name:
Title: coo
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DocuSign Envelope ID: 18ABCF27-B954-401F-9F1A-59F55C714BCF
EXHIBIT 1
to
Renewable Power Purchase Agreement
between Idaho Power Company
and
City of Boise
dated
October 3, 2023
PRICING
Definitions
"Administrative Charge" is equal to 5 percent of the portion of the Excess Generation Credit and/or
the Monthly Adjusted Renewable Energy Facility Credit that is recovered through the Power Cost
Adjustment and that Idaho Power allocates to the State of Idaho. The Administrative Charge will
be determined and applied monthly.
"Annual Renewable Energy Facility Credit" means the product of the Renewable Capacity
Contribution and the Renewable Energy Facility Credit Rate.
"Capacity Contribution Factor" is based on the capacity contribution methodology and preferred
portfolio resource addition timing of the most recently acknowledged IRP, is set at the time of
execution of the Renewable Resource PPA or the Parties' agreement to procure or construct the
Idaho Power-owned Renewable Resource, as applicable, and remains the same value for the
duration of the term of the Renewable Resource PPA or the period of time during which the Idaho
Power-owned Renewable Resource will provide Project Output to City of Boise, as applicable.
"Excess Generation" means the amount for each Hour by which energy from the Project(s)
exceeds the Total Supply Obligation energy requirement.
"Excess Generation Credit" means the total amount of Excess Generation times the Excess
Generation Price.
"Excess Generation Price" means the lower of (1) 85 percent of the hourly Mid-Columbia price
forecast used in Idaho Power's most recently IPUC acknowledged IRP, with a non-firm
adjustment applied to each Hour's price, or (2)the actual heavy or light load hour (as applicable)
Mid-Columbia market price for each hour of Excess Generation delivered. The non-firm
adjustment will be based on the rate contained within Schedule 86 or its successor schedule. The
Excess Generation Price will become effective the month following IPUC acknowledgement of
the corresponding IRP until IPUC acknowledgement of the subsequent IRP.
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DocuSign Envelope ID: 18ABCF27-B954-401F-9F1A-59F55C714BCF
"Fixed Cost Component of the Retail Energy Charge" means the per kilowatt hour rate of cost-of-
service classified fixed costs pursuant to the Fixed Cost Component of the Retail Energy Charge
as stated in Schedule 62.
"Monthly Adjusted Renewable Energy Facility Credit" is the product of the Monthly Unadjusted
Renewable Energy Facility Credit and the Performance Ratio Adjustment Factor. The Monthly
Adjusted Renewable Energy Facility Credit will be provided to City of Boise monthly, starting the
month of the respective Project's Renewable Capacity Credit Eligibility Date or the month
following the commercial operation date of the applicable Project, whichever is later, and will
remain in effect for the duration of the term of the Renewable Resource PPA or the period of time
during which the Idaho Power-owned Renewable Resource will provide Project Output to City of
Boise, as applicable.
"Monthly Unadjusted Renewable Energy Facility Credit" is the monthly payment available to City
of Boise with respect to a Renewable Resource PPA based on the Annual Renewable Energy
Facility Credit if all performance expectations are met by the applicable Renewable Resource.
The Monthly Unadjusted Renewable Energy Facility Credit will be determined at time of execution
of the Renewable Resource PPA or the Parties' agreement to procure or construct the Idaho
Power-owned Renewable Resource, as applicable, and will be subject to IPUC approval.
"Performance Ratio Adjustment Factor" is the adjustment to be applied to the Monthly Unadjusted
Renewable Energy Facility Credit when performance expectations are not met. The Performance
Ratio Adjustment Factor methodology is determined at time of execution of the Renewable
Resource PPA or the Parties' agreement to procure or construct the Idaho Power-owned
Renewable Resource, as applicable, and will be subject to IPUC approval.
"Renewable Capacity Contribution" means the Project MW AC nameplate capacity multiplied by
the Capacity Contribution Factor.
