20260220Direct Hackett.pdf

RECEIVED
FEBRUARY 20, 2026
IDAHO PUBLIC
UTILITIES COMMISSION
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF IDAHO POWER )
COMPANY' S APPLICATION FOR ) CASE NO. IPC-E-26-03
APPROVAL OF THE 2032 ALL- )
SOURCE REQUEST FOR PROPOSALS )
TO MEET CAPACITY RESOURCE )
NEEDS IN AS EARLY AS 2031 . )
IDAHO POWER COMPANY
DIRECT TESTIMONY
OF
ERIC HACKETT

1 Q. Please state your name and business address .
2 A. My name is Eric Hackett . My business address
3 is 1221 West Idaho Street, Boise, Idaho 83702 .
4 Q. By whom are you employed and in what capacity?
5 A. I am employed by Idaho Power Company ("Idaho
6 Power" or "Company") as the Projects and Resource
7 Development Director.
8 Q. Please describe your educational background.
9 A. I graduated in 2003 from Boise State
10 University, in Boise, Idaho, receiving a Bachelor of
11 Science Degree in Civil Engineering. I am a registered
12 professional engineer in the state of Idaho. In 2010, I
13 earned a Master of Business Administration from Boise State
14 University.
15 Q. Please describe your work experience with
16 Idaho Power.
17 A. From 2005 to 2007, I was employed as an
18 engineer in Idaho Power' s Transmission Engineering group.
19 In 2007, I became a Project Manager leading transmission
20 and distribution line and station infrastructure projects .
21 In 2012, I was promoted to Engineering Leader where I
22 managed the Cost and Controls group supporting project
23 management . In 2015, I changed leadership roles and managed
24 the Stations Engineering and Design group as an Engineering
25 Leader. In 2018, I was promoted to Senior Manager of
HACKETT, DI 1
Idaho Power Company

1 Projects overseeing Project Management and Cost and
2 Controls, which later became the role of Senior Manager of
3 Projects and Design in 2021, adding Power Production Design
4 and Project Management. I was promoted to my current role,
5 Projects and Resource Development Director in 2024 . In
6 addition, I am currently leading a team of internal
7 employees and consultants in development and evaluation of
8 the Company' s Request for Proposals ("RFP") for Peak
9 Capacity and Energy Resources .
10 Q. What is Idaho Power' s request in this case?
11 A. The Company is requesting the Idaho Public
12 Utilities Commission ("Commission") issue an order
13 approving Idaho Power' s draft 2032 All-Source Request for
14 Proposals (RFP) for Peak Capacity & Energy Resources
15 ("2032 RFP") . The proposed 2032 RFP is necessary to
16 position the Company to meet its obligation to provide
17 safe, reliable electric service to its customers .
18 Q. What is the purpose of your testimony in this
19 proceeding?
20 A. The purpose of my testimony is to provide an
21 overview of the competitive resource acquisition process
22 Idaho Power proposes to undertake to solicit resources to
23 meet identified capacity deficiencies in as early as 2031,
24 in accordance with the Procedures for Soliciting Large-
25 Supply-Side Resources ("Solicitation Procedures") approved
HACKETT, DI 2
Idaho Power Company

1 through Order No . 36898 . 1 I will provide an overview of the
2 draft 2032 RFP, including the 2032 RFP Selection Plan, the
3 bid evaluation process that the Company proposes to
4 undertake to evaluate resource bids received through the
5 2032 RFP that will compete to provide a combination of peak
6 capacity and energy to help meet Idaho Power' s electric
7 energy needs in as early as 2031, and the 2032 RFP
8 Announcement Plan.
9 Q. Have you prepared any exhibits?
10 A. Yes . Exhibit No. 1 to my testimony is Idaho
11 Power' s draft 2032 RFP and the RFP Exhibits A through N.
12 I . BACKGROUND
13 Q. What is driving Idaho Power' s need to initiate
14 a competitive request for proposals or RFP process to
15 acquire peak capacity and energy resources?
16 A. Idaho Power is pursuing energy and capacity
17 resources to meet customers' needs and ensure the Company
18 can continue to reliably meet the growing demands on its
19 electrical system. The Company' s annual capacity position
20 developed to inform its 2025 Integrated Resource Plan
21 ("IRP") , which was filed on June 27, 2025, and acknowledged
22 on February 17, 2026, 2 reflected current information on the
23 expected timing of major new loads, the resource
1 Case No. GNR-E-25-01.
2 Case No. IPC-E-25-23, Order No. 36937.
HACKETT, DI 3
Idaho Power Company

1 procurements the Company has made to date, and other
2 updates, demonstrated Idaho Power will have future
3 incremental peak capacity and supply-side resource needs .
4 The 2025 IRP identified a capacity deficiency beginning in
5 2027 and generally growing through the entire 20-year
6 planning period.
7 Q. Have the Company' s annual capacity positions
8 changed since filing of the 2025 IRP?
9 A. Yes . Idaho Power continually refines and
10 refreshes its resource position and needs analysis as new
11 information becomes available to ensure resource
12 procurement decisions are based on the most up-to-date
13 data. Recent regulatory filings for resources have included
14 refreshed system reliability assessments that built off the
15 identified 2025 IRP need and have shown an incremental
16 perfect capacity need of at least 200 MW in 2031 and 2032
17 with a greater need likely in 2032 . While the capacity need
18 is currently anticipated to be greater in 2032, in
19 recognition of the fluidity of Idaho Power' s annual
20 capacity position, the Company believes it would be
21 beneficial to have the added flexibility of a 2031
22 solicitation. As such, Idaho Power' s proposed 2032 All-
23 Source RFP is necessary to allow the Company to acquire
24 resources, provide for sufficient long-lead equipment, and
25 to allow an appropriate amount of time to construct
HACKETT, DI 4
Idaho Power Company

I additional infrastructure necessary to reliably serve
2 future customer demand. The size of the proposed resource
3 procurement for the RFP triggers the application of the
4 Solicitation Procedures .
5 II . THE 2032 RFP
6 Q. What is the intent of the resources sought
7 through the 2032 RFP?
8 A. The 2032 All-Source RFP is resource-agnostic
9 and solicits bids from all feasible resource types with
10 sufficient lead time to meet the desired commercial
11 operation date . The solicitation is being released to meet
12 the objective of determining the least-cost and least-risk
13 resources to satisfy the system needs . The selection will
14 be conducted through a fair, transparent, and confidential
15 evaluation process as defined throughout the draft 2032
16 RFP.
17 More specifically, through the 2032 RFP, the
18 Company' s intent is to solicit bids for two types of
19 electric energy and capacity products : (1) resource-based
20 proposals, and (2) market purchase proposals . 3 Resource
21 based proposals are unit-contingent energy where capacity
22 is delivered from specific electric resources . Market
23 purchase proposals are firm energy proposals that are
3 Although only market purchases with a duration of 10-years or more are subject
to the solicitation procedures, Idaho Power will consider all market purchase
bids that meet the minimum requirements for market purchase proposals.
HACKETT, DI 5
Idaho Power Company

1 required to meet the eligibility requirements of the
2 Western Resource Adequacy Program for qualifying contracts .
3 The eligible products included asset purchases, Power
4 Purchase Agreements ("PPAs") , and battery storage
5 agreements with exclusive ownership by the Company of any
6 and all environmental attributes associated with the energy
7 generated, if applicable. 4 The 2032 RFP does not restrict
8 bids based on resource type or ownership structure . That
9 is, the 2032 RFP will allow for bids for other proposal
10 structures and all commercially viable resource types that
11 can meet the specified commercial operation date . 5
12 Q. Does the 2032 RFP allow for benchmark bids?
13 A. Yes . In addition to bids from external
14 parties, the draft 2032 RFP allows for the submittal of
15 resource-based proposals from Idaho Power' s Internal Bid
16 Team, which is a separate team of Company personnel and
17 retained consultants . Idaho Power has instituted a
18 Separation of Functions protocol where the evaluation of
19 bids received as part of the 2032 RFP will be performed by
20 a separate team of Idaho Power staff and retained
21 consultants with relevant subject matter expertise
22 ("Evaluation Team") . This Separation of Functions protocol
23 was developed with the purpose of defining specific roles
4 Draft 2032 RFP, Section 3.1 - Eligible Proposals.
5 Draft 2032 RFP, Section 3.2 - Alternative Proposals, and Section 3.3 -
Transmission Alternatives.
HACKETT, DI 6
Idaho Power Company

I and responsibilities and outlines policies and procedures
2 to be maintained as a living document to ensure the
3 Evaluation Team and Internal Bid Team operate separately
4 and ensures that personnel involved with preparing bids do
5 not have access to any non-public information that might
6 unfairly disadvantage one bidder over another.
7 Q. What is the total capacity for which the 2032
8 RFP is soliciting?
9 A. The 2032 RFP is soliciting resources totaling
10 an incremental perfect capacity need of at least 200 MW in
11 2031 and 2032 with a greater need likely in 2032 . However,
12 because the annual capacity positions during the Company' s
13 near-term resource decision making phase can be very fluid,
14 this capacity need is subject to change as a result of
15 updated information regarding load and resources, as well
16 as contracts backing firm transmission, particularly as the
17 Company continues to see substantial interest from large
18 industrial customers that wish to site or expand operations
19 in the Idaho Power service area. 6 Incremental needs
20 associated with hypothetical large customers is not part of
21 the Company' s current load forecast and could increase
22 resource needs in the near term substantially. Ultimately
23 the total size of the resources procured will be based on
24 the most up-to-date system reliability assessment performed
6 Draft 2032 RFP - Section 2.3 - The Solicitation and Need.
HACKETT, DI 7
Idaho Power Company

1 at the time of resource selection.
2 Q. What commercial operation date or delivery
3 date is Idaho Power requesting of the resource-based or
4 market purchase proposals?
5 A. The draft 2032 RFP requests both resource-
6 based and market purchase proposals have a commercial
7 operation date between April 1 and May 31 of the respective
8 year, 2031 and 2032 . As a result, all proposals must have a
9 first delivery date of May 31, 2032, or earlier.
10 Bid Submittal Process
11 Q. Does the draft 2032 RFP describe the bid
12 submittal process?
13 A. Yes . Idaho Power has a web-based portal
14 hosted on the Zycus sourcing platform open to interested
15 bidders . This is the same platform and general bid
16 submittal process that the Company has now used for several
17 successful and approved RFP processes . The draft 2032 RFP
18 includes the web link for registration within the portal
19 for bidders .' Once registered, instructions will be provided
20 within the portal to guide bidders on how to upload
21 documents . All information exchanged between a bidder and
22 the Company concerning the 2032 RFP solicitation must only
23 be via the portal from the time it has been opened by Idaho
7 Draft 2032 RFP, Section 2.6 - Solicitation Portal and Restriction on
Communications.
HACKETT, DI 8
Idaho Power Company

1 Power until it is closed by the Company. All information,
2 including pre-bid materials, questions, and Idaho Power' s
3 response to questions, will be posted in the portal or on
4 the Idaho Power website and available to the public.
5 However, bidders will only see their own information within
6 the portal and not the information of other bidders .
7 The aggregate of the information provided by the
8 bidder, including data entered into the forms in the
9 portal, data uploaded in the portal by the bidder, and any
10 other written documents that are uploaded by the bidder, is
11 considered the bid package. To ensure consistency across
12 all bidders and bids such that the Company can
13 consistently, fairly, and expeditiously organize the
14 information, the portal is designed to accept the majority
15 of the information requested as data entered into the
16 forms, with data entry restricted to only certain eligible
17 types and values .
18 Q. Are bidders able to communicate with the
19 Company through the portal?
20 A. Yes . Idaho Power has the ability to
21 communicate with bidders through the portal . However, other
22 than written communication through the portal, bidders are
23 prohibited from communicating with Company employees,
24 representatives, staff, or board members regarding the
25 solicitation during the period in which the portal is open.
HACKETT, DI 9
Idaho Power Company

1 Violation by bidders or their agents may lead to
2 disqualification.
3 Q. What forms are required of bidders?
4 A. Once the potential bidder registers in the
5 portal as required, the bid submission process begins with
6 completion and submittal of the 2032 RFP Exhibit A - Bid
7 Definition Form, which contains preliminary information
8 about the bid (s) and associated resources including a
9 narrative description and basic bid parameters . Idaho Power
10 will review the Bid Definition Form and subsequently
11 respond to the bidder with the 2032 RFP Exhibit B - Bid
12 Entry Form that is relevant to the bid (s) . The Bid Entry
13 Form includes the bid eligibility checklist and also
14 requests complete technical, commercial, financial, and
15 pricing information for purposes of subsequent bid
16 evaluation. The Company will also provide each bidder with
17 the Hourly Renewable Output Template contained in the 2032
18 RFP Exhibit K - Forecasted Hourly Renewable Output that is
19 relevant to the bid (s) , if applicable. The Hourly Renewable
20 Output Template will provide the format for the hourly
21 forecasted P90 and P50 energy production profiles of any
22 proposed intermittent renewable resources . Bidders will
23 submit the bid package, including the Bid Entry Form,
24 Hourly Renewable Output Template and ancillary information,
25 through the portal for evaluation consideration.
HACKETT, DI 10
Idaho Power Company

1 Q. Are there additional bid package requirements?
2 A. While not required, the 2032 RFP includes
3 draft form agreements and terms sheets for resource-based
4 proposals . To the extent that the validity of a bidder' s
5 bid and/or the bidder' s ability to execute an agreement is
6 contingent upon material changes to the language in the
7 draft form agreements, the bidder should specifically
8 identify the terms they propose to change in the form of a
9 redline markup or issues list and submit the revisions with
10 its bid. Because not every technology and contract structure
11 is presented in the draft form agreements, the draft 2032
12 RFP requests that proposed contracts and terms should be
13 provided for contracts that are substantively different to
14 the provided draft form agreements .
15 In addition, for both the resource-based proposals
16 and the market purchase proposals, the bidder must prepare
17 and submit as part of the bid package a written narrative
18 that fully describes the bid and any details or nuances to
19 fully explain the intent of the bidder and the Bid Entry
20 Form, including a cover letter and introduction, company
21 and project overview, a description of each bid submitted
22 in the Bid Entry Form including substantive assumptions,
23 responses to bid eligibility and non-price factors, and
24 project financing and contract terms in accordance with
25 Exhibit N - Bid Format and Requirements . To assist bidders
HACKETT, DI 11
Idaho Power Company

1 in the preparation of their bid package and ensure all
2 required documentation has been completed, the draft 2032
3 RFP includes a table with the bid package requirements by
4 bid type.8
5 Q. Does the 2032 RFP include any additional
6 information specific to the market purchase proposals?
7 A. Yes . While the bid eligibility checklist
8 includes the minimum requirements of the market purchase
9 proposals, the 2032 RFP also includes Exhibit E -
10 Transmission Paths and Delivery Points to identify the
11 eligible and incremental delivery points available . Idaho
12 Power will consider bids for agreements consisting of
13 confirmations under mutually-agreeable master agreements or
14 other mutually-agreeable standalone agreements . After the
15 bid due date, the Evaluation Team will perform a bid
16 eligibility screening and commence the bid evaluation
17 process .
18 Bid Evaluation Process
19 Q. Is Idaho Power proposing a bid evaluation
20 process similar to that undertaken in prior RFP' s?
21 A. Yes . The Company' s proposed bid evaluation
22 process is consistent with the selection process utilized
23 in prior RFP' s, the most recent of which, the 2028 RFP,
24 Commission Staff indicated they believed was a fair and
8 Draft 2032 RFP, Table 6-1 - Bid Package Requirements.
HACKETT, DI 12
Idaho Power Company

I reasonable process . 9
2 Q. Please explain the first step in the bid
3 evaluation process .
4 A. The bid evaluation and selection process, or
5 Selection Plan, 10 detailed in the 2032 RFP, Section 7 - Bid
6 Evaluation, Negotiation and Approval, is designed to
7 identify the combination and size of the proposed resources
8 that will maximize customer benefits and will satisfy the
9 projected resource capacity and energy needs while
10 maintaining reliability. The portfolio optimization models
11 used in the evaluation process to identify the proposed
12 resources are the same that the Company used to evaluate
13 proxy resources in the 2025 IRP. The first phase of the bid
14 evaluation process includes the screening, evaluation, and
15 ranking of the bids, that will identify a subset of bids,
16 the initial shortlist, that can be advanced for further
17 evaluation. This process includes a bid eligibility
18 screening to ensure conformance with the Minimum
19 Requirements of the 2032 RFP, as outlined in Exhibit C -
20 Bid Eligibility Checklist, and the price and non-price
21 evaluation to score and rank bids .
22 Q. What does the price and non-price evaluation
23 entail?
9 Case No. IPC-E-25-29, Comments of Commission Staff, pages 3-4.
io As outlined in the Solicitation Procedures.
HACKETT, DI 13
Idaho Power Company

1 A. Idaho Power' s price evaluation for resource-
2 based proposals uses a proprietary price scoring model that
3 calculates the delivered revenue requirement per kilowatt
4 cost of each bid, inclusive of any applicable carrying cost
5 and the impact of tax credit benefits, as applicable . The
6 Company converts the cost inputs into a levelized payment
7 stream to develop annual levelized costs as described in
8 the draft 2032 RFP Exhibit J - Levelized PVRR Scenarios .
9 Using the results, the price scoring model ranks each bid
10 relative to each other within the same technology where
11 feasible. No separate price evaluation of the market
12 purchase proposal is required as the information bidders
13 include in the Bid Entry Form provides pricing in a
14 consistent, common form for a comparative evaluation within
15 Idaho Power' s evaluation models .
16 Q. How does the Company evaluate non-price bid
17 characteristics?
18 A. Idaho Power' s non-price scoring model
19 evaluates whether bids are thorough and comprehensive .
20 Bidders must provide documentation, representation,
21 warranties, and other information as necessary to
22 sufficiently assure the Company that, for any proposed
23 resource-based proposal, the project will complete
24 construction and achieve full commercial operation by
25 the defined commercial operation date, and for market
HACKETT, DI 14
Idaho Power Company

1 purchases, any proposal meets the bid requirements .
2 Idaho Power utilizes a non-price evaluation rubric,
3 which is designed to be objective, intuitive, and self-
4 scoring, and are included in the draft 2032 RFP as Exhibit
5 D, with a non-price scoring matrix for resource-based
6 proposals and one for market-based proposals . Bidders are
7 required to score themselves by answering each of the non-
8 price questions and providing supporting documentation.
9 Idaho Power will then utilize the non-price questions
10 to score and rank bids based on, among other factors, the
11 completeness of the bid package and adherence to the bid
12 requirements . For resource-based proposals, the non-price
13 evaluation also considers the ability to contract with the
14 project, the maturity of the project including site
15 control, permitting, generator interconnection status,
16 development progress and schedule, and the ability to
17 deliver the project by the commercial operation deadline .
18 For market purchase proposals, the non-price evaluation
19 also considers the ability of the market purchase to meet
20 the requested attributes described in the RFP.
21 Q. Once the pricing and non-pricing evaluations
22 are completed, how does the Company propose to utilize the
23 results to determine the initial shortlist?
24 A. Through the application of qualitative and
25 quantitative considerations, the proposals are then
HACKETT, DI 15
Idaho Power Company

1 assigned a proposal ranking and a recommended disposition.
2 Idaho Power proposes the comprehensive set of the highest
3 ranking and relatively lowest cost bids that combined meet
4 the requirements of the 2032 RFP will become the initial
5 shortlist. This initial pool of bids will then be made
6 available as alternatives for further modeling to
7 ultimately identify the final shortlist.
8 Q. What modeling is performed on the initial
9 shortlist bids to determine the final shortlist of project
10 proposals?
11 A. Idaho Power is proposing to utilize the IRP
12 modeling tools" to identify the least-cost, least-risk
13 portfolio of projects from the initial shortlist. Using
14 Energy Exemplar' s Aurora Long-Term Capacity Expansion
15 modeling platform, a scenario analysis will be performed,
16 assessing the performance of the initial shortlist projects
17 under various market conditions to determine the best
18 performing project proposals, with the intention of
19 narrowing down the bids into a preliminary final shortlist.
20 Aurora evaluates the portfolios under a range of different
21 environmental policy and market price scenarios, optimizing
22 its selection of bid resources to identify the lowest cost,
23 reliable portfolio under multiple scenarios .
11 Idaho Power's 2025 IRP Appendix D: System Reliability and Regulating
Reserves.
HACKETT, DI 16
Idaho Power Company

1 Q. Does Aurora use characteristics of the initial
2 shortlist bids as inputs for the scenario analysis?
3 A. Yes . Inputs into Aurora include the revenue
4 requirement calculated during the price evaluation.
5 Consistent with the treatment of the capital revenue
6 requirement in the Company' s IRP modeling, Idaho Power will
7 convert the calculated revenue requirement to first year-
8 real-levelized costs . Similarly, all other bid costs are
9 levelized and formatted for input into the IRP models . For
10 a 25-year PPA for example, the Company calculates the
11 present value of the revenue requirement, the contractual
12 payment stream over the 25 years, for the project
13 and computes the levelized payment based on the contract
14 life as demonstrated. In addition, the projected effective
15 load carrying capability ("ELCC") for all initial shortlist
16 bids and, if applicable, the projected renewable resource
17 performance data obtained from bidders, the expected hourly
18 capacity factor information, will be processed for input
19 into the IRP models .
20 Q. What is the next step of the bid evaluation
21 process following Aurora' s identification of the lowest
22 cost, reliable portfolios?
23 A. After Aurora solves for and produces
24 portfolios, consistent with modeling in the 2025 IRP, the
25 Company performs a reliability assessment to ensure that
HACKETT, DI 17
Idaho Power Company

1 the selected portfolio of resources can meet all hourly
2 load and operating reserve requirements with sufficient
3 cushion to account for other system uncertainties such as
4 non-normal weather events . The resulting scenario analysis
5 will produce a preliminary final shortlist of projects
6 based on their performance and cost under each of the
7 scenarios . It is important to note that Idaho Power may
8 include bids on the final shortlist in excess of the
9 identified capacity limits if those projects have an
10 economic benefit.
11 Q. Does the Company propose to perform any
12 additional analyses prior to determination of the final
13 shortlist?
14 A. Yes . Idaho Power' s proposed bid evaluation
15 process includes additional risk analysis and further
16 consideration as part of the final shortlist development.
17 Again, utilizing the Aurora modeling platform, the Company
18 will evaluate each portfolio and its ability to perform
19 under dynamic market conditions by performing a stochastic
20 sensitivity analysis . The stochastic analysis assesses the
21 effect on portfolio costs when select variables take on
22 values different from their planning-case levels including,
23 for example, load, natural gas prices, and hydro generation
24 — Aurora can measure the expected cost of each portfolio in
25 an uncertain future. The purpose of the stochastic analysis
HACKETT, DI 18
Idaho Power Company

1 is to understand the range of portfolio costs across the
2 full extent of stochastic shocks (i .e. , across the full set
3 of stochastic iterations) and how the ranges for portfolios
4 differ. The results identify the least-cost, least-risk
5 projects and their resulting rank on the final shortlist.
6 RFP Announcement Plan
7 Q. When does Idaho Power intend on issuing the
8 2032 RFP?
9 A. The Company first plans to post the draft 2032
10 RFP on the Idaho Power' s Request for New Resources webpage12
11 coincident to the filing of this proceeding, providing
12 notice to the public of the upcoming solicitation, and will
13 also notify all applicable registered users in the Zycus
14 platform, providing access to the draft 2032 RFP and
15 associated exhibits . The posting of the draft 2032 RFP and
16 notification to potential bidders will serve as the RFP
17 Announcement Plan13 to prepare for release of the final 2032
18 RFP once approved by the Commission. The intent on
19 providing interested bidders the draft 2032 RFP in advance
20 of the formal solicitation is to ensure bidders have the
21 opportunity to submit potential projects into the annual
22 Generator Interconnection Cluster Request Window for study,
23 as required under Idaho Power' s Generator Interconnection
12 https://www.idahopower.com/about-us/doing-business-with-us/request-for-
resources/
13 As outlined in the Solicitation Procedures.
HACKETT, DI 19
Idaho Power Company

I Process and in accordance with the requirements of the 2032
2 RFP.14 The 2026 annual Cluster Request Window runs from
3 March 1, 2026, through April 15, 2026 .
4 Q. When does the draft 2032 RFP contemplate bid
5 submissions?
6 A. Because potential bidders will have first been
7 notified on February 20, 2026, of the upcoming
8 solicitation, the draft 2032 RFP proposes a bid due date of
9 May 29, 2026 . As a result, to allow sufficient time for
10 2032 RFP bid submittal and bid evaluation, Idaho Power is
11 requesting Commission approval of the draft 2032 RFP by
12 April 24, 2026, to allow for issuance of the final 2032 RFP
13 on April 27, 2026 .
14 Q. Does the draft 2032 RFP outline the milestone
15 dates for the solicitation?
16 A. Yes . The proposed key milestones for the
17 solicitation are detailed in the draft 2032 RFP Section 2 . 7
18 - Schedule and are based on the April 27, 2026, issuance
19 date and the bid due date of May 29, 2026 . The Company is
20 aiming for an identification of the final shortlist on July
21 17, 2026, and a contract negotiation period of
22 approximately three months followed by material procurement
23 and resource construction to better ensure that the
24 selected resources are in-service to meet Idaho Power' s
14 Draft 2032 RFP, Section 4.4 - Interconnection Studies and Cost Estimating.
HACKETT, DI 20
Idaho Power Company

1 resource needs . The Company believes the draft 2032 RFP and
2 its proposed timeline are consistent with the Solicitation
3 Procedures established by the Commission.
4 Q. The Solicitation Procedures indicate the
5 Commission may, as part of their approval of an RFP,
6 require an Independent Evaluator to participate in the
7 subsequent RFP selection process . Does Idaho Power believe
8 an Independent Evaluator is necessary?
9 A. The Company believes the selection will be
10 conducted through a fair, transparent, and confidential
11 evaluation process in accordance with the Solicitation
12 Procedures . While Idaho Power is not proposing the use of
13 an Independent Evaluator for this solicitation, the Company
14 is not necessarily opposed to Independent Evaluator
15 participation in the RFP selection process so long as the
16 Company can maintain the proposed timeline to ensure
17 bidders are able to meet in-service timelines . The Company
18 believes the selection will be conducted through a fair,
19 transparent, and confidential evaluation process in
20 accordance with the Solicitation Procedures . Given the 2032
21 RFP will be conducted in a substantively similar manner
22 with past RFPs, which the Commission has found to be fair
23 and reasonable, the Company believes that additional
24 administrative oversight could introduce unnecessary cost
25 and schedule risk without providing commensurate benefits .
HACKETT, DI 21
Idaho Power Company

1 Accordingly, the Company proposes not to employ the use of
2 an Independent Evaluator for this RFP .
3 III . CONCLUSION
4 Q. Please summarize your testimony.
5 A. Idaho Power is pursuing energy and capacity
6 resources to meet customers' needs and ensure the Company
7 can continue to reliably meet the growing demands on its
8 electrical system. The Company continually refines and
9 refreshes its resource position and needs analysis as new
10 information becomes available to ensure resource
11 procurement decisions are based on the most up-to-date
12 data. Recent refreshed system reliability assessments have
13 shown an incremental perfect capacity need of at least 200
14 MW in 2031 and 2032 with a greater need likely in 2032 . As
15 such, in compliance with the Solicitation Procedures, Idaho
16 Power' s proposed 2032 All-Source RFP is necessary to allow
17 the Company to acquire resources and long-lead equipment,
18 and to allow an appropriate amount of time to procure and
19 construct additional infrastructure necessary to reliably
20 serve future customer demand.
21 Q. Does this conclude your testimony?
22 A. Yes .
HACKETT, DI 22
Idaho Power Company

1 DECLARATION OF ERIC HACKETT
2 I, Eric Hackett, declare under penalty of perjury
3 under the laws of the state of Idaho:
4 1 . My name is Eric Hackett. I am employed by
5 Idaho Power Company as the Projects and Resource
6 Development Director.
7 2 . On behalf of Idaho Power, I present this
8 pre-filed direct testimony and Exhibit No. 1 in this
9 matter.
10 3 . To the best of my knowledge, my pre-filed
11 direct testimony and exhibit are true and accurate .
12 I hereby declare that the above statement is true to
13 the best of my knowledge and belief, and that I understand
14 it is made for use as evidence before the Idaho Public
15 Utilities Commission and is subject to penalty for perjury.
16 SIGNED this 20th day of February 2026, at Boise,
17 Idaho .
18
19 Signed:
20 Eric Hackett
21
HACKETT, DI 23
Idaho Power Company

BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
CASE NO. IPC-E-26-03
IDAHO POWER COMPANY
RACKETY, DI
TESTIMONY
EXHIBIT NO. 1

-0IQAHO POWER.
All -Source e u e s
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Zycus Event: 1324434753 Idaho Power Company
RFP Issued: February 20, 2026 P.O. Box 70
Bids Due: May 29, 2026 Exhibit No. 1 Boise, ID 83707
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Table of Contents
1. Disclaimer..................................................................................................................................4
2. Purpose......................................................................................................................................6
2.1. BACKGROUND .............................................................................................................................6
2.2. REGULATORY COMPLIANCE ........................................................................................................6
2.3. THE SOLICITATION AND NEED.....................................................................................................6
2.4. IPC SELF-BUILD RESOURCES ........................................................................................................7
2.5. CONFIDENTIALITY........................................................................................................................8
2.6. SOLICITATION PORTAL AND RESTRICTION ON COMMUNICATIONS...........................................8
2.7. SCHEDULE....................................................................................................................................9
2.8. ANNOUNCEMENT PLAN ............................................................................................................10
3. Proposal Specifications.............................................................................................................10
3.1. ELIGIBLE PROPOSALS.................................................................................................................10
3.2. ALTERNATIVE PROPOSALS.........................................................................................................12
3.3. TRANSMISSION ALTERNATIVES.................................................................................................12
4. Resource-Based Proposals:Additional Specifications and Instructions .......................................13
4.1. MINIMUM REQUIREMENTS.......................................................................................................13
4.2. DELIVERY AND RESOURCE STATUS............................................................................................13
4.3. AGREEMENT TYPES....................................................................................................................13
4.4. INTERCONNECTION STUDIES AND COST ESTIMATING..............................................................14
4.5. BID SUBMISSION PROCESS........................................................................................................16
i Bid Definition Form and Selectable Portfolio................................................................................16
iiBid Entry Form...........................................................................................................................16
iii Forecasted Hourly Renewable Output......................................................................................16
ivBid Submittal .............................................................................................................................17
4.6. EVALUATION FEES.....................................................................................................................17
4.7. EXCEPTIONS TO THE DRAFT FORM AGREEMENTS....................................................................17
4.8. EXCEPTIONS TO THE DRAFT FORM LETTER OF CREDIT.............................................................18
4.9. TECHNICAL SPECIFICATIONS......................................................................................................18
S. Market Purchase Proposals:Additional Specifications and Instructions......................................19
5.1. MINIMUM REQUIREMENTS.......................................................................................................19
5.2. AGREEMENTTYPES....................................................................................................................19
5.3. BID ATTRIBUTES.........................................................................................................................19
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5.4. BID SUBMISSION PROCESS........................................................................................................19
iBid Definition Form........................................................................................................................19
iiBid Entry Form...........................................................................................................................19
iiiBid Submittal .............................................................................................................................19
6. Additional Requirements for All Bid Packages ...........................................................................20
6.1. CONTENTS OF WRITTEN BID PROPOSAL...................................................................................20
6.2. BID NAMING..............................................................................................................................20
6.3. BID WRITTEN DOCUMENTS.......................................................................................................20
6.4. RFP EXHIBITS REQUIREMENTS...................................................................................................20
6.5. FIRM BID....................................................................................................................................21
6.6. TAXES.........................................................................................................................................21
6.7. DATA AND CYBER SECURITY......................................................................................................21
6.8. PROHIBITED TECHNOLOGY AND TRADE SANCTIONS................................................................22
6.9. SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS PROGRAM ...................................23
6.10. INSURANCE................................................................................................................................23
6.11. FINANCIAL AND CREDIT INFORMATION....................................................................................23
6.12. CLARIFICATION OF BIDS.............................................................................................................23
6.13. ADDENDA TO RFP......................................................................................................................23
7. Bid Evaluation, Negotiation and Approval.................................................................................23
7.1. THE EVALUATION PROCESS.......................................................................................................23
7.2. PHASE 1— INITIAL SHORTLIST....................................................................................................24
7.3. PHASE 2— FINAL SHORTLIST......................................................................................................26
7.4. ADDITIONAL RIGHTS..................................................................................................................27
7.5. ACCEPTANCE AND REJECTION OF BIDS.....................................................................................28
7.6. AGREEMENT NEGOTIATIONS ....................................................................................................28
7.7. EXCLUSIVITY...............................................................................................................................28
7.8. PUBLICITY...................................................................................................................................28
7.9. COMMISSION APPROVAL..........................................................................................................28
8. ENTIRE RFP...............................................................................................................................28
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EXHIBITA—Bid Definition Form (Excel workbook)
EXHIBIT B—Bid Entry Form (Excel workbook)
EXHIBIT C—Bid Eligibility Checklist(Excel workbook)
EXHIBIT D—Non-Price Scoring Sheet (Excel workbook)
EXHIBIT E—Transmission Paths and Delivery Points
EXHIBIT F.1-F.4—Draft Form Agreements and Term Sheets for Resource-Based Proposals
EXHIBIT G—Mutual Non-Disclosure Agreement
EXHIBIT H—Counterparty Financial Questionnaire
EXHIBIT I—Draft Form Letter of Credit
EXHIBIT J—Levelized PVRR Scenarios
EXHIBIT K—Forecasted Hourly Renewable Output (Excel workbook)
EXHIBIT L—Cyber Security Questionnaire
EXHIBIT M—Gas-Fired Resources—Fuel Questionnaire
EXHIBIT N—Bid Format and Requirements
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1. Disclaimer
The information contained in this Request for Proposals (RFP) is presented to assist interested parties in
deciding whether to submit a bid. Idaho Power Company(IPC), an operating company subsidiary of
IDACORP, Inc., is issuing this RFP to solicit formal bids from qualified companies (each a Bidder) and
does not represent this information to be comprehensive or to contain all the information that a Bidder
may need to consider when submitting a bid. None of IPC, its affiliates, or their respective employees,
directors, officers, customers, agents, and consultants makes—or will be deemed to have made—any
current or future representation, promise, or warranty—express or implied—as to the accuracy,
reliability, or completeness of the information contained herein, or in any document or information
made available to a Bidder—whether the aforementioned parties knew or should have known of any
errors or omissions, or were responsible for their inclusion in, or omission from,this RFP.
No part of this RFP and no part of any subsequent correspondence by IPC, its affiliates, or their
respective employees, directors, officers, customers, agents, or consultants shall be taken as providing
legal, financial, or other advice, or as establishing a contract or contractual obligation. IPC reserves the
right to request from Bidders information not explicitly detailed in this document, obtain clarification
from Bidders concerning bids, conduct contract development discussions with selected Bidders, conduct
discussions with members of the Evaluation Team, and other support resources as described in this RFP.
The requirements specified in this RFP reflect those presently known. IPC reservices the right to vary, in
detail, the requirements and/or to issue addenda to the RFP. In the event it becomes necessary to revise
any part of the RFP, addenda will be provided to Bidders included in the current and applicable stage of
the RFP.
IPC will, in its sole discretion and without limitation, evaluate bids and proceed in the manner IPC deems
appropriate. IPC reserves the right to reject any and all, or portions of any bid submitted by Bidders for
failure to meet any criteria set forth in this RFP or otherwise, and to accept bids other than the lowest
cost bid.
This RFP has been prepared solely to solicit bids and is not a contract offer.This RFP is not binding on
IPC.The only document that will be binding on IPC is an agreement duly executed by IPC and the
successful Bidder(if any) after the completion of the evaluation process and the award and negotiation
of an agreement. IPC reserves the right to reject any and all bids submitted by Bidders.The issuance of
this RFP does not obligate IPC to purchase any product or services offered by Bidder or any other entity.
Furthermore, IPC may choose, at its sole discretion, to abandon the RFP process in its entirety. Bidders
agree they submit bids without recourse against IPC; IDACORP, Inc.; any affiliate of IDACORP, Inc., or any
of their respective employees, agents, officers, or directors for failure to accept an offer for any reason.
IPC may decline to enter into any agreement with any Bidder,terminate negotiations with any Bidder,
or abandon the RFP process in its entirety at any time,for any reason, and without notice thereof.
Bidders who submit bids agree to do so without legal recourse against IPC, its affiliates or their
respective employees, directors, officers, customers, agents or consultants for rejection of their bids or
for failure to execute an agreement for any reason. IPC and its affiliates shall not be liable to any Bidder
or other party in law or equity for any reason whatsoever for any acts or omissions arising out of or in
connection with this RFP. Bidder shall conform in all material respects to all applicable laws, ordinances,
rules, and regulations and nothing in this RFP shall be construed to require IPC or Bidder to act in a
manner contrary to law. Except as otherwise provided in the rules and orders of the Idaho Public
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Utilities Commission (IPUC) and the Public Utility Commission of Oregon (OPUC), (jointly the
Commissions), by submitting its bid, a Bidder waives any right to challenge any evaluation by IPC of its
bid. Bidders whose bid may be selected in response to this RFP acknowledges that it assumes full legal
responsibility for the accuracy,validity, and legality of the work provided in conformance with this RFP.
By submitting its bid, a Bidder waives any right to challenge any determination of IPC to select or reject
its bid. IPC reserves the right to accept the bid in whole or in part, and to award to more than one
Bidder. Furthermore, Bidder understands that any"award" by IPC does not obligate IPC in any way. IPC
will not be obligated to any part unless and until IPC executes a definitive agreement between the
parties.
Bidder will absorb all costs incurred in responding to this RFP, including without limitation, costs related
to the preparation and presentation of its response. All materials submitted by the Bidder immediately
become the property of IPC. Any exception will require written agreement by both parties prior to the
time of submission.
In responding to this RFP,the Bidder shall adhere to best business and ethical practices.The Bidder shall
adhere to IPC's Supplier Code of Conduct, also available at idahopower.com.
The Bidder is specifically notified that failure to comply with any part of this RFP may result in
disqualification of the bid, at IPC's sole discretion.
This RFP, in its entirety, is draft and subject to regulatory approval.
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2. Purpose
2.1. BACKGROUND
IDACORP, Inc., is a holding company formed in 1998. Comprised of regulated and non-regulated
businesses, its origins lie with Idaho Power Company(IPC), a regulated electric utility that began
operations in 1916.Today, IPC is the largest regulated electric utility in the state of Idaho and
IDACORP, Inc.'s chief subsidiary. IPC serves more than 650,000 residential, business, agricultural and
industrial customers.The company's service area covers approximately 24,000 square miles, including
portions of eastern Oregon. Learn more about IPC at idahopower.com.
IPC currently serves its customers by supplying low-cost, reliable, and clean energy. Affordable, clean
hydropower is the largest source of energy for customers. Power generation comes from a diverse set
of resources that continues to meet a growing demand. For a more detailed description of current
generation resources, please visit idahopower.com/energy-environment/energy/energy-sources/.
IPC's service area continues to experience customer growth and an increasing peak demand (load)for
electricity. IPC anticipates sustained load growth that will require the procurement of new resources
to meet energy requirements and peak demand and maintain system reliability as identified in the
most recent 2025 Integrated Resource Plan (IRP).The addition of new resources to meet peak demand
is critical to ensure IPC can continue to reliably meet the growing demands on its electrical system and
serve its customers.
2.2. REGULATORY COMPLIANCE
Regulatory approval of this RFP is required.'The RFP is resource-agnostic and solicits bids from all
feasible resource types with sufficient lead time to meet the desired commercial operation date. IPC is
releasing this RFP solicitation to meet the objective of determining the least-cost and least-risk
resource to satisfy the system needs.The selection will be conducted through a fair, transparent, and
confidential evaluation process as defined throughout this RFP.
Execution of any agreement may ultimately be subject to regulatory approval. For the IPUC,this could
include, but is not limited to, a request for a certificate of public convenience and necessity (CPCN)
from IPC. IPC reserves the right to: 1) inform the IPUC that IPC could not reach agreement with the
Bidder of a selected resource; 2) request IPUC approval of any agreements it enters with successful
Bidders (e.g., CPCN applications); and 3)terminate any agreement if IPC fails to receive IPUC approval
of submitted agreements or applications. Bidder shall provide any and all information and
documentation reasonably requested by IPC to support such applications and requests.
2.3. THE SOLICITATION AND NEED
IPC is issuing this RFP to solicit formal bids from Bidders for two types of electric energy and capacity
products.The first type is unit-contingent energy where capacity is delivered from specific electric
resources (Resource-Based Proposals).This product includes asset purchases, power purchase
agreements, and battery storage agreements with exclusive ownership by IPC of any and all
environmental attributes associated with all energy generated.The second type is firm energy
1 See IPUC's Procedures for Soliciting Large Supply-Side Resources(Order No. 36898)and Oregon Administrative
Rule 860-089-0100.
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contracts (WSPP Schedule C or equivalent preferred)that meet the eligibility requirements of the
Western Resource Adequacy Program (WRAP)for qualifying contracts (Market Purchase Proposals).
The eligible types of bids are described further in Section 3 of this RFP. Details on the bid submission
process and the bid evaluation process are also described further in this RFP. Only bids submitted
through this RFP will be evaluated, regardless of the status of bids currently participating in the 2028
RFP.
IPC's annual capacity position developed to inform its 2025 IRP demonstrates the company will have
future resource needs.The 2025 IRP identifies the potential need for incremental peak capacity and
supply-side resources. Recent regulatory filings for resources have built off the identified 2025 IRP
need and have shown an incremental perfect capacity need of a total of at least 200 megawatts (MW)
in 2031 and 2032 with a greater need likely in 2032.The need identified is subject to change based on
updated information regarding load and resources, as well as contracts backing firm transmission.
IPC will accept bids for energy or capacity from Resource-Based Proposals and Market Purchase
Proposals. Exhibit E—Transmission Paths and Delivery Points provides further information on the
transmission paths and delivery points for either type of bid.Any information regarding transmission
paths or available transmission capability is as of the date of this RFP; up-to-date information is
available on the Open Access Same-Time Information System (OASIS).As part of any bid submitted, a
Bidder must indicate whether the bid is contingent on delivery of energy across transmission rights
controlled by IPC.
The bids will be evaluated by a team of IPC staff and retained consultants with relevant subject matter
expertise (Evaluation Team).
The process of issuing and responding to this RFP, evaluation and selection of bids, and the
negotiation and approval of the agreement(s), is known as the Solicitation. Bidders interested in
participating in the Solicitation and submitting a bid must first register via the third-party solicitation
portal, Zycus, described in Section 2.6 of this RFP.This RFP sets forth the terms and conditions by
which IPC will perform the Solicitation.The Bidder agrees to be bound by all the terms, conditions,
and other provisions of this RFP and any addenda to it that may be issued by IPC.This RFP governs the
Solicitation and supersedes any other written or oral form of communication between Bidders and IPC
concerning the Solicitation.
2.4. IPC SELF-BUILD RESOURCES
In addition to bids from Bidders, a separate team of IPC staff and retained consultants (Internal Bid
Team) may submit Resource-Based Proposal(s) in response to this RFP (IPC Internal Bid).The
Evaluation Team will treat the Internal Bid Team as a Bidder.The Evaluation Team will subject any IPC
Internal Bid from the Internal Bid Team to the same requirements, evaluation methodology, and other
standards specified in this RFP for a bid from a third-party Bidder. Furthermore, the Evaluation Team
and the Internal Bid Team must comply with an IPC Standards of Conduct Protocol (Separation of
Function)to ensure the Evaluation Team functions independently from the Internal Bid Team, does
not provide access to any non-public information or undue preference to the Internal Bid Team, and
provides the Internal Bid Team and Bidders equal access to non-public information related to the
competitive bidding process for new generation resource procurement.
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An IPC Internal Bid may include a bid for a self-build project to be owned by IPC and will be subject to
the requirements described in this RFP. An IPC Internal Bid may also include partnership arrangements
or agreements between the Internal Bid Team and third parties that may collaborate to submit a joint
IPC Internal Bid.
2.5. CONFIDENTIALITY
Bidder acknowledges and agrees all information obtained or produced in relation to this RFP is the
sole property of IPC and shall not be released or disclosed to any person or entity for any purpose
other than providing a bid to IPC, without the express written consent of IPC. Bidder agrees not to
make any public comments or disclosures, including statements made for advertising purposes,
regarding this RFP to the media or any other party without prior written consent of IPC. Bidder shall
forward any media or other inquiries regarding this RFP to IPC.
Bidders shall specifically designate and clearly label any bid material(s) or portions thereof,the Bidder
deems to contain proprietary information as "CONFIDENTIAL." IPC reserves the right to release all bid
materials, including those marked "CONFIDENTIAL,"to its affiliates and its affiliates' agents, advisors,
and consultants,for purposes of bid evaluation. IPC will,to the extent required by law, advise each
agent, advisor, or consultant that receives such claimed confidential information of its obligations to
protect such information.All information, regardless of its confidential or proprietary nature, is
subject to review by the Commissions and other governmental entities and courts with jurisdiction
and may be subject to legal discovery.The Bidder acknowledges and agrees, IPC may provide a copy of
the Bidder's materials to the Commissions for review and compliance with this solicitation. All Bidders
whose bids are advanced to negotiations will be required to execute a Mutual Nondisclosure and
Confidentiality Agreement (Confidentiality Agreement) in the form of Exhibit G—Mutual Non-
Disclosure Agreement with IPC prior to further discussion and evaluation of the bid by IPC.
2.6. SOLICITATION PORTAL AND RESTRICTION ON
COMMUNICATIONS
IPC has opened a web-based portal hosted on the Zycus sourcing platform (the Portal).The web link to
register within the Portal is zsn.zvcus.com/guest/genericRegister/IDA822. Once registered,
instructions will be provided within the Portal to guide Bidders on how to upload documents. All
information exchanged between the Bidder and IPC concerning the Solicitation must only be via the
Portal from the time the Portal is open until it is closed by IPC.All information, including pre-bid
materials, questions, and IPC's response to questions,will be posted in the Portal or on the IPC
website (public information) at idahopower.com/about-us/doing-business-with-us/request-for-
resources .The Portal allows a Bidder to see only its own information and not the information of
other Bidders.
IPC can communicate with Bidders through the Portal. Other than written communication through the
Portal, Bidders are prohibited from communicating with IPC employees, representatives, staff, or
board members regarding the Solicitation during the period in which the Portal is open. Restricted
communication includes, but is not limited to, "thank you" letters, phone calls, emails, and any contact
that results in the direct or indirect discussion of the Solicitation and/or submitted bids. Violation of
this provision by Bidders or their agents may lead to disqualification.
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The Bidder is responsible for ensuring it has registered for, and posts documents to,the correct portal
hosted by Zycus.The Bidder registering for access to the Portal must be a representative of the Bidder
and counterparty with which IPC will engage in any future negotiations, and not consultants or
attorneys for the Bidder.
To ensure a competitive bid process, Bidders must not disclose its participation in this Solicitation
(other than by attendance at any meeting held by IPC with respect to the Solicitation) or collaborate
on or discuss with any other Bidder or potential bidding strategies or the substance of any bid(s),
including and without limitation,the price or any other terms or conditions of any bid(s).This does not
preclude parties from partnering in good faith to submit a competitive bid.
Questions or support needs regarding the Portal should be directed to:
[e-mail]. Any questions that are relevant to all Bidders will be provided in
response through the Portal.
2.7. SCHEDULE
The key milestones for the Solicitation and their currently scheduled dates are provided in Table 2-1.
Table 2-1. Key Milestones for the Solicitation
No. Milestone Date
1 Draft RFP Filed for Regulatory Approval 2/20/2026
2 Bidders Submit Bid Definition Forms (Notice of Intent) 4/10/2026
3 Approval of 2032 AS RFP 4/24/2026
4 Final AS RFP Released 4/27/2026
5 Bid Entry Forms Distributed to Bidders 4/29/2026
6 Last Day for All-Source RFP Questions 5/13/2026
7 Bids Due 5/29/2026
8 Bid Eligibility Screening Completed 6/10/2026
9 Initial Shortlist 6/26/2026
10 IPC Notifies Bidders Selected to Initial Shortlist 6/30/2026
11 Final Shortlist 7/17/2026
12 IPC Notifies Bidders Selected to Final Shortlist 7/31/2026
13 IPC Begins Preliminary Contract Negotiations 8/17/2026
14 Contract Execution 10/31/2026
15 Guaranteed Commercial Operation Date May 31, 2031/2032
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This schedule and documents associated with the Solicitation are subject to change. IPC will endeavor
to notify Bidders of any changes to the Solicitation but shall not be liable for any costs or liability
incurred by Bidders or any other party due to a change or for failing to provide notice or acceptable
notice of any change. Bidders should factor this schedule, and any changes thereto, into their project
development timelines and bids.
Bidders should carefully review this RFP for questions, clarifications, defects, and questionable or
objectionable materials. Comments and questions concerning clarifications, defects, and questionable
or objectionable material must be submitted through the Portal and must be submitted on or before
the date and time specified in the above schedule. IPC may not respond to questions submitted after
this date.All questions and their applicable responses will be provided to Bidders via the Portal.
2.8. ANNOUNCEMENT PLAN
The draft RFP, and the filing for regulatory approval serves as the Announcement Plan to prepare for
the release of the Final RFP. Bidders should review the RFP in its entirety with a particular focus in this
Section 2 to ensure anticipated communication and Final RFP release information is understood.The
RFP is posted to IPC's Request for New Resources page at idahopower.com/about-us/doing-business-
with-us/request-for-resources/.All Bidders who register according to Section 2.6 will also receive the
RFP and applicable exhibits and workbooks for inclusion and participation.
3. Proposal Specifications
A bid must demonstrate the specifications stated in this section are satisfied.
3.1. ELIGIBLE PROPOSALS
The proposals eligible to be bid in response to the RFP are aligned with two types of electric energy
and capacity products.
The first type, Resource-Based Proposals, are unit-contingent energy and capacity delivered from
electric resources that support the 2025 IRP capacity and energy needs, as those capacity and energy
needs may be updated during the course of this RFP.All Resource-Based Proposals must be located
within the IPC Balancing Authority (BA) area or demonstrate transmission rights to the IPC BA.
Additional requirements for Resource-Based Proposals are found in Section 4.
The second type, Market Purchase Proposals, are firm energy(preference for WSPP Schedule C or
equivalent)that meet the eligibility requirements of the WRAP for qualifying contracts. Additional
requirements for Market Purchase Proposals are found in Section 5.
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Table 3-1. Resource Based Proposal Scope Summary
Scope Item Description
Ownership and Asset Purchase Agreements (which may include Build-Transfer Agreements
Agreement Types (BTA)) —Asset acquisition of the proposed facility and related assets,
where the Seller assumes development and construction risk.
Power Purchase Agreements (PPA) — Power purchase for energy, capacity,
and all environmental attributes from a facility.
Battery Storage Agreements (BSA) — Purchase of capacity and the
charging/discharging of energy from battery facilities.
Any hybrid proposals that include multiple resource technologies co-located
using the same point of interconnection will also require operational
agreements that establish protocols related to scheduling and dispatch
(for example solar+ battery energy storage system (BESS)).
Term IPC is not prescribing a specific term requirement but prefers terms consistent
with the life of the asset.
First Delivery Between April 1 and May 31 of the respective year(2031 and 2032).
Resource Status Existing (which can deliver incremental capacity that is not otherwise already
contracted with IPC) or proposed new late-stage development.
Dispatch Rights For dispatchable generation (e.g., storage and gas-fired generation), IPC will
have the right to dispatch the facility across the full range of the proposed
capacity(0-100%), contingent on the capabilities of the generator(e.g.,
minimum dispatch level, ramp rates)
Interconnection IPC Transmission System or Non-IPC Transmission Systems with all necessary
transmission rights to the IPC BA area
Delivery Point Within the boundary of the BA, or outside with all necessary transmission
rights to the BA
Other If the facility generates environmental attributes, bids must include all
environmental attributes, including Renewable Energy Certificates (REC), if any.
Bidders will be responsible for ensuring RECs are bundled, and that they are
established through Western Renewable Energy Generation Information
System (WREGIS).
Proposed pricing for Asset Purchases shall include Operating and Maintenance
(O&M), Long-Term Services Agreement (LTSA), and warranty costs for the
proposed term.
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Table 3-2. Market Purchase Proposals
Scope Item Description
Contract Structure Agreement for purchase of firm energy and capacity(prefer WSPP Agreement
Schedule C or equivalent) meeting WRAP eligibility requirements for qualifying
contracts. Agreement may take the form of a confirmation under a mutually
agreeable master agreement(e.g., WSPP or other), or a mutually agreeable
standalone agreement.
Term 3 years or more preferred.
Delivery Months Either or both summer(June—September) or winter(November—February)
preferred. IPC will consider other proposals.
First Delivery Between April 1 and May 31 of the respective year(2031 and 2032).
Pricing Index-based preferred, but IPC will consider other proposals. Pricing should not
include costs of regulatory structures not applicable in Idaho or Oregon and
should be based on a product with sinking in Idaho or Oregon.
Product Capacity with callable energy. Prefer flexibility to shape energy deliveries and
quantities into specific days or hours. IPC will consider other proposals.
Interconnection IPC Transmission System, or Non-IPC Transmission Systems with all necessary
transmission rights to an eligible Point of Delivery
Delivery Point Delivery to an eligible Point of Delivery as listed in Exhibit E—Transmission
Paths and Delivery Points.
3.2. ALTERNATIVE PROPOSALS
IPC may also accept other proposal types that meet the intent and electrical functionality criteria
outlined in this RFP. Bidders who submit a proposal not specifically identified in this RFP must fully
describe how their bid can meet the general desires and intent of the RFP. Proposal types that are not
eligible include but are not limited to; energy or capacity that is not electrical (e.g.,thermal energy
storage without conversion to electric energy); renewable energy credits without the associated
energy(Unbundled RECs); and financial instruments used to mitigate variable cost exposure without
associated energy or capacity (Financial Firming).
3.3. TRANSMISSION ALTERNATIVES
As part of IPC's IRP processes, in addition to supply-and demand-side resources, IPC is directed to give
equal and balanced treatment to transmission resources. Therefore, IPC will also accept bids for
transmission ownership, service, or long-term rights that may meet energy and capacity needs
identified above.
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4. Resource-Based Proposals: Additional Specifications and
Instructions
4.1. MINIMUM REQUIREMENTS
IPC has specified minimum requirements for participating bids (the Minimum Requirements) for
Resource-Based Proposals.These requirements are listed in Exhibit C—Bid Eligibility Checklist. Non-
conforming bids will be removed from further evaluation.
4.2. DELIVERY AND RESOURCE STATUS
IPC prefers bids from resources with proof of generator interconnection status and ability to deliver,
such as a pending or executed Generation Interconnection Agreement(LGIA or SGIA), progress or
status of the interconnection study, and/or understanding of contingent queue projects that may
hinder deliverability.
4.3. AGREEMENT TYPES
As reflected in Table 3-1, Bidders are encouraged to offer bids under three identified structures: 1) a
PPA with exclusive rights for IPC to any and all capacity and environmental attributes associated with
the energy generated,with IPC having full commitment and dispatch control of dispatchable
resources; 2) an asset purchase, which may include a BTA whereby the Bidder develops the project,
assumes responsibility for construction, but ultimately transfers ownership of the asset to IPC or an
agreement for the purchase of an existing asset; and 3) a BSA with exclusive rights and dispatch
control for IPC to the capacity and the charging/discharging of a battery. IPC prefers term lengths that
match the life of the asset that will help in cost comparisons between Bidders.
Bidders are encouraged to propose resources that maximize energy delivery and flexibility to support
IPC's needs during hours that are most valuable to IPC. Information concerning the hours that are
most valuable to IPC can be found in Appendix D of IPC's 2025 IRP, starting on page 13.
Bids for new resources (a Project)to be owned by IPC must assume the parties will execute a BTA.
Under a BTA,the Bidder is responsible for all aspects of the development and construction of the
Project, including but not limited to, permitting, design, development, engineering, procurement,
construction, interconnection, and all related costs up to achieving the to-be-agreed upon milestone,
which will not be earlier than mechanical completion or later than the date the Project is placed into
service for tax purposes.After reaching the milestone,the Bidder will transfer ownership of the
Project assets to IPC in exchange for a purchase price. Bids that contemplate the transfer of 100%
equity interests in a single-member LLC are acceptable. After purchase,the Bidder will remain
responsible for the completion of the Project pursuant to a Construction Completion Management
Agreement. IPC may elect to enter other types of agreements proposed by the Bidder, including an
Engineering Procurement Construction (EPC) agreement, operation and maintenance service
agreements, or other arrangements that generally achieve the desired results.
Bids for existing resources (a Plant) not already contracted to deliver to IPC after May 31 of the
respective year, to be owned by IPC, must assume parties will execute an asset purchase agreement
and an O&M agreement.
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PPAs are contracts where IPC purchases all electric power generated by a facility at a set contract price
over the term of the agreement.The Bidder is responsible for permitting, design, development,
engineering, procurement, construction, interconnection, and all related costs up to achieving the to-
be-agreed upon commercial operation date.The Bidder will maintain ownership, operation, fuel
supply requirements, if applicable, and compliance of the facility through the contract term.All
environmental attributes associated with the electric generation will be for the benefit of IPC.
A BSA is similar to a "rental" agreement where IPC pays a fee to the Bidder over the term of the
agreement in exchange for the production and power generation to the benefit of IPC.The Bidder is
responsible for permitting, design, development, engineering, procurement, construction,
interconnection, and all related costs up to achieving the to-be-agreed upon commercial operation
date. After commercial operation,the Bidder maintains ownership of the facility and is responsible for
maintenance and compliance through the contract term. IPC will provide the energy to charge a
storage facility in exchange for full dispatch control and ownership of the power generated. All
environmental attributes associated with the electric generation will be for the benefit of IPC.
Beginning at execution of the applicable agreement,the Bidder will be required to post cash collateral
or a letter of credit in the amounts specified in the applicable agreement and commensurate with the
purchase price or contract value (e.g., 10-20%of purchase price during the construction and post-
construction period under a BTA).
4.4. INTERCONNECTION STUDIES AND COST ESTIMATING
The Bidder is responsible for understanding the IPC Generator Interconnection Processes or other
Transmission Providers — including surplus interconnection service — considering the durations and
costs of those processes in its bids, and successfully executing those processes to achieve coordination
with IPC and delivery of the proposed resources to IPC on or before the dates identified in its bid.
A Bidder proposing to interconnect a resource on to IPC's system must demonstrate it has submitted a
Generator Interconnection (GI) request and meets the requirements of the GI request process, and all
known incremental costs to deliver energy from the resource to IPC's load have been included in the
bid. Similarly, a Bidder proposing to interconnect to another Transmission Provider's system must
demonstrate it has submitted a GI request and any required transmission service request(s)to the
relevant Transmission Providers and that it is meeting the requirements of those processes.
The Transmission Provider function within IPC, separate and apart from the Evaluation Team,
performs studies for GI application requests.The studies are performed to determine the feasibility,
cost,time to construct, and injection capability for the interconnection of an electric generating
resource. Information concerning GIs can be found on IPC's website at Generator Interconnection —
Idaho Power, including information on Public Utility Regulatory Policies Act of 1978(PURPA) Qualifying
Facility(QF) interconnections, Non-PURPA GIs, and Facility Connection Requirements. IPC posts the
results of these studies on its OASIS website.
Bidders must provide the GI request identifier(s) (the queue position) associated with its resource in
its bid. If the resource identified in the bid was in the queue but has since withdrawn,the Bidder
should provide that queue position even though it is no longer active.
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The interconnection facility types are specified below.
Interconnection Facilities
• Interconnection Customer's Interconnection Facilities (ICIF) are all facilities and equipment
(including the generation tie line) located between the resource and the Point of Change of
Ownership. Bidder must submit resource-specific cost estimates of ICIF as part of its bid and
consider the cost of ICIF in its pricing.
• Transmission Provider Interconnection Facilities(TPIF) connect the Interconnection
Customer's Interconnection Facilities to the Transmission Provider transmission system and
facilitate the metering, relaying and communications, etc. TPIF are all facilities owned,
controlled, or operated by the Transmission Provider from the Point of Change of Ownership
to the Point of Interconnection.These are facilities that the Transmission Provider will own,
and the Bidder will fund.The Bidder must submit resource-specific cost estimates of TPIF as
part of its bid and consider the cost of TPIF in its pricing. In the absence of an estimate, IPC will
develop an estimate based on available information. If an interconnection study has been
performed by the Transmission Provider that includes an estimate of TPIF, then the costs from
that study should be used.
Network Upgrades
• Station Network Upgrades (SNU) are either new switchyards or additions to existing
switchyards or substations built to interconnect the generator to the IPC transmission or
distribution system. SNUB become a component of the integrated IPC transmission or
distribution system and are incorporated into IPC tariffs. Bidders are required to provide cost
estimates of SNUs.
• Delivery Network Upgrades (DNU) are upgrades to IPC's transmission or distribution network
that will be required for individual resources and groups of resources. DNUs become a
component of the integrated IPC transmission or distribution system and are incorporated
into IPC tariffs. Bidders are required to provide cost estimates of DNUs.
Based on information available from the GI request and/or studies and estimates performed by the
Transmission Provider(s), separate and apart from the Evaluation Team (if available), the Evaluation
Team will determine bid-specific SNUs and DNUs and associated reimbursable costs to include in the
evaluation of a bid.The Evaluation Team's development of bid-specific SNUs/DNUs does not take the
place of the IPC Open Access Transmission Tariff(GATT) GI and transmission studies and does not
remove the Bidder's obligation to submit GI or transmission requests to the Transmission Provider(s).
With respect to transmission service, for resources that will be owned in full or in part by IPC or for
which IPC will have an executed contract for the purchase of the generation, IPC anticipates it will
designate the resource or executed contract as Network Resources of IPC under the OATT upon
commercial operation of the resource or first delivery date under the contract. Projects that are
seeking to interconnect to IPC's system must request Network Resource Interconnection Service
(NRIS).
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4.5. BID SUBMISSION PROCESS
The Bid Package is considered the aggregate of the information provided by a Bidder and will include
data entered into forms on the Portal, data uploaded to the Portal by the Bidder, including other
written documents that are uploaded to the Portal (Information).The Portal is designed to accept
most of the Information as data entered into the forms with data entry restricted to only certain
eligible types and values.This ensures Information is entered consistently across all Bidders and bids
so IPC can consistently, fairly, and quickly organize the Information, evaluate the bids, and minimize
the amount of written (e.g., PDF, .docx) documents that IPC must review and interpret.
i Bid Definition Form and Selectable Portfolio
Any potential Bidder interested in participating in the RFP must first register in the Portal.
Once registered,the bid submission process begins with completion and submission to IPC of
an Exhibit A—Bid Definition Form (BDF) located in the Portal for each bid that a Bidder intends
to submit.The BDF includes preliminary information about the bid(s) and associated resources
including a narrative description and basic bid parameters.
Within the BDF, a Bidder may identify bids that include two or more resources,that if
executed by IPC together, may result in a lower total price or greater benefit to IPC than if the
resources were not transacted on together(Selectable Portfolio). An example of a Selectable
Portfolio is a solar resource, wind resource, and a storage resource where the Bidder would
not offer or contract any one of the individual components, but rather all three are
contingent.Another example is a 100 MW solar PPA bid and a 100 MW solar asset purchase
bid from a 200 MW solar project. If a Bidder desires to combine, or make contingent, multiple
bids of various structure, ownership, term, or resource types,then the Bidder will indicate
within the BDF the combination of bids that make a Selectable Portfolio.A Selectable Portfolio
will be evaluated as a complete bid such that if it were selected,the entire Selectable Portfolio
would be reviewed for further evaluation. Only the submitted bids will be evaluated
throughout the RFP and it is the Bidder's responsibility to detail the parameters of such. IPC
will not accept additional "options" after the bid due date and during the evaluation.
ii Bid Entry Form
IPC will review the submitted BDF and subsequently respond to the Bidder with an Exhibit B—
Bid Entry Form (BEF)that is relevant to the bid(s), including a unique "Bid ID" number for
reference.The BEF requests complete technical, commercial, financial, and pricing
Information for purposes of subsequent bid evaluation. IPC will provide each Bidder with Bid
Fee instructions to accompany the BEF.
iii Forecasted Hourly Renewable Output
In addition to the BEF, IPC will provide Exhibit K — Forecasted Hourly Renewable Output that
is relevant to the bid(s).The Forecasted Hourly Renewable Output will provide the format for
the hourly forecasted P90 and P50 energy production profiles of any proposed intermittent
renewable resources. Failure to provide this exhibit may result in disqualification of the bid.
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iv Bid Submittal
Bidders will submit the BEF, Forecasted Hourly Renewable Output, and ancillary Information
as defined in the RFP to the Portal.The BEF requires certain cost data as inputs to the price
score model. Any bids that are incomplete or do not meet the minimum requirements will be
deemed ineligible and removed from further evaluation.
Bidders are strongly advised to carefully review all exhibits relevant to their bids prior to uploading a
Bid Package to the Portal. If and when a Bidder is selected for negotiation of an agreement, IPC will
use the Information submitted in the Bid Package to populate the relevant portions of the agreements
for that Bidder.
4.6. EVALUATION FEES
A Resource-Based Proposal Bidder is required to submit to IPC a non-refundable fee with each bid
submitted (Evaluation Fee).The purpose of the Evaluation Fee is to encourage submission of
well-developed and viable bids and to offset the cost to IPC for evaluation of bids. For each bid
submitted,the Bidder may submit a sub-bid at a reduced Evaluation Fee as described below.
Bidders must use the following guidance for the purpose of determining and submitting the Evaluation
Fees, due with each bid and sub-bid.
Bid Fee Example
A single site and resource type $10,032 Site Alpha, 200 MW Solar PV, PPA, 35-year
(can include multiple structures, and
terms, and price)
Site Alpha, 200 MW Solar PV,Asset Purchase
Same site and resource type but +$5,016 Site Alpha, 400 MW Solar PV, Asset Purchase
different capacity or initial delivery year
Different site = different bid $10,032 Site Bravo, 150 MW BESS, 20-year, BSA
Different resource =different bid $10,032 Site Alpha, 300 MW Wind,Asset Purchase
unless the different resource is part of, (different bid = $10,032)
and required, as part of the or
Selectable Portfolio Site Alpha, 300 MW Wind,Asset Purchase
contingent on Site Alpha, 200 MW Solar PV,
PPA, 35-year as a Selectable Resource only
(not a different bid)
IPC may deem a bid that does not satisfy the requirements for a single bid as multiple bids, each of
which would require a separate Evaluation Fee. If IPC deems a Bidder's bid to be multiple bids, IPC will
notify the Bidder and allow the Bidder to elect to pay the incremental Evaluation Fee or to revise its
bid to comply with IPC's requirements for a single bid.
4.7. EXCEPTIONS TO THE DRAFT FORM AGREEMENTS
Bidders must provide bids and pricing that are consistent and compliant with Exhibit F—Draft Form
Agreements and Term Sheets for Resource Based Proposals.To the extent that the validity of a
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Bidder's bid and/or the Bidder's ability to execute an agreement is contingent upon material changes
to the language in the draft form agreements,the Bidder should specifically identify the terms they
propose to change in the form of a redline markup or issues list and submit the revisions with its bid.
To the extent that a Bidder wishes to propose changes to the draft form agreements that, if accepted
by IPC, would reduce the Bidder's proposed pricing the proposed changes should specifically identify
in the redline or issues list, such changes and the associated price reduction.To the extent practicable,
Bidders should develop exhibits, schedules, attachments, and other supplemental documents required
by the draft form agreements in the redline. Bidders proposing to sell existing generation facilities
should propose in the redline changes to the draft form agreements for the proposed resource type
reflecting the terms and conditions on which their bid is based. Note that not every technology and
contract structure is presented in the draft form agreements and,thus, proposed contracts and terms
should be provided for contracts that are substantively different to the provided draft form
agreements. For a Wind PPA, Bidders should review and redline the substance of the Exhibit F—Power
Purchase Agreement commercial terms with the inclusion of the Exhibit F—Wind Performance
Guarantees.
The proposed changes must be specific and include a detailed explanation and supporting rationale for
each. General comments, drafting notes and footnotes, such as "parties to discuss" will be disregarded
and not negotiated. Exceptions to the draft form agreements requested by a Bidder will be reviewed
as part of IPC's qualitative evaluation of the bid.
4.8. EXCEPTIONS TO THE DRAFT FORM LETTER OF CREDIT
Bidders who propose a resource for IPC ownership must provide bids and pricing consistent and
compliant with the Exhibit I—Draft Form Letter of Credit and commensurate with the purchase price
(10-20%of purchase price during the construction and post-construction period).To the extent the
validity of a Bidder's bid and/or the Bidder's ability to execute an agreement is contingent upon
material changes to the language in the draft form letter of credit, the Bidder should specifically
identify the terms they propose to change in the form of a redline markup to Exhibit I—Draft Form
Letter of Credit, and submit the redline with its bid.To the extent a Bidder wishes to propose changes
to the draft form letter of credit that, if accepted by IPC, would reduce the Bidder's proposed pricing
for the bid, should specifically identify in the redline such changes and the associated price reduction.
The proposed changes must be specific and include a detailed explanation and supporting rationale for
each. General comments, drafting notes, and footnotes, such as "parties to discuss,"will be
disregarded and not negotiated. Exceptions requested by a Bidder will be reviewed as part of IPC's
qualitative evaluation of the bid.
4.9. TECHNICAL SPECIFICATIONS
Bidders proposing an asset purchase or BTA must provide bids and pricing that are consistent and
compliant with applicable technical specifications standard to the technology bid. Bidders should
submit technical specifications for review by IPC with their bid for evaluation.To the extent the
validity of a Bidder's bid and/or the Bidder's ability to execute an agreement is contingent upon
substantive language in applicable technical specifications, the Bidder must specifically identify the
key aspects of the specifications that have material or substantive price impacts.
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5. Market Purchase Proposals: Additional Specifications and
Instructions
5.1. MINIMUM REQUIREMENTS
IPC has specified the Minimum Requirements for Market Purchase Proposals.These requirements
are listed in Exhibit C—Bid Eligibility Checklist. Non-conforming bids will be removed from further
evaluation.
5.2. AGREEMENT TYPES
IPC will consider bids for agreements consisting of confirmations under mutually agreeable master
agreements (i.e., WSPP or other), or mutually agreeable standalone agreements.
5.3. BID ATTRIBUTES
Additional description of the volumes and bid attributes IPC seeks are listed in
Exhibit E—Transmission Paths and Delivery Points. IPC anticipates it will designate the resource
or executed contract as Network Resources of IPC under the OATT upon commercial operation of the
resource or first delivery date under the contract.
5.4. BID SUBMISSION PROCESS
The Bid Package is considered the aggregate of the information provided by a Bidder and will include
data entered into forms on the Portal, data uploaded to the Portal by the Bidder, including other
written documents uploaded to the Portal (Information). The Portal is designed to accept most of the
Information as data entered into the forms with data entry restricted to only certain eligible types and
values.This ensures Information is entered consistently across all Bidders and bids so IPC can
consistently,fairly, and quickly organize the Information, evaluate the bids, and minimize the amount
of written (e.g., PDF, .docx) documents that IPC must review and interpret.
i Bid Definition Form
Any potential Bidder interested in participating in the RFP must first register in the Portal.
Once registered,the bid submission process begins with completion and submission to IPC of
an Exhibit A—Bid Definition Form (BDF) located in the Portal for each bid that a Bidder intends
to submit.The BDF requests preliminary information about the bid(s) including a narrative
description and basic bid parameters.
ii Bid Entry Form
IPC will review the submitted BDF and subsequently respond to the Bidder with an Exhibit B—
Bid Entry Form (BEF)that is relevant to the bid(s), including a unique "Bid ID" number for
reference.The BEF requests complete technical, commercial, financial, and pricing
Information for purposes of subsequent bid evaluation. IPC will provide each Bidder with Bid
Fee instructions to accompany the BEF.
iii Bid Submittal
Bidders will submit the BEF and ancillary Information as defined in the RFP to the Portal.The
BEF requires certain cost data as inputs to the price score model. Any bids that are
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incomplete or do not meet the minimum requirements will be deemed ineligible and removed
from further evaluation.
Bidders are strongly advised to carefully review all exhibits relevant to their bid(s) prior to
uploading their Bid Package to the Portal. If and when a Bidder is selected for negotiation of
an agreement, IPC will utilize the Information submitted within the Bid Package to populate
the relevant portions of the agreements for that Bidder.
6. Additional Requirements for All Bid Packages
6.1. CONTENTS OF WRITTEN BID PROPOSAL
A Bidder MUST prepare and submit as part of the bid a written narrative that fully describes the
bid and any details or nuances to fully explain the intent of the Bidder and the BEF.The narrative
should include a cover letter and introduction, company and project overview,a description
of each bid submitted in the BEF including substantive assumptions, responses to bid eligibility and
non-price factors,and project financing and contract terms according to Exhibit N —Bid Format and
Requirements.
6.2. BID NAMING
A unique name for each proposal (Bid ID)will be provided to the Bidder and must thereafter be used
by the Bidder when referring to the bid and must be inserted into the file name of each document for
the bid uploaded by the Bidder.The purpose of the Bid ID is to allow IPC to more easily identify and
differentiate among bids and documents.
6.3. BID WRITTEN DOCUMENTS
Written documents must be text-searchable PDF (portable document format, non-zipped) and must
contain documents reproduced directly from the native document (i.e., Word, Excel, MicroStation,
AutoCAD). Scanned images and documents will be considered irregular and may be rejected.
6.4. RFP EXHIBITS REQUIREMENTS
Exhibits to this RFP summarize the Information that must be included within the Bid Packages and
uploaded by Bidders to the Portal. Bidders are directed to the individual forms in the Portal to ensure
review of all the current information and the specific type and level of detail that must be provided is
understood and are summarized below. Table 6-1 includes the required exhibits that must be
completed depending on the type of contract offered.
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Table 6-1. Bid Package Requirements
Asset Market
Exhibit Purchase PPA/BSA Purchase
Proposal Narrative consistent with Exhibit N—Bid X X X
Format and Requirements
Exhibit B/C/D—Bid Entry Form X X X
Redlines/Issues List to Exhibit F—Draft Form Agreements X X
and Term Sheets for Resource-Based Proposals
Exhibit H—Counterparty Financial Questionnaire X X X
Redlines to Exhibit I—Draft Form Letter of Credit X X
Exhibit K—Forecasted Hourly Renewable Output, if X X
applicable
Exhibit L—Cyber Security Questionnaire X X
Exhibit M—Gas-Fired Resource—Fuel Questionnaire, if X X
applicable
6.5. FIRM BID
Each bid shall be firm, not subject to price escalation, and binding throughout the schedule of this RFP
from the date the bids are due under this RFP. The bid must include all assumptions that influence the
price and validity of the bid, including, but not limited to tariffs and tax credits. IPC understands that
future changes in legislation and law could impact the validity of a bid. If a substantive change to
legislation, law, or similar has a material impact to the submitted pricing proposal, IPC will seek
updates from all Bidders, as applicable,throughout the evaluation process.
6.6. TAXES
Bidders are responsible for the payment of all sales, conveyance,transfer, excise, real estate transfer,
business and occupation, and similar taxes assessed with respect to or imposed on either party in
connection with a proposed agreement.
6.7. DATA AND CYBER SECURITY
A bid must comply with the provisions of Presidential Executive Order 13920 (E.O. 13920) issued
May 1, 2020, titled Securing the United States Bulk-Power System (BPS), which (among other things)
prohibits any acquisition, importation, transfer or installation of BPS electric equipment by any person
or with respect to any property to which a foreign adversary or an associated national thereof has any
interest that poses an undue risk to the BPS,the security or resiliency of United States (U.S.) critical
infrastructure or the U.S. economy, or U.S. national security.
All design and implementation details must follow electrical industry best practices for cyber security
as well as all applicable regulatory requirements pertaining to the security of electric system assets.
Any additional IPC-specific requirements will be addressed during the RFP review and contracting
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process, pursuant to Exhibit G—Mutual Non-Disclosure Agreement. Bidder must state that any and all
equipment utilized in the proposed resource will not be procured through an Office of Foreign Assets
Control (OFAC) designated entity or otherwise be comprised of equipment prohibited for use by
electric utilities in the U.S.
Bidder must provide a written response and associated documents in response to Exhibit L—Cyber
Security Questionnaire of this RFP.
6.8. PROHIBITED TECHNOLOGY AND TRADE SANCTIONS
Pursuant to Section 889 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019
and Federal Acquisition Regulation (FAR) 52.204-25 (Aug. 2020), Bidder agrees, represents, and
warrants that Contractor shall not supply or deliver to Owner any"covered telecommunications
equipment or services" as a substantial or essential component of any system or critical technology of
any system. As defined in FAR 52.204-25(a), "covered telecommunications equipment or services"
includes equipment, systems, products, or services made by any of the following companies, or any
subsidiary or Affiliate thereof(including companies with the same principal word in the name, e.g.,
"Huawei" or"Hytera"): Huawei Technologies Company; ZTE Corporation; Hytera Communications
Corporation; Hangzhou Hikvision Digital Technology Company; or Dahua Technology Company.
"Covered telecommunications equipment or services" may include, but are not limited to,
video/monitoring surveillance equipment/services, public switching and transmission equipment,
private switches, cables, local area networks, modems, mobile phones, wireless devices, landline
telephones, laptops, desktop computers, answering machines,teleprinters,fax machines, and routers.
"Covered telecommunications equipment or services" do not include telecommunications equipment
that cannot route or redirect user data traffic or permit visibility into any user data or packets that the
equipment transmits or handles.
To the extent that the systems, products, or services to be provided by Bidder under this Agreement
may be procured by Owner in support of or to satisfy Owner's obligations under agreements with a
federal governmental entity, Bidder further agrees that FAR 52.204-25 (Aug. 2020), except for
paragraph (b)(2)thereof, shall be incorporated by reference into this Agreement and is binding on
Bidder, and that Bidder does not use any equipment,system, or service that uses covered
telecommunications equipment or services and will not supply any covered telecommunications
equipment or services to IPC. Bidder further agrees that, if it identifies covered telecommunications
equipment or services used as a substantial or essential component of any system or as critical
technology as part of any system during contract performance, or Bidder is notified of such by a
Subcontractor at any tier or any other source, Bidder shall immediately notify IPC and reasonably
cooperate with IPC's requests for information.
Bidder shall not in performance of the work use or allow use of, nor directly or indirectly import or
supply to IPC as part of the work, any products, systems, equipment, materials, supplies, or related
software or technology from (whether directly or indirectly): (a) any individual, entity, region or
country prohibited by Trade Control and Sanctions Laws, including the prohibition against imports (i)
from a national or resident of, any country subject to U.S. comprehensive sanctions or similar export
restrictions (e.g., Cuba, Iran, Syria, North Korea and the Donetsk, Luhansk and Crimea regions of
Ukraine); or(ii) anyone on the U.S.Treasury Department's list of Specially Designated Nationals,
Sectoral Sanctions Identifications List or Foreign Sanctions Evader's list,the U.S. Department of
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Commerce's Denied Persons List, Unverified List or Entity List, or other export/import control lists; or
(b)for any purpose prohibited by Trade Control and Sanctions Laws.
Notwithstanding any consent of IPC given pursuant to Section 3.23.1, under no circumstances shall
Bidder use any Chinese manufactured unmanned aerial vehicles (drones), including but not limited to
those manufactured by Shenzhen DA Sciences and Technologies Ltd. or Autel Robotics, in the
performance of this Agreement.
6.9. SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS
PROGRAM
IPC is committed to the implementation of a Small and Disadvantaged Business Program. It is the
intent of IPC that small business concerns and small businesses owned and controlled by socially and
economically disadvantaged individuals have the opportunity to participate in the performance of
contracts awarded by IPC. Consequently, IPC requests that Bidders indicate their eligibility as a small
business based upon the regulations in Title 13, Code of Federal Regulations, Part 121. If in doubt,
Bidders should consult the Small Business Administration Office in their area.
6.10. INSURANCE
Bidder is directed to the Exhibit F—Draft Form Agreements for Resource Based Proposals for details
concerning insurance requirements that must be met.
6.11. FINANCIAL AND CREDIT INFORMATION
Bidder must provide a written response and associated documents in response to the Counterparty
Financial Questionnaire. Details are further described in Exhibit H—Counterparty Financial
Questionnaire of this RFP.
6.12. CLARIFICATION OF BIDS
While evaluating a bid, IPC may request clarification or additional information from the Bidder about
any item in its bid. Such requests will be sent via the Portal or via email by IPC and the Bidder must
provide a response back, respectively,to IPC within five (5) business days, or IPC may deem the Bidder
to be non-responsive and either suspend or terminate further evaluation of its bid. Bidders are
encouraged to provide an alternate point of contact to ensure a timely response to clarification
requests.
6.13. ADDENDA TO RFP
Any additional responses required from Bidders as a result of an addendum to this RFP shall become
part of each bid. Bidders must acknowledge receipt of and list all addenda where indicated in the BEF.
7. Bid Evaluation, Negotiation and Approval
7.1. THE EVALUATION PROCESS
The bid evaluation and selection process are designed to identify the combination and size of
proposed resources that will maximize customer benefits and will satisfy projected resource capacity
and energy needs while maintaining reliability.The portfolio optimization models used to identify the
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proposed resources are the same that IPC uses to evaluate proxy resources in the 2025 IRP (and
subsequent IRPs). IRP portfolio optimization process details can be found in IPC's 2025 IRP Sections 9
and 10.
The Selection Plan, or bid evaluation process, is described below.
7.2. PHASE 1 - INITIAL SHORTLIST
Phase 1 of the bid evaluation process includes the screening, evaluation, and ranking of the bids,
including the IPC Internal Bids,to identify a subset that can be advanced for further evaluation (the
Initial Shortlist).This includes: 1) bid eligibility screening to ensure conformance with the Minimum
Requirements; 2) price and non-price evaluation to score and rank bids; and 3) identification of the
bids for inclusion in the Initial Shortlist. The bids will be categorized by the commercial operation
date.
IPC will rely on the Information provided within the Bid Package to screen, evaluate, and rank bids.
During this phase of the bid evaluation process, IPC does not anticipate asking for, nor accepting,
updated pricing or updates to any other bid components (with the exception of updates identified in
Section 6.5). However, IPC may contact Bidders to confirm and clarify information presented in each
bid if necessary.
Additionally, if at any time during Phase 1, a Bidder determines its submitted bid is no longer valid,
the Bidder should notify IPC immediately and the bid will be withdrawn from further consideration.
Conformance to Minimum Requirements
Bids will initially be screened against the Minimum Requirements using Exhibit C—Bid Eligibility
Checklist. Bidders of non-conforming bids will be notified and the bid will be removed from
consideration.
Price and Non-Price Scoring, Ranking, and Initial Shortlist
Resource Based Proposals Non-Price Score (up to 100 points)
The non-price evaluation rubric for Resource Based Proposals is included in Exhibit D—Non-Price
Scoring Sheet. IPC's non-price scoring model evaluates whether bids are thorough and comprehensive,
whether the proposed resource is viable, and whether the Bidder is likely to achieve commercial
operation by the proposed date. Bidders must provide documentation, representation,warranties,
and other information as necessary to sufficiently assure IPC that any proposed project will complete
construction and achieve full commercial operation by the defined commercial operation date.The
non-price rubric is designed to be objective, intuitive, and self-scoring. Bidders are required to score
themselves by answering each of the non-price questions and providing supporting documentation.
The non-price questions are utilized to score and rank bids based on, among other factors,the
completeness of the Bid Package and adherence to the bid requirements,the ability to contract with
the project,the maturity of the project including site control, permitting, generator interconnection
status, and development progress and schedule, and the ability to deliver the project by the
commercial operation deadline.
If a Bidder is unable to demonstrate commercial viability, in IPC's sole discretion — specifically the
ability to meet the applicable in-service date —they will be removed from further evaluation. Each
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question is weighted differently with a focus on current progress of the project. Weightings are
outlined in Exhibit D—Non-Price Scoring Sheet.The maximum score possible for non-price questions is
100 points.
Resource Based Proposal Price Evaluation
IPC's proprietary price scoring model will calculate the delivered revenue requirement per kilowatt
cost of each bid, inclusive of any applicable carrying cost and the impact of tax credit benefits, as
applicable. In developing the revenue requirement cost for each bid, IPC requires certain cost data as
inputs to the price score model. IPC will convert Bidder provided cost inputs into a revenue
requirement stream based on Generally Accepted Accounting Principles (GAAP) and develop annual
levelized costs as described in Exhibit J—Levelized PVRR Scenarios. Contract structures in which IPC is
not the owner of the project bring added costs beyond the direct contract costs in the form of
imputed debt. IPC will estimate the additional cost of imputed debt for each third-party owned asset
and add this cost to the overall cost of a project. Any internal assumptions for key financial inputs (i.e.,
inflation rates, discount rates, marginal tax rates, asset lives, allowance for funds used during
construction [AFUDC] rates, etc.) and IPC's carrying costs (i.e., integration costs, owner's costs, etc.)
will be applied consistently to all bids, as applicable.
As stated under Interconnection Studies above, Bidders must provide known costs for interconnection
costs and transmission network upgrade costs as provided in applicable system impact study reports
or LGIAs. If this information is not available, IPC will model the bids with an anticipated cost based on
the location of the interconnection point. IPC will model bids with other uncertain terms and
anticipated cost or price contingencies as applicable.
IPC's proprietary price scoring model ranks each bid relative to each other within the same technology
where feasible.
Market Purchase Proposals Non-Price Score (up to 100 points)
The non-price evaluation rubric for Market Purchase Proposals is included in
Exhibit D—Non-Price Scoring Sheet. IPC's non-price scoring model evaluates whether bids are
thorough and comprehensive and meet the requested attributes as described in Exhibit E—
Transmission Paths and Delivery Points. Bidders must provide documentation, representation,
warranties, and other information as necessary to sufficiently assure IPC that any bid will meet the
requirements.The non-price rubric is designed to be objective, intuitive, and self-scoring. Bidders are
required to score themselves by answering each of the non-price questions and providing supporting
documentation.The non-price questions are utilized to score and rank bids based on, among other
factors,the completeness of the Bid Package and adherence to the bid requirements and the ability to
meet the requested attributes described in Exhibit E—Transmission Paths and Delivery Points.
Points are earned based on the ability to meet each of the bid attributes requested. If a bid offers
attributes that could require IPC to incur additional costs (i.e., a bid of a WSPP Schedule B product
could require IPC to incur additional Point-to-Point transmission costs), those costs will be estimated
and included in the pricing analysis. Each question is weighted differently with a focus on product
type, contribution to identified needs, shaping and flexibility options, WRAP eligibility, point of
delivery, and pricing structure.The maximum score possible based on pre-determined weightings is
100 points.
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Final Ranking and Identification of the Initial Shortlist
Through the application of qualitative and quantitative considerations, the proposals in Phase I will be
assigned a proposal ranking and a recommended disposition. The comprehensive set of the highest
ranking and relatively lowest cost bids that combined meet the requirements of the RFP will become
the Initial Shortlist.
IPC will notify the Bidders,through the Portal or email, that were selected for the Phase 1— Initial
Shortlist.This initial pool of bids will be made available as alternatives for further modeling.
7.3. PHASE 2 - FINAL SHORTLIST
Phase 2 of the evaluation process is the selection of the Final Shortlist,the projects IPC is most likely to
commence contract negotiations. IRP modeling tools will be utilized to help select the least-cost, least-
risk portfolios from the Initial Shortlist based on bid cost, performance data, and effective load
carrying capability(ELCC).
IPC will perform a reliability assessment to ensure that the selected portfolio of resources can meet all
hourly load and operating reserve requirements with sufficient cushion to account for other system
uncertainties such as non-normal weather events.This process is described in IPC's 2025 IRP Appendix
D: System Reliability and Regulating Reserves.
IPC does not anticipate updating the bid evaluation from Phase 1. However, if at any time during
Phase 2, a Bidder determines its submitted bid is no longer valid,the Bidder should notify IPC
immediately and the bid will be withdrawn from further consideration. Any other factors not expressly
included in the formal evaluation process but required by applicable law, order by the Commissions,
or other significant material industry or technology change may be used by IPC to identify a subset of
Bidders from Phase 1 that can be advanced to further evaluation and negotiation (the Final Shortlist).
IRP Modeling, Sensitivity Analysis and Portfolio Development
Consistent with the treatment of the capital revenue requirement in IPC's IRP modeling, IPC will
convert any calculated revenue requirement associated with capital costs (i.e., return on investment,
and taxes, and the impact of tax credits, as applicable)to first year-real-levelized costs. Similarly, all
other bid costs are levelized and formatted for input into the IRP models. For a 25-year PPA for
example, IPC calculates the present value of the revenue requirement(contractual payment stream
over the 25 years)for the project and calculates the levelized payment based on the contract life as
demonstrated in the example Exhibit J—Levelized PVRR Scenarios. Projected renewable resource
performance data (expected hourly capacity factor information)will also be processed for input into
the IRP models. Projected ELCC for each bid will also be processed for input into the IRP models.The
IRP modeling tools will help select the least cost resource types based on bid cost, performance data,
and ELCC. IPC's Final Shortlist may include bids in excess of the identified capacity limits if those
projects have economic benefit.
IPC will evaluate portfolios under a range of different environmental policy and market price scenarios
(policy-price scenarios). In this way, IPC uses Aurora to help optimize its selection of bid resources to
identify the lowest cost, reliable portfolio under multiple scenarios prior to undergoing additional risk
analysis and further consideration as part of the Final Shortlist process.
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Risk Analysis
IPC next uses Aurora to evaluate each portfolio and its ability to perform under dynamic market
conditions. In Aurora a stochastic sensitivity analysis will be performed,which assesses the effect
on portfolio costs when select variables take on values different from their planning-case levels.
Aurora measures the risk of each portfolio through its production cost estimates. By holding a
resource portfolio fixed and using Latin Hypercube stochastic simulations of stochastic variables —
including,for example, load, natural gas prices, and hydro generation — Aurora can measure the
expected cost of each portfolio in an uncertain future. Stochastic variables are selected based on the
degree to which there is uncertainty regarding their forecasts and the degree to which they can affect
the analysis results (i.e., portfolio costs).The Latin Hypercube design samples the distribution range
with a relatively small sample size, allowing a reduction in simulation run times.The Latin Hypercube
method does this by sampling at regular intervals across the distribution spectrum.The purpose of the
stochastic analysis is to understand the range of portfolio costs across the full extent of stochastic
shocks(i.e., across the full set of stochastic iterations) and how the ranges for portfolios differ.
Identification of Top-Performing Resource Portfolios
IPC will then summarize and analyze the portfolios to identify the specific bid resources that are most
consistently selected among the policy-price scenarios. Based on this data, as well as certain
qualitative and non-price criteria, IPC may select one or more resource portfolios for further cost-risk
analysis.
Other Factors —Applicable Law and Statutory Requirements
Before establishing a Final Shortlist, IPC may take into consideration, other factors that are not
expressly or adequately factored into the evaluation process outlined above, particularly any factor
required by applicable law or order of either Commission to be considered.
Final Shortlist Selection
IPC will summarize and evaluate the results of its cost-risk analysis, considering present value revenue
requirement results to identify the specific least-cost, least-risk bids. Based on these data and certain
other factors as described above, IPC will establish a Final Shortlist.After the Final Shortlist is
established, IPC may engage in negotiations with the selected Bidder(s). Selection of a bid to the Final
Shortlist does not constitute a winning bid. Only execution of a definitive agreement between IPC and
the Bidder, on terms acceptable to IPC, in its sole and absolute discretion, will constitute a winning
bid.
7.4. ADDITIONAL RIGHTS
IPC may, at any time during the Solicitation:
1. Appoint evaluation committees to review bids, seek the assistance of outside technical
experts and consultants in bid evaluation, and seek or obtain data from any source that
has the potential to improve the understanding and evaluation of the responses to
this RFP.
2. Revise and modify the factors it will consider in evaluating bids and to otherwise revise or
expand its evaluation methodology as applicable and relevant.
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3. Hold interviews and meetings to conduct discussions and exchange correspondence with
either all Bidders or only those with bids that IPC elects to select for detailed discussions
to seek an improved understanding and evaluation of an individual Bidder's bid.
4. Issue a new RFP.
5. Cancel or withdraw the entire RFP or any part thereof.
7.5. ACCEPTANCE AND REJECTION OF BIDS
IPC may or may not award an agreement after analysis and evaluation of the bids. IPC reserves the
right to reject any and all bids,to waive minor formalities and irregularities, and to evaluate the bids
to determine which — in IPC's sole judgment — represents the best value for the bids requested.
7.6. AGREEMENT NEGOTIATIONS
In anticipation of an award,there may be a period of negotiations to finalize the agreement(s)
between the parties.An agreement, including all terms, conditions, exhibits and attachments, must be
executed by both IPC and the successful Bidder in order to create a binding enforceable agreement
between IPC and the successful Bidder.
7.7. EXCLUSIVITY
If and when a bid is selected for the Final Shortlist,from that date,the Bidder and/or its affiliates
shall not execute an agreement with any other party for the sale of the Project or Plant so the Bidder
would no longer be able to provide the associated bid for a period of 90 days.
7.8. PUBLICITY
The parties intend to issue joint public announcements, in the form of press releases, case studies,
and/or other materials, containing content mutually agreed to by the parties, upon execution of the
agreements. Neither party shall use the name, logo, or any other indicia of the other party in any
public statement, press release, other public relations, or marketing materials,the identity of the
other party or any underlying information with respect to the agreement(s) at any time without the
prior written consent of the other party,which it may withhold in such other party's sole discretion.
Prior to making any such permitted use, each party shall provide for the other party's review and
approval, any publicity materials.Any and all goodwill from use of IPC's name, logo, or indicia will
inure to IPC's sole and exclusive benefit.
7.9. COMMISSION APPROVAL
Execution of an agreement may ultimately be subject to approval by the IPUC.
8. ENTIRE RFP
This RFP and all exhibits, attachments, datasheets,forms, and addenda within the Portal event are
incorporated herein by this reference and represent the final expression of this RFP. Only information
supplied by IPC in writing through the parties listed herein or by this reference made in the submittal
of this RFP shall be used as the basis for the preparation of Bidders' bids.
Page 28 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
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Exhibit A-Bid Definition Form(BDF)
1�O
Re
An IDACORP Company
Exhibit A - Bid Definition Form (BDF)
2032 All Source Request for Proposals (RFP)
Bidder:
[DATE]
Instructions:
• Respondent must fill out all the applicable fields on both[Respondent Information]&[Bid Definition]sheets.
•On[Bid Definition]sheet, Respondent must fill out the required information for all the candidate proposals under the
"Proposal Definition"section;and then fill out the"Bids and Selectable Portfolios"section to define the bids and portfolios to
be proposed.(E.g.Facility AA has a Solar Proposal and a BESS Proposal.There may be 3 valid bids or portfilios to be proposed
from Facility AA:1)the Solar Proposal,2)the BESS Proposal,3)the Solar+the BESS.)
• Definition:PPA-Power Purchase Agreement;BSA-Battery Storage Agreement
Color Code:
Applicable Input:Respondent to Fill
Calculated Input:Autofill,Do not Edit
Non Applicable Input:Do not Edit
0 BLACK&VEATCH
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 30 of 495