"Renewable Energy Facility Credit Rate" is based on the Avoided Levelized Capacity Costs of the
lowest-cost selectable resource from the most recently acknowledged IRP, is set at the time of
execution of the Renewable Resource PPA or the Parties' agreement to procure or construct the
Idaho Power-owned Renewable Resource, as applicable, and remains the same value for the
duration of the term of the Renewable Resource PPA or the period of time during which the Idaho
Power-owned Renewable Resource will provide Project Output to City of Boise, as applicable.
"Renewable Energy Facility Credit Adjustment" will be determined at time of execution of the
Renewable Resource PPA or the Parties' agreement to procure or construct the Idaho Power-
owned Renewable Resource, as applicable, be subject to IPUC approval, and include any
adjustment necessary to ensure no cost shift to other customers.
"Renewable Energy Facility Cost" represents the Renewable Resource Contract Price and any
additional costs incurred by Idaho Power not included in the Renewable Resource Contract Price,
which are necessarily incurred to certify Environmental Attributes pursuant to the Agreement.
"Renewable Energy Facility On-Site Usage" means the amount of energy output from all Projects
in any Hour that meets any portion of the Total Supply Obligation energy requirement for such
Hour.
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DocuSign Envelope ID: 18ABCF27-B954-401F-9F1A-59F55C714BCF
Source and Timing of Updates to Pricing Components
Pricing components will be updated at the following intervals:
Renewable Energy Facility
Schedule 19 Rates Excess Generation Price Credit Rate
General Rate Case Upon IPUC IRP Execution of the Renewable
acknowledgment and/or Resource PPA or the Parties'
Other Revenue Requirement based on actual Mid- agreement to procure or
Filing Columbia heavy or light construct the Idaho Power-
hourly prices owned Renewable Energy
Facility, as applicable,
subject to IPUC approval
Renewable Energy Facility Credit
TABLE 1: RENEWABLE ENERGY FACILITY CREDIT
a b c d e f
Project Most Recently Project Capacity Renewable REF REF Credit Annual REF
Acknowledged Nameplate Contribution Capacity Credit Adjustment Credit`
IRP (kW AC)' Factor Contribution Rate (c*d*e)
a * b $/kW- r
Black 2019 10,000 0.3642 14,568 $121.19 1.0 $441.373.98
Mesa
Energy
LLC
*Table 2 denotes the Monthly Unadjusted Renewable Capacity Credit at 10 MW Buyer's
Share.
TABLE 2: MONTHLY UNADJUSTED RENEWABLE ENERGY FACILTY CREDIT BY
MONTH
Jan Feb June July Aug Sept Oct Nov Dec
Black $23,170 $23,170 $77,240 $154,480 $77,240 $19,860 $19,860 $23,170 $23,170
Mesa
Energy
LLC2
+Table 3 denotes each project's date of eligibility for the Annual Renewable Energy
Facility Credit.
TABLE 3: ELIGIBILITY DATE FOR RENEWABLE ENERGY FACILITY CREDIT
1 Represents Buyer's Share of Project Nameplate capacity.
2Amounts to be adjusted by the Performance Ratio Adjustment Factor, which is calculated pursuant to the
methodology detailed in Case No. IPC-E-22-06, Attachment 1 to Idaho Power Company's Compliance
Filing dated December 23, 2022, as approved in Order No. 35735(Apr. 12, 2023), to determine the Monthly
Adjusted Renewable Capacity Credit.Amounts shown are for a Buyer's Share of 10 MW and will be adjusted
for each month that Buyer's Share is less than 10 MW.