Exhibit A-Bid Definition Form(BDF)
Idaho Power Company 2032 All Source RFP
Respondent Information
Respondent Information
Counterparty Special Purpose Entity
Legal Entity Name
Street Address
City
State
Country
Website
Business Classification
❑ Small Business ❑ Veteran Owned Business
❑ Small Disadvantaged Business ❑ Service-Disabled Veteran Owned Business
❑ Woman Owned Business ❑ Large Business
❑ HUBZone Small Business ❑ Other
Contacts
First Name Last Name Title Phone 1 Phone 2 Email
Authorized Contact k1 0 0
Authorized Contact#2 0 0
Authorized Contact k3 0 0
Owners of Respondent
How many years has your oganization been in business?
How may years has your organization been in business under its present business name?
If applicable,under what other or former name(s)has your organization operated?
Name Ownership% Website URL
Owner 1
Owner 2
Owner 3
Ownership Notes
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
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Exhibit A-Bid Definition Form(BDF)
Idaho Power Company 2032 All Source RFP
Exhibit A-Bid Definition Form
Bidder to fill
Autnfill
N/A
Bidder:
Proposal Definition
Facility Name
Proposal Type Please Select Please Select Please Select Please Select Please Select
Resource Number
Ownership
Resource Based Proposals
Resource Type(Resource Based Proposal)
Provide Resource Type(if"Other")
Structure
Contract Term(Years)
Contract Capacity at POI(MWac)
Energy Storage Capacity(MWh)
Market Based Proposals
Contract Type
Contract Term(Years)
Contract Capacity(MWac)
COD(m/d/yyyy)
Point of Delivery
County,State
Contingent on IPC transmission rights? Please Select Please Select Please Select Please Select Please Select
Generation Interconnection Queue if
Bids and Selectable Portfolios
Please select"Yes"for the proposolfs l to form
your bids).A bid can be formed with one or
multiple proposals at the same facility.
Facility
Bid 1 Please Select
Bid 2 Please Select
Bid 3 Please Select
Bid 4 Please Select
Bid 5 Please Select
Bid 6 Please Select
Bid 7 Please Select
Bid 8 Please Select
Bid 9 Please Select
Bid 10 Please Select
Bid 11 Please Select
Bid 12 Please Select
Bid 13 Please Select
Bid 14 Please Select
Bid 15 Please Select
Bid 16 Please Select
Bid 17 Please Select
Bid 18 Please Select
Bid 19 Please Select
Bid 20 Please Select
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
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Exhibits B,C, D-Bid Entry Form(BEF)
a ZM.. R
Exhibit B - Bid Entry Form (BEF)
2032 All Source Request for Proposals(RFP)
Bidder:
[DATE]
Instructions:
•Bidder Information sheet reflects the information filled out in your Bid Definition form.No further action is needed in this BEF.
•Bidders must fill out the applicable fields on all the blue sheets.The proposals are listed according to the Bid(s)submitted in
your Bid Definition form.
•Acronym Definitions:
PPA-Power Purchase Agreement;
BSA-Battery Storage Agreement
BTA-Build Transfer Agreement
•Capacity Definitions
Expected Nameplate Capacity @ POI(MWac)-For non-storage resources,the maximum output of the resource accounting for any
inverter limitations or limitations at the interconnection point.
Installed Capacity(MWdc)-For non-storage resources,the maximum output of the resource before accounting for any inverter
limitations or limitations at the interconnection point.
Interconnection Capacity(MWac)-The amount of capacity requested with the applicable transmission owner for interconnection
service of the proposed resource.
Storage Installed Capacity(MWdc)(Power)-The maximum amount of power that a battery can instantaneously produce on a
continuous basis,before accounting for any inverter limitations or limitations at the interconnection point.
Storage Installed Capacity(MWhdc)(Energy)-The maximum amount of energy the proposed resource is able to store before
accounting for any inverter limitations or limitations at the interconnection point.
Contract Capacity(Power)(MWac)-The maximum amount of power that a battery can instantaneously produce on a continuous basis
accounting for inverter limitations or limitations at the interconnection point.
Contract Capacity(Energy(MWhac))-The maximum amount of energy the proposed resource is able to store after accounting for any
inverter limitations or limitations at the interconnection point.
Duration(hours)-The length of time that a battery can be discharged at its Contract Capacity until the battery must be recharged.
Color Code:
Applicable Input:Respondent to Fill
Calculated Input:Autofill,Do not Edit
Non Applicable Input:Do not Edit
aBLACK&VEATCH
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 33 of 495

Exhibits B,C, D-Bid Entry Form(BEF)
Idaho Power Company 2032 All Source RFP
Bidder Information
Bidder Information
Counterparty Special Purpose Entity
Legal Entity Name
Street Address
City
State
Country
Website
Business Classification
❑ Small Business ❑ Veteran Owned Business
❑ Small Disadvantaged Business ❑ Service-Disabled Veteran Owned Business
❑ Woman Owned Business ❑ Large Business
❑ HUBZone Small Business ❑ Other
Contacts
First Name Last Name Title Phone 1 Phone 1 Email
Authorized Contact#1 0
Authorized Contact#2 0
Authorized Contact#3 0
Owners of Respondent
How many years has your oganization been in business?
How may years has your organization been in business under its present business name? 0
If applicable,under what other or former name(s)has your organization operated? 0
Name Ownership% Website URL
Owner 1
Owner 2
Owner 3
Ownership Notes
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 34 of 495

Exhibits B,C, D-Bid Entry Form(BEF)
Bid Eligibility Checklist color code:
Idaho Power Company 2032 All Source RFP aidder to fill
Autofill
Bidder: Bid(Portfolio)ID
Resource ID
Facility Name
Resource Type
Generation Interconnection Queue k
Structure
Ownership
Contract Term(Years)
Contract Capacity(MWac)
COD/Contract Start Date
Existing or New?
Point of Delivery
County,State
Contingent on IPC transmission rights?
Yes Minimum criteria met
No Bid not eligible
Not applicable
Bid Eligibility Factor
Bid Eligibility Submittal Completeness-Bidder completed each of Name of Supporting
NO. the following items accurately and in a manner consistent with the Document(s) Comments Response I Response 2
RFP requirements.
Resource Based Proposal-Bid is submitted on or before the submittal deadline and all applicable forms have been completed and
submitted.
Bid narrative in accordance with the Bid Format and Requirements(Exhibit N)
[Eligibility],[Resource Based Non-Pricing],and the applicable[3rd Party Owned Pricing]and[IPC Asset Purchase Pricing]tabs
Redlines/Issues List to Draft Form Agreements/Term Sheets(Exhibit F)
1 Counterparty Financial Questionnaire(Exhibit H) Please Select Please Select
Draft Form Letter of Credit(Exhibit 1)
Forecasted Hourly Renewable Output,if applicable(Exhibit K)
Cyber Security Questionnaire(Exhibit L)
Gas-Fired Resources-Fuel Questionnaire,if applicable(Exhibit M)
Resource Based Proposal-The Bidder has made application for Network Integration Interconnection Service(NRIS)for the Facility and is in
the IPC Generator Interconnection Queue and will be delivered to a Point of Delivery on IPC's transmission system OR if the Facility will be
2 interconnected to a third-party transmission system,Bidder has provided documentation that demonstrates it has submitted applicable Please Select Please Select
transmission service requests to the relevant Transmission Provider to establish transmission rights to deliver to IPC point of delivery.
3 Resource Based Proposal-The Bid has established Site Control for the Facility. Please Select Please Select
Resource Based Proposal-Bidder has provided a Development Schedule identifying the timeline and schedule including contract execution,
full notice to proceed,and major engineer,procure,and construct milestones to ensure delivery at the proposed commercial operation date.
4 The Development Schedule shall include,in addition to the timeline and major milestones,a description of risks,their influence on the Please Select Please Select
project's critical path,and any mitigation strategies.
Resource Based Proposal(dispatchable generation only)-Bid includes IPC's ability to commit,decommit,and dynamically schedule(e.g.,
S automatic generation control("AGC"))the Facility. Please Select Please Select
6 Resource Based Proposal-The Bid is for a resource with commercially-proven technology. Please Select Please Select
7 All Proposals must have a First Delivery date of May 31,2032 or earlier. Please Select Please Select
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
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Exhibits B,C, D-Bid Entry Form(BEF)
8 Evidence of wire transfer provided prior to bid deadline in the correct amount for the correct number of bids. Please Select Please Select
Documentation submitted indicates the viability of a Commercial Operation Date(Resource Based Proposals)or Contract Effective Date
(Market Purchase Proposals)that matches the COD submitted.
Documentation may include,as applicable,GIA status and timely interconnection capability;federal,state,and local permitting requirements
and decisions;land-use and site control requirements and decisions;construction plans and schedules;procurement documentation;
9 financing capability and sources;and other relevant documentation necessary to demonstrate timely viability of the project. Please Select Please Select
Bidder must provide details of public and community outreach(tactics,audience,goals,etc.)at a local level to identify the viability of a
project's success. Idaho Power may utilize local knowledge and experience to gauge relative outreach when scoring.
Idaho Power will also consider(and bidder must identify)pending,actual,or threatened administrative,legal,legislative,procedural,and
other actions(federal,state,or local)that could impact timely viability.
Market Purchase Proposal-Bid is submitted on or before the submittal deadline and all applicable forms have been completed and
submitted.
10 Bid narrative in accordance with the Bid Format and Requirements(Exhibit N) Please Select Please Select
[Market Purchase Non-Pricing]and[Market Purchase Pricing]tabs
Counterparty Financial Questionnaire(Exhibit H)
Market Purchase Proposal-Bid of firm energy and capacity(prefer WSPP Agreement Schedule C or equivalent)meeting Western Resource
11 Please Select Please Select
Adequacy Program(WRAP)resource specificity,transmission and other requirements.
12 Market Purchase Proposal-The minimum WRAP Qualified Capacity Contribution requirement is met. Please Select Please Select
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
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Exhibits B,C, D-Bid Entry Form(BEF)
Exhibit D-Resourced Based Non-Pricing Scoring Sheet
Idaho Power Company 2032 All Source RFP Color Code:
aiddertofill
A—fill
Bidder: Bid(Portfolio)ID
Resource ID
Facility Name
Resource Type
Generation Interconnection Queue#
Structure
Ownership
Contract Term(years)
Contract Capacity(MWac)
COD/Contract Start Date
Existing or New?
Point of Delivery ML
County,State
Contingent on IPC transmission rights?
Total Non-Pricing Score MCI 0.00 0.00 Boo D.OD
Proposal/Project Information(not for scoring)
Proposal/Project Information Response I Rr,p.nse 2 Resper—3 Response 4 Response
Project street Address
Project City
Project State
Project Zip
Project Elevation
Project Latitude
Project Longitude
Interconnection Request Number(if available)
Non-Price Factor
NO. Non-Price Factor(Weighting%) Name of Supporting c—m—, Re,p.n.1 Response 2 Response 3 Response 4 Re,....5
Contract Risk(596)
Bidder represents that Bidder has reviewed the Draft Form.
Agreements/Term Sheets,provided Technical
Specifications if applicable,and Draft Form Letter of CreditRed-No,not confirmed
1 and that Bidder's firm bid takes into account the terms of Please Select Please Select Please Select Please Select Please Select
these documents or the terms of these documents as :Green-Yes,confirmed
redlined and submitted with Bidder's firm bid(i.e.—
product,price,term,performance guarantees,delay
damages,milestone payments,etc.).
Red-Documentation lorlack thereof)indicates that Bidderhas
Site Control(20%) not sufficiently engaged with the appropriate owners and
Bidder must provide sufficient documentation that it will agencies to establish site control.
Z have site control,site access,easements,and meet zoning Yelbw-Documentation indicates that Bidderhas identified a Please Select Please Select Please Select Please Select Please Select
conditions to support the project development schedule, ;site and has demonstrated with owners ands
for all land(including private,state,and federal)up to the progress wi gencies.
point of interconnection by contract execution date. .Green-Documentation indicates that all applicable site control
Is established.
.Red-Documentation(,,lack thereof)indicates that Bidderhas
not sufficiently engaged with the appropriate agencies or
Permits(20%) conducted due diligence or the results of environmental studies
Bidder must provide sufficient documentation,including :reflecio sigrficant1yeMerded timelin,
due diligence that applicable federal,state,and local Yellow-Documentation indicates that Bidderhas conducted
3 permits for the site and ancillary facilities will be complete'en Please Select Please Select Please Select Please Select Please Select
by the planned date,which supports the project -cr entol to,,
and due diligence and the results reflect
noble timeline to meet the commercial operation date.
development schedule and target commercial operation
date. Green-Documentation indicates that the results of
o
mental studies and due diligence present expedient
timeli es and very little risk.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
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Exhibits B,C, D-Bid Entry Form(BEF)
:Red-Documentation/arlack thereof)indicates that the
schedule provided in the studies do not support the commercial
GIA and Network Upgrades(10%) :operation date.
If available,Bidder must provide sufficient documentation
that preliminary studies have been provided by the Yellow-Documentation indicates that the schedule and cost
Transmission Provider with a schedule and cost estimate estimateforall upgrades are appropriate and support the
4 for all upgrades that supports the commercial operation commercial operation date. Please Select Please Select Please Select Please Select Please Select
date.If no studies have been completed,Bidder must
provides umption regarding costs and schedule related Documentation indicates that Generation Interconnect
to interconnection facilities and network upgrades. :Agreement has been executed with.schedule and cost
:estimate specifiedJorall upgrades that support the rommercial
;operation date.
Documentation(or lack thereof)indicates no
Experience(IS%( docion.h dexpedeace.
Bidder must provide sufficient documentation that Bidder
has sufficient experience with developing,constructing Yel low-Documentation indicates that experience includes
5 and/or operating the same technology as being proposed.:development(but not commercial operotio,)offocinw,fat Please Select Please Select Please Select Please Select Please Select
Bidder must demonstrate ability to successfully complete :least 50%ofrhe nameplate capacity,
contractual obligations of any contracts within the last five.
years and identify any contractual agreements that have Green-Documenmtion indicates that experience includes
been terminated,regardless oftechnology proposed. fochities greater than 50%of the nameplate capacity and has
.successfully brought projects online.
Safety(5%) :Red-Documentation/or lack thereof)indicates TRl level worse
Bidder must provide sufficient documentation that with than this—lord OR has no Safety Standards OR has not
regards to safety,Bidder represents it has a total :provided otlequote documentation.
B cordable incident(TRI)level lower than or equal to the Please Select Please Select Please Select Please Select Please Select
TRI for their industry RI determined by the U.S. :Green-Documentation indicates a TRl level equal to or better
:than this standard and the Safety Standard is consistent with
Occupational Health and Safety Administration(OSHA(. :industry expectations and applicable to contractors.
Red-Documentation for lack thereof)indicates no financing
Financing(5%) ;plan is in place or is insufficient.
Bidder must provide sufficient documentation that Bidder Please Select Please Select Please Select Please Select Please Select
has Financing Plan that demonstrates ability to finance Green-Documentationindicatesthatgidderhasa Financing
project construction and/or ongoing operations. plan that demonstrates ability wfinonce project construction
and/or ongoing operations.
Development Schedule(15%)
Bidder must provide sufficient documentation that the
schedule includes development and construction .Red-Documentation to,lack thereof)indicates that the
milestones(major equipment procurement and delivery milestones do not support the commercial operation date or
n site,EPC execution and notice to proceed, that the risks ore not reosonobly mitigated
g interconnection backfeed,mechanical completion)which Please Select Please Select Please Select Please Select Please Select
support the commercial operations date(including :Green-Documcrtainindicotes that the milestones do
consideration for RFP evaluation,contract negotiation, support the commercial operation dat,
regulatory approvals,etc).In addition,the Development
Schedule shall include,in addition to the timeline and 'NotAoolicable-this is natapofcablefor operating assets
major milestones,a description of risks,their influence on
the project's critical path,and any mitigation strategies.
:Red-Proposal is conceptual in nature and/or does not seem to
:Include all applicable costs of the project.
Yellow-Project proposal is beyond conceptual,but is not
:detailed and/or does not have proven pricing/schedule
9 Project Development Status(10%) certainty. Please Select Please Select Please Select Please Select Please Select
:Green-Proposal Is detailed with firm design concepts and
pricing.
:NotAoolicable-this is not applicable for operating assets
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 38 of 495

Exhibits B,C, D-Bid Entry Form(BEF)
Red-Documentation(or lack thereof)indicates that the facllity
will require several sign Jicant capital improvements ar repairs.
Existing Conditions(S%(
Bidder must provide sufficient documentation that for Yellow-Documentation indicates that thefacility,will require
proposed projects involving existing assets,the facility somesign Jicont cpiml improvements or repairs.
10 condition does not require capital improvements or Please Select Please Select Please Select Please Select Please Select
repairs to ensure operations and reliability for the term Green-Doc—crtction indicates that thefacility,will require
identified in the bid. no significant capital improvements or repairs.
NotA-11-ble-thlsisnot applicablefor new assets
Red-Proposed resource Is>10 miles awayfrom gas pipeline,
:transport capcity and req.ded pressure is unlikely orunknown,
or discussions securing firm supply hove not started.
:Yellow-Proposed resource is 10 miles or less from the
Gas Interconnection,Supply,and Transport,if applicable;proposed pipeline,preliminary discussions have taken place
(10%) with an estimate ofpipelicc transportation,costs and
11 Bidder must identify and provide documentaiton as to the avoilabilityofinterconnection issufficient,and,oaefirm Please Select Please Select Please Select Please Select Please Select
status and complexity of interconnection to gas supply is avoilable,buthrratd andsupplier discussions have
infrastructure,pipeline transportation capacity(feeder started.
and upstream pipelines),and firmness of gas supply.
.Green-The proposed resource has gas infrastructure an or
;very near the site,confirmed available transport capacity and
:required pressure,and firm supply is available.
:NotAoollcable-this is at applicablefor non-gas resources
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 39 of 495

Exhibits B,C, D-Bid Entry Form(BEF)
Resource Based Price Input Sheet-PPA and BSA
ld,ho Power Company 2032 All Source RFP
Color Cade:
o fill ei Mrtogll
DlreRions:
Fill out all relevant information for each individual proposed resource.Portfolio Bids must enter a line for each individual resource.
• For example,Solar plus Wind plus BESS should fill out 3—with the appropriate information.The Bid(Portfolio)In will link the 3 projects together
Please add any clarification in the Bidder notes column.
Pricing inputs within this form should be all-inclusive and capture all costs associated with obligations under the pnticipptedcontroc[scope.Proposalnn—tivepnd Siddernotesshauld
provide any pppropripteconteM,but should notbe relied upon[oprovidepricing[erms associated with compensation under the cpntroR.Ifp propospldces no[provide comprehensive
pricing withinthe providedform,it may be considerednon-conformingpnd removedf mfurtherconsiderption.
Bid Summary
Generation
Resource lD Bidder aid(Portfalio)ID Facility Name Resource Type Interconnection Queue Stru— C--Term COD/Cant—Start Date Paint of Delivery County,State Contingent an IPC
d transmission dghs7
Text TeM Text TeM Text Text Text Years D.. TeM Text Yes/No
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 40 of 495

Exhibits B,C, D-Bid Entry Form(BEF)
Pricing Inputs
Renewable PPA- Gas-Basetl PPA- Gas-Based PPA- Reimbursable Price incl,des
Capacity Charge Capacity Charge- Yeafl Capacity Renewable PPA- Yearl Energy Start Charge Annual Reimbursable
Energy Price Variable O&M)Yeaf Variable O&M Gas Price Index Fuel Adder Start Charge Network Upgrade Bidder Notes
Year 1) An nu al Escalation Payment Energy Price)Year 1) Annual Escalation Payment 1) Escalation Escalation Costs Network Upgrstle
Casts
$/kW-Yr % $ $/MWh % $ $/MWh % Name $/MMB. $/Complete Start % $ Yes/No
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 41 of 495

Exhibits B,C, D-Bid Entry Form(BEF)
Technical Inputs
Mutually Exclusive Nameplate Capacity a[ B[omge B[omge Storage Maxim"'Cycles Summer Maximum Summer Minimum Winter Maximum Winter Mini mum
Bids project Design Life Capacity F.— P01 Int...nne.ian Capacity Contract Capacity Contract Capacity Storage Duration Energy Btomge Cycle Life pllpwetl per Vear Ca t Ca Ca t Ca
(power) (Energy) paci y paCiw paci y paciry
Bid ID Years % MW� MW� MW� MWh,, Hours Cycles Cycles MW� MW� MW� MW�
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 42 of 495

Exhibits B,C, D-Bid Entry Form(BEF)
Maxium Ramp-Dawn Average Heat Rate of Average Heat Rate of Average Heat Rate of Average Heat Rate W
Auxiliary Pawer Start-up Fuel Maximum Ramp-Op Ra[e Ra[e Planned Dutage Rafe Forced Outage Rate co,emission rate ND�emissiaa rate soy emission rate Maximum Dependable Minimum Dependable Maximum Dependable Minimum Dependable Bidder Nates
Summer Base capacity Summer Base capacity Winter Base capacity Winter Base capacity
MW� mwtu/Start MW/minute MW/minute % % Ibs/M - Ibs/MMBtu Ibs/MMBtu Btu/kWh Btu/kWh Btu/kWh Btu/kWh
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 43 of 495

Exhibits B,C, D-Bid Entry Form(BEF)
Resource Based Price Input Sheet-Build-Transfer Agreements
Idaho Power Company 2032 All Source RFP
Color code:
BlddeAraaall
ll
Directions:
Fill out all relevant information for each individual proposed resource.Portolio Bids must enter a line for each individual resource.
• For example,Solar pl us Wind plus BESS should nil out 3 rows with the appropriate information.The Bid(Portfolio)ID will link the 3 projectstogether.
Please add any clarification in the Bidder notes column
If the proposed project is PTC or ITC eligible,please confirm that project will follow all IRS guidance to obtain the full ITC or PTC under the IRA law in the Bidder Notes column.If eligible far the Bonus PTC/ITC,please
provide details within the Bidder Notes column.
Pricing Inputs within thisf rm should be all-Inclusive and capture all casts associated with obligations underthe mulclpatedcantmct scope.Proposal narrative and Bidder notes should provide any appropriate context but
should not be relied upon to provide pricing terms associated with compensation under the contract.Ifa Proposal does not provide comprehensive pricing within the providedform,It maybe considered non-conforming
Bid Summary
Generation COD/Contract Start card,enton IPC
Resource ID Bidder Bid(Portfolio)ID Facility Name Resource Type Interconnection Queue Structure Date Point of Delivery county,State transmission rights?
If
Ten Text Ten Text Ten Text Tea Date Tea Text Yes/No
Exhibit No. 1
Case No. IPC-E-26-03
E.Hackett, IPC
Page 44 of 495

Exhibits B,C, D-Bid Entry Form(BEF)
Pricing Inputs(Asset Purchase Price)
Progress Payment-
Lump Sum or Progress Price includes Network
Asset Purchase Price payment? Pro posed Milestones and Network Upgrade Costs Upgratle Costs PTC/ITC Eligible ITC% PTC/ITC Bonus Credit Bidder Notes
Payment Schedule
$ Dropdown File Name $ Yes/No Yes/No % %(e.g.,10%adder)
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 45 of 495

Exhibits B,C, D-Bid Entry Form(BEF)
Pricing Inputs(O&M Package Pritingl
Fixed O&M 5[ora Au ge gmen Cation Fee Fixed O&M General- Storage Aegmen ion Fee- Variable O&M Variable O&MGeneral- Bidder Notes
Escalation EFcala[on Escalation
$/kW-mo $/kW-mo % % $/MWh %
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 46 of 495

Exhibits B,C, D-Bid Entry Form(BEF)
Technical Inputs
Storage Storage Storage Storage Storage Overbuild years
(should account fort year
Mutually Exclusive Bids Project Design Life Capacity Factor Installed Capacity Installed Canergypacity Contract Capacity Contra-Capacity verbuild assuming Energy Storage Cycle life Storage Duration
Installed Capacity Nameplate Ca Non-storage Non-storage pacity at Po (power)at (power) (E ) (power) (Energy) lcycle
per day)
Bid ID years % MWa. MW- MWa MWh� MW_ MWh_ years Cycles H.—
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 47 of 495

Exhibits B,C, D-Bid Entry Form(BEF)
Per Cyde Degradation Storage AC-AC Round Trip Storage AC-AC Round Trip Storage Maximum Cydes
Interconnection Capacity Summer Maximum Capacity Summer Minimum Capacity Winter Maximum Capacity Winter Minimum Capacity Auxiliary Power Energy Degradation (5torage Only) Efficiency-Vear1 Efficiency-End of Life Allowed Per year Start-up Fuel
MWR MW_ MW_ MW" MW_ MW_ %/year %/cycle % % Cyc/es/year MMBtu/start
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 48 of 495

Exhibits B,C, D-Bid Entry Form(BEF)
Average Heat Rate of Average HIM Rate of Average Heat Rate of Average Heat Rate of
Maxi...Ramp-op Rate Maximum Ramp-down rate Planned Outage Rate Forced Outage Rate CO2 emission rate NO.emission rate sOa emission rate Maximum Dependable Minimum Dependable Maximo.Dependable Minimum Dependable Construction Time Bidder Notes
Summer Base Capacity Summer Base Capacity Winter Base Capacity Winter Base Capacity
MW/minute MW/minute % % Ibs/MMB[u Ibs/MMBtu Ibs/MMetu Btu/kWh Btu/kWh Btu/kWh B[u/kWh Months
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 49 of 495

Exhibits B,C, D-Bid Entry Form(BEF)
Exhibit D-Market Purchase Non-Pricing Scoring Sheets color code:
daho Power Company 2032 All Source RFP Ndderto fill
A.011
Bidder: Bid(Portfolio)ID
Resource ID
Facility Name
Resource Type
Structure
Ownership
Contract Term(Years)
Contract Capacity(MWac)
COD/Contract Start Date
Existing or New?
Point 11 Delivery County,State
Contingent on IPC transmission rights?
Total Non-Pricing Score 0.00 0.00
Market Purchase Information
Product Attributes Name fS.pp.ning Comment, Responsel Response 2
Product Type(Io%) Red-Qrne/iessfirm
1 WSPP Schedule C or equivalent preferred 'Yellow-Schedule B or equivalent Please Select Please Select
:Green-Schedule C or equivalent
Contribution to Identified Needs(10%) :Red-Does not meet
2 Consistency with/contribution to seasonal energy volumes Please select Please select
identified as needed in Exhibit E. :Green-Meets
Shaping Options(8%) 'Red-No flexibility
3 'Green-Seasonal,multi-day,or intra-day shaping Please select Please select
Product offers ability to shape into various time periods flexibility
Product Flexibility(8%) :Red-No flexibility
4 Product offers daily option to not take energy or other product iGreen-Dailyoption or otherJlexibility Please Select Please Select
flexibility
WRAP Eligibility(10%)
Product meets minimum WRAP eligibility requirements
-resource specific,or :Red-Does not meet
5 -system sale by WRAP participant(or if non-participant,sale is .Green-Meets Please Select Please Select
surplus to seller's own needs,assurance the seller will not fail to
deliver to meet other commercial obligations,and there must be
priority 6 or 7 transmission to Point of Delivery)
WRAP Eligibility(10%) .Red-No QCC off red
6 Product offers Qualified Capacity Contribution(QCC value equal Yelow-QCC is less than volume being offered Please Select Please Select
to volume being offered. Green-Product has QCC equal to volume being offered
7 Point of Delivery(10%) :Red-No
Delivery to one of the points listed in Exhibit E :Green-Yes Please Select Please Select
Pricing Structure(8%) :Red-Fixed price offered
8 Index Price Preferred :Green-Index price offered Please Select Please Select
.Red-No,pricing includes regulatory costs(such as
costs/risk associated with sinking In Washington)
Pricing Structure(10%)
9 Pricing does not include the costs of compliance with regulatory ;Yellow-Uncertain Please Select Please Select
requirements not applicable in Idaho or Oregon
:Green-Yes,pricing reflects product sinking in Idaho or
Oregon.
10 Term(8%) :Red-No Please Select Please Select
Product offers overall term of at least 3 years :Green-Yes
Form of Agreement(8% :Red-No
11 Bidder proposes confirm under WSPP or IDSA Power Annex iGreen-Yes Please Select Please Select
master agreement
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 50 of 495

Exhibits B,C, D-Bid Entry Form(BEF)
Market Purchase Price Input Sheet
Idaho Power Company 2032 All Source RFP
Color Code:
Bidder to fill
Autofill
Directions:
Fill out all relevant information for each individual Bid.
Please add any clarification in the Bidder Notes column.
Pricing inputs within this form should be all-inclusive and capture all costs associated with obligations under the anticipated contract scope. Proposal narrative and Bidder
notes should provide any appropriate context but should not be relied upon to provide pricing terms associated with compensation under the contract. If o Proposal does
not provide comprehensive pricing within the provided form,it may be considered non-conforming and removed from further consideration.
Bid Summary
Contingent on IPC
Resource ID Bidder Bid(Portfolio)ID Contract Capacity Contract Term Contract Start Date Point of Delivery
transmission rights?
Text Text Text MW years Date Text Yes/No
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 51 of 495

Exhibits B,C, D-Bid Entry Form(BEF)
Pricing Inputs
Other Price Is the price based on
Mutually Exclusive Adder associated Other Price
Bids
Index Price Identify Index with Index Price Escalation Structure Other Price the energy being sunk Bidder Notes
(i.e.,fixed) in Idaho or Oregon?
Bid ID Yes/No Text $/MWh Text $/kW-mo % Yes/No
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 52 of 495

Idaho Power 2032 All Source RFP
Exhibit E-Transmission Paths and Delivery Points
Background
Exhibit E summarizes the criteria for whether a bid will be considered incremental capacity for
purposes of the 2032 All-Source RFP and provides information relevant to both Resource Bids
and Market Purchase Bids.
Eligible Delivery Points and Transmission Paths and Incrementality
Bids must provide for delivery to Idaho Power via interconnection within its system, at its border
(WALA, LOLO, SMLK, HURR, LGRD, M345,JEFF, BRDY, BORA) or at one of the points listed in Table
1 or 2 below.The capacity available at the Idaho Power border varies by point.' Idaho Power will
consider the impact to and use of available transmission capacity in its evaluation. Idaho Power
will include any costs it incurs under the transmission provider's Open Access Transmission Tariff
for use of the capacity listed below in its evaluation of bids relying on such capacity.
The RFP specifically seeks bids that provide incremental capacity to address Idaho Power's
capacity needs in 2031 and 2032. Idaho Power will accept bids that do not provide incremental
capacity, and they will be evaluated in the RFP based on economics and other relevant factors
but will not be assumed to address Idaho Power's capacity deficits.
To be considered to provide incremental capacity, a bid must offer capacity that Idaho Power has
not already counted for 2031 or 2032 in its Integrated Resource Plan and RFP modeling. For
example, existing resources with contracts in effect through that time are already counted.
Existing resources with contracts that expire before then are not counted and a bid for capacity
from such a resource would provide incremental capacity. Regarding transmission, the
transmission paths and volumes in Table 1 were counted on in the IRP and RFP modeling; bids
proposing to interconnect to or use such transmission would not provide incremental capacity.
The transmission paths and volumes in Table 2 were not counted on in the IRP and RFP modeling,
and bids proposing to use such transmission may offer incremental capacity as long as the
generation capacity was also incremental to Idaho Power's system. The information provided
below is accurate as of the date of this RFP. Idaho Power's rights to third-party transmission is
subject to change. Up-to-date information is available on the Open-Access Same-Time
Information System (OASIS).
Off-system bids that propose to deliver to Idaho Power's border using transmission not held by
Idaho Power(not listed in the tables below) may be considered as offering incremental capacity,
depending on the relevant details.
Actual final Delivery Points for any final shortlisted bids will be subject to negotiation by the
parties based on updated information at the time.
1 The Idaho Power Transmission Provider determines what capacity is available on Idaho Power's transmission
system for Idaho Power load service on an annual basis. Any resources or energy procured under the 2032 RFP
would be included in Idaho Power's load and resource forecast and included in transmission evaluations as of
Idaho Power's ownership or purchase of the resource or energy.
Exhibit No. 1 Page 1 of 2
Case No. IPC-E-26-03
E. Hackett, IPC
Page 53 of 495

Idaho Power 2032 All Source RFP
Exhibit E-Transmission Paths and Delivery Points
Table 1: Transmission Paths and Volumes Assumed in IRP/RFP (Not Considered Incremental)
(Paths and Volumes Subject to Change)
Point of Delivery Months Counted in IRP/RFP (Not Volume Counted in IRP/RFP
Considered Incremental)
MIDC June-September 100 MWZ
MIDCREMOTE June-September 500 MW3
Mona/Four Corners November- March 200 MW available between the two
points'
Harry Allen/Robinson November- March 500 MW available between the two
Summit/M 345 points'
Table 2: Transmission Paths and Volumes Potentially Available and Not Assumed in IRP/RFP
(May Be Considered Incremental) (Paths and Volumes Subject to Change)
Point of Delivery Months Available as Import Capability
Incremental
MIDC October- May Up to 100 MW6
MIDCREMOTE October- May Up to 500 MW7
AVA.BPAT All months Up to 100 MW8
McNary All months Up to 80 MW9
Mona/Four Corners April -October Up to 200 MW available between the
two pointslo
Harry Allen/Robinson April -October Up to 500 MW available between the
Summit/M345 points"
RedButte June -October Up to 50 MW,June-October12
2 Available through April 30, 2031, with the potential to extend beyond that date if renewed by Idaho Power Load
Serving Operations,such renewal being subject to the Transmission Provider's ability to continue to offer the service.
3 Contingent on 132H being in service.
4 Contingent on PacifiCorp / Idaho Power asset swap associated with 62H. The Mona and Four Corners points of
delivery, in aggregate, may not exceed 200 MW.
S Contingent on completion and placement in-service of the Southwest Intertie Project(SWIP).The points of
delivery, in aggregate, may not exceed 500 MW.
6 Available through April 30, 2031, with the potential to extend beyond that date if renewed by Idaho Power Load
Serving Operations,such renewal being subject to the Transmission Provider's ability to continue to offer the service.
Contingent on 132H being in service.
$Available through April 30, 2027, with the potential to extend beyond that date if renewed by Idaho Power Load
Serving Operations,such renewal being subject to the Transmission Provider's ability to continue to offer the service.
s Available through December 31, 2027, with the potential to extend beyond that date if renewed by Idaho Power
Load Serving Operations, such renewal being subject to the Transmission Provider's ability to continue to offer the
service.
10 Contingent on PacifiCorp/ Idaho Power asset swap associated with 62H. The Mona and Four Corners points of
delivery, in aggregate, may not exceed 200 MW.
11 Contingent on completion and placement in-service of the Southwest Intertie Project(SWIP).The points of
delivery, in aggregate, may not exceed 500 MW.
12 Available through May 31, 2029, with the potential to extend beyond that date if renewed by Idaho Power Load
Serving Operations,such renewal being subject to the Transmission Provider's ability to continue to offer the service.
Exhibit No. 1 Page 2 of 2
Case No. IPC-E-26-03
E. Hackett, IPC
Page 54 of 495

Idaho Power 2032 All Source RFP
Exhibit FA—Draft Form Agreements for Resource Based Bids
Respondent shall review and redline the following draft agreement into the submitted proposal for the
specific product type and ownership structure as defined in this RFP.
This draft Exhibit F is not comprehensive and does not constitute a binding offer, shall not form the bases
for an agreement by estoppel nor otherwise, and is not conditions upon each party's receipt of all
requirement management approvals (including final credit and legal approval) and all regulatory
approvals. Any actions taken by a party in reliance on the terms set forth in this working draft or on
statements made during negotiations pursuant to this working draft shall beat that party's own risk. Until
this agreement is negotiated, approved by management, executed, delivered, and approved by all required
regulatory bodies, no party shall have any other legal obligations, expressed or implied, or arising in any
other manner under this working draft or in the course of negotiations.
POWER PURCHASE AGREEMENT
BETWEEN
AND
IDAHO POWER COMPANY
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 55 of 495

Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 56 of 495

TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS, RULES OF INTERPRETATION.................................................. 1
SECTION 2 REPRESENTATIONS AND WARRANTIES ...................................................... 15
2.1 Mutual Representations and Warranties.............................................................. 17
2.2 Seller's Further Representations and Warranties................................................. 18
2.3 No Other Representations or Warranties............................................................. 20
2.4 Continuing Nature of Representations and Warranties; Notice...........................20
SECTION 3 CONDITIONS TO ACCEPTANCE OF GENERATION, FIRST
GENERATION DATE........................................................................................20
3.1 Conditions to be granted First Generation Date.. ................................................20
3.2 Idaho Power's Right to Monitor..........................................................................21
SECTION 4 TERM AND COMMERCIAL OPERATION DATE ............................................ 22
4.1 Term..................................................................................................................... 22
4.2 Commercial Operation Date. ...............................................................................22
4.3 Continuing Obligations........................................................................................25
4.4 Commercial Operation Date Delay, Delay Damages and Deficit Damages. ......26
4.5 Damages Calculation. ..........................................................................................26
4.6 Damages Invoicing. ............................................................................................. 26
4.7 Tax Credits........................................................................................................... 27
SECTION 5 DELIVERIES OF NET OUTPUT AND GREEN TAGS ...................................... 27
5.1 Purchase and Sale. ............................................................................................... 27
5.2 No Sales to Third Parties. .................................................................................... 27
5.3 Title and Risk of Loss of Net Output................................................................... 27
5.4 Curtailment. ......................................................................................................... 28
5.5 Idaho Power as Purchaser.................................................................................... 28
5.6 Green Tags........................................................................................................... 28
5.7 Purchase and Sale of Capacity Rights. ................................................................ 31
5.8 Representation Regarding Ownership of Capacity Rights. ................................. 31
5.9 Authority to Make Sales. ..................................................................................... 31
5.10 Further Assurances............................................................................................... 31
SECTION 6 CONTRACT PRICE; COSTS................................................................................ 31
6.1 Contract Price; Includes Green Tags and Capacity Rights.................................. 31
6.2 Costs and Charges................................................................................................ 33
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 57 of 495

6.3 Station Service. .................................................................................................... 33
6.4 Taxes.................................................................................................................... 33
6.5 Costs of Ownership and Operation...................................................................... 33
6.6 Rates Not Subject to Review. .............................................................................. 34
SECTION 7 OPERATION AND CONTROL ............................................................................ 34
7.1 As-Built Supplement............................................................................................ 34
7.2 Standard of Facility Operation............................................................................. 34
7.3 Interconnection. ................................................................................................... 35
7.4 Coordination with System.................................................................................... 35
7.5 Outages. ............................................................................................................... 35
7.6 Scheduling............................................................................................................ 37
7.7 Forecasting........................................................................................................... 37
7.8 No Increase in Nameplate Capacity Rating......................................................... 39
7.9 Electronic Communications................................................................................. 39
7.10 Reports and Records. ...........................................................................................40
7.11 Financial and Accounting Information................................................................43
7.12 Output Guarantee.................................................................................................43
7.13 Access Rights.......................................................................................................45
7.14 Facility Images.....................................................................................................45
SECTION 8 RIGHT OF FIRST OFFER ADDITIONAL GENERATION AND
OWNERSHIP OR PURCHASE OPTION......................................................................45
SECTION 9 SECURITY AND CREDIT SUPPORT .................................................................48
9.1 Project Development Security. ............................................................................48
9.2 Default Security. ..................................................................................................49
9.3 Senior Lenders.....................................................................................................47
9.4 Change of Control.................................................Error! Bookmark not defined.
9.5 Security is Not a Limit on Seller's Liability........................................................ 50
SECTION 10 METERING, METERING COMMUNICATIONS AND SCADA
TELEMETRY...................................................................................................... 50
10.1 Metering............................................................................................................... 50
10.2 Metering Communications................................................................................... 50
10.3 Supervisory Control and Data Acquisition (SCADA) Telemetry.. ..................... 51
10.4 Metering Costs..................................................................................................... 51
ii
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 58 of 495