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DocuSign Envelope ID: 18ABCF27-B954-401F-9F1A-59F55C714BCF
Project PPA Execution Date Capacity Deficiency Year Renewable Energy Facility Credit Eligibility
Date
Black Mesa 2/16/2022 2026 7/1/2026
Energy LLC
EXHIBIT 2
to
Renewable Power Purchase Agreement
between Idaho Power Company
and
City of Boise
dated
October 3, 2023
ENVIRONMENTAL ATTRIBUTES ATTESTATION AND BILL OF SALE
I. Idaho Power Information
Name of Idaho Power:
Address of Idaho Power:
Contact Person: Title:
Telephone: Fax: Email Address:
II. Declaration
I, (print name and title) declare that the
Environmental Attributes listed below were sold exclusively from: (name of Idaho Power)
("Idaho Power") to [ I ("City of Boise").
# MWhs Environmental Attributes Period of Generation (mm/yy)
Transferred
I further declare that:
1) all the Environmental Attributes (including any and all claims, credits, benefits,
emissions reductions, offsets, and allowances, howsoever entitled, resulting from
the avoidance of the emission of any gas, chemical, or other substance to the air,
soil or water) represented by the Environmental Attributes listed above were
generated by Idaho Power;
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2) to the best of my knowledge, the Environmental Attributes were not sold or
marketed to, or otherwise claimed by, a third party;
3) Idaho Power transferred the Environmental Attributes only once, to City of Boise;
4) the Environmental Attributes were not used to meet any federal, state or local
renewable energy requirement, renewable energy procurement, renewable
portfolio standard, or other renewable energy mandate by Idaho Power, nor, to the
best of my knowledge, by any other entity;
5) all of the Environmental Attributes transferred to City of Boise (as listed above)
were generated at the facility, a [ ]-powered generation facility located
in [County, State]; and
6) Environmental Attributes transferred to City of Boise include RECs which shall be
registered and eligible under the [registration program] specified in the Renewable
Energy Purchase Agreement.
As an authorized agent of Idaho Power, I attest that the above statements are true and
correct.
Signature Date
Place of Execution
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DocuSign Envelope ID: 18ABCF27-B954-401F-9F1A-59F55C714BCF
EXHIBIT 3
to
Renewable Power Purchase Agreement
between Idaho Power Company
and
City of Boise
dated
October 3, 2023
NOTICES INFORMATION
If to Idaho Power:
Idaho Power Company
ATTN: Vice President of Regulatory Affairs
1221 West Idaho Street (83702)
P.O. Box 70
Boise, Idaho 83707
tel: [phone]
fax: [phone]
email: [e-mail]
If to City of Boise: City of Boise
150 N. Capital Blvd.
Boise, ID 83702
Attn: Steve Hubble
Email: shubble(!2)_cityofboise.org
With a copy to: City of Boise
150 N. Capital Blvd.
Boise, ID 83702
City Attorney
Attn: Ed Jewell
Email: ejewell cityofboise.org
Exhibit 3 - 1

BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
CASE NO. IPC-E-24-18
IDAHO POWER COMPANY
ATTACHMENT NO. 2
FIRST AMENDMENT TO THE RENEWABLE
POWER PURCHASE AGREEMENT

DocuSign Envelope ID:3DCOCF02-E367-4C21-889F-5607702362BA
FIRST AMENDMENT TO THE
RENEWABLE POWER PURCHASE AGREEMENT
BETWEEN
IDAHO POWER COMPANY AND
CITY OF BOISE —
CLEAN ENERGY YOUR WAY "CONSTRUCTION OPTION"
This First Amendment to the Renewable Power Purchase Agreement ("First
Amendment") is executed on April 16, 2024 (the "Execution Date"), by the CITY OF BOISE, an
Idaho municipal corporation ("City of Boise"), and IDAHO POWER COMPANY, an Idaho
Corporation ("Idaho Power"). The City of Boise and Idaho Power are hereinafter referred to
individually as a "Party" or collectively as the "Parties".