TABLE OF CONTENTS
(continued) Page
SECTION 11 BILLINGS, COMPUTATIONS AND PAYMENTS........................................... 51
11.1 Monthly Invoices. ................................................................................................ 52
11.2 Offsets.................................................................................................................. 52
11.3 Interest on Late Payments.................................................................................... 52
11.4 Disputed Amounts. .............................................................................................. 52
11.5 Audit Rights......................................................................................................... 52
SECTION 12 DEFAULTS AND REMEDIES............................................................................ 52
12.1 Defaults................................................................................................................ 52
12.2 Remedies for Failure to Deliver/Receive............................................................. 55
12.3 Termination and Remedies. ................................................................................. 56
12.4 Termination Damages.......................................................................................... 57
12.5 [Omitted].............................................................................................................. 57
12.6 Duty/Right to Mitigate......................................................................................... 57
12.7 Security. ............................................................................................................... 57
12.8 Cumulative Remedies.......................................................................................... 57
SECTION 13 INDEMNIFICATION AND LIABILITY............................................................ 57
13.1 Indemnities........................................................................................................... 58
SECTION 14 INSURANCE....................................................................................................... 59
14.1 Required Policies and Coverages......................................................................... 59
14.2 Certificates of Insurance. ..................................................................................... 59
SECTION 15 FORCE MAJEURE.............................................................................................. 59
15.1 Definition of Force Majeure. ............................................................................... 59
15.2 Suspension of Performance.................................................................................. 60
15.3 Force Majeure Does Not Affect Other Obligations............................................. 60
15.4 Strikes. ................................................................................................................. 60
15.5 Right to Terminate............................................................................................... 60
SECTION 16 SEVERAL OBLIGATIONS................................................................................. 61
SECTION 17 CHOICE OF LAW ............................................................................................... 61
SECTION 18 PARTIAL INVALIDITY ..................................................................................... 61
SECTION19 NON-WAIVER..................................................................................................... 61
SECTION 20 GOVERNMENTAL JURISDICTION AND AUTHORIZATIONS ................... 61
SECTION 21 [INTENTIONALLY OMITTED]......................................................................... 62
Exhibit No. 1
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SECTION 22 SUCCESSORS AND ASSIGNS .......................................................................... 62
22.1 Restriction on Assignments. ................................................................................ 62
22.2 Permitted Assignments. ....................................................................................... 62
SECTION 23 ENTIRE AGREEMENT....................................................................................... 62
SECTION24 NOTICES.............................................................................................................. 62
24.1 Addresses and Delivery Methods. ....................................................................... 62
24.2 Changes of Address. ............................................................................................ 63
SECTION 25 CONFIDENTIALITY........................................................................................... 63
25.1 Confidential Business Information. ..................................................................... 63
25.2 Duty to Maintain Confidentiality......................................................................... 64
25.3 Idaho Power Regulatory Compliance.................................................................. 64
25.4 Irreparable Injury; Remedies. .............................................................................. 65
25.5 News Releases and Publicity. .............................................................................. 65
SECTION 26 DISAGREEMENTS ............................................................................................. 65
26.1 Negotiations......................................................................................................... 65
26.2 Choice of Forum. ................................................................................................. 65
26.3 Settlement Discussions. ....................................................................................... 66
26.4 Waiver of Jury Trial............................................................................................. 66
iv
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EXHIBITS
Exhibit 1 Generation Scheduling and Reporting
Exhibit 2 Description of Facility
Exhibit 3 Point of Delivery/Interconnection Facilities
Exhibit 4 Estimated Monthly Net Output
Exhibit 5 Contract Prices
Exhibit 6 NERC Event Types
Exhibit 7 Start-Up Testing
Exhibit 8 Form of Security—Credit Support Obligation
Exhibit 9 Required Facility Documents
Exhibit 10 Leases
Exhibit 11 Engineer's Certification of O&M Policy, Engineer's Certification
of Ongoing O&M, Engineer's Certification of Design and
Construction Adequacy.
Exhibit 12 [Reserved]
Exhibit 13 Required Insurance
Exhibit 14 Seller Authorization to Release Generation Data to Idaho Power
Exhibit 15 Attachments
Exhibit 16 As-Built Supplement
Exhibit 17 [Reserved]
Exhibit 18 Form of Construction Progress Report
Exhibit 19 Form of Operations Report
Exhibit 20 Idaho Power form of Qualified Reporting Entity Agreement
Exhibit 21 Form of Lender Consent
Exhibit 22 Form of Estoppel Certificate
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Exhibit No. 1
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THIS WORKING DRAFT DOES NOT CONSTITUTE A BINDING OFFER, SHALL NOT
FORM THE BASIS FOR AN AGREEMENT BY ESTOPPEL OR OTHERWISE, AND IS
CONDITIONED UPON EACH PARTY'S RECEIPT OF ALL REQUIRED
MANAGEMENT APPROVALS (INCLUDING FINAL CREDIT AND LEGAL
APPROVAL) AND ALL REGULATORY APPROVALS. ANY ACTIONS TAKEN BY A
PARTY IN RELIANCE ON THE TERMS SET FORTH IN THIS WORKING DRAFT OR
ON STATEMENTS MADE DURING NEGOTIATIONS PURSUANT TO THIS
WORKING DRAFT SHALL BE AT THAT PARTY'S OWN RISK. UNTIL THIS
AGREEMENT IS NEGOTIATED, APPROVED BY MANAGEMENT, EXECUTED,
DELIVERED AND APPROVED BY ALL REQUIRED REGULATORY BODIES, NO
PARTY SHALL HAVE ANY OTHER LEGAL OBLIGATIONS, EXPRESSED OR
IMPLIED, OR ARISING IN ANY OTHER MANNER UNDER THIS WORKING DRAFT
OR IN THE COURSE OF NEGOTIATIONS.
POWER PURCHASE AGREEMENT
THIS POWER PURCHASE AGREEMENT (this "Agreement"), dated as of
, 202_, (the "Effective Date"), is entered into between (the
"Seller") and Idaho Power Company, an Idaho corporation("Idaho Power" or"Buyer"). Seller
and Idaho Power are sometimes hereinafter referred to collectively as the "Parties" and
individually as a"Party."
WHEREAS, Seller intends to construct, own, operate and maintain a solar
powered generation facility for the generation of electric energy located in [ ],
[Idaho] with an Expected Nameplate Capacity Rating (as defined below) of f ] MW(AC)
(the "Facility").
WHEREAS, Seller desires to sell, and Idaho Power desires to purchase, the Net
Output and Green Tags (as defined below) delivered by the Facility in accordance with the terms
and conditions hereof.
WHEREAS,
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
set forth below and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties mutually agree as follows:
SECTION 1
DEFINITIONS, RULES OF INTERPRETATION
Defined Terms. Unless otherwise required by the context in which any term appears, initially
capitalized terms used herein shall have the following meanings:
1.1 "Abandonment"means (a)the relinquishment of all possession and control of the Facility
by Seller, other than pursuant to a transfer permitted under this Agreement, or(b) if after
commencement of the construction, testing, and inspection of the Facility, and prior to
_1_ Exhibit No. 1
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the Commercial Operation Date, there is a complete cessation of the construction, testing,
and inspection of the Facility for ninety(90) consecutive days by Seller and Seller's
contractors,but only if such relinquishment or cessation is not caused by or attributable
to an Event of Default by Idaho Power, a request by Idaho Power, or an event of Force
Maj eure.
1.2 "AC"means alternating current.
1.3 "Affiliate"means, with respect to any entity, each entity that directly or indirectly
controls, is controlled by, or is under common control with, such designated entity, with
"control"meaning the possession, directly or indirectly, of the power to direct
management and policies, whether through the ownership of voting securities or by
contract or otherwise.
1.4 "Agreement" is defined in the opening paragraph hereto.
1.5 "As-built Supplement" is a supplement to be added to Exhibit 16 that describes the
Facility as actually built,pursuant to Section 7.1 and includes an American Land Title
Association survey of the Premises.
1.6 "Anything of Value" includes, but is not limited to, cash or a cash equivalent (including
"grease", "expediting" or facilitation payments), discounts, rebates, gifts, meals,
entertainment, hospitality,use of materials, facilities or equipment, transportation,
lodging, or promise of future employment.
1.7 "Book Value"means cost minus accumulated depreciation, and not deducting for debt or
other encumbrances, calculated in accordance with generally accepted accounting
principles consistently applied.
1.8 "Business Day"means any Monday through Friday except NERC recognized holidays
beginning at 6:00 a.m. and ending at 5:00 p.m. local time in Boise, Idaho.
1.8 "Calendar Quarter"means any of four quarters in a standard calendar year, specifically
Quarter 1 is January 1 —March 31, Quarter 2 is April 1 —June 30, Quarter 3 is July 1 —
September 30, and Quarter 4 is October 1 —December 31.
1.9 "Capacity Rights"means any current or future defined characteristic, certificate, tag,
credit, reactive power, ancillary service or attribute thereof, or accounting construct,
including any of the same counted towards any current or future resource adequacy or
reserve requirements, associated with the electric generation capability and capacity of
the Facility or the Facility's capability and ability to produce energy. Capacity Rights are
measured in MW and do not include any Tax Credits, or any other tax incentives existing
now or in the future associated with the construction, ownership or operation of the
Facility.
1.10 "Change of Control"means, with respect to Seller, any transaction or series of
2
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transactions following which Seller's Parent Entity no longer directly or indirectly(i)
remains the owner of more than fifty percent (50%) of the direct or indirect equity or
voting interests of Seller which are not otherwise held by Seller's Lenders (excluding any
Tax Equity Investors), or(ii)retains the power to control the management and policies of
Seller; provided, however, that a Seller Permitted Transfer shall not be a Change of
Control.
1.11 "Commercial Operation"means that not less than the Required Percentage of the
Expected Nameplate Capacity Rating of the Facility is fully operational and reliable and
the Facility is fully interconnected, fully integrated, and synchronized with the System,
all of which shall be Seller's responsibility to receive or obtain, and without limiting
Seller's other obligations under this Agreement, which occurs when all of the enumerated
events listed in Section 4.2 (a)have occurred, and (b)remain simultaneously true and
accurate as of the date and moment on which Seller gives Idaho Power written notice that
Commercial Operation has occurred:
1.12 "Commercial Operation Date"means the day commencing at 00:01 hours, Mountain
Time, following the day that all requirements of Section 4 have been completed and after
the Seller requested Operation Date.
1.13 "Confidential Business Information" is defined in Section 25.1.
1.14 "Construction Progress Report" is defined in Section 3.2.1.
1.15 "Contract Interest Rate"means the lesser of(a) the highest rate permitted under
Requirements of Law or(b) 200 basis points per annum plus the rate per annum equal to
the publicly announced prime rate or reference rate for commercial loans to large
businesses in effect from time to time quoted by Citibank, N.A. as its "prime rate." If a
Citibank,N.A. prime rate is not available, the applicable prime rate shall be the
announced prime rate or reference rate for commercial loans in effect from time to time
quoted by a bank with $10 billion or more in assets in New York City,N.Y., selected by
the Party to whom interest is being paid.
1.16 "Contract Price"means the applicable price, expressed in dollars per
MWh for Net Output, Green Tags and Capacity Rights stated in Section 6.1.
1.17 "Contract Year"means any consecutive 12-month period during the Term, commencing
at 00:00 hours on the Commercial Operation Date or any of its anniversaries and ending
at 24:00 hours on the last day of such 12-month period.
1.18 "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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1.19 "CPCN"means Certificate of Public Convenience and Necessity.
1.20 "Credit Requirements"means (a)three (3)years of audited financial statements, a view
of the financial position and financial performance, financial statement analysis and
financial trend analysis; (b)Debt Agency Ratings - a senior,unsecured long term debt
rating (or corporate rating if such debt rating is unavailable) of BBB+or greater from
S&P, or Baal or greater from Moody's, and if such ratings are split, the lower of the two
ratings must be at least `BBB+' or `Baal' from S&P or Moody's, respectively. Idaho
Power performs a credit analysis, which considers both qualitative and quantitative
factors, to determine whether potential Counterparties have satisfied the Credit
Requirements.
1.22 "default" is defined in Section 12.1.
1.23 "Default Security" is defined in Section 9.2.1.
1.24 "Deficit Damages"means a one-time payment equal to (a)the difference between(i)
Expected Nameplate Capacity Rating and(ii)the Nameplate Capacity Rating of the
Facility on the 120th day after the Guaranteed Commercial Operation Date, stated in
MWs, multiplied by(b) [$150,000.]
1.25 "Delay Damages"means for any given day the amount equal to [$XX] multiplied by the
Expected Nameplate Capacity Rating in MW.
1.26 "Effective Date"is the date stated in the opening paragraph hereto which represents the
date upon which this Agreement was fully executed by both Parties.
1.27 "Electric System Authority"means each of NERC, WECC, WREGIS, an RTO, a
regional or sub-regional reliability council or authority, and any other similar council,
corporation, organization or body of recognized standing with respect to the operations of
the electric system in the WECC region, as such are applicable to the Seller or Idaho
Power.
1.28 "Emissions Reduction Credit"means any credit, allowance or instrument issued or
issuable by a Governmental Authority under regulations of the Environmental Protection
Agency under the Clean Air Act.
1.29 "Energy Imbalance Market"means the California Independent System Operator's
Western Energy Imbalance Market.
1.30 "Environmental Attributes"means the environmental and other attributes as may exist
from time to time that differentiate the Project or its Project Energy from energy
generated by fossil fuel or nuclear powered generating units, and any and all claims,
credits, benefits, emissions reductions, offsets, and allowances, howsoever entitled,
4
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attributable to the generation from the Project, and its displacement of conventional
energy generation, or resulting from the avoidance of the emission 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
(subject to the foregoing) sulfur oxides (SOx), nitrogen oxides (NOx), carbon monoxide
(CO), and other pollutants; (b) any avoided emissions of carbon dioxide (CO2), methane
(CH4), and 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 Emission Reduction 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 Facility Energy and(e) credits,benefits or allowances resulting from the
compliance of the Facility or Facility Energy 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 certain
other tax incentives existing now or in the future associated with the construction,
ownership or operation of the Facility, (ii) matters designated by Idaho Power as sources
of liability, or(iii) adverse wildlife or environmental impacts.
1.31 "Environmental Contamination"means the introduction or presence of Hazardous
Materials at such levels, quantities or location, or of such form or character, as to
constitute a violation of federal, state or local laws or regulations, and present a material
risk under federal, state or local laws and regulations that the Premises will not be
available or usable for the purposes contemplated by this Agreement.
1.32 "Event of Default" is defined in Section 12.1.
1.33 "Expected Energy"means MWh of Net Output in the first, full Contract Year,
reduced by an annual degradation factor of 0_3 percent per Contract Year, measured at
the Point of Delivery, which is Seller's best estimate of the projected long-term average
annual Net Output production, based upon typical solar conditions at the Facility as
determined by a Solar Performance Modeling Program, delivered to the Point of Delivery
and the Expected Nameplate Capacity Rating. Seller estimates that the Net Output will be
delivered during each Contract Year according to the estimates of Monthly Net Output
set forth in Exhibit 4. If at Final Completion the Facility's Nameplate Capacity Rating is
less than the Expected Nameplate Capacity Rating, Expected Energy shall be reduced
proportionally per year for each full MW of Nameplate Capacity Rating below the
Expected Nameplate Capacity Rating. Seller acknowledges that Idaho Power will include
Expected Energy in Idaho Power's resource planning. Idaho Power acknowledges that
solar insolation is variable and that the Facility's actual annual output of Net Output in
the ordinary course in any given year will be subject to variation caused by differences in
the actual solar insolation at the Facility from year to year and month to month.
1.34 "Expected Nameplate Capacity Rating"means f 1 MW (AC). The expected
- 5 - Exhibit No. 1
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maximum instantaneous generation capacity of the Facility.
1.35 "Facility" is defined in the Recitals and is more fully described in attached Exhibit 2 and
includes the photovoltaic power generating equipment, including panels, arrays, tracking
system (if applicable), inverters, and all other equipment, devices, associated
appurtenances owned, controlled, operated and managed by Seller in connection with, or
to facilitate, the production, generation, transmission, delivery, or furnishing of electric
energy by Seller to Idaho Power and required to interconnect with the System and
Seller's interests in the Premises, including Leases and any fee owned real property.
1.36 "FERC"means the Federal Energy Regulatory Commission.
1.37 "Final Completion"means the Facility is fully operational and reliable, at or greater than
the Required Percentage of the Expected Nameplate Capacity Rating, and fully
interconnected, fully integrated, and synchronized with the Transmission Provider's
System, modified if necessary to reflect the Nameplate Capacity Rating and, if
applicable, through completion of all the items set forth on the Final Completion
Schedule.
1.38 "Final Completion Schedule"means the full list of all items to be completed in order to
achieve Final Completion, See Section 4.2, Commercial Operation Date.
1.39 "First Generation Date"means the day commencing at 00:01 hours, Mountain Time,
following the day that Seller has satisfied the requirements of Section 3 and after the
Seller requested First Generation Date.
1.40 "Force Majeure" and"event of Force Majeure" are defined in Section 15.1.
1.41 "Forced Outage"means NERC Event Types U1, U2 and U3, as set forth in attached
Exhibit 6, and specifically excludes any Maintenance Outage or Planned Outage.
1.42 "Forward Settlement Amount"means, with respect to the non-defaulting Party, the net
Losses and Gains, and Costs, expressed in U.S. Dollars, which such Party incurs as a
result of the termination of this Agreement plus all amounts then owed to the non-
defaulting Party by the defaulting Party. If the non-defaulting Party's aggregate Gains
exceed its aggregate Losses and Costs, if any, resulting from the termination of this
Agreement, the Forward Settlement Amount shall be zero.
1.43 "Gains"means, with respect to any Party, an amount equal to the present value of the
economic benefit to it, if any(exclusive of Costs), resulting from the early termination of
this Agreement for the remainder of the Term that would have occurred but for the
occurrence of the Event of Default and early termination, determined in a commercially
reasonable manner.
1.44 "Generator Interconnection Agreement" or"GIA"means the large generator
interconnection agreement entered into separately between Seller and Interconnection
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Provider concerning the Interconnection Facilities.
1.45 "GOLC"or"Generator Output Limit Control"means the equipment and capability of an
electric generation facility to automatically adjust the generation quantity.
1.46 "GOLC Set-Point"means the analog or digital signal sent to the Facility by Idaho Power,
the Interconnection Provider, the Transmission Provider or the Market Operator
representing the maximum Net Output for the Facility.
1.47 "Government Official"means any official or employee of any multinational, national,
regional, or local government in any country, including any official or employee of any
government department, agency, commission, or division; any official or employee of
any government-owned or-controlled enterprise; any official or employee of any public
educational, scientific, or research institution; any political party or official or employee
of a political party; any candidate for public office; any official or employee of a public
international organization; and any person acting on behalf of or any relatives, family, or
household members of any of those listed above.
1.48 "Governmental Authority"means any supranational, federal, state or other political
subdivision thereof, having jurisdiction over Seller, Idaho Power or this Agreement,
including any municipality, township or county, and any entity or body exercising
executive, legislative,judicial, regulatory or administrative functions of or pertaining to
government, including any corporation or other entity owned or controlled by any of the
foregoing.
1.49 "Green Tags"means (a)the Environmental Attributes associated with all Output,
together with (b) the Green Tag Reporting Rights associated with such energy and
Environmental Attributes, however commercially transferred or traded under any or other
product names, such as "Renewable Energy Credits," "Green-e Certified," or otherwise.
One Green Tag represents the Environmental Attributes made available by the generation
of one MWh of electric energy from the Facility.
1.50 "Green Tags Price Component"means the greatest of. (1)the price for Green Tags
determined by arithmetically averaging quotes for Green Tags from three nationally
recognized independent Green Tag brokers selected by Idaho Power pursuant to which
Idaho Power could reasonably purchase substitute Green Tags similar to those Green
Tags that Seller failed to deliver,with delivery terms, vintage period and any renewable
program certification eligibility that are similar to those contained herein, calculated as of
the date of default or as soon as reasonably possible thereafter; (2) if after the Effective
Date a liquid market for Green Tags exists, the price established for Green Tags from the
established liquid market for Green Tags in a form and location that Idaho Power
determines reasonably states the market value of the Green Tags delivered hereunder; or
(3) Five Dollars ($5.00)per Green Tag.
1.51 "Green Tag Reporting Rights"means the exclusive right of a purchaser of Environmental
Attributes to report ownership of Environmental Attributes in compliance with federal or
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state law, if applicable, and to federal or state agencies or other parties at such
purchaser's discretion, including under any present or future domestic, international, or
foreign emissions trading program or renewable portfolio standard.
1.52 "Guaranteed Commercial Operation Date"means the date that is ninety(90) days after
the Scheduled Commercial Operation Date.
1.53 "Hazardous Materials"means any waste or other substance that is listed, defined,
designated or classified as or determined to be hazardous under or pursuant to any
environmental law or regulation.
1.54 "Idaho Power" and "Buyer" are defined in the opening paragraph, and explicitly excludes
Idaho Power Transmission.
1.55 "Idaho Power's Cost to Cover"means the positive difference, if any,between (a)the sum
of(i)the time weighted average of the Market Price Index for each day for which the
determination is being made, plus (ii)the Green Tags Price Component, and(b) the
Contract Price specified in Exhibit 5 in effect on such days, stated as an amount per
MWh. If on a given day(or month in the case of calculating Output Shortfall) the
difference between(a) minus (b)referenced above is zero or negative, then Idaho
Power's Cost to Cover shall be zero dollars ($0), and Seller shall have no obligation to
pay any amount to Idaho Power on account of Section 7.12.3 or Section 12.2.1 with
respect to such day (or month in the case of calculating Output Shortfall).
1.56 "Idaho Power Indemnitees" is defined in Section 13.1.1.
1.57 "Idaho Power Representatives" is defined in Section 7.13.
1.58 "Idaho Power Transmission"means Idaho Power Company, an Idaho corporation, acting
in its interconnection or transmission function capacity.
1.59 "Indemnified Party" is defined in Section 7.2.3.2.
1.60 "Indemnifying Party" is defined in Section 7.2.3.2.
1.61 "Interconnection Facilities"means all the facilities installed, or to be installed, for the
purpose of interconnecting the Facility to the System, including electrical transmission
lines, upgrades, transformers and associated equipment, substations, relay and switching
equipment, and safety equipment.
1.62 "Interconnection Provider"means Idaho Power Transmission.
1.63 "Inverter"means the equipment installed at the Facility to convert direct current from the
Solar Panels to AC, as described in Exhibit 2.
1.64 "IPUC"means the Idaho Public Utilities Commission.
8
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1.65 "IRP"means Idaho Power's Integrated Resource Plan.
1.66 "ITC"means the investment tax credit established pursuant to Section 48 of the Internal
Revenue Code, as such law may be amended or superseded.
1.67 "Leases"means the memoranda of lease and redacted leases recorded in connection with
the development of the Facility, as the same may be supplemented, amended, extended,
restated, or replaced from time to time.
1.68 "Lender"means an entity lending money or extending credit(including any financing
lease, monetization of tax benefits, transaction with a tax equity investor, backleverage
financing or credit derivative arrangement)to Seller or Seller's Affiliates (a) for the
construction, term or permanent financing or refinancing of the Facility; (b) for working
capital or other ordinary business requirements for the Facility (including for the
maintenance, repair, replacement or improvement of the Facility); (c) for any
development financing,bridge financing, credit support, and related credit enhancement
in connection with the development, construction or operation of the Facility; or(d) for
the purchase of the Facility and related rights from Seller.
1.69 "Letter of Credit"means an irrevocable standby letter of credit in a form reasonably
acceptable to Idaho Power, naming Idaho Power as the party entitled to demand payment
and present draw requests thereunder that:
1.69.1 is issued by a Qualifying Institution;
1.69.2 by its terms, permits Idaho Power to draw up to the face amount thereof for the
purpose of paying any and all amounts owing by Seller hereunder;
1.69.3 permits Idaho Power to draw the entire amount available thereunder if such letter
of credit is not renewed or replaced at least thirty (30) days prior to its stated expiration
date;
1.69.4 permits Idaho Power to draw the entire amount available thereunder if such letter
of credit is not increased or replaced as and when provided in Section 9;
1.69.5 is transferable by Idaho Power to any party to which Idaho Power may assign this
Agreement; and
1.69.6 shall remain in effect for at least ninety(90) days after the end of the Term.
1.70 "Liabilities" is defined in Section 13.1.1.
1.71 "Licensed Professional Engineer"means a person proposed by Seller and acceptable to
Idaho Power in its reasonable judgment who (a)to the extent mandated by Requirements
of Law is licensed to practice engineering in the appropriate engineering discipline for
_ 9 _ Exhibit No. 1
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the required certification being made, in the state of Idaho, (b) has training and
experience in the engineering disciplines relevant to the matters with respect to which
such person is called upon to provide a certification, evaluation or opinion, (c)has no
economic relationship, association, or nexus with Seller and is not an employee of its
members or Affiliates, other than with the prior written consent of Idaho Power, for
services previously or currently being rendered to Seller or its members or Affiliates, and
(d) is not a representative of a consulting engineer, contractor, designer or other
individual involved in the development of the Facility, or a representative of a
manufacturer or supplier of any equipment installed in the Facility.
1.72 "Losses"means, with respect to any Parry, an amount equal to the present value of the
economic loss to it, if any (exclusive of Costs), resulting from the termination of this
Agreement for the remainder of the Term that would have occurred but for the
occurrence of the Event of Default and early termination of this Agreement, determined
in a commercially reasonable manner. If Seller is the non-defaulting Party, "Losses"will
exclude the loss, repayment or recapture of any Tax Credits. If Buyer is the non-
defaulting Parry, "Losses"will include Buyer's cost of replacing this Agreement with an
agreement for new renewable capacity from a facility with similar technology that has
not yet been constructed.
1.73 "Maintenance Outage"means NERC Event Type MO, as set forth in attached Exhibit 6,
and includes any outage involving ten percent(10%) of the Facility's Net Output that is
not a Forced Outage or a Planned Outage.
1.74 "Market Operator"means the California Independent System Operator or any other entity
performing the market operator function for the Energy Imbalance Market.
1.75 "Market Price Index"means 82.4%of the monthly arithmetic average of each day's
Intercontinental Exchange ("ICE") daily firm Mid-C Peak Avg and Mid-C Off-
Peak Avg index prices in the month as follows:
The actual calculation being:
n
.824 * (Y_ {(ICE Mid-C Peak Avg,, * HLH hours for day) +
X=1
(ICE Mid-C Off-Peak Avg. * LLH hours for day)} /(n*24))
where n=number of days in the month
If the ICE Mid-C Index prices are not reported for a particular day or days,prices derived
from the respective averages of HLH and LLH prices for the immediately preceding and
following reporting periods or days shall be substituted into the formula stated in this
definition and shall therefore be multiplied by the appropriate respective numbers of HLH
and LLH Hours for such particular day or days with the result that each hour in such month
shall have a related price in such formula. If the day for which prices are not reported has in
10
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it only LLH Hours (for example a Sunday),the respective averages shall use only prices
reported for LLH hours in the immediately preceding and following reporting periods or
days. If the day for which prices are not reported is a Saturday or Monday or is adjacent on
the calendar to a holiday,the prices used for HLH Hours shall be those for HLH hours in
the nearest(forward or backward)reporting periods or days for which HLH prices are
reported
1.76 "Marketing Communications Agreement"means an agreement substantially in the form
of Exhibit"xx" attached hereto, with such revisions as may be mutually agreed upon by
Seller and Buyer.
1.77 "Maximum Delivery Rate"means the maximum hourly rate of delivery of Net Output in
MWh from the Facility to the Point of Delivery, calculated on the basis of the Net Output
delivered in an hour accruing at an average rate equivalent to the actual Nameplate
Capacity Rating.
1.78 "Moody's"means Moody's Investor Services, Inc.
1.79 "Mountain Prevailing Time" or"MPT"means Mountain Standard Time or Mountain
Daylight Time, as applicable in Idaho on the day in question.
1.80 "MW"means megawatt.
1.81 "MWh"means megawatt hour.
1.82 "Nameplate Capacity Rating"means the maximum installed instantaneous generation
capacity of the completed Facility, expressed in MW(AC), when operated in compliance
with the Generator Interconnection Agreement and consistent with the recommended
power factor and operating parameters provided by the manufacturer of the Solar Panels
and Inverters, as set forth in a written notice from Seller to Idaho Power delivered prior to
the Commercial Operation Date and, if applicable, updated in a subsequent written notice
from Seller to Idaho Power as required for Final Completion. The Nameplate Capacity
Rating of the Facility shall not exceed the Expected Nameplate Capacity Rating.
1.83 "NERC"means the North American Electric Reliability Corporation.
1.84 "Net Output"means all electric energy and capacity produced by the Facility, less station
use and less transformation and transmission losses and other adjustments (e.g., Seller's
load other than station use), if any. For purposes of calculating payment under this
Agreement,Net Output of electric energy shall be the amount of electric energy flowing
through the Point of Delivery.
1.85 "Network Resource" is defined in the Tariff.
1.86 "Network Service Provider"means Idaho Power Transmission, as a provider of network
service to Idaho Power under the Tariff.
Exhibit No. 1
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E. Hackett, IPC
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1.87 "Non-Compensable Curtailment" is defined in Section 5.4.L
1.88 "Offer Notice"is defined in Section 8.2.
1.89 "Offered Interests" is defined in Section 8.4.1.
1.90 "Off-Peak Hours" or"LLH"means the daily hours from hour ending 2300—0600 MPT, (8
hours),plus all other hours on all Sundays and NERC designated holidays.
1.91 "On-Peak Hours" or"HLH"means the daily hours from hour ending 0700-2200 MPT, (16
hours), Monday through Saturday, excluding all hours on all Sundays and NERC
designated holidays.
1.92 "Operations Report" is defined in Section 3.2.2.
1.93 "OPUC"means the Public Utility Commission of Oregon.
1.94 "Output"means all electric energy produced by the Facility.
1.95 "Output Guarantee" is defined in Section 7.12.1.
1.96 "Output Shortfall" is defined in Section 7.12.3.2.
1.97 "Party" and"Parties" are defined in the opening paragraph hereto.
1.98 "Permits"means the permits, licenses, approvals, certificates, entitlements and other
authorizations issued by Governmental Authorities required for the construction,
ownership or operation of the Facility or occupancy of the Premises, and all amendments,
modifications, supplements, general conditions and addenda thereto.
1.99 "Planned Outage"means NERC Event Type PO, as set forth in attached Exhibit 6, and
specifically excludes any Maintenance Outage or Forced Outage.
1.100 "Point of Delivery"means the point of interconnection between the Facility and the
System, as specified in the Generator Interconnection Agreement and as further described
in Exhibit 3.
1.101 "Pre-COD Damages Payment"means liquidated damages in an amount equal to the
amount of Project Development Security required to be provided hereunder,plus the
Delay Damages Seller has paid to Buyer.
1.102 "Premises"means the real property on which the Facility is or will be located, as more
fully described on Exhibits 9, 10 and 15.
1.103 "Project Development Security" is defined in Section 9.1.1.
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1.104 "Prudent Electrical Practices"means any of the practices, methods and acts engaged in or
approved by a significant portion of the independent electric power generation industry in
the United States for solar facilities of similar size and characteristics or any of the
practices, methods or acts, which, in the exercise of reasonable judgment in the light of
the facts known at the time a decision is made, could have been expected to accomplish
the desired result at the lowest reasonable cost consistent with reliability, safety and
expedition.
1.105 "Qualified Operator"is (a) a partnership, corporation or limited liability company that
demonstrates acceptable experience operating a solar generation, or(b) any other Person
reasonably acceptable to Buyer.
1.106 "Qualifying Institution"means a United States commercial bank or trust company
organized under the laws of the United States of America or a political subdivision
thereof having assets of at least $10,000,000,000 (net of reserves) and a credit rating on
its long-term senior unsecured debt of at least"A" from S&P and"A2" from Moody's.
1.107 "Reporting Month" is defined in Section 7.10.1.
1.108 "Required Facility Documents"means the Permits and other authorizations, rights and
agreements now or hereafter necessary for construction, ownership, operation, and
maintenance of the Facility, and to deliver the Net Output to Idaho Power in accordance
with this Agreement and Requirements of Law, including those set forth in Exhibit 9.
1.109 "Required Percentage"means ninety-three percent(93%).
1.110 "Requirements of Law"means any applicable and mandatory(but not merely advisory)
federal, state and local law, statute, regulation, rule, action, order, code or ordinance
enacted, adopted, issued or promulgated by any federal, state, local or other
Governmental Authority or regulatory body(including those pertaining to electrical,
building, zoning, environmental and wildlife protection and occupational safety and
health).
1.111 "Restricted Period" is defined in Section 8.2.
1.112 "Restricted Transaction" is defined in Section 8.4.1.
1.113 "ROFO" is defined in Section 8.2.
1.114 "ROFO Period" is defined in Section 8.4.1.
1.115 "ROFO Seller"is defined in Section 8.4.1.
1.116 "RTO"means any entity(including an independent system operator)that becomes
responsible as system operator for, or directs the operation of, the System.
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1.117 "S&P"means Standard& Poor's Rating Group (a division of S&P Global, Inc.).
1.118 "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
Facility.
1.119 "Sanctioned Person"means any person (i) that is the target of Sanctions or owned or
controlled by any such person(s), or(ii) located, organized or resident in, or directly or
indirectly owned or controlled by the government of any Sanctioned Territory.
1.120 "Sanctioned Territory"means any country or territory now or hereafter subject to
comprehensive Sanctions.
1.121 "SCADA"means supervisory control and data acquisition.
1.122 "Scheduled Commercial Operation Date"means
1.123 "Seller" is defined in the opening paragraph hereto.
1.124 "Seller Indemnitees" is defined in Section 13.1.2.
1.125 "Seller ROFO Notice" is defined in Section 8.4.1.
1.126 "Seller's Cost to Cover"means the positive difference, if any, between (a)the Contract
Price per MWh specified in Exhibit 5, and(b)the time weighted average of the Market
Price Index of Net Output not purchased by Idaho Power as required hereunder. If on any
given day the difference between(a) minus (b)referenced above is zero or negative, then
Seller's Cost to Cover shall be zero dollars with respect to such day, and Idaho Power
shall have no obligation to pay any amount to Seller on account of Section 12.2.2. For
any days prior to the Commercial Operation Date, the Contract Price applicable in the
first Contract Year shall be utilized for purposes of clause (a).
1.127 "Seller's Parent Entity"means [�.
1.128 "Seller Uncontrollable Minutes"means, for the Facility in any month, the total number of
minutes during such month during which the Facility was unable to deliver Net Output to
Idaho Power(or during which Idaho Power failed to accept such delivery) due to one or
more of the following events, each as recorded by SCADA and indicated by electronic
fault logs: (a) an emergency or Force Majeure event; (b)to the extent not caused by
Seller's actions or omissions, a Non-Compensable Curtailment in accordance with
Section 5.4.1; (c)the System operating outside the voltage or frequency limits defined in
the applicable operating manual for the Inverters installed at the Facility; (d)Planned
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Outages, but in no event exceeding thirty six (36)hours per Contract Year consistent with
such operating manual; (e) Compensable Curtailment as provided in Section 6.1.3; (f) a
default by Idaho Power; provided, however, that if any of the events described above in
items (a)through (e) occur simultaneously, then the relevant period of time shall only be
counted once in order to prevent double counting. Seller Uncontrollable Minutes shall not
include minutes when(i) the Facility or any portion thereof was unavailable solely due to
Seller's non-conformance with the Generation Interconnection Agreement or(ii) the
Facility or any portion thereof was paused or withdrawn from use by Seller for reasons
other than those covered in this definition.
1.129 "Senior Lenders"means Lenders being granted senior security interests on the Facility or
its assets, or Seller or its equity, other than Affiliates of Seller.
1.130 "Solar Array"means one or more Solar Panels connected to the same Inverter.
1.131 "Solar Energy Production Forecasting"is defined in Section 7.7.1.
1.132 "Solar Panels"means the photovoltaic electric energy generating panels installed at the
Facility, as described in Exhibits 2 and 15.
1.133 "Solar Performance Modeling Program"means a commercially available computer
modeling program that is generally accepted in the United States solar energy industry
capable of modeling the Expected Energy and other similar outputs. Solar Performance
Modeling Program includes, but is not limited to, the PVSYST program. If Seller elects a
Solar Performance Modeling Program to which Idaho Power does not have access, Seller,
at its cost, shall provide Idaho Power access to and the right to use the Solar Performance
Modeling Program in order for Idaho Power to fully analyze all modeling provided by
Seller under this Agreement.
1.135 "Start-Up Testing"means the start-up tests for the Facility as set forth in Exhibit 7.
1.136 "System"means the electric transmission substation and transmission or distribution
facilities owned, operated or maintained by Transmission Provider, which shall include,
after construction and installation of the Facility, the circuit reinforcements, extensions,
and associated terminal facility reinforcements or additions required to interconnect the
Facility, all as set forth in the Generation Interconnection Agreement.
1.137 "Tariff'means the Idaho Power FERC Electric Tariff Volume No. 11 Open Access
Transmission Tariff, as revised from time to time.
1.138 "Tax Credits"means any state, local and/or federal production tax credit, tax deduction,
and/or investment tax credit (including the ITC) specific to the production of renewable
energy and/or investments in renewable energy facilities.
1.139 "Term"is defined in Section 4.1.
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1.140 "Test Energy"means any Net Output during periods prior to the Commercial Operation
Date and related Capacity Rights.
1.141 "Transmission Provider"means Idaho Power Transmission.
1.142 "WECC"means the Western Electricity Coordinating Council.
1.143 "WREGIS"means the Western Renewable Energy Generation Information System.
1.144 "Compensable Curtailment Energy" is defined in Section 6.1.3.
1.145 "Compensable Curtailment Price"is defined in Section 6.1.3.2.
1.144 Rules of Interpretation.
1.144.1 General. Unless otherwise required by the context in which any term
appears, (a)the singular includes the plural and vice versa; (b)references to "Articles,"
"Sections," "Schedules," "Appendices" or"Exhibits" are to articles, sections, schedules,
appendices or exhibits hereof; (c) all references to a particular entity or an electricity
market price index include a reference to such entity's or index's successors; (d)
"herein," "hereof' and "hereunder"refer to this Agreement as a whole; (e) all accounting
terms not specifically defined herein shall be construed in accordance with generally
accepted accounting principles, consistently applied; (f)the masculine includes the
feminine and neuter and vice versa; (g) "including"means "including, without limitation"
or"including, but not limited to"; (h) all references to a particular law or statute mean
that law or statute as amended from time to time; (i) all references to electric energy or
capacity are to be interpreted as utilizing alternating current,unless expressly stated
otherwise; and 0) the word"or" is not necessarily exclusive. Reference to "days" shall be
calendar days,unless expressly stated otherwise herein.
1.144.2 Terms Not to be Construed For or Against Either Party. Each term hereof
shall be construed according to its fair meaning and not strictly for or against either Parry.
The Parties have jointly prepared this Agreement, and no term hereof shall be construed
against a Party on the ground that the Party is the author of that provision.
1.144.3 Headings. The headings used for the sections and articles hereof are for
convenience and reference purposes only and shall in no way affect the meaning or
interpretation of the provisions hereof.
1.144.4 Examples. Example calculations and other examples set forth herein are
for purposes of illustration only and are not intended to constitute a representation,
warranty or covenant concerning the example itself or the matters assumed for purposes
of such example. If there is a conflict between an example and the text hereof, the text
shall control.
16
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E. Hackett, IPC
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1.144.5 Interpretation with FERC Orders. Each Party conducts and shall conduct
its operations in a manner intended to comply with FERC Order No. 717, Standards of
Conduct for Transmission Providers, and its companion orders, requiring the separation
of its transmission and merchant functions. Moreover, the Parties acknowledge that
Interconnection Provider's transmission function offers transmission service on its
system in a manner intended to comply with FERC policies and requirements relating to
the provision of open-access transmission service. The Parties recognize that Seller will
enter into the Generation Interconnection Agreement with the Interconnection Provider.
Nothing herein is intended to make any statement about FERC jurisdiction in relation to
the Seller.
1.145 Other Terms. The Parties acknowledge and agree that the Generator Interconnection
Agreement shall be a separate and free standing contract and that the terms hereof are not
binding upon the Interconnection Provider.
This Agreement shall not be construed to create any rights between Seller and the
Interconnection Provider or between Seller and the Transmission Provider.
Seller expressly recognizes that, for purposes hereof, the Interconnection Provider and
Transmission Provider each shall be deemed to be a separate entity and separate contracting
party from Idaho Power whether or not the Generation Interconnection Agreement is entered into
with Interconnection Provider or an Affiliate thereof.
SECTION 2
REPRESENTATIONS AND WARRANTIES
2.1 Mutual Representations and Warranties. Each Party represents, covenants, and warrants
to the other that:
2.1.1 Organization. It is duly organized and validly existing under the laws of the State
of its organization.
2.1.2 Authori . It has the requisite power and authority to enter this Agreement and to
perform according to the terms hereof.
2.1.3 Corporate Actions. It has taken all corporate or entity actions required to be taken
by it to authorize the execution, delivery and performance hereof and the consummation
of the transactions contemplated hereby.
2.1.4 No Contravention. The execution and delivery hereof does not contravene any
provision of, or constitute a default under, any indenture, mortgage, security instrument
or undertaking, or other material agreement to which it is a party or by which it is bound,
or any valid order of any court, or any regulatory agency or other Governmental
Authority having authority to which it is subject.
2.1.5 Valid and Enforceable Agreement. This Agreement is a valid and legally binding
- 17 - Exhibit No. 1
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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.
2.1.6 Liti ag tion. No litigation, arbitration, investigation or other proceeding is pending
or, to the best of either Parry's knowledge, threatened in writing against either Party or its
members, with respect hereto and the transactions contemplated hereunder. No other
investigation or proceeding is pending or threatened in writing against a Party, its
members, or any Affiliate, the effect of which would materially and adversely affect the
Parry's performance of its obligations hereunder.
2.1.7 Eligible Contract Participant. It, and any guarantor of its obligations under this
Agreement, is an "eligible contract participant" as that term is defined in the United
States Commodity Exchange Act.
2.1.8 Not a Sanctioned Person. It is not a Sanctioned Person.
2.2 Seller's Further Representations and Warranties. Seller further represents, covenants, and
warrants to Idaho Power that:
2.2.1 Authori1y. Seller(a)has (or will have prior to the Commercial Operation Date) all
required regulatory authority to make wholesale sales from the Facility; (b)has the power
and authority to own and operate the Facility and be present upon the Premises for the
Term; and(c) is duly qualified and in good standing under the laws of the state of Idaho
and each other jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification.
2.2.2 No Contravention. The execution, delivery, performance and observance by Seller
of its obligations hereunder do not and will not:
2.2.2.1 contravene, conflict with or violate any provision of any material
Requirements of Law presently in effect having applicability to either Seller or
any of Seller's members;
2.2.2.2 require the consent or approval of or material filing or registration with
any Governmental Authority or other person other than such consents and
approvals which are (i) set forth in Exhibit 9 or(ii)required in connection with
the construction, operation, or maintenance of the Facility and expected to be
obtained in due course;
2.2.2.3 result in a breach of or constitute a default under any provision of any
security issued by any of Seller's members or managers, the effect of which
would materially and adversely affect Seller's performance of, or ability to
perform, its obligations hereunder, or any material agreement, instrument or
undertaking to which either Seller's members or any Affiliates of Seller's
18
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Case No. IPC-E-26-03
E. Hackett, IPC
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members is a parry or by which the property of any of Seller's members or any
Affiliates of Seller's members is bound, the effect of which would materially and
adversely affect Seller's performance of, or ability to perform, its obligations
hereunder.
2.2.3 Required Facility Documents. All Required Facility Documents are listed on
Exhibit 9. Pursuant to the Required Facility Documents, Seller holds as of the Effective
Date, or will hold by the Commercial Operation Date (or such other later date as may be
specified under Requirements of Law), and will maintain for the Term all Required
Facility Documents. The anticipated use of the Facility complies with all applicable
restrictive covenants affecting the Premises. Following the Commercial Operation Date,
Seller shall promptly notify Idaho Power of any additional Required Facility Documents.
2.2.4 Delivery of Energy. On or before the Commercial Operation Date, Seller shall
hold rights sufficient to enable Seller to deliver Net Output at the Nameplate Capacity
Rating from the Facility to the Point of Delivery pursuant to this Agreement throughout
the Term.
2.2.5 Control of Premises. Seller has all legal rights necessary for the Seller to enter
upon and occupy the Premises for the purpose of constructing, operating and maintaining
the Facility for the Term. All leases of real property required for the operation of the
Facility or the performance of any obligations of Seller hereunder are set forth and
accurately described in Exhibits 9 and 10. Seller shall maintain all leases or other land
grants necessary for the construction, operation and maintenance of the Facility as valid
for the Term. Upon request by Idaho Power, Seller shall provide copies of the
memoranda of lease recorded in connection with the development of the Facility.
2.2.6 Undertaking of Agreement; Professionals and Experts. Seller has engaged those
professional or other experts it believes necessary to understand its rights and obligations
pursuant to this Agreement. All professionals or experts including engineers, attorneys or
accountants, that Seller may have consulted or relied on in undertaking the transactions
contemplated by this Agreement have been solely those of Seller. In entering into this
Agreement and the undertaking by Seller of the obligations set forth herein, Seller has
investigated and determined that it is capable of performing hereunder and has not relied
upon the advice, experience or expertise of Idaho Power in connection with the
transactions contemplated by this Agreement.
2.2.7 Verification. All information relating to the Facility, its operation and output and
the Premises provided to Idaho Power and contained in this Agreement has been verified
by Seller and is true and accurate.
2.2.8 Renewable Claims. Seller has at all times complied with the Federal Trade
Commission requirements set forth in 16 CFR Part 260 in any communications
concerning the Output, the Facility and the Green Tags that have or may be generated
from the Facility. Seller has not claimed the Green Tags, Environmental Attributes or
other"renewable energy," "green energy," "clean energy" or similar attributes of the
_ 19 _ Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
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Output or the Facility as belonging to the Seller or any Seller Affiliate and is not aware of
any such claims made by third parties with respect to the Facility or the Output.
2.3 No Other Representations or Warranties. Each Party acknowledges that it has
entered into this Agreement in reliance upon only the representations and warranties set forth in
this Agreement, and that no other representations or warranties have been made by the other
Parry with respect to the subject matter hereof.
2.4 Continuing Nature of Representations and Warranties; Notice. The
representations and warranties set forth in this Section are made as of the Effective Date and
deemed repeated as of the Commercial Operation Date. If at any time during the Term, a Party
obtains actual knowledge of any event or information that would have caused any of the
representations and warranties in this Section 2 to be materially untrue or misleading at the time
given, such Party shall provide the other Party with written notice of the event or information,
the representations and warranties affected, and the action, if any, which such Party intends to
take to make the representations and warranties true and correct. If at any time a Party obtains
actual knowledge that the representations and warranties in this Section 2 are not true, said Parry
shall provide written notice to the other Party. The notice required pursuant to this section shall
be given as soon as practicable after the occurrence of each such event.
SECTION 3
CONDITIONS PRECEDENT TO TERM
3.1 Conditions to be granted First Generation Date. As a condition of the Buyer's acceptance
of deliveries of Net Output from the Seller, the following conditions shall be satisfied.
3.1.1 Commission/Re ug l�ry Approval. This Agreement is subject to, and the
obligations of Buyer and Seller to purchase, sell and deliver Net Output, Green Tags and
Capacity Rights hereunder shall only become fully effective upon the IPUC's approval of
all terms and provisions hereof without change or condition, declaration that all payments
to be made to Seller hereunder shall be allowed as prudently incurred expenses for
ratemaking purposes, and approval of the accounting and regulatory treatment requested
by Idaho Power in its application to the IPUC, all to the satisfaction of Buyer(the"IPUC
Approval"); provided that, notwithstanding anything to the contrary herein, if the
IPUC Approval has not been obtained on or prior to the date that is six (6) months
after the date that the filings have been made with the IPUC for the IPUC Approval,
the Parties agree to consult with each other in good faith for a period of thirty (30)
days in the event of any such delay to evaluate whether, notwithstanding such delay,
the Facility will achieve Commercial Operation by the Scheduled Commercial
Operation Date; provided, further, that if notwithstanding the good faith efforts of the
Parties they are not able to so agree, or if the Parties agree that the Facility will not
timely achieve Scheduled Commercial Operation Date, then the Agreement may be
terminated by Buyer. If IPUC Approval does not occur by the date that is twelve (12)
months after the filing of this Agreement for IPUC Approval, then either Party will
have a right to terminate this Agreement and upon any such termination neither Party
shall have any obligation to the other under this Agreement, except with respect to
20
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Case No. IPC-E-26-03
E. Hackett, IPC
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the terms and provisions hereof that expressly survive the termination of this
Agreement.
3.1.2 Idaho Power will promptly(but in no event later than sixty(60) days following
the Effective Date) submit applications with the IPUC for IPUC Approval and pay all
costs associated with such filings. Following Idaho Power's filing of such applications
for IPUC Approval, Idaho Power shall promptly apprise Seller of any material updates
with respect thereto. As promptly as possible,but in any event no later than thirty(30)
days, after the IPUC issues an order or other final determination with respect to an
application for IPUC Approval, Idaho Power shall notify Seller thereof(providing a copy
of such order or determination).
3.2. Idaho Power's Right to Monitor. After the Effective Date, Seller shall, and shall permit
Idaho Power and each of its respective advisors and consultants to:
3.2.1 On and after the Execution Date through the Commercial Operation Date, by the
tenth (loth) Business Day of each month, Seller will provide Buyer a monthly report for
the prior month regarding development, financing and construction updates in the form
attached hereto as Exhibit 18, the form of which may be reasonably revised by Buyer
from time to time (the "Construction Progress Report").
3.2.2 Thirty (30) days prior to the expected Commercial Operation Date and thereafter
from the Commercial Operation Date and throughout the Settlement Term of this
Agreement, no later than the end of the month immediately following the month for
which information is being reported, Seller shall provide Buyer with a monthly report for
the prior month regarding material data pertaining to the operation of the Facility in the
form of Exhibit 19, the form of which may be reasonably revised by Buyer from time to
time (the "Operations Report"). Each Operations Report shall include any information
provided in a similar report delivered pursuant to the Facility's power purchase
agreement, and including,but not limited to, the following information for the Facility in
such month: (i) A description of any Outages or other performance issues or curtailments
in the prior month; (ii)Updated forecast (hourly) of Facility Energy for the immediately
succeeding twelve (12) month period, or shorter period ending through the end of the
Term if applicable; and(iii) A description of any issues that could materially impact (ii).
3.2.3 Review and discuss with Seller and its advisors and consultants monthly status
reports on the progress of the acquisition, design, financing, engineering, construction
and installation of the Facility.
3.2.4 Monitor the status of the acquisition, Premises, land leasing, design, financing,
engineering, construction and installation of the Facility and the performance of the
contractors constructing the Facility.
3.2.5 Witness initial performance tests and other tests and review the results thereof;
with Seller to make best efforts to provide Idaho Power five (5) Business Days' advance
written notice of each such major test. Seller shall provide Idaho Power with at least two
_ 21 _ Exhibit No. 1
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(2) Business Days prior written notice of each such test,with the understanding that if the
performance of such test is dependent on the presence of sufficient solar insolation or
other variables beyond the control of Seller, the date of such test may be postponed if, on
the date specified in the related notice, there is insufficient solar insolation or other
circumstances beyond the control of Seller that prevent the performance of such test on
the scheduled date.
3.2.6 Perform such examinations, inspections, and quality surveillance as, in Idaho
Power's reasonable judgment, are appropriate and advisable to determine that the Facility
has been properly commissioned and Commercial Operation and Final Completion have
been achieved.
With respect to Idaho Power's right to monitor under this Section 3.2, (i) Idaho Power is under
no obligation to exercise any of these monitoring rights, (ii) such monitoring shall occur subject
to reasonable rules developed by Seller regarding Facility construction, access, health, safety,
and environmental requirements, and(iii) Idaho Power shall have no liability to Seller for failing
to advise it of any condition, damages, circumstances, infraction, fact, act, omission or disclosure
discovered or not discovered by Idaho Power with respect to the Facility or any contractor. Any
review or monitoring of the Facility conducted by Idaho Power hereunder shall be performed in
a manner that does not impede, hinder,postpone, or delay Seller or its contractors in their
performance of the engineering, construction, design or testing of the Facility. Idaho Power shall
maintain one or more designated representatives for purposes of the monitoring activities
contemplated in this Section 3.2, which representatives shall have authority to act for Idaho
Power in all technical matters under this Section 3.2 as authorized by Idaho Power but not to
amend or modify any provision hereof. A Construction Progress Report and Operations Report
delivered pursuant to this Section 3.2 shall not constitute notice for any purpose under this
Agreement, including with respect to any fact, circumstance, request, issue, dispute or matter
included in such report. Seller does not herein grant Idaho Power the right to review, comment
on or approve of the terms or conditions of any contract or negotiation between Seller and a third
party, the terms and conditions of each such contract or negotiation being confidential and to be
determined by Seller in its sole discretion. Conversely, nothing in this Agreement shall be
construed to require Idaho Power to review, comment on, or approve of any contract between
Seller and a third party and any such review, comment or approval by Idaho Power shall not
constitute a waiver by Idaho Power or any of Seller's obligations under this Agreement or create
any obligation or liability for Idaho Power.
SECTION 4
TERM AND COMMERCIAL OPERATION DATE
4.1 Term. This Agreement shall become effective on the Effective Date and, subject to
earlier termination as provided in this Agreement, shall continue in full force and effect for a period of
Contract Years from the Commercial Operation Date(the"Term").
4.2 Commercial Operation Date. Seller will in good faith using commercially
reasonable efforts seek to achieve the Commercial Operation Date by the Scheduled Commercial
Operation Date. The Commercial Operation Date shall occur after all the following conditions
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have been satisfied.
4.2.1 Idaho Power has received the Default Security, as applicable.
4.2.2 Seller shall notify Buyer of the Seller's proposed Commercial Operation Date, in
written form no later than five (5)Business Days prior to the proposed Commercial
Operation Date.
4.2.3 Seller shall provide to Idaho Power a certificate from a Licensed Professional
Engineer licensed in the state of Idaho addressed to Idaho Power stating that Seller has
(a) the Required Facility Documents including the material permits, consents and
agreements necessary to operate and maintain the Facility and(b) obtained or entered
into all Permits and Required Facility Documents. Seller must provide copies of any or
all Required Facility Documents requested by Idaho Power.
4.2.4 Seller shall provide Idaho Power with documentation showing that Seller has
obtained retail electric service for the Facility.
4.2.5 Idaho Power has received a certificate addressed to Idaho Power from a Licensed
Professional Engineer stating that, in conformance with the requirements of the
Generation Interconnection Agreement: (1) all required Interconnection Facilities have
been constructed; (2) all required interconnection tests have been completed; and(3) the
Facility is physically interconnected with the System in conformance with the Generation
Interconnection Agreement and able to deliver electric energy consistent with the terms
of this Agreement.
4.2.6 Idaho Power has received, addressed to Idaho Power from a Licensed
Professional Engineer, an executed Engineer's Certification of Design & Construction
Adequacy and an Engineer's Certification of Operations and Maintenance (O&M)
Policy. These certificates will be in the form specified in Exhibit 11 but may be modified
to the extent necessary to recognize the different engineering disciplines providing the
certificates.
4.2.7 Idaho Power has received an opinion from a law firm or attorney licensed in the
State of Idaho stating, after all appropriate and reasonable inquiry(1) Seller has obtained
or entered into all Required Facility Documents; and(2)neither Seller nor the Facility are
in violation of or subject to any liability under any Requirements of Law.
4.2.8 Idaho Power has received a certificate addressed to Idaho Power from an
authorized officer of Seller(1) stating that Seller has completed all of its obligations
under the Generation Interconnection Agreement that would permit Idaho Power to
designate the Facility as a Network Resource and receive firm transmission service from
the Transmission Provider in sufficient capacity to meet or exceed the Maximum
Delivery Rate; and(2)that includes a document from the Transmission Provider
confirming each of the items to which the Seller certifies in(1) above.
_ 23 _ Exhibit No. 1
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4.2.9 Seller has satisfied its obligation to pay for any required Network Upgrades as a
Network Resource pursuant to the Generation Interconnection Agreement (as those terms
are defined in the Generation Interconnection Agreement).
4.2.10 Seller shall submit written proof to the Buyer of all insurance required in Section
14.
4.2.11 Commercial Operation Date Notice. Seller shall provide written notice to Idaho
Power stating when Seller believes that the Facility has achieved Commercial Operation
and its Nameplate Capacity Rating accompanied by the certificates and opinions
described above. Seller shall ensure that the Facility does not achieve Commercial
Operation in any Calendar Quarter prior to the Calendar Quarter in which the Scheduled
Commercial Operation Date falls.
4.2.12 Idaho Power shall have ten (10) Business Days after receipt of such written notice
from Seller either to confirm to Seller that all of the conditions to Commercial Operation
have been satisfied or have occurred, or to state with specificity what Idaho Power
reasonably believes has not been satisfied. If, within such ten (10) Business Day period,
Idaho Power does not respond or notifies Seller confirming that the Facility has achieved
Commercial Operation, the original date of receipt of Seller's written notice shall be the
Commercial Operation Date. If Idaho Power notifies Seller within such ten (10)Business
Day period that Idaho Power reasonably believes the Facility has not achieved
Commercial Operation, Seller must address the concerns stated in Idaho Power's notice
to the satisfaction of Idaho Power. In the event Idaho Power provides notice of deficiency
with regards to the information submitted to establish the Commercial Operation Date,
then the Commercial Operation Date will be the date upon which Seller has addressed the
concerns stated in Idaho Power's notice to Idaho Power's reasonable satisfaction.
4.2.13 If Commercial Operation of the Facility is achieved based on less than one
hundred percent(100%) of the Expected Nameplate Capacity Rating, then Seller may
inform Idaho Power,by written notice received no later than ten(10) Business Days after
the Commercial Operation Date, that Seller intends to bring the Facility above the
Required Percentage up to but not exceeding one hundred percent(100%) of the
Expected Nameplate Capacity Rating. Such notice from Seller shall include a Final
Completion Schedule. After providing that notice, Seller shall cause the Facility to
achieve Final Completion on or before the ninetieth(901h) day after the Commercial
Operation Date.
4.2.14 If Commercial Operation is achieved at less than one hundred percent (100%) of
the Expected Nameplate Capacity Rating and Seller informs Idaho Power that Seller
intends to bring the Facility to one hundred percent(100%) of the Expected Nameplate
Capacity Rating, Seller shall provide Idaho Power, no later than ten (10) Business Days
after the Commercial Operation Date, with the Final Completion Schedule. All items on
the Final Completion Schedule must be completed on or before the ninetieth (90th) day
after the Commercial Operation Date. If a Final Completion Schedule is not provided to
Idaho Power within ten(10)Business Days following the Commercial Operation Date,
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then the date of Final Completion shall be the same as the Commercial Operation Date.
The conditions set forth in this Section are to be used solely for the purposes of determining
when the Facility has achieved a First Generation Date and are not intended to affect in any way
when the Facility is deemed to have been"placed in service" for tax treatment purposes.
With respect to Sections 4.2.3 through 4.2.6 above, the certificate or opinion provided to Idaho
Power must come from a Licensed Professional Engineer or, in the case of Section 4.2.7 above,
an attorney that is not an employee of Seller(or any Affiliate) and has no financial interest in the
Facility.
Notwithstanding the foregoing, the date for achieving each of the foregoing items shall be
extended on a day for day basis for any delay due solely to Idaho Power's delay in taking, or
failure to take, any action required of it hereunder in breach of this Agreement.
Without limiting Seller's obligations under this Agreement, none of the following shall excuse in
any respect Seller's failure to comply with any and all provisions in this Section 3, no matter
what the source or reason, unless an accepted event of Force Majeure.
These Commercial Operation Date requirements are to be used solely for purposes of
determining when the Facility has achieved its Commercial Operation Date. They are not
intended to affect in any way when the Facility is deemed to have been"placed in service" for
purposes of tax treatment eligibility or purposes.
4.3 Seller covenants and agrees that before it delivers Test Energy to Buyer, it shall ensure
that it has done all of the following, and Buyer shall hold Buyer harmless from and against any
failure of Seller to have done so:
4.3.1 All Facility systems necessary for the stable, safe, reliable and consistent
operation of the installed Facility are substantially complete, any testing of the installed
Facility required pursuant to the Interconnection Agreement(s) and Interconnection
Provider documents and equipment supplier requirements have been successfully
completed, and the Facility is available for operation in all material respects in
accordance with the Requirements of Law.
4.3.2 Seller shall request and obtain written confirmation from the Buyer that all
conditions to acceptance of Test Energy have been fulfilled. Such written confirmation
shall be provided within a commercially reasonable time following the Seller's request
and will not be unreasonably withheld by the Buyer.
4.4 Continuing Obligations. Seller shall provide Buyer with the following during the Term of
this Agreement:
4.4.1 At Buyer's request, Seller shall provide evidence that it is in compliance with the
insurance requirements set forth in Section 14.
_ 25 _ Exhibit No. 1
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4.4.2 Seller shall maintain compliance and remain in good standing in all requirements
of Sections 3 and 4 of this Agreement.
4.5 Commercial Operation Date Delay, Delay Damages and Deficit Damages.
4.5.1 If Commercial Operation is not achieved on or before the Scheduled Commercial
Operation Date, Seller shall pay to Idaho Power Delay Damages from and after the
Scheduled Commercial Operation Date up to,but not including, the date that the Facility
achieves Commercial Operation. Delay Damages cease to accrue in the event of
termination of this Agreement.
4.5.2 If the Facility does not achieve Commercial Operation by the Guaranteed
Commercial Operation Date, Idaho Power may terminate this Agreement pursuant to
Section 12.
4.5.3 If the Facility achieves Final Completion based on less than one hundred percent
(100%) of the Expected Nameplate Capacity Rating, Seller shall pay to Idaho Power
Deficit Damages.
After the date of Final Completion, any partially completed Solar Array shall not be part of the
Facility, and Seller shall not undertake to add any such partially completed Solar Array or output
from such partially completed Solar Array to the Facility without the prior written consent of
Idaho Power, such consent will not be unreasonably withheld.
4.6 Damages Calculation. Each Party agrees and acknowledges that (a) the damages that
Idaho Power would incur due to Seller's delay in achieving Commercial Operation or failure to
reach Final Completion based on one hundred percent(100%) of the Expected Nameplate
Capacity Rating would be difficult or impossible to predict with certainty, and(b) it is
impractical and difficult to assess actual damages in the circumstances stated, and therefore the
Delay Damages and Deficit Damages as agreed to by the Parties and set forth herein are a fair
and reasonable calculation of such damages. The Parties agree that Delay Damages and Deficit
Damages shall be Idaho Power's exclusive remedy for a delay in achieving Commercial
Operation or failure to reach Final Completion based on one hundred percent(100%) of the
Expected Nameplate Capacity Rating and believe that Delay Damages and Deficit Damages
fairly represent actual damages. Subject to the foregoing sentence, this Section 4.5 shall not limit
Seller's termination rights or the amount of damages payable to Idaho Power if this Agreement is
terminated as a result of Seller's failure to achieve Commercial Operation by the Guaranteed
Commercial Operation Date. Any such termination damages shall be determined in accordance
with Section 12.4.
4.7 Damages Invoicing. By the tenth(101h) day following the end of the calendar month in
which Delay Damages begin to accrue or Deficit Damages are incurred, as applicable, and
continuing on the tenth(101h) day of each calendar month during the period in which Delay
Damages accrue (and the following months, if applicable), Idaho Power shall deliver to Seller an
invoice showing Idaho Power's computation of such damages and any amount due Idaho Power
in respect thereof for the preceding calendar month.No later than ten (10) days after receiving
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such an invoice and subject to Sections 11.2 and 11.3, Seller shall pay to Idaho Power,by wire
transfer of immediately available funds to an account specified in writing by Idaho Power or by
any other means agreed to by the Parties in writing from time to time, the amount set forth as due
in such invoice.
4.8 Tax Credits. Seller shall notify Idaho Power whether Seller has elected to claim the ITC
within thirty (30) days following-the date that Seller(or Seller's Affiliate, on a consolidated
basis) files its first tax return after the Commercial Operation Date. Seller shall bear all risks,
financial and otherwise throughout the Term, associated with Seller's or the Facility's eligibility
to receive the ITC or other Tax Credits, or to qualify for accelerated depreciation for Seller's
accounting, reporting or tax purposes. The obligations of the Parties hereunder, including those
obligations set forth herein regarding the purchase and price for and Seller's obligation to deliver
Net Output, shall be effective regardless of whether the sale of Output or Net Output from the
Facility is eligible for, or receives, the ITC or other Tax Credits during the Term.
SECTION 5
DELIVERIES OF NET OUTPUT AND GREEN TAGS
5.1 Purchase and Sale. Except as otherwise expressly provided herein, commencing on the
Commercial Operation Date and continuing through the Term, Seller shall sell and make
available to Idaho Power, and Idaho Power shall purchase and receive (a)the entire Net Output
from the Facility at the Point of Delivery, and(b) all Green Tags associated with the Output or
otherwise resulting from the generation of energy by the Facility. Idaho Power shall be under no
obligation to make any purchase hereunder other than Net Output and all Green Tags, as
described above. Idaho Power shall not be obligated to purchase, receive or pay for Output(or
Green Tags associated with such Output)that is not delivered to the Point of Delivery. In
addition, during the period between the Effective Date and the Commercial Operation Date,
Seller shall sell and make available to Idaho Power, and Idaho Power shall purchase and receive,
all Net Output and Green Tags from the Facility as Test Energy at the price specified in Section
6.1.1.
5.2 No Sales to Third Parties. During the Term, Seller shall not sell any Net Output, energy,
Green Tags or Capacity Rights from the Facility to any party other than Idaho Power; provided,
however, that this restriction shall not apply during periods when Idaho Power is in default
hereof because it has failed to accept the Net Output or Green Tags delivered by Seller to Buyer
as required hereunder .
5.3 Title and Risk of Loss of Net Output. Seller shall deliver Net Output, Green Tags and
Capacity Rights to Idaho Power free and clear of all liens, claims and encumbrances. Title to and
risk of loss of all Net Output shall transfer from Seller to Idaho Power upon its delivery to Idaho
Power at the Point of Delivery. Seller shall be deemed to be in exclusive control of, and
responsible for, any damage or injury caused by, all Output up to and at the Point of Delivery.
Idaho Power shall be deemed to be in exclusive control of, and responsible for, any damages or
injury caused by,Net Output after the Point of Delivery.
_ 27 _ Exhibit No. 1
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5.4 Curtailment.
5.4.1 Non-Compensable Curtailment. Idaho Power shall not be obligated to purchase,
receive,pay for, or pay any damages associated with,Net Output if such Net Output is
not delivered to the System or Point of Delivery for any of the following reasons: (a)the
interconnection between the Facility and the System is disconnected, suspended or
interrupted, in whole or in part, consistent with the terms of the Generator
Interconnection Agreement, (b) the Balancing Authority, Reliability Coordinator,
Transmission Provider or Network Service Provider directs a general curtailment,
reduction, or redispatch of generation in the area, (which would include the Net Output)
for any reason, including to operate within system limitations or otherwise, or a
curtailment or reduction of generation under the terms of any Limited Operations Study
or Generator Interconnection Agreement for the Facility, but excluding curtailment of
purchases for general economic reasons, even if and no matter how such curtailment or
redispatch directive is carried out by Idaho Power, which may fulfill such directive by
acting in its sole discretion;, (c) the Facility's Output is not received because the Facility
is not fully integrated or synchronized with the System, or(d) an event of Force Majeure
prevents either Party from delivering or receiving Net Output(each of the foregoing a
"Non- Compensable Curtailment").
A curtailment shall be a Non-Compensable Curtailment if Seller is requested and able to
generate Net Output and deliver such Net Output to Idaho Power at a location other than
the Point of Delivery, and Idaho Power(i) accepts and pays for such Net Output as if it
were delivered to the Point of Delivery and (ii) reimburses Seller for any incremental
costs incurred by Seller to deliver such Net Output to such other location.
Non-Compensable Curtailments do not include curtailments for general economic
reasons (which Idaho Power would pay for pursuant to Section 12.2.2),nor do they
include curtailments or instructions to reduce output based on economics directed by the
Market Operator, or by an Independent System Operator("ISO") or an RTO, if the
Facility or Buyer joins an ISO or RTO during the Term.
5.4.2 Compensable Curtailment. Idaho Power shall pay Seller for Compensable
Curtailment Energy as set forth in Section 6.1.3.
5.5 Idaho Power as Purchaser. Seller acknowledges that Idaho Power, acting in its
capacity as purchaser under this Agreement, has no responsibility for or control over
Idaho Power Transmission or any successor Transmission Provider.
5.6 Green Taas.
5.6.1 Title. Idaho Power will be granted ownership of 100% of the Green Tags and
Environmental Attributes associated with the Facility. Title to 100% of the Green Tags
and Environmental Attributes shall pass from Seller to Idaho Power immediately upon
the generation of the Output at the Facility that gives rise to such Green Tags or
Environmental Attributes. Idaho Power's title to 100% of the Environmental Attributes
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and Green Tags shall expire at the end of the term of this Agreement with respect to
Output generated after the end of the term of this Agreement, unless the Parties agree to
extend in future agreements. If after the Effective Date and during the term of this
Agreement any additional Green Tags, Environmental Attributes or similar
environmental value is created by legislation, regulation, or any other action, including
but not limited to, carbon credits and carbon offsets, Idaho Power shall be granted
ownership of 100% of these additional Green Tags and Environmental Attributes and
environmental values that are associated with the Net Output delivered by the Seller to
Idaho Power. Seller shall use prudent and commercially reasonable efforts to ensure that
any operations of the Facility do not jeopardize the current or future Green Tags or
Environmental Attribute status of this solar generation Facility. Seller will deliver all of
the Green Tags and Environmental Attributes generated by the Facility during the Term,
without substitution of Green Tags or Environmental Attributes from any other source.
5.6.2 Documentation. At least sixty(60) days prior to the First Generation Date, the
Parties shall mutually cooperate to enable Idaho Power's Green Tags and Environmental
Attributes from this Facility to be placed into the WREGIS account designated by Idaho
Power's or any other Green Tag or Environment Attribute accounting and tracking
system selected by the Idaho Power. The Seller at the Seller's sole expense will be
responsible to establish and maintain the Seller's WREGIS or other Green Tag and
Environmental Attribute account and/or system that enables the creation of the
Environmental Attribute certificates associated with this Facility and the transfer of 100%
of the Green Tags and Environmental Attributes to Idaho Power for the Term of this
Agreement. If the Green Tag or Environmental Attribute accounting and tracking system
initially selected by Idaho Power is materially altered or discontinued during the Term of
this Agreement, the Parties shall cooperate to identify an appropriate alternative Green
Tag or Environmental Attribute accounting and tracking process and enable the Green
Tag or Environmental Attributes be processed through this alternative method.
5.6.3 Seller, at its own cost and expense, shall register with,pay all fees required by,
and comply with, all reporting and other requirements of WREGIS relating to the Facility
or Green Tags. Seller shall ensure that the Facility will participate in and comply with,
during the Term, all aspects of WREGIS. Seller shall, at its sole expense, effectuate the
transfer of WREGIS Certificates to Idaho Power's WREGIS account in accordance with
WREGIS Operating Rules. Seller may either elect to enter into a Qualified Reporting
Entity Services Agreement with Idaho Power in a form similar to that in Exhibit 20 or
elect to retain a third-party or act as its own WREGIS-defined Qualified Reporting
Entity; provided, however, that if the Facility is in Idaho Power's balancing authority
area, Seller must enter into a Qualified Reporting Entity Services Agreement with Idaho
Power in the form of Exhibit 20 and not do so with any third party. Unless the failure to
deliver WREGIS Certificates was caused by action of Idaho Power not acting in its
capacity as Qualified Reporting Entity under the Qualified Reporting Entity Services
Agreement, Idaho Power shall be entitled to a refund of the Green Tags Price Component
of Green Tags associated with any Net Output for which WREGIS Certificates are not
delivered, and shall not transfer the affected Green Tags back to Seller,provided that
Seller shall have thirty (30) days after the conclusion of any applicable WREGIS dispute
- 29 - Exhibit No. 1
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resolution process to correct any error and deliver such WREGIS Certificates to Idaho
Power or provide such refund payment. Seller shall promptly provide Idaho Power
copies of all documentation it submits to WREGIS. If WREGIS changes the WREGIS
Operating Rules after the execution of this Agreement or applies the WREGIS Operating
Rules in a manner inconsistent with this Agreement after the execution of this
Agreement, the Parties will promptly cooperate as reasonably required to cause and
enable Seller to deliver WREGIS Certificates associated with the Output to Idaho
Power's WREGIS account. Further, in the event of the promulgation of a scheme
involving Green Tags administered by a Governmental Authority,upon notification by
such Governmental Authority that any transfers contemplated by this Agreement will not
be recorded, the Parties shall promptly cooperate in taking all reasonable actions
necessary so that such transfers can be recorded.
5.6.4 If Idaho Power requests additional Environmental Attribute certifications beyond
what is provided by the WREGIS process the Seller shall use its best efforts to obtain any
Environmental Attribute certifications required by Idaho Power for those Environmental
Attributes delivered to Idaho Power from the Seller. If the Seller incurs cost, as a result of
Idaho Power's request, and if the additional certification provides benefits to both Parties,
the Parties shall share the costs in proportion to the additional benefits obtained. If Idaho
Power elects to obtain its own certifications, then Seller shall fully cooperate with Idaho
Power in obtaining such certification.
5.6.5 Publiciiy. Seller shall not make any public statement or report under any program
that any of the Green Tags purchased by Idaho Power hereunder belong to any person
other than Idaho Power. Seller shall reasonably cooperate in any registration by Idaho
Power of the Facility in the renewable portfolio standard or equivalent program in all
such further states and programs in which Idaho Power may wish to register or
maintained registered the Facility by providing copies of all such information as Idaho
Power reasonably requires for such registration.
5.6.6 Renewable Claims. Seller shall not report in any public communication, or under
any program, that any of the Environmental Attributes or part thereof provided to Buyer
hereunder belong to any Person other than Buyer. Seller hereby irrevocably assigns to
Buyer all rights, title and interest in the Environmental Attributes for Buyer to own, hold
and transfer, including any rights associated with any renewable energy information or
tracking system that exists or may be established(including participation in any
applicable Environmental Attribute registration or tracking program)with regard to
monitoring, registering, tracking, certifying, or trading such Environmental Attributes.
Seller will not claim the Green Tags, Environmental Attributes or other"renewable
energy," "green energy," "clean energy" or similar attributes of the Output or the Facility
as belonging to the Seller or any Seller Affiliate or to any person or entity other than
Idaho Power. Seller shall promptly report to Buyer any such claims made by third parties
of which Seller becomes aware. To the extent that any such public communication is
allowed under this Agreement, in any public communication concerning the Facility,
Facility Energy or the Environmental Attributes, Seller must at all times be fully
compliant with the Federal Trade Commission's "Green Guides," 77 Federal Register
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62122, including 16 Code of Federal Regulations §260.15. The Parties agree to work
together in good faith to cause the correction of any confusing or misleading claim or
public communications made by a Party or a third party concerning any relationship with
each other or each other's Affiliates, the Environmental Attributes, or the Facility. Seller
covenants not to collect for its own benefit any cryptocurrency,blockchain, and similar
or related commodities, tokens, or anything of actual, potential, or theoretical value
related to, measured by, or associated with Facility Energy or based upon or relating to
Facility Energy.
5.7 Purchase and Sale of Capacity Rights. For and in consideration of Idaho Power's
agreement to purchase from Seller the Facility's Net Output and Green Tags on the terms and
conditions set forth herein, Seller transfers to Idaho Power, and Idaho Power accepts from Seller,
all right, title, and interest that Seller may have in and to Capacity Rights, if any, existing during
the Term.
5.8 Representation Regarding Ownership of Capaci . Rights. Seller represents that it has not
sold, and covenants that during the Term it will not sell or attempt to sell to any other person or
entity the Capacity Rights, if any. During the Term, Seller shall not report to any person or entity
that the Capacity Rights, if any,belong to anyone other than Idaho Power. Idaho Power may at
its own risk and expense report to any person or entity that Capacity Rights exclusively belong to
it.
5.9 Authority to Make Sales. Seller covenants that during the Term it will maintain all
required regulatory authority to make wholesale sales from the Facility to Idaho Power.
5.10 Further Assurances. At Idaho Power's request, the Parties shall execute such documents
and instruments as may be reasonably required to effect recognition and transfer of the Net
Output or Capacity Rights, if any, to Idaho Power or Green Tags to Customer.
SECTION 6
CONTRACT PRICE; COSTS
6.1 Contract Price includes Green Tags and Capacity Rights. Idaho Power shall pay Seller
the prices stated below for all deliveries of Net Output, Green Tags and Capacity Rights, up to
the Maximum Delivery Rate. The price provided for Test Energy in Section 6.1.1 and the
Contract Price provided for in Section 6.1.2, and the Compensable Curtailment Price provided
for in Section 6.1.3 include the consideration to be paid by Idaho Power to Seller for all Net
Output, Green Tags, Capacity Rights and Test Energy, respectively, and Seller shall not be
entitled to any compensation over and above the Contract Price or the Test Energy price, as the
case may be, for the Green Tags and Capacity Rights associated therewith.
6.1.1 Test Energy and Net Output Before Commercial Operation Date. Between the
Effective Date and the Commercial Operation Date, Seller shall sell and deliver to Idaho
Power all Test Energy and Net Output, provided that Test Energy and Net Output
delivery to Idaho Power shall not commence more than sixty(60) days prior to the
Scheduled Commercial Operation Date. Idaho Power shall pay Seller for such Test
_ 31 _ Exhibit No. 1
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Energy and Net Output delivered at the Point of Delivery, an amount per MWh equal to
eighty-five percent(85%) of the Market Price Index for the applicable hour on the
applicable day in the applicable month, provided, however, that Seller's right to receive
payment for such Test Energy and Net Output is subject to Idaho Power's right of offset
under Section 11.2 for, among other things, payment by Seller of any Delay Damages
owed to Idaho Power by Seller pursuant to Section 4.4 and Section 9.1.2.
6.1.2 Net Output After Commercial Operation Date. For the period beginning on the
Commercial Operation Date and thereafter during the Term, Idaho Power shall pay to
Seller the Contract Price per MWh of Net Output delivered to the Point of Delivery, as
specified in Exhibit 4.
6.1.3 Compensable Curtailment. If, during the period beginning on the Commercial
Operation Date and thereafter during the Term,Net Output is curtailed by Idaho Power
and such curtailment is not included as a Non-Compensable Curtailment("Compensable
Curtailment Energy"), then Idaho Power shall pay to Seller the Compensable Curtailment
Price for the Compensable Curtailment Energy, as determined below.
6.1.3.1 The Parties will calculate the quantity of Compensable Curtailment
Energy by determining the Potential Net Output (A) during those periods of time
when the Facility is on GOLC and the GOLC Set-Point is set at a level that will
not allow the entire Nameplate Capacity Rating to be deliverable by determining
the difference between Potential Net Output and the delivered Net Output, and
(B) during those periods of time when the Facility is not on GOLC or the GOLC
Set-Point is set at a level that will allow the Nameplate Capacity Rating to be
deliverable by determining the amount that would have been available for
delivery had its generation not been so curtailed. Compensable Curtailment
Energy shall equal the number of kWh represented by the Potential Net Output
less the Net Output actually delivered to the Point of Delivery.
6.1.3.2 Idaho Power will pay Seller the Contract Price for each kWh of
Compensable Curtailment Energy, net of any Non-Compensable Curtailments
(the "Compensable Curtailment Price").
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6.1.3.3 For purposes of determining Compensable Curtailment Energy, the amount of Potential
Net Output at any given time will be calculated using Idaho Power's solar forecasting
vendor/tool. 6.2 Costs and Charges. Seller shall be responsible for paying or satisfying
when due all costs or charges imposed in connection with the scheduling and delivery of Net
Output up to and at the Point of Delivery, including transmission costs, Transmission Service,
and transmission line losses, and any operation and maintenance charges imposed by
Interconnection Provider and Transmission Provider for the Interconnection Facilities. Idaho
Power shall be responsible for all costs or charges, if any, imposed in connection with the
delivery of Net Output at and from the Point of Delivery, including transmission costs and
transmission line losses and imbalance charges or penalties. Without limiting the generality of
the foregoing, Seller, in accordance with the Generation Interconnection Agreement, shall bear
all costs associated with the modifications to Interconnection Facilities or the System(including
system upgrades) caused by or related to (a) the interconnection of the Facility with the System
and(b) any increase in generating capacity of the Facility.
6.3 Station Service. Seller shall be responsible for arranging and obtaining, at its sole risk and
expense, any station service required by the Facility that is not provided by the Facility itself.
6.4 Taxes. Seller shall pay or cause to be paid when due, or reimburse Idaho Power for, all
existing and any new sales,use, excise, severance, ad valorem, and any other similar taxes,
imposed or levied by any Governmental Authority on the Net Output, Capacity Rights or Green
Tags up to and including,but not beyond, the Point of Delivery, regardless of whether such taxes
are imposed on Idaho Power or Seller under Requirements of Law. Idaho Power shall pay or
cause to be paid when due all such taxes imposed or levied by any Governmental Authority on
the Net Output, Capacity Rights or Green Tags beyond the Point of Delivery, regardless of
whether such taxes are imposed on Idaho Power or Seller under Requirements of Law. The
Contract Price shall not be adjusted on the basis of any action of any Governmental Authority
with respect to changes to or revocations of sales and use tax benefits, rebates, exception or give
back. In the event any taxes are imposed on a Party for which the other Party is responsible
hereunder, the Party on which the taxes are imposed shall promptly provide the other Parry
written notice thereof and such other information as such Party may reasonably request with
respect to any such taxes. Seller shall be responsible for any and all sun and light severance
taxes.
6.5 Costs of Ownership and Operation. Without limiting the generality of any other provision
hereof and subject to Section 6.4, Seller shall be solely responsible for paying when due (a) all
costs of owning and operating the Facility in compliance with existing and future Requirements
of Law and the terms and conditions hereof, and (b) all taxes and charges (however
characterized) now existing or hereinafter imposed on or with respect to the Facility, its
operation, or on or with respect to emissions or other environmental impacts of the Facility,
including any such tax or charge (however characterized) to the extent payable by a generator of
such energy or Environmental Attributes.
_ 33 _ Exhibit No. 1
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E. Hackett, IPC
Page 95 of 495