WHEREAS, the City of Boise is an existing retail customer of Idaho Power with multiple
accounts, taking service under Schedules 1,7, 9, 15, 18 19, 24, 40, 41, 42 and 84; and
WHEREAS, as a result of the City of Boise's desire to meet a portion of its annual energy
requirements with energy generated by a Renewable Resource, the Parties entered into a
Renewable Power Purchase Agreement ("Agreement") on October 10, 2023, pursuant to which
Idaho Power agreed to procure and dedicate Buyer's Share of Renewable Resource generation
and associated Environmental Attributes from the Black Mesa Solar project pursuant to
Schedule 62 to assist the City of Boise in meeting a portion of the annual energy requirements
for two of its Schedule 19 accounts, specifically the Boise Airport and the City of Boise — Lander
Street Wastewater Treatment Facility; and
WHEREAS, the Parties now desire to enter into this First Amendment to the Agreement
("First Amendment") to: 1) add "Project Output" to the list of defined terms in Section 1 —
Definitions and Interpretation, which is a term that is used in the Agreement but was inadvertently
not included in Section 1; 2) add a definition for "Supplemental Energy", which is erroneously
noted in Section 1 of the Agreement as being defined in Exhibit 1, and correct that reference
elsewhere in the Agreement; and 3) modify Exhibit 1, which sets forth the details of the various
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DocuSign Envelope ID:3DCOCF02-E367-4C21-889F-5607702362BA
First Amendment to the
Renewable Power Purchase Agreement
rate component monthly charges and pricing under the Agreement, to incorporate language for
clarity and to provide for necessary flexibility in administering the Agreement while ensuring that
changes in rates are considered in a separate proceeding, and hereby submits the same for the
Commission's approval.
NOW, THEREFORE, in consideration of the promises and of the mutual covenants herein
set forth, and other good and valuable consideration, the receipt, sufficiency, and adequacy of
which are hereby acknowledged, the City of Boise and Idaho Power, each intending to be legally
bound, agree as follows:
1. Incorporation of Recitals. The above-stated recitals are incorporated into and made a part
of this First Amendment by this reference.
2. Amendments.
A. Section 1 — Definitions and Interpretation
i. Section 1 of the Agreement is hereby amended by adding the following new term and
definition in appropriate alphabetical order:
"Project Output" means the Metered Output and Environmental Attributes, as a
simultaneously bundled product, of a Project, either owned by Idaho Power or to
be purchased by Idaho Power in accordance with a Renewable Resource PPA.
ii. Paragraph 1.58 of the Agreement is hereby amended as follows (new language is
underlined, deleted language uses strikethreu h):
1.58 "Supplemental Energy" is ` efiRed OR Exhibit 1 hereto means the amount for
each Hour by which the Buyer's Share of Project Output is less than the Total
Supply Obligation energy requirement, the cost of which is determined by the tariff
schedule of rates in Schedule 19.
B. Section 7— Renewable Resource PPA Administration
i. Paragraph 7.2 of the Agreement is hereby amended as follows (deleted language
uses strikethreughl:
7.2 Developer Defaults Under Renewable Resource PPA.
a. If an event of default or termination event attributable to Developer,
or an event or circumstance that, with the giving of notice or passage of time, would
constitute an event of default or termination event attributable to Developer,
however so described, occurs under a Renewable Resource PPA (a "Renewable
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DocuSign Envelope ID:3DCOCF02-E367-4C21-889F-5607702362BA
First Amendment to the
Renewable Power Purchase Agreement
Resource PPA Default"), then Idaho Power shall notify City of Boise of such
Renewable Resource PPA Default (a "Notice of Renewable Resource PPA
Default"). Idaho Power shall not suspend performance or terminate the
Renewable Resource PPA without the prior written consent of City of Boise (which
consent shall not be unreasonably withheld, conditioned or delayed) unless failure
to terminate or suspend performance of such Renewable Resource PPA is
reasonably likely to endanger people or property. No later than fifteen (15)
Business Days after receipt of a Notice of Renewable Resource PPA Default, City
of Boise shall notify Idaho Power of its consent or withholding of consent to
terminate or suspend the Renewable Resource PPA. Following response from City
of Boise to the Notice of Renewable Resource PPA Default, Idaho Power shall
enforce its contractual rights (including, if City of Boise has provided written
consent, the right to suspend performance and/or terminate) in accordance with
the terms of such Renewable Resource PPA and Prudent Electrical Practice.