6.6 Rates Not Subject to Review. The rates for service specified herein shall remain in effect
until expiration of the Term, and shall not be subject to change for any reason, including
regulatory review, absent agreement of the Parties. Neither Party shall petition FERC pursuant to
the provisions of Sections 205 or 206 of the Federal Power Act(16 U.S.C. § 792 et seq.) to
amend such prices or terms, or support a petition by any other person or entity seeking to amend
such prices or terms, absent the agreement in writing of the other Party. Further, absent the
agreement in writing by both Parties, the standard of review for changes hereto proposed by a
Party, a non-party or the FERC acting sua sponte shall be the "public interest" application of the
"just and reasonable" standard of review set forth in United Gas Pipe Line Co. v. Mobile Gas
Service Corp., 350 U.S. 332 (1956) and Federal Power Commission v. Sierra Pacific Power Co.,
350 U.S. 348 (1956) and clarified by Morgan Stanley Capital Group. Inc. v. Public Util. Dist.
No. 1 of Snohomish, 554 U.S. 527, 128 S. Ct. 2733 (2008).
SECTION 7
OPERATION AND CONTROL
7.1 As-Built Supplement. Within thirty(30) days of completion of construction of the
Facility, Seller shall provide Idaho Power the As-built Supplement. The As-built Supplement
shall be deemed effective and shall be added to Exhibit 16 when it has been reviewed and
approved by Idaho Power, which approval shall not be unreasonably withheld or delayed. If the
proposed As-built Supplement does not accurately describe the Facility as actually built or is
otherwise defective as to form in any material respect, Idaho Power may within fifteen (15) days
after receiving the proposed As-built Supplement give Seller a notice describing what Idaho
Power wishes to correct. If Idaho Power does not give Seller such a notice within the fifteen(15)
day period, the As-built Supplement shall be deemed approved. If Idaho Power provides a timely
notice requiring corrections, Seller shall in good faith cooperate with Idaho Power to revise the
As-built Supplement to address Idaho Power's concerns. Notwithstanding the foregoing, Idaho
Power shall have no right to require Seller to relocate, modify or otherwise change in any respect
any aspect of the Facility as actually built.
7.2 Standard of FacilityOperation.
7.2.1 General. At Seller's sole cost and expense, Seller shall build, operate, maintain
and repair the Facility and the Interconnection Facilities in accordance with(a) the
applicable and mandatory standards, criteria and formal guidelines of FERC,NERC, any
RTO, and any other Electric System Authority and any successors to the functions
thereof, (b)the Permits and Required Facility Documents; (c)the Generation
Interconnection Agreement; (d) all Requirements of Law; (e)the requirements hereof;
and(f) Prudent Electrical Practice. Seller will have no claims against Idaho Power under
this Agreement with respect to the provision of station service.
7.2.2 Qualified Operator. From and after the Commercial Operation Date, Seller will
cause the Project to be operated and maintained by a Qualified Operator. Seller shall
provide Idaho Power thirty (30) days prior written notice of any proposed change in the
Qualified Operator of the Facility.
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7.2.3 Fines and Penalties.
7.2.3.1 Without limiting a Party's rights under Section 7.2.3.2, each Party shall
pay all fines and penalties incurred by such Party on account of noncompliance by
such Party with Requirements of Law in respect to this Agreement, except where
such fines and penalties are being contested in good faith through appropriate
proceedings.
7.2.3.2 If fines, penalties, or legal costs are assessed against or incurred by either
Parry(the "Indemnified Party") on account of any action by any Governmental
Authority due to noncompliance by the other Party (the "Indemnifying Party")
with any Requirements of Law or the provisions hereof, or if the performance of
the Indemnifying Party is delayed or stopped by order of any Governmental
Authority due to the Indemnifying Party's noncompliance with any Requirements
of Law, the Indemnifying Party shall indemnify and hold harmless the
Indemnified Party against any and all losses, liabilities, damages, and claims
suffered or incurred by the Indemnified Party as a result thereof. Without limiting
the generality of the foregoing, the Indemnifying Party shall reimburse the
Indemnified Party for all fees, damages, or penalties imposed on the Indemnified
Parry by any Governmental Authority, other person or entity or to other utilities
for violations to the extent caused by a default by the Indemnifying Party or a
failure of performance by the Indemnifying Parry hereunder.
7.3 Interconnection. Seller shall be responsible for the costs and expenses associated with
obtaining from the Transmission Provider Network Resource interconnection service for the
Facility at its Nameplate Capacity Rating at the Point of Delivery. Seller shall have no claims
hereunder against Idaho Power, acting in its capacity as purchaser,with respect to any
requirements imposed by or damages caused by (or allegedly caused by) acts or omissions of the
Transmission Provider or Interconnection Provider, in connection with the Generation
Interconnection Agreement or otherwise.
7.4 Coordination with System. Seller shall be responsible for the coordination and
synchronization of the Facility and the Interconnection Facilities with the System.
7.5 Outages.
7.5.1 Planned Outages. Except as otherwise provided herein, Seller shall not schedule a
Planned Outage during daylight hours (sun up to sunset) during any portion of the months
of November, December, January, February, June, July, and August, except to the extent
a Planned Outage is reasonably required to enable a vendor to satisfy a guarantee
requirement. Seller shall provide Idaho Power with an annual forecast of Planned
Outages for each Contract Year at least one (1) month, but no more than three (3)
months, before the first day of that Contract Year, and shall promptly update such
schedule, or otherwise change it, only to the extent that Seller is reasonably required to
change it in order to comply with Prudent Electrical Practices. Seller shall not schedule
any maintenance of Interconnection Facilities during such months,without the prior
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written approval of Idaho Power, which approval shall not be unreasonably withheld or
delayed.
7.5.2 Maintenance Outages. If Seller reasonably determines that it is necessary to
schedule a Maintenance Outage, Seller shall notify Idaho Power in writing of the
proposed Maintenance Outage as soon as practicable but in any event at least five (5)
days before the outage begins (or such shorter period to which Idaho Power may
reasonably consent in light of then-existing solar conditions). Upon such notice, the
Parties shall plan the Maintenance Outage to mutually accommodate the reasonable
requirements of Seller and the service obligations of Idaho Power; provided, however,
that Seller shall take all reasonable measures consistent with Prudent Electrical Practices
to not schedule any Maintenance Outage during the daylight hours of the following
periods: November, December, January, February, June 15 through June 30, July,
August, and September 1 through September 15. Notice of a proposed Maintenance
Outage shall include the expected start date and time of the outage, the amount of
generation capacity of the Facility that will not be available, and the expected completion
date and time of the outage. Seller shall give Idaho Power notice of the Maintenance
Outage as soon as practicable after Seller determines that the Maintenance Outage is
necessary. Idaho Power shall promptly respond to such notice and may request
reasonable modifications in the schedule for the outage. Seller shall use all reasonable
efforts to comply with any request to modify the schedule for a Maintenance Outage
provided that such change has no substantial impact on Seller. Seller shall notify Idaho
Power of any subsequent changes in generation capacity available to Idaho Power as a
result of such Maintenance Outage or any changes in the Maintenance Outage completion
date and time. As soon as practicable, any notifications given orally shall be confirmed in
writing. Seller shall take all reasonable measures consistent with Prudent Electrical
Practices to minimize the frequency and duration of Maintenance Outages.
Notwithstanding anything in this Section 7.5.2 to the contrary, Seller may schedule a
Maintenance Outage at any time and without the requirement to notify Idaho Power five
(5) days in advance during conditions of low solar insolation, but shall notify Idaho
Power promptly after Seller decides to schedule such Maintenance Outage.
7.5.3 Forced Outages. Seller shall promptly provide to Idaho Power an oral report, via
telephone to a number specified by Idaho Power(or other method approved by Idaho
Power), of any Forced Outage resulting in more than ten percent (10%) of the Nameplate
Capacity Rating of the Facility being unavailable. This report shall include the amount of
the generation capacity of the Facility that will not be available because of the Forced
Outage and the expected return date of such generation capacity. Seller shall promptly
update the report as necessary to advise Idaho Power of changed circumstances. As soon
as practicable, the oral report shall be confirmed in writing by notice to Idaho Power.
Seller shall take all reasonable measures consistent with Prudent Electrical Practices to
avoid Forced Outages and to minimize their duration.
7.5.4 Notice of Deratings and Outages. Without limiting the foregoing, Seller will
inform Idaho Power, via telephone to a number specified by Idaho Power(or other
method approved by Idaho Power), of any major limitations, restrictions, deratings or
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outages known to Seller affecting the Facility for the following day(except curtailments
of Net Output at the direction of Idaho Power) and will promptly update Seller's notice to
the extent of any material changes in this information, with"major" defined as affecting
more than five percent(5%) of the Nameplate Capacity Rating of the Facility.
7.5.5 Effect of Outages on Estimated Output. Seller represents and warrants that the
estimated monthly net output set forth on Exhibit 4 takes into account the Planned
Outages, Maintenance Outages, and Forced Outages that Seller reasonably expects to
encounter in the ordinary course of operating the Facility.
7.6 Scheduling.
7.6.1 Cooperation and Standards. With respect to any and all scheduling requirements
hereunder, (a) Seller shall cooperate with Idaho Power with respect to scheduling Net
Output, and(b) each Party shall designate authorized representatives to communicate
with regard to scheduling and related matters arising hereunder. Each Party shall comply
with the applicable variable resource standards and criteria of any applicable Electric
System Authority.
7.6.2 Schedule Coordination. If, as a result hereof, Idaho Power is deemed by an RTO
to be financially responsible for Seller's performance under the Generation
Interconnection Agreement, due to Seller's lack of standing as a"scheduling coordinator"
or other RTO recognized designation, qualification or otherwise, then Seller shall acquire
such RTO recognized standing (or shall contract with a third party who has such RTO
recognized standing) such that Idaho Power is no longer responsible for Seller's
performance under the Generation Interconnection Agreement or RTO requirement.
7.7 Forecasting.
7.7.1 Solar Energy Production Forecast. "Solar Energy Production Forecast"means the
Idaho Power administered solar forecasting model for all solar projects that are under
contract and online providing energy to Idaho Power. The Seller shall be responsible for
an allocated portion of the total costs of the forecasting model and to provide solar
irradiation and weather data specified in Section 7.7.2.
7.7.2 Solar Energy Production Forecast Cost and Data. Seller shall contribute to the
cost of the Solar Energy Production Forecasting. The Facility's share of Solar Energy
Production Forecasting is determined as specified below. Seller's payments for the cost
of the Solar Energy Production Forecasting in any Contract Year will not be greater than
0.1% of the total energy payments made to Seller by Idaho Power hereunder during the
previous Contract Year.
a. For every month of this Agreement beginning with the first full month after the
First Energy Date as specified in this Agreement, the Solar Energy Production
Forecasting Monthly Cost Allocation(MCA)will be due and payable by the
Seller. Any Solar Energy Production Forecasting Monthly Cost Allocations
_ 37 _ Exhibit No. 1
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E. Hackett, IPC
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(MCA)that are not reimbursed to Idaho Power shall be deducted from energy
payments to the Seller.
b. During the first Contract Year, as the value of the 0.1% cap of the total energy
payments to be made to Seller by Idaho Power hereunder will not be known until
the first Contract Year is complete, Idaho Power will deduct the Facility's
calculated share of the Solar Energy Production Forecasting costs specified in
item d each month during the first Contract Year and subsequently refund any
overpayment(payments that exceed the cap) in equal monthly amounts over the
ensuing Contract Year.
c. The cost allocation formula described below will be reviewed and revised if
necessary on the last day of any month in which the cumulative MW nameplate of
Solar projects having IPUC approved agreements to deliver energy to Idaho
Power has been revised by an action of the IPUC.
d. The monthly cost allocation will be based upon the following formula:
Where: Total MW (TMW) is equal to the total Nameplate Capacity rating of all solar
projects that are under contract and online providing energy to Idaho Power Company.
Facility MW(FMW) is equal to the Expected Nameplate Capacity rating of this Facility
as specified within this Agreement.
Annual Solar Energy Production Forecasting Cost(AFCost) is equal to the total
annual cost Idaho Power incurs to provide Solar Energy Production Forecasting. Idaho
Power will estimate the AFCost for the current year based upon the previous year's cost
and expected costs for the current year. At year-end, Idaho Power will compare the actual
costs to the estimated costs and any differences between the estimated AFCost and the
actual AFCost will be included in the next year's AFCost.
Annual Cost Allocation (ACA)=AFCost X (FMW/TMW)
And
Monthly Cost Allocation (MCA)=ACA/ 12
e. The Solar Energy Production Forecasting Monthly Cost Allocation (MCA) is due
and payable to Idaho Power. The MCA will first be netted against any monthly
energy payments owed to the Seller. If the netting of the MCA against the
monthly energy payments results in a balance being due Idaho Power, the Facility
shall pay this amount within fifteen(15) days of the date of the payment invoice.
7.7.2.1 The Seller shall also provide solar irradiation and weather data specific to the
Facility's physical location to Idaho Power via real time telemetry in a form
acceptable to Idaho Power. The specific equipment and location of this equipment
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shall be specified in the GIA. This data will provided at 10 second intervals and will
consist of:
a.) Global Horizontal Irradiance
b.) Plane of Array
C.) Temperature
d.) Wind Speed and Direction
7.8 No Increase in Nameplate Capacity Rating. Without limiting Section 8 or any restrictions
herein on Nameplate Capacity Rating, Seller may not increase the ability of the Facility to
deliver Net Output in quantities in excess of the Maximum Delivery Rate through any means,
including replacement or modification of Facility equipment or related infrastructure, without
consent of Idaho Power, which Idaho Power may grant or withhold in its sole and absolute
discretion.
7.9 Electronic Communications.
7.9.1 GOLC.
7.9.1.1 Beginning on the Commercial Operation Date, Idaho Power will dispatch
Facility through its GOLC system installed by Seller.
Idaho Power may notify Seller, by telephonic communication or through use of
the GOLC Set-Point, to curtail the delivery of Net Output to Idaho Power from
the Facility and to the Point of Delivery, pursuant to Section 5.4, and Seller shall
promptly comply with such notification.
The GOLC Set-Point is calculated by the Transmission Provider and
communicated electronically through the SCADA system. Seller shall ensure
that, throughout the Term, the SCADA signal is capable of functioning on all
GOLC Set-Points within the margin of error specified in the Facility control
system manufacturer's set point margin of error.
Unless otherwise directed by Idaho Power, Seller shall ensure that the Facility
GOLC is in"Remote" set-point control during normal operations.
7.9.2 Telemetering. Seller shall during the Term provide telemetering equipment and
facilities capable of transmitting the following information concerning the Facility
pursuant to the Generation Interconnection Agreement and to Idaho Power on a real-time
basis, and will operate such equipment when requested by Idaho Power to indicate
instantaneous MW output at the Point of Delivery.
Commencing on the date of initial delivery of Test Energy, Seller shall also transmit or
cause to be transmitted to or make accessible to Idaho Power any other data from the
Facility that Seller receives on a real time basis, including meteorological data, solar
- 39 - Exhibit No. 1
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insolation data and Net Output data. Such real time data shall be provided to or be made
accessible to Idaho Power on the same basis on which Seller receives the data(e.g., if
Seller receives the data in four second intervals, Idaho Power shall also receive the data
in four second intervals). Seller must provide Idaho Power access to Seller's web-based
performance monitoring system.
7.9.3 Transmission Provider Consent. Seller shall execute a consent, in the form
required by Transmission Provider, to provide that Idaho Power can read the meter and
receive any and all data from the Transmission Provider relating to transmission of Net
Output or other matters relating to the Facility without the need for further consent from
Seller.
7.9.4 Dedicated Communication Circuit. Seller shall install a dedicated direct
communication circuit (which may be by common carrier telephone)between Idaho
Power and the control center in the Facility's control room or such other communication
equipment as the Parties may agree.
7.10 Reports and Records.
7.10.1 Monthly Reports. Commencing on the Commercial Operation Date, within thirty
(30) days after the end of each calendar month during the Term (each, a"Reporting
Month"), Seller shall provide to Idaho Power a report in electronic format, which report
shall include (a) summaries of the Facility's solar insolation and actual and predicted
output data for the Reporting Month in intervals not to exceed one hour(or such shorter
period as is reasonably possible with commercially available technology), including
information from the Facility's computer monitoring system; (b) summaries of any other
significant events related to the construction or operation of the Facility for the Reporting
Month; and(c) any supporting information that Idaho Power may from time to time
reasonably request(including historical solar insolation data for the Facility).
7.10.2 Electronic Fault Log. Seller shall maintain an electronic fault log of operations of
the Facility during each hour of the Term commencing on the Commercial Operation
Date. Seller shall provide Idaho Power with a copy of the electronic fault log within thirty
(30) days after the end of the calendar month to which the fault log applies.
7.10.3 Other Information to be Provided to Idaho Power. Seller shall provide to Idaho
Power the following information concerning the Facility:
7.10.3.1 Upon the request of Idaho Power, the manufacturers' guidelines
and recommendations for maintenance of the Facility equipment;
7.10.3.2 A report summarizing the results of maintenance performed during
each Maintenance Outage, Planned Outage, and any Forced Outage, and upon
request of Idaho Power any of the technical data obtained in connection with such
maintenance;
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7.10.3.3 Before Final Completion, a monthly progress report stating the
percentage completion of the Facility and a brief summary of construction activity
during the prior month;
7.10.3.4 Before Final Completion, a monthly report containing a brief
summary of construction activity contemplated for the next calendar month;
7.10.3.5 From and after the Commercial Operation Date, a monthly report
detailing the availability of the Facility; and
7.10.3.6 At any time from the Effective Date, one year's advance notice of
the termination or expiration of any material agreement, including Leases,
pursuant to which the Facility or any material equipment relating thereto is upon
the Premises; provided that the foregoing does not authorize any early termination
of any land lease. In the event Seller has less than one year's advance notice of
such termination or expiration, Seller shall provide the notice contemplated by
this Section to Idaho Power within fifteen (15)Business Days of Seller obtaining
knowledge of the termination or expiration.
7.10.4 Information to Governmental Authorities. Seller shall,promptly upon written
request from Idaho Power,provide Idaho Power with all data collected by Seller related
to the construction, operation or maintenance of the Facility reasonably required by Idaho
Power or an Affiliate thereof for reports to, and information requests from, any
Governmental Authority or Electric System Authority. Along with this information,
Seller shall provide to Idaho Power copies of all submittals to Governmental Authorities
or Electric System Authorities directed by Idaho Power and related to the operation of the
Facility with a certificate that the contents of the submittals are true and accurate to the
best of Seller's knowledge. Seller shall use best efforts to provide this information to
Idaho Power with sufficient advance written notice to enable Idaho Power to review such
information and meet any submission deadlines imposed by the requesting organization
or entity. Idaho Power shall reimburse Seller for all of Seller's reasonable actual costs
and expenses in excess of$10,000 per year, if any, incurred in connection with Idaho
Power's requests for information under this Section 7.10.4.
7.10.5 Data Request. Seller shall, promptly upon written request from Idaho Power,
provide Idaho Power with data collected by Seller related to the construction, operation
or maintenance of the Facility reasonably required for information requests from any
Governmental Authorities, state or federal agency intervener or any other party achieving
intervenor status in any Idaho Power rate proceeding or other proceeding before any
Governmental Authority. Seller shall use best efforts to provide this information to Idaho
Power sufficiently in advance to enable Idaho Power to review it and meet any
submission deadlines. Idaho Power shall reimburse Seller for all of Seller's reasonable
actual costs and expenses in excess of$10,000 per year, if any, incurred in connection
with Idaho Power's requests for information under this Section 7.10.5.
7.10.6 Documents to Governmental Authorities. After sending or filing any statement,
_ 41 _ Exhibit No. 1
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application, and report or any document with any Governmental Authority or Electric
System Authority relating to operation and maintenance of the Facility, Seller shall,
within five (5) Business Days of such submission or filing, provide to Idaho Power a
copy of the same.
7.10.7 Environmental Information. Seller shall,promptly upon written request from
Idaho Power, provide Idaho Power with all data reasonably requested by Idaho Power
relating to environmental information under the Required Facility Documents. Seller
shall further provide Idaho Power with information relating to environmental impact
mitigation measures it is taking in connection with the Facility's construction or
operation that are required by any Governmental Authority. Idaho Power shall reimburse
Seller for all of Seller's reasonable actual costs and expenses in excess of$10,000 per
year, if any, incurred in connection with Idaho Power's requests for the foregoing
information under this Section 7.10.7. As soon as it is known to Seller, Seller shall
disclose to Idaho Power, the extent of any material violation of any environmental laws
or regulations arising out of the construction, operation, or maintenance of the Facility, or
the presence of Environmental Contamination at the Facility or on the Premises, alleged
to exist by any Governmental Authority having jurisdiction over the Premises, or the
present existence of, or the occurrence during Seller's occupancy of the Premises of, any
enforcement, legal, or regulatory action or proceeding relating to such alleged violation
or alleged presence of Environmental Contamination presently occurring or having
occurred during the period of time that Seller has occupied the Premises.
7.10.8 Operational Reports. Seller shall provide Idaho Power monthly operational
reports in a form and substance reasonably acceptable to Idaho Power, and Seller shall,
promptly upon written request from Idaho Power, provide Idaho Power with all
operational data requested by Idaho Power with respect to the performance of the Facility
and delivery of Net Output, Green Tags or Capacity Rights therefrom.
7.10.9 Notice of Material Adverse Events. Seller shall promptly notify Idaho Power of
receipt of written notice or actual knowledge by Seller or its Affiliates of the occurrence
of any event of default under any material agreement to which Seller is a party and of any
other development, financial or otherwise, which would have a material adverse effect on
Seller, the Facility or Seller's ability to develop, construct, operate, maintain or own the
Facility as provided herein. Seller shall promptly disclose to Buyer(but in no case later
than two (2) Business Days after Seller obtains actual knowledge) any violation of any
Applicable Laws arising out of the construction or operation of the Facility by Seller, its
Affiliates or any contractor of any of them, including any Qualified Operator, or the
existence of any past or present enforcement, legal, or regulatory action or proceeding
relating to the Facility, if such violation, action or proceeding adversely affects or could
reasonably be expected to adversely affect the construction or operation of the Facility or
the commercial reputation of Buyer or any of their respective Affiliates.
7.10.10 Notice of Litigation. Following its receipt of written notice or actual
knowledge of the commencement of any action, suit, or proceeding before any court or
Governmental Authority against Seller or its members with respect to this Agreement or
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the transactions contemplated hereunder, Seller shall,within ten(10) days of such notice
or knowledge, give written notice to Idaho Power of the same. Following its receipt of
written notice or actual knowledge of the commencement of any action, suit or
proceeding before any court or Governmental Authority against Seller, its members or
any Affiliate, the effect of which would materially and adversely affect Seller's
performance of its obligations hereunder, Seller shall, within ten(10) days of such notice
or knowledge, give notice to Idaho Power of the same.
7.10.11 Additional Information. Seller shall provide to Idaho Power such other
information respecting the condition or operations of Seller, as such pertains to Seller's
performance of its obligations hereunder, or the Facility as Idaho Power may, from time
to time, reasonably request.
7.10.12 Confidential Treatment. The monthly reports and other information
provided to Idaho Power under this Section 7.10 shall be treated as Confidential Business
Information if such treatment is requested in writing by Seller at the time the information
is provided to Idaho Power, subject to Idaho Power's rights to disclose such information
pursuant to Sections 7.10.4, 7.10.5, 7.10.7, 11.5, 25.2 and 25.3, and pursuant to any
applicable Requirements of Law. Seller shall have the right to seek confidential treatment
of any such information from the Governmental Authority entitled to receive such
information.
7.11 Financial and Accounting Information. If Idaho Power or one of its Affiliates determines
that,under(i)the Accounting Standards Codification(ASC) 810, Consolidation of Variable
Interest Entities, and(ii) Requirements of Law that it may hold a variable interest in Seller,but it
lacks the information necessary to make a definitive conclusion, Seller hereby agrees to provide,
upon Idaho Power's written request, sufficient financial and ownership information so that Idaho
Power or its Affiliate may confirm whether a variable interest does exist under ASC 810 and
Requirements of Law. If Idaho Power or its Affiliate determines that, under ASC 810, it holds a
variable interest in Seller, Seller hereby agrees to provide, upon Idaho Power's written request,
sufficient financial and other information to Idaho Power or its Affiliate so that Idaho Power may
properly consolidate the entity in which it holds the variable interest or present the disclosures
required by ASC 810 and Requirements of Law. Idaho Power shall reimburse Seller for Seller's
reasonable costs and expenses, if any, incurred in connection with Idaho Power's requests for
information under this Section 7.11.
7.12 Output Guarantee.
7.12.1 Output Guarantee. Seller is obligated to deliver a quantity of Net Output during
each month which is equal to the Output Guarantee. For purposes of this Agreement,
"Output Guarantee" for any month means the sum of(i) 90% of the Expected Energy of
the Facility for such month, less (ii) any quantities of Output that were not delivered to
the Point of Delivery(or accepted by Idaho Power) in such month during periods
constituting Seller Uncontrollable Minutes (such quantity calculated on the basis of the
Net Output capable of being delivered in an hour at an average rate equivalent to the
actual Nameplate Capacity Rating).
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7.12.1.2 Seller's Adjustment of Estimated Monthly Net Output Amounts in
Exhibit 4 After the Commercial Operation Date. After the Commercial Operation
Date, the Seller may revise any future estimated monthly Net Output amounts in
Exhibit 4 by providing written notice no later than 5 PM Mountain Time on the 25th
day of the month that is prior to the month to be revised. If the 251h day of the month
falls on a weekend or holiday, then written notice must be received on the last
Business Day prior to the 25th day of the month. For example, if the Seller would
like to revise the Estimated Net Output Amount for October, they would need to
submit a revised schedule no later than September 251h or the last Business Day prior
to September 25th
a.) This written notice must be provided to Idaho Power in
accordance with Section 24.1 or by electronic notice as agreed to
by both Parties.
b.) Failure to provide timely written notice of changes to the
Estimated Net Output Amounts will be deemed to be an election
of no change from the most recently provided monthly Estimated
Net Output Amounts.
7.12.2 Liquidated Damages for Output Shortfall.
7.12.2.1 If the quantity of Net Output delivered by the Facility during any
month is equal to or greater than the Output Guarantee for such month, Seller's
delivery obligation for such month shall be deemed satisfied for that month.
7.12.2.2 If the quantity of Net Output delivered by the Facility during any
month is less than the Output Guarantee for such month, the resulting shortfall, if
any, shall be determined for that month(the "Output Shortfall"). The Output
Shortfall shall be expressed in MWh and calculated in accordance with the
following formula:
Output Shortfall= (90% of the Expected Energy for the month).
less
Any quantities of Output that were not delivered to the Point of Delivery(or
accepted by Idaho Power) in such month during periods constituting Seller
Uncontrollable Minutes (such quantity calculated on the basis of the Net Output
capable of being delivered in an hour at an average rate equivalent to the actual
Nameplate Capacity Rating),
less
The Net Output for the month.
44
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7.12.2.3 If the product of the Output Shortfall calculation set forth in
Section 7.12.2.1 is a positive number, Seller shall pay Idaho Power liquidated
damages equal to the product of(i)the Output Shortfall for that month, multiplied
by (ii) Idaho Power's Cost to Cover for that month. If the product of the Output
Shortfall calculation set forth in Section 7.12.2.1 is a negative number, Seller shall
not be obligated to pay Idaho Power liquidated damages for such month.
7.12.2.4 Each Parry agrees and acknowledges that(i)the damages that
Idaho Power would incur due to the Facility's failure to achieve the Output
Guarantee would be difficult or impossible to predict with certainty and(ii)the
liquidated damages contemplated by this provision are a fair and reasonable
calculation of such damages.
7.13 Access Rights. Upon reasonable prior notice and subject to the prudent safety
requirements of Seller, and Requirements of Law relating to workplace health and safety, Seller
shall provide Idaho Power and its authorized agents, employees and inspectors ("Idaho Power
Representatives")with reasonable access to the Facility: (a) for the purpose of reading or testing
metering equipment, (b) as necessary to witness any acceptance tests, (c) to provide tours of the
Facility to customers and other guests of Idaho Power(not more than twelve (12)times per
year), (d) for purposes of implementing Sections 2.7 or 10.5, and(e) for other reasonable
purposes at the reasonable request of Idaho Power. Idaho Power shall release Seller from any and
all Liabilities resulting from actions or omissions by any of the Idaho Power Representatives in
connection with their access to the Facility, except to the extent that such Liabilities are caused
by the intentional or negligent act or omission of Seller or its agents or Affiliates.
7.14 Facili . Images. Idaho Power shall be free to use any and all images from or of the
Facility for promotional purposes, subject to Seller's consent(not to be unreasonably withheld or
delayed, and which consent may consider Requirements of Law relating to Premises security,
obligations to outside vendors (including any confidentiality obligations), and the corporate
policies of Seller's Affiliates). Upon Idaho Power's request and at Idaho Power's expense, Seller
shall install imaging equipment at the Facility as Idaho Power may request, including video and
or web-based imaging equipment subject to the prudent safety requirements of Seller, and
Requirements of Law relating to workplace health and safety. Idaho Power shall retain full
discretion on how such images are presented including associating images of the Facility with a
Idaho Power-designated corporate logo.
SECTION 8
RIGHT OF FIRST OFFER AND OWNERSHIP OR PURCHASE OPTION
8.1 For purposes of this Section 8, any reference to "Buyer" or"Idaho Power" shall also
mean Buyer's or Idaho Power's "Affiliate" as that term is defined in this Agreement.
8.2 Right of First Offer. If this Agreement is terminated for any reason prior to the
Commercial Operation Date, then during the Restricted Period, neither Seller nor any of Seller's
Affiliates may enter into any agreement to sell, or hedge the quantity of, Energy or Green Tags
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generated by equipment installed at the Premises to any parry other than Buyer, without first
offering the same material price and terms of such agreement to Buyer by written notice ("Offer
Notice"). "Restricted Period"means a period that ends eighteen(18) months after the effective
date of a termination. If Buyer rejects or fails to respond to the Offer Notice within fifteen(15)
Business Days, or the Parties negotiate to enter into an agreement but are unable to execute a
definitive agreement within sixty(60) days after Buyer accepts such offer from Seller, then
Seller shall have the right to enter into an agreement with a third party on terms and conditions in
the aggregate not more favorable than the terms and conditions contained in the Offer Notice. If
either Seller or any of its Affiliates wish to enter into an agreement with a third parry on terms in
the aggregate more favorable to such third party than those offered to Buyer in the Offer Notice,
or if Seller or such Affiliate fails to close the transaction which gave rise to Seller's obligation to
provide an Offer Notice within nine (9)months following the issuance of the Offer Notice, then
any subsequent agreement during the Restricted Period shall again be subject to this Section 8.2.
This Section 8.2 shall be specifically enforceable by Buyer without bond and without the need to
prove irreparable harm. Neither Seller nor Seller's Affiliates may sell or transfer the Facility, or
any part thereof, or land rights or interests in the Site (including the Interconnection Agreement)
during the Restricted Period, except by a transfer permitted by Section 8.2. Upon termination of
this Agreement prior to the Commercial Operation Date, Seller shall deliver a notice of Buyer's
rights in respect of the Site, in an executed, recordable form reasonably acceptable to Buyer, that
Buyer may record in the real estate records giving notice of Buyer's rights under this Section 8.2.
Seller enters into this Section 8.2 as authorized agent for all of its present and future Affiliates.
This Section 8.2 shall apply until the earlier of the expiration of the Restricted Period and the
consummation of the first bona fide transfer in accordance with its terms.
8.3 Termination of Duty to Buy. If this Agreement is terminated because of a default by
Seller, neither Seller, nor any successor to Seller with respect to the ownership of the Facility
(for whom Seller acts herein as agent), may thereafter require or seek to require Buyer to
purchase Output from the Facility under Public Utility Regulatory policy Act on account of its
status as a Qualifying Facility, or any other Requirements of Law, for any periods that would
have been within the Term had this Agreement remained in effect. Seller, on behalf of itself and
on behalf of any other entity on whose behalf it may act, hereby waives its rights to require
Buyer to do so.
8.4 Right of First Offer on Ownership.
8.4.1 At any time subsequent to the Effective Date of this Agreement, except in
accordance with this Section 8.4.1, Seller: (a) shall not sell, transfer or offer to sell or
transfer, the Facility; and(b) shall cause its immediately upstream owner(s) (together
with Seller, each a"ROFO Seller")not to sell, transfer or offer to sell or transfer, any
ownership interest in Seller(the Facility and ownership interests in Seller, as applicable,
each the "Offered Interests") other than to an Affiliate in accordance with the provisions
of Section 22.2 (each a"Restricted Transaction"). If a ROFO Seller intends to enter into a
Restricted Transaction, Seller shall provide Buyer with written notice of same (a"Seller
ROFO Notice"), and Buyer shall have a right of first offer with respect to the purchase of
such Offered Interests. Within thirty (30) days after receipt of the Seller ROFO Notice,
Buyer shall notify Seller in writing of its decision whether or not to negotiate with ROFO
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Seller for the purchase of the Offered Interests (the "Buyer ROFO Notice"). If Buyer
elects to negotiate with ROFO Seller for the purchase of the Offered Interests, Seller shall
cause ROFO Seller to negotiate in good faith and exclusively with Buyer, for a period of
not less than ninety (90) days following ROFO Seller's receipt of the Buyer ROFO
Notice. ("ROFO Period").
8.4.2 In the event that Buyer does not elect to negotiate with ROFO Seller for the
purchase of the Offered Interests pursuant to Section 8.4.1, ROFO Seller shall be free to
sell, transfer or offer or negotiate to sell or transfer the Offered Interests in ROFO Seller's
sole discretion. In the event that Buyer elects to negotiate with ROFO Seller for the
purchase of the Offered Interests pursuant to Section 8.4.1, and if definitive transaction
documents between ROFO Seller and Buyer or its designee have not been executed with
respect to the Offered Interests within the ROFO Period, ROFO Seller may negotiate a
Restricted Transaction with any other Person, subject, in all cases, to the terms and
conditions of this Agreement, including Section 8.4.1 and the provisions of Section 22. In
no event may ROFO Seller enter into a Restricted Transaction with any other Person on
economic terms (such as purchase price, payment terms and overall revenue streams
associated with such transaction) or other material terms less favorable to ROFO Seller
than such economic terms, if any, as were negotiated by Buyer and ROFO Seller. As used
in this Section 8.4.2, "other material terms"means any terms identified by the Parties
acting in good faith within five (5) Business Days following expiration of the ROFO
Period that the Parties have not agreed to during their negotiation.
8.4.3 If ROFO Seller and such other Person do not agree upon the terms, conditions and
pricing for the Offered Interests within one hundred eighty (180) days following the
expiration of the ROFO Period, ROFO Seller and any Offered Interests shall again be
subject to this Section 8.2 with respect to any Restricted Transaction.
8.5 rReservedl
8.6 Efforts Required to Transfer Facility and Offered Interests. If Buyer exercises any right to
purchase or agrees to purchase the Facility (or Offered Interests)pursuant to any of the means
specified in this Section 8, then such purchase shall occur pursuant to a form of purchase and
sale agreement prepared by Buyer which shall contain customary representations, warranties and
covenants and otherwise be in form reasonably acceptable to Buyer. It shall be a condition of any
such purchase that Buyer obtains all necessary Governmental Approvals, and notwithstanding
any language to the contrary in this Agreement, Buyer shall be given sufficient time to obtain
such approvals in accordance with applicable statutes and regulations. Pursuant to the purchase
and sale agreement, Seller will take all actions necessary to transfer by deed, bill of sale, or both,