Idaho Power shall enforce the terms of the Renewable Resource PPA and collect
from the Developer any Termination Payment or damages owed as a result of such
Renewable Resource PPA Default; provided, that, assuming Idaho Power has
used Commercially Reasonable Efforts to enforce the terms of the Renewable
Resource PPA, Idaho Power shall not be obligated to pay to City of Boise
termination damages due from but not paid by the Developer. Any delay damages
or cover damages received from the Developer, minus any reasonable costs
incurred by Idaho Power in recovering such delay damages or cover damages
(including, but not limited to, the cost of all Supplemental Energy as defined in
Exhibit T that is provided by Idaho Power in lieu of the Metered Output and
Environmental Attributes), shall be forwarded by Idaho Power to City of Boise, as,
when and to the extent such delay damages or cover damages are actually
received by Idaho Power. If during the pendency of a Renewable Resource PPA
Default, Idaho Power does not acquire the Metered Output and Environmental
Attributes of the Renewable Resource PPA due to a Renewable Resource PPA
Default, Idaho Power shall provide Supplemental Energy, and City of Boise shall
pay the cost of all Supplemental Energy as defined in Exhibit 1 that is provided by
Idaho Power in lieu of the Metered Output.
C. Exhibit 1: Pricing
i. Exhibit 1 to the Agreement is hereby replaced in its entirety with the First Revised
Exhibit 1 included in the Attachment hereto, which is incorporated by reference as if
set forth fully.
3. IPUC Approval. The obligations of the Parties under this First Amendment are subject to
the Commission's approval of this First Amendment, and such approval being upheld on appeal,
if any, by a court of competent jurisdiction.
4. Effect of Amendment. Except as expressly amended by this First Amendment, the terms
and conditions of the Agreement remain unchanged.
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DocuSign Envelope ID:3DCOCF02-E367-4C21-889F-5607702362BA
First Amendment to the
Renewable Power Purchase Agreement
5. Capitalized Terms. All capitalized terms used in this First Amendment and not defined
herein shall have the same meaning as in the Agreement.
6. Scope of Amendment. This First Amendment shall be binding upon and inure to the benefit
of the Parties hereto, and their respective heirs, executors, administrators, successors, and
assigns, who are obligated to take any action which may be necessary or proper to carry out the
purpose and intent hereof.
7. Authority. Each Party represents and warrants that as of the Execution Date: (i) it is validly
existing and in good standing in the state in which it is organized, (ii) it is the proper party to
amend the Agreement, and (iii) it has the requisite authority to execute this First Amendment.
8. Counterparts. This First Amendment may be executed in any number of counterparts, each
of which shall be deemed an original and all of which taken together shall constitute a single
instrument. A signature in "PDF" format or an electronic signature to this First Amendment shall
be deemed an original and binding upon the Party against which enforcement is sought.
9. Governing Law. Unless otherwise expressly provided herein, the terms and conditions of
this First Amendment shall be governed by, controlled, construed, and enforced in accordance
with the laws and decisions of the state of Idaho applicable to agreements to be made and to be
performed in Idaho without regard to principles of conflicts of law.
[Signatures appear on the following page]
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DocuSign Envelope ID:3DCOCF02-E367-4C21-889F-5607702362BA
First Amendment to the
Renewable Power Purchase Agreement
IN WITNESS WHEREOF, the Parties hereto have caused this First Amendment to the
Agreement to be duly executed as of the date set forth above.
CITY OF BOISE
By: " CGS �I �
Name: L uren McLean 4/16/2024
Title:
Mayor
y
4 .
ATTEST
BY:
Name: Lyn Cowry 4/16/2024
Title: City Clerk
IDAHO POWER COMPANY
By: gjVM �&AWS
Name: Adam Ri chins
Title: coo
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DocuSign Envelope ID:3DCOCF02-E367-4C21-889F-5607702362BA
Attachment to
First Amendment to the Renewable Power Purchase Agreement
Between Idaho Power Company and City of Boise
Dated April 2024
FIRST REVISED EXHIBIT 1
PRICING
Definitions
"Administrative Charge" is equal to 5 percent of the portion of the Excess Generation Credit and/or the
Monthly Adjusted Renewable Energy Facility Credit that is recovered through the Power Cost Adjustment
and that Idaho Power allocates to the State of Idaho. The Administrative Charge will be determined and
applied monthly.
"Annual Renewable Energy Facility Credit" means the product of the Renewable Capacity Contribution
and the Renewable Energy Facility Credit Rate.
"Capacity Contribution Factor" is based on the capacity contribution methodology and preferred portfolio
resource addition timing of the most recently acknowledged IRP, is set at the time of execution of the
Renewable Resource PPA or the Parties' agreement to procure or construct the Idaho Power-owned
Renewable Resource, as applicable, and remains the same value for the duration of the term of the
Renewable Resource PPA or the period of time during which the Idaho Power-owned Renewable
Resource will provide Buyer's Share of Project Output to City of Boise, as applicable.
"Excess Generation" means the amount for each Hour by which energy from the Project(s) exceeds the
Total Supply Obligation energy requirement.
"Excess Generation Credit" means the total amount of Excess Generation times the Excess Generation
Price.
"Excess Generation Price" means the lower of (1) 85 percent of the hourly Mid-Columbia Forecast, with
a non-firm adjustment applied to each Hour's price, or (2) the actual heavy or light load hour (as
applicable) Mid-Columbia market price for each hour of Excess Generation delivered. The non-firm
adjustment will be based on the rate contained within Schedule 86 or its successor schedule.
"Fixed Cost Component of the Retail Energy Charge" means the per kilowatt hour rate of cost-of-service
classified fixed costs pursuant to the Fixed Cost Component of the Retail Energy Charge as stated in
Schedule 62.
"Mid-Columbia Forecast" means the hourly Mid-Columbia price forecast from the Company's most
recently filed IRP. The proposed Mid-Columbia Forecast will be filed with the IPUC following submission
of each IRP filing.
"Monthly Adjusted Renewable Energy Facility Credit" is the product of the Monthly Unadjusted
Renewable Energy Facility Credit and the Performance Ratio Adjustment Factor. The Monthly Adjusted
First Revised Exhibit 1
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DocuSign Envelope ID:3DCOCF02-E367-4C21-889F-5607702362BA
Renewable Energy Facility Credit will be provided to City of Boise monthly, starting the month of the
respective Project's Renewable Capacity Credit Eligibility Date or the month following the commercial
operation date of the applicable Project, whichever is later, and will remain in effect for the duration of
the term of the Renewable Resource PPA or the period of time during which the Idaho Power-owned
Renewable Resource will provide Buyer's Share of Project Output to City of Boise, as applicable.
"Monthly Unadjusted Renewable Energy Facility Credit" is the monthly payment available to City of Boise
with respect to a Renewable Resource PPA based on the Annual Renewable Energy Facility Credit if all
performance expectations are met by the applicable Renewable Resource. The Monthly Unadjusted
Renewable Energy Facility Credit will be determined at time of execution of the Renewable Resource
PPA or the Parties' agreement to procure or construct the Idaho Power-owned Renewable Resource, as
applicable, and will be subject to IPUC approval.
"Performance Ratio Adjustment Factor" is the adjustment to be applied to the Monthly Unadjusted
Renewable Energy Facility Credit when performance expectations are not met. The Performance Ratio
Adjustment Factor methodology is determined at time of execution of the Renewable Resource PPA or
the Parties' agreement to procure or construct the Idaho Power-owned Renewable Resource, as
applicable, and will be subject to IPUC approval.
"Renewable Capacity Contribution" means the Project MW AC nameplate capacity multiplied by the
Capacity Contribution Factor.
"Renewable Energy Facility Credit Rate" is based on the Avoided Levelized Capacity Costs of the lowest-
cost selectable resource from the most recently acknowledged IRP, is set at the time of execution of the
Renewable Resource PPA or the Parties' agreement to procure or construct the Idaho Power-owned
Renewable Resource, as applicable, and remains the same value for the duration of the term of the
Renewable Resource PPA or the period of time during which the Idaho Power-owned Renewable
Resource will provide Buyer's Share of Project Output to City of Boise, as applicable.
"Renewable Energy Facility Credit Adjustment" will be determined at time of execution of the Renewable
Resource PPA or the Parties' agreement to procure or construct the Idaho Power-owned Renewable
Resource, as applicable, be subject to IPUC approval, and include any adjustment necessary to ensure
no cost shift to other customers.
"Renewable Energy Facility Cost" represents the Renewable Resource Contract Price and any additional
costs incurred by Idaho Power not included in the Renewable Resource Contract Price, which are
necessarily incurred to certify Environmental Attributes pursuant to the Agreement.
"Renewable Energy Facility On-Site Usage" means the amount of energy output from all Projects in any
Hour that meets any portion of the Total Supply Obligation energy requirement for such Hour.
First Revised Exhibit 1
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DocuSign Envelope ID:3DCOCF02-E367-4C21-889F-5607702362BA
Source and Timing of Updates to Pricing Components
Pricing components will be updated at the following intervals:
Renewable Energy Facility
Schedule 19 Rates Mid-Columbia Forecast Credit Rate
General Rate Case Following submission of each Execution of the Renewable
IRP filing Resource PPA or the Parties'
Other Revenue Requirement agreement to procure or
Filing construct the Idaho Power-
owned Renewable Energy
Facility, as applicable,
subject to IPUC approval
Renewable Energy Facility Credit
TABLE 1: RENEWABLE ENERGY FACILITY CREDIT
a b c d e f
Project Most Recently Project Capacity Renewable REF REF Credit Annual REF
Acknowledged Nameplate Contribution Capacity Credit Adjustment Credit`
IRP (kW AC)' Factor Contribution Rate (c*d*e)
a * b $/kW- d
Black 2019 10,000 0.3642 14,568 $121.19 1.0 $441.373.98
Mesa
Energy
LLC
*Table 2 denotes the Monthly Unadjusted Renewable Capacity Credit at 10 MW Buyer's Share.
+Table 3 denotes each project's date of eligibility for the Annual Renewable Energy Facility Credit.
TABLE 2: MONTHLY UNADJUSTED RENEWABLE ENERGY FACILTY CREDIT BY
MONTH
Jan Feb June July Aug Sept Oct Nov Dec
Black $23,170 $23,170 $77,240 $154,480 $77,240 $19,860 $19,860 $23,170 $23,170
Mesa
Energy
LLC2
TABLE 3: ELIGIBILITY DATE FOR RENEWABLE ENERGY FACILITY CREDIT
Project PPA Execution Date Capacity Deficiency Year Renewable Energy Facility Credit Eligibility
Date
Black Mesa 2/16/2022 2026 7/1/2026
Energy LLC
Represents Buyer's Share of Project Nameplate capacity.
2 Amounts to be adjusted by the Performance Ratio Adjustment Factor, which is calculated pursuant to the
methodology detailed in Case No. IPC-E-22-06, Attachment 1 to Idaho Power Company's Compliance Filing dated
December 23,2022,as approved in Order No.35735(Apr. 12,2023),to determine the Monthly Adjusted Renewable
Capacity Credit.Amounts shown are for a Buyer's Share of 10 MW and will be adjusted for each month that Buyer's
Share is less than 10 MW.
First Revised Exhibit I
Page 13