the Facility or Offered Interests to Buyer, as well as all other improvements placed on the
Premises by Seller that are required for the continued and uninterrupted use, maintenance and
operation of the Facility, free and clear from any lien or monetary encumbrance created by or on
behalf of Seller or its Affiliates. In addition, Seller will assign to Buyer all transferrable
Governmental Approvals applicable to the Facility and Required Facility Documents, and all
transferrable warranties for the Facility. Seller shall cooperate with Buyer to assign and enforce
any and all warranties that apply to the Facility or any of its component parts,which obligation
_ 47 _ Exhibit No. 1
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shall survive the termination of this Agreement.
8.7 Due Diligence; Cooperation; Governmental Approvals;Notice of Rights. Seller will
provide, in a timely manner, information regarding the Facility and Offered Interests which is
reasonably requested by Buyer to allow Buyer to perform due diligence for the purchase of the
Facility and Offered Interests pursuant to this Section 8. Seller shall further provide
commercially reasonable cooperation and assistance to Buyer, without further compensation,
throughout Buyer's efforts to properly account for and obtain any necessary Governmental
Approvals with respect to the purchase of the Facility and Offered Interests pursuant to this
Section 8. Notwithstanding anything in this Agreement or any definitive transaction
documentation, Buyer shall not be obligated to proceed with the purchase of the Facility or any
Offered Interests pursuant to this Section 8 if Buyer does not receive all necessary Governmental
Approvals in connection with such transaction. Seller shall put any Person with which it enters
into discussions or negotiations regarding a Restricted Transaction on notice of the rights of
Buyer set forth in this Section 8. Buyer shall be permitted to file a notice of the rights contained
in this Section 8 with respect to the Premises.
8.8 Termination of Agreement. Upon the acquisition of the Facility or Offered Interests by
Buyer pursuant to this Section 8, this Agreement shall terminate and neither Party shall have any
obligation to the other under this Agreement, except with respect to the terms and provisions
hereof that expressly survive the termination of this Agreement.
SECTION 9
SECURITY AND CREDIT SUPPORT
9.1 Project Development Security. Seller shall provide within five (5) Business Days from
receipt of a written request from Idaho Power all reasonable financial records necessary for
Idaho Power to confirm Seller satisfies the Credit Requirements.
9.1.1 Form and Amount of Project Development Security. On or before thirty(30) days
of the date of the Effective Date, Seller shall post and maintain in favor of Idaho Power
(a) a guaranty from a party that satisfies the Credit Requirements, in substantially the
form attached hereto as Exhibit 8, (b) a Letter of Credit in favor of Idaho Power, in a
form acceptable to Idaho Power in its reasonable discretion, or(c) cash collateral equal in
each case to ninety thousand dollars ([$90,000])per MW of Nameplate Capacity Rating
(the "Project Development Security"). Seller and any person or entity providing a
guaranty shall provide within five (5) Business Days from receipt of a written request
from Idaho Power all reasonable financial records necessary for Idaho Power to confirm
the guarantor satisfies the Credit Requirements.
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9.1.2 Use of Project Development Security to Pay Delay Damages. If the Commercial
Operation Date occurs after the Scheduled Commercial Operation Date and Seller has
failed to pay any Delay Damages when due under Section 4.4, Idaho Power shall be
entitled to and shall draw upon the Project Development Security an amount equal to the
Delay Damages. Idaho Power shall also be entitled to draw upon the Project
Development Security for other damages if this Agreement is terminated under Section
12 because of Seller's default.
9.1.3 Termination of Project Development Security. Seller shall no longer be required
to maintain the Project Development Security after the Commercial Operation Date, if at
such time no damages are owed to Idaho Power under this Agreement. However, as of
the Commercial Operation Date, Seller may elect to apply the Project Development
Security toward the Default Security required by Section 9.2, including by the automatic
continuation (as opposed to the replacement)thereof.
9.2 Default Security.
9.2.1 Duty to Post Default Security. On the date specified in Section 4.2.1, Seller shall
post and maintain in favor of Idaho Power(a) a guaranty from an entity that satisfies the
Credit Requirements, in substantially the form attached hereto as Exhibit 8, or(b) a Letter
of Credit, each in the amount specified in Section 9.2.2 (the "Default Security"), as
provided in this Section 9.2. Seller and any person or entity providing a guaranty shall
provide within five (5)Business Days from receipt of a written request from Idaho Power
all reasonable financial records necessary for Idaho Power to confirm the guarantor
satisfies the Credit Requirements.
9.2.2 Amount of Default Security. The amount of the Default Security required by
Section 9.2.1 shall be forty five thousand dollars ([$45,000])per MW of Nameplate
Capacity Rating and will be held until this Agreement expires. The amount of Default
Security required shall be thirty-five thousand dollars ([$35,000])per MW of Nameplate
Capacity Rating beginning with Contract Year eleven(11).
9.2.3 Use of Default Securi . to Pay Deficit Damages. If the Seller has failed to pay any
Deficit Damages when due under Section 4.4, Idaho Power shall be entitled to and shall
draw upon the Default Security an amount equal to the Deficit Damages until such time
as the Default Security is exhausted. Idaho Power shall also be entitled to draw upon the
Default Security for other damages if this Agreement is terminated under Section 12
because of Seller's default.
9.3 Senior Lenders. If Seller collaterally assigns this Agreement to Seller's Lenders in a
manner permitted under this Agreement, Buyer, at Seller's sole cost and expense, if requested
shall enter into a Lender Consent with Seller's Lenders substantially in the form of Exhibit 21. If
Seller enters into a Tax Equity Financing, Buyer, at Seller's sole cost and expense, if requested
shall provide an Estoppel Certificate to Seller's Tax Equity Investors substantially in the form of
Exhibit 22. Seller will within five (5) Business Days of written demand reimburse Buyer all
Buyer's costs and expenses, including legal fees and costs of due diligence, incurred in
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connection with any action or exercise of rights or remedies by any of Seller's Lenders against
Seller, including any proceeding or foreclosure against Seller or this Agreement.
9.4 Change of Control. Seller may not suffer any Change of Control, whether voluntary or
by operation of law, without Buyer's prior written consent, granted or withheld in Buyer's
reasonable discretion. Seller may not suffer a Change of Control or any other change of
ownership or control, whether direct or indirect, voluntary or by operation of law, such that
Seller becomes a Sanctioned Person. Seller shall give Buyer notice of any Change of Control
within ten(10) Business Days following the effectiveness thereof
9.5 Security is Not a Limit on Seller's Liability. The security contemplated by this Section 9
(a) constitutes security for, but is not a limitation of, Seller's obligations hereunder and(b) shall
not be Idaho Power's exclusive remedy for Seller's failure to perform in accordance with this
Agreement. Seller shall maintain security as required by Sections 9.1 and 9.2, as applicable per
this Agreement. To the extent that Idaho Power draws on any security, Seller shall,within five
(5) Business Days following such draw, replenish or reinstate the security to the full amount then
required under this Section 9. If at any time the Seller or Seller's credit support provider(s) fails
to meet the Credit Requirements, then Seller shall provide replacement security meeting the
requirements set forth in Section 9 within ten(10)Business Days after the earlier of(x) Seller's
receipt of notice from any source that Seller or the credit support provider(s), as applicable, no
longer meets the Credit Requirements or(y) Seller's receipt of written notice from Idaho Power
requesting the posting of alternate security.
SECTION 10
METERING,METERING COMMUNICATIONS AND SCADA TELEMETRY
10.1 Metering. Idaho Power shall,provide, install, and maintain metering equipment needed
for metering the electrical energy production from the Facility. The metering equipment will be
capable of measuring, recording, retrieving and reporting the Facility's hourly gross electrical
energy production, station use, maximum energy deliveries (MW) and any other energy
measurements at the Point of Delivery that Idaho Power needs to administer this Agreement and
integrate this Facility's energy production into the Idaho Power electrical system. Specific
equipment, installation details and requirements for this metering equipment will be established
in the GIA process and documented in the GIA. Seller shall be responsible for all initial and
ongoing costs of this equipment as specified in Schedule 72 of the Tariff and the GIA. Seller
shall cause the Facility to implement all necessary generation information communications in
WREGIS, and report generation information to WREGIS pursuant to a WREGIS-approved
meter that is dedicated to the Facility and only the Facility.
10.2 Metering Communications. Seller shall, at the Seller's sole initial and ongoing expense,
arrange for,provide, install, and maintain dedicated metering communications equipment
capable of transmitting the metering data specified in Section 10.1 to Idaho Power in a frequency,
manner and form acceptable to Idaho Power. Seller shall grant Idaho Power sole control and use
of this dedicated metering communications equipment. Specific details and requirements for this
metering communications equipment will be established in the GIA process and documented in
the GIA.
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10.3 Supervisory Control and Data Acquisition (SCADA)Telemetry. If the Facility's
Nameplate Capacity exceeds 3 MW, in addition to the requirements of Section 10.1 and 10.2,
Idaho Power may require telemetry equipment and telecommunications which will be capable of
providing Idaho Power with continuous instantaneous SCADA telemetry of the Seller's Net
Output and Inadvertent Energy production in a form acceptable to Idaho Power. Seller shall
grant Idaho Power sole control and use of this dedicated SCADA and telecommunications
equipment. Specific details and requirements for this SCADA Telemetry and
telecommunications equipment will be established in the GIA process and documented in the
GIA. Seller shall be responsible for all initial and ongoing costs of this equipment as specified in
Schedule 72 of the Tariff and the GIA.
10.4 Metering Costs. To the extent not otherwise provided in the Generation Interconnection
Agreement, Seller shall bear all costs (including Idaho Power's costs)relating to all metering
equipment installed to accommodate Seller's Facility.
10.5 Losses. If the Idaho Power Metering equipment is capable of measuring the exact energy
deliveries by the Seller to the Idaho Power electrical system at the Point of Delivery, no Losses
will be calculated for this Facility. If the Idaho Power Metering Equipment is unable to measure
the exact electric energy deliveries by the Seller to the Idaho Power electrical system at the Point
of Delivery, a Losses calculation will be established to measure the energy losses (MWh)
between the Seller's Facility and the Idaho Power Point of Delivery. This loss calculation will be
initially set at two percent(2%) of the MWh energy production recorded on the Facility
generation metering equipment. At such time as Seller provides Idaho Power with the electrical
equipment specifications (transformer loss specifications, conductor sizes, etc.) of all of the
electrical equipment between the Facility and the Idaho Power electrical system, Idaho Power
will configure a revised loss calculation formula to be agreed to by both parties and used to
calculate the MWh Losses for the remaining term of the Agreement. If at any time during the
term of this Agreement, Idaho Power determines that the loss calculation does not correctly
reflect the actual MWh losses attributed to the electrical equipment between the Facility and the
Idaho Power electrical system, Idaho Power may adjust the calculation and retroactively adjust
the previous month's MWh loss calculations.
SECTION 11
BILLINGS, COMPUTATIONS AND PAYMENTS
_ 51 _ Exhibit No. 1
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11.1 Monthly Invoices. On or before the tenth(loth) day following the end of each calendar
month, Seller shall deliver to Idaho Power a proper invoice showing Seller's computation of Net
Output delivered to the Point of Delivery during such month in the form of Exhibit 1. When
calculating the invoice, Seller shall provide computations showing the portion of Net Output that
was delivered during On-Peak Hours and the portion of Net Output that was delivered during
Off-Peak Hours. If such invoice is delivered by Seller to Idaho Power, then Idaho Power shall
send to Seller, on or before the later of the twentieth(201h) day following receipt of such invoice
or the thirtieth (30th) day following the end of each month, payment for Seller's deliveries of Net
Output and associated Green Tags to Idaho Power.
11.2 Offsets. Either Party may offset any payment due hereunder against amounts owed by the
other Party pursuant hereto. Either Party's exercise of recoupment and set off rights shall not
limit the other remedies available to such Party hereunder.
11.3 Interest on Late Pam. Any amounts that are not paid when due hereunder shall bear
interest at the Contract Interest Rate from the date due until paid.
11.4 Disputed Amounts. If either Party, in good faith, disputes any amount due pursuant to an
invoice rendered hereunder, such Party shall notify the other Party of the specific basis for the
dispute and, if the invoice shows an amount due, shall pay that portion of the statement that is
undisputed, on or before the due date. Except with respect to invoices provided under Section
11.1, any such notice shall be provided within two (2)years of the date of the invoice in which
the error first occurred. If any amount disputed by such Party is determined to be due the other
Party, or if the Parties resolve the payment dispute, the amount due shall be paid within five (5)
Business Days after such determination or resolution, along with interest at the Contract Interest
Rate from the date due until the date paid.
11.5 Audit Rights. Each Party, through its authorized representatives, shall have the right, at
its sole expense upon reasonable written notice and during normal business hours, to examine
and copy the records of the other Party to the extent reasonably necessary to verify the accuracy
of any statement, charge or computation made hereunder or to verify the other Party's
performance of its obligations hereunder. Upon request, each Party shall provide to the other
Party statements evidencing the quantities of Net Output delivered at the Point of Delivery. If
any statement is found to be inaccurate, a corrected statement shall be issued and any amount
due thereunder will be promptly paid and shall bear interest at the Contract Interest Rate from the
date of the overpayment or underpayment to the date of receipt of the reconciling payment.
Notwithstanding the foregoing, no adjustment shall be made with respect to any statement or
payment hereunder unless a Party questions the accuracy of such payment or statement within
two (2) years after the date of such statement or payment.
SECTION 12
DEFAULTS AND REMEDIES
12.1 Defaults. The following events are defaults (each a"default"before the passing of
applicable notice and cure periods, and an"Event of Default"thereafter) hereunder:
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12.1.1 Defaults by Either P4M:
12.1.1.1 A Party fails to make a payment when due hereunder if the failure
is not cured within ten(10) Business Days after the non-defaulting Party gives the
defaulting Party a notice of the default.
12.1.1.2 A Party(i) makes a general assignment for the benefit of its
creditors; (ii) files a petition or otherwise commences, authorizes or acquiesces in
the commencement of a proceeding or cause of action under any bankruptcy or
similar law for the protection of creditors, or has such a petition filed against it
and such petition is not withdrawn or dismissed within sixty(60) days after such
filing; (iii)becomes insolvent; or(iv) is unable to pay its debts when due.
12.1.1.3 A Party breaches a representation or warranty made by it herein if
the breach is not cured within thirty(30) days after the non-defaulting Parry gives
the defaulting Party a written notice of the default; provided that if such default is
not reasonably capable of being cured within the thirty(30) day cure period but is
reasonably capable of being cured within a ninety (90) day cure period, the
defaulting Party will have such additional time (not exceeding an additional sixty
(60) days) as is reasonably necessary to cure, if, prior to the end of the thirty(30)
day cure period the defaulting Party provides the non-defaulting Parry a
remediation plan, the non-defaulting Party approves such remediation plan, and
the defaulting Party promptly commences and diligently pursues the remediation
plan.
12.1.1.4 A Party otherwise fails to perform any material obligation
hereunder for which an exclusive remedy is not provided hereunder and which is
not addressed in any other default described in Section 12.1, if the failure is not
cured within thirty(30) days after the non-defaulting Party gives the defaulting
Party written notice of the default; provided that if such default is not reasonably
capable of being cured within the thirty (30) day cure period but is reasonably
capable of being cured within a ninety(90) day cure period, the defaulting Party
will have such additional time (not exceeding an additional sixty(60) days) as is
reasonably necessary to cure, if,prior to the end of the thirty (30) day cure period
the defaulting Party provides the non-defaulting Party a remediation plan, the
non-defaulting Party approves such remediation plan, and the defaulting Parry
promptly commences and diligently pursues the remediation plan.
12.1.2 Defaults by Seller.
12.1.2.1 Seller fails to post, increase, or maintain the Project Development
Security or Default Security as required under, and by the applicable dates set
forth in, Section 9.1 and Section 9.2 and such failure is not cured within ten (10)
Business Days after Idaho Power gives Seller notice of default.
12.1.2.2 Seller fails to (i) cause the Facility to achieve Commercial
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Operation on or before the Guaranteed Commercial Operation Date, or(ii)
complete all items included on the Final Completion Schedule within ninety(90)
days after the Commercial Operation Date.
12.1.2.3 Seller sells Output, Green Tags or Capacity Rights from the
Facility to a party other than Idaho Power in breach of Section 5.2, Seller diverts
any Environmental Attributes for any use other than sale to Buyer, or Seller
makes a public statement or otherwise takes an action that any Governmental
Authority or the Center for Resource Solutions determines is a retirement, double
counting, double sale, double use or double claim of Green Tags.
12.1.2.4 Idaho Power receives notice of foreclosure of the Facility or any
part thereof by a Lender, mechanic or materialman, or any other holder, of an
unpaid lien or other charge or encumbrance, if the same has not been stayed,paid,
or bonded around within ten(10) days of the date of the notice received by Idaho
Power.
12.1.2.5 After the Commercial Operation Date, Seller fails to maintain any
Required Facility Documents or Permits necessary to own, operate, or maintain
the Facility and such failure continues for thirty(30) days after Seller's receipt of
written notice thereof from Idaho Power; provided, however, that,upon written
notice from Seller, the thirty (30) day period shall be extended by an additional
sixty(60) days if(i)the failure cannot reasonably be cured within the thirty (30)
day period despite diligent efforts, (ii)the default is capable of being cured within
the additional sixty(60) day period, and(iii) Seller commences the cure within
the original thirty (30) day period and is at all times thereafter diligently and
continuously proceeding to cure the failure.
12.1.2.6 Seller's Abandonment of construction or operation of the Facility
and such failure continues for thirty(30) days after Seller's receipt of written
notice thereof from Idaho Power.
12.1.2.7 Seller fails to maintain insurance as required by the Agreement and
such failure continues for fifteen(15) days after Seller's receipt of written notice
thereof from Idaho Power.
12.1.2.8 Seller fails to meet the Output Guarantee for two (2) consecutive
years.
12.1.2.9 Every three (3)years after the Commercial Operation Date, Seller
will supply Idaho Power with a Certification of Ongoing Operations and
Maintenance (O&M) from a Registered Professional Engineer licensed in the
State of Idaho, which Certification of Ongoing O&M shall be in the form
specified in Exhibit 11. Seller's failure to supply the required certificate will be an
event of default. Such a default may only be cured by Seller providing the
required certificate; and
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12.1.2.10 During the full Term of this Agreement, Seller shall maintain
compliance with all Required Facility Documents and determinations described in
Exhibit 9 of this Agreement. In addition, Seller will supply Idaho Power with
copies of any new or additional Required Facility Documents or determinations.
At least every fifth(5th) Contract Year, Seller will update the documentation
described in Exhibit 9. If at any time Seller fails to maintain compliance with the
Required Facility Documents and determinations described in Section 2.2.3 or to
provide the documentation required by this paragraph, such failure will be a
default of Seller and may only be cured by Seller submitting to Idaho Power
evidence of compliance from the permitting agency.
12.1.2.11 Seller is or becomes a Sanctioned Person.
12.1.2.12 Seller breaches any obligation in Section 27.2, or any
representation or warranty made by Seller in Section 27.2 is or becomes false or
misleading in any material respect (provided that if the falsity or misleading
nature of the representation or breach of the obligation is capable of being cured,
an Event of Default will be deemed to occur only if the falsity or misleading
nature of the representation or breach of obligation is not remedied within five (5)
days after notice);
12.2 Remedies for Failure to Deliver/Receive.
12.2.1 Remedy for Seller's Failure to Deliver. Upon the occurrence and during the
continuation of a default of Seller under Section 12.1.3, Seller shall pay Idaho Power
within five (5) Business Days after invoice receipt, an amount equal to the sum of(a)
Idaho Power's Cost to Cover multiplied by the Net Output delivered to a party other than
Idaho Power, (b) additional transmission charges, if any, reasonably incurred by Idaho
Power in moving replacement energy to the Point of Delivery or if not there, to such
points in Idaho Power's control area as are determined by Idaho Power, and (c) any
additional cost or expense incurred as a result of Seller's default under Section 12.1.3, as
determined by Idaho Power in a commercially reasonable manner. The invoice for such
amount shall include a written statement explaining in reasonable detail the calculation of
such amount.
12.2.2 Remedy for Idaho Power's Failure to Purchase. If Idaho Power fails to receive or
purchase all or part of the Net Output and Green Tags required to be purchased pursuant
hereto and such failure is not excused under the terms hereof or by Seller's failure to
perform, then Seller shall first satisfy its obligations under Section 12.7 and then Idaho
Power shall pay Seller, on the earlier of the date payment would otherwise be due in
respect of the month in which the failure occurred or within five (5)Business Days after
invoice receipt, an amount equal to Seller's Cost to Cover multiplied by the amount of
Net Output so not purchased, less amounts received by Seller pursuant to Section 12.7.
The invoice for such amount shall include a written statement explaining in reasonable
detail the calculation thereof.
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12.2.3 Remedy for Seller's Failure to Sell/Deliver Capacity Rights.ights. Seller shall be liable
for Idaho Power's actual damages in the event Seller fails to sell or deliver all or any
portion of the Capacity Rights to Idaho Power.
12.3 Termination and Remedies. From and during the continuance of an Event of Default, the
non-defaulting Party shall be entitled to all remedies available at law or in equity, and may
terminate this Agreement by written notice to the other Parry designating the date of termination
and delivered to the defaulting Party no less than one (1) Business Day before such termination
date. The notice required by this Section 12.3 may be provided in the notice of default (and does
not have to be a separate notice) so long as it complies with all other terms of this Section 12.3.
As a precondition to Seller's exercise of this termination right, Seller must also provide copies of
such notice to the notice addresses of the then-current President and General Counsel of Idaho
Power. Such copies shall be sent by registered overnight delivery service or by certified or
registered mail, return receipt requested. In addition, Seller's termination notice shall state
prominently therein in type font no smaller than 14-point all-capital letters that"THIS IS A
TERMINATION NOTICE UNDER A PPA. YOU MUST CURE A DEFAULT, OR THE PPA
WILL BE TERMINATED," and shall state therein any amount purported to be owed and wiring
instructions. Notwithstanding any other provision of this Agreement to the contrary, Seller will
not have any right to terminate this Agreement if the default that gave rise to the termination
right is cured within fifteen(15)Business Days of Idaho Power's receipt of such notice. Further,
from and after the date upon which Seller fails to remedy a default within the time periods
provided in Section 12.1, and until Idaho Power has recovered all damages incurred on account
of such default by Seller, without exercising its termination right, Idaho Power may offset its
damages against any payment due Seller. Except in circumstances in which a remedy provided
for in this Agreement is described as a Parry's sole or exclusive remedy,upon termination, the
non-defaulting Party may pursue any and all legal or equitable remedies provided by law, equity
or this Agreement. The rights contemplated by this Section 12 are cumulative such that the
exercise of one or more rights shall not constitute a waiver of any other rights. In the event of a
termination hereof:
12.3.1 Each Party shall pay to the other all amounts due the other hereunder for all
periods prior to termination, subject to offset by the non-defaulting Parry against damages
incurred by such Party.
12.3.2 The amounts due pursuant to Section 12.3.1 shall be calculated and paid within
thirty (30) days after the billing date for such charges and shall bear interest thereon at the
Contract Interest Rate from the date of termination until the date paid. The foregoing
does not extend the due date of, or provide an interest holiday for any payments
otherwise due hereunder.
12.3.3 Before and after the effective date of termination, the non-defaulting Party may
pursue, to the extent permitted by this Agreement, any and all legal or equitable remedies
provided by law, equity or this Agreement.
12.3.4 Without limiting the generality of the foregoing, the provisions of Sections 6.4,
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6.5, 7.10.4, 7.10.5, 7.10.7, 11.3, 11.4, 11.5, and Section 12, Section 13, Section 14.1,
Section 17, Section 23, Section 24, Section 25, and Section 26 shall survive the
termination hereof.
12.4 Termination Damages. If this Agreement is terminated as a result of an Event of Default
by one of the Parties, termination damages shall be determined. The amount of termination
damages shall be calculated by the non-defaulting Party within a reasonable period after
termination of the Agreement. In the event of a default by Seller before the Commercial
Operation Date, the termination payment shall be the Pre-COD Damages Payment. In the event
of default by Seller on or after the Commercial Operation Date, or any default by Buyer, the
termination payment shall be the Forward Settlement Amount. Amounts owed pursuant to this
section shall be due within five (5) Business Days after the non-defaulting Party gives the
defaulting Party written notice of the amount due. The non-defaulting Party shall under no
circumstances be required to account for or otherwise credit or pay the defaulting Party for
economic benefits accruing to the non-defaulting Party as a result of the defaulting Party's
default.
12.5 [Omitted]
12.6 Duty/Right 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, provided, however, that
this duty to mitigate shall not limit the amounts payable by the defaulting Party to the non-
defaulting Party pursuant to Section 12.4. "Commercially reasonable efforts" (a)by Seller shall
include requiring Seller to use commercially reasonable efforts to maximize the price for Net
Output and associated Green Tags received by Seller from third parties, including entering into
an enabling agreement with, or being affiliated with, one or more power marketers of nationally
recognized standing to market such Net Output and associated Green Tags not purchased or
accepted by Idaho Power(only during a period Idaho Power is in default), in each case only to
the extent any of the foregoing actions are permitted under Requirements of Law and the
Interconnection Agreement; and(b)by Idaho Power shall include requiring Idaho Power to use
commercially reasonable efforts to minimize the price paid to third parties for energy and Green
Tags purchased to replace Net Output and Green Tags not delivered by Seller as required
hereunder.
12.7 Security. If this Agreement is terminated because of Seller's default, Idaho Power may, in
addition to pursuing any and all other remedies available at law or in equity,proceed against any
Seller security held by Idaho Power in whatever form to reduce any amounts that Seller owes
Idaho Power arising from such default.
12.8 Cumulative Remedies. Except in circumstances in which a remedy provided for in this
Agreement is described as a sole or exclusive remedy, the rights and remedies provided to Idaho
Power hereunder are cumulative and not exclusive of any rights or remedies of Idaho Power.
SECTION 13
INDEMNIFICATION AND LIABILITY
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13.1 Indemnities.
13.1.1 Indemnityby Seller. To the extent permitted by Requirements of Law and subject
to Section 13.1.5, Seller shall release, indemnify and hold harmless Idaho Power, and
each of its divisions, Affiliates, and each of its and their respective directors, officers,
employees, agents, and representatives (collectively,the "Idaho Power Indemnitees")
against and from any and all losses, fines,penalties, claims, demands, damages,
liabilities, actions or suits of any nature whatsoever(including legal costs and attorneys'
fees,both at trial and on appeal,whether or not suit is brought) (collectively,
"Liabilities") actually or allegedly resulting from, or arising out of, or in any way
connected with, the performance by Seller of its obligations hereunder, or relating to the
Facility or Premises, for or on account of injury, bodily or otherwise, to, or death of, or
damage to or destruction of property of, any person or entity, or for or on account of
violation of environmental or criminal law, excepting only to the extent such Liabilities
as may be caused by the gross negligence or willful misconduct of any person or entity
within the Idaho Power Indemnitees. Seller shall be solely responsible for(and shall
defend and hold Idaho Power harmless against) any damage that may occur as a direct
result of Seller's breach of the Generation Interconnection Agreement.
13.1.2 Indemnityby Idaho Power. To the extent permitted by Requirements of Law and
subject to Section 13.1.5, Idaho Power shall release, indemnify and hold harmless Seller,
its Affiliates, and each of its and their respective directors, officers, employees, agents,
and representatives (collectively, the "Seller Indemnitees") against and from any and all
Liabilities actually or allegedly resulting from, or arising out of, or in any way connected
with, the performance by Idaho Power of its obligations hereunder for or on account of
(a) injury,bodily or otherwise, to, or death of, or(b) for damage to, or destruction of
property of, any person or entity within the Seller Indemnitees, excepting only to the
extent such Liabilities as may be caused by the negligence or willful misconduct of any
person or entity within the Seller Indemnitees.
13.1.3 Additional Cross Indemnity. Without limiting Sections 13.1.1 and 13.1.2, Seller
shall release, indemnify and hold harmless the Idaho Power indemnitees from and against
all Liabilities related to Net Output prior to its delivery by Seller at the Point of Delivery,
and Idaho Power shall release, indemnify and hold harmless the Seller Indemnitees from
and against all Liabilities related to Net Output once delivered to Idaho Power at the
Point of Delivery as provided herein, except in each case to the extent such Liabilities are
attributable to the gross negligence or willful misconduct or a breach of this Agreement
by any member of the Idaho Power Indemnitees or the Seller Indemnitees, respectively,
seeking indemnification hereunder.
13.1.4 No Dedication. Nothing herein shall be construed to create any duty to, any
standard of care with reference to, or any liability to any person not a Party. No
undertaking by one Parry to the other under any provision hereof shall constitute the
dedication of Idaho Power's facilities or any portion thereof to Seller or to the public, nor
affect the status of Idaho Power as an independent public utility corporation or Seller as
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an independent individual or entity.
13.1.5 Consequential Damages. NEITHER PARTY SHALL BE LIABLE TO THE
OTHER PARTY FOR SPECIAL, PUNITIVE,INDIRECT,EXEMPLARY OR
CONSEQUENTIAL DAMAGES,WHETHER SUCH DAMAGES ARE
ALLOWED OR PROVIDED BY CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY, STATUTE OR OTHERWISE. THE
PARTIES AGREE THAT ANY LIQUIDATED DAMAGES, SECURITY,
INDEMNIFIED CLAIMS OR DAMAGES,DELAY DAMAGES, IDAHO POWER
AND SELLER COST TO COVER DAMAGES, SECTION 12.2.3 CAPACITY
RIGHTS LOSS DAMAGES, OR OTHER SPECIFIED MEASURE OF DAMAGES
EXPRESSLY PROVIDED FOR HEREIN,ARE NOT INTENDED BY THEM TO
REPRESENT AND WILL NOT BE DEEMED SPECIAL,PUNITIVE,INDIRECT,
EXEMPLARY OR CONSEQUENTIAL DAMAGES AND SHALL NOT BE
LIMITED IN AMOUNT BY THIS SECTION 13.1.5.
SECTION 14
INSURANCE
14.1 Required Policies and Coverages. Without limiting any liabilities or any other obligations
of Seller hereunder, Seller shall secure and continuously carry the insurance coverage specified
on Exhibit 13 during the Term or longer period if specified in Exhibit 13.
14.2 Certificates of insurance. Seller shall provide Idaho Power with certificates of insurance
within ten(10) days after the date by which such policies are required to be obtained (as set forth
in Exhibit 13). Seller shall provide a certificate of insurance (in ACORD or similar industry
form) to Idaho Power within ten (10) days of the effective date of any insurance policy required
under this Agreement.
SECTION 15
FORCE MAJEURE
15.1 Definition of Force Majeure. "Force Majeure" or"an event of Force Majeure"means an
event that(a) is not reasonably anticipated as of the Effective Date hereof, (b) is not within the
reasonable control of the Parry affected by the event, (c) is not the result of such Parry's
negligence or failure to act, and(d) could not be overcome by the affected Party's use of due
diligence in the circumstances. Force Majeure includes, but is not restricted to, events of the
following types (but only to the extent that such an event, in consideration of the circumstances,
satisfies the tests set forth in the preceding sentence): acts of God; civil disturbance; sabotage;
strikes; lock-outs; work stoppages; and action or restraint by court order or public or
Governmental Authority (as long as the affected Party has not applied for or assisted in the
application for, and has opposed to the extent reasonable, such court or government action).
Notwithstanding the foregoing, none of the following constitute Force Majeure: (i) Seller's
ability to sell, or Idaho Power's ability to purchase energy, capacity or Green Tags at a more
advantageous price than is provided hereunder; (ii) the cost or availability of fuel or motive force
to operate the Facility; (iii) economic hardship, including lack of money; (iv) any breakdown or
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malfunction of the Facility's equipment (including any serial equipment defect)that is not
caused by an independent event of Force Majeure, (v)the imposition upon a Party of costs or
taxes allocated to such Party under Section 6.4, (vi) delay or failure of Seller to obtain or perform
any Required Facility Document unless due to a Force Majeure event, (vii) maintenance upgrade
or repair of any facilities or right of way corridors constituting part of or involving the
Interconnection Facilities, whether performed by or for Seller, or other third parties (except for
repairs made necessary as a result of an event of Force Majeure); (viii) Seller's failure to obtain,
or perform under, the Generation Interconnection Agreement, or its other contracts and
obligations to transmission owner, Transmission Provider or Interconnection Provider,unless
due to a Force Majeure event; (ix) Seller's inability to obtain any supply of any good or service,
unless due to an independent event of Force Majeure; or(x) any event attributable to the use of
Interconnection Facilities for deliveries of Net Output to any parry other than Idaho Power.
Notwithstanding anything to the contrary herein, in no event will the increased cost of electricity,
steel, labor, or transportation constitute an event of Force Majeure.
15.2 Suspension of Performance.Neither Party shall be liable for any delay or failure in its
performance under this Agreement, nor shall any delay, failure, or other occurrence or event
become a default, to the extent such delay, failure, occurrence or event is substantially caused by
conditions or events of Force Majeure during the continuation of the event of Force Majeure, for
the same number of days that the event of Force Majeure has prevailed,provided that:
15.2.1 the Party affected by the Force Majeure, shall, within five (5) days after the
occurrence of the event of Force Majeure, give the other Party written notice describing
the particulars of the event; and
15.2.2 the suspension of performance shall be of no greater scope and of no longer
duration than is required to remedy the effect of the Force Majeure; and
15.2.3 the affected Party shall use diligent efforts to remedy its inability to perform and
shall provide prompt notice to the other Party of the cessation of the event or condition
giving rise to its excuse from performance.
15.3 Force Majeure Does Not Affect Other Obligations. No obligations of either Party that
arose before the Force Majeure causing the suspension of performance or that arise after the
cessation of the Force Majeure shall be excused by the Force Majeure. No obligation of Seller
arising before the Commercial Operation Date may be excused by Force Majeure.
15.4 Strikes. Notwithstanding any other provision hereof, neither Party shall be required to
settle any strike, walkout, lockout or other labor dispute on terms which, in the sole judgment of
the Party involved in the dispute, are contrary to the Parry's best interests.
15.5 Right to Terminate. If a Force Majeure event prevents a Party from substantially
performing its obligations hereunder for a period exceeding one hundred and eighty(180)
consecutive days (despite the affected Parry's effort to take all reasonable steps to remedy the
effects of the Force Majeure with all reasonable dispatch), then the Party not affected by the
Force Majeure event, with respect to its obligations hereunder, may terminate this Agreement by
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giving ten(10) days prior written notice to the other Parry. Upon such termination,neither Party
will have any liability to the other with respect to the period following the effective date of such
termination; provided, however, that this Agreement will remain in effect to the extent necessary
to facilitate the settlement of all liabilities and obligations arising hereunder before the effective
date of such termination.
SECTION 16
SEVERAL OBLIGATIONS; THIRD PARTY BENEFICIARIES
Nothing contained herein shall be construed to create an association, trust,partnership or joint
venture or to impose a trust, partnership or fiduciary duty, obligation or liability on or between
the Parties. Nothing in this Agreement shall be construed to create any duty, obligation or
liability of Seller or Buyer to any Person not a Party to this Agreement.
SECTION 17
CHOICE OF LAW
This Agreement shall be interpreted and enforced in accordance with the laws of the State of
Idaho, applying any choice of law rules that may direct the application of the laws of another
jurisdiction.
SECTION 18
PARTIAL INVALIDITY
The Parties do not intend to violate any laws governing the subject matter hereof. If any of the
terms hereof are finally held or determined to be invalid, illegal or void as being contrary to any
Requirements of Law or public policy, all other terms hereof shall remain in effect. The Parties
shall use best efforts to amend this Agreement to reform or replace any terms determined to be
invalid, illegal or void, such that the amended terms (a) comply with and are enforceable under
Requirements of Law, (b) give effect to the intent of the Parties under this Agreement, and(c)
preserve the balance of the economics and equities contemplated by this Agreement in all
material respects.
SECTION 19
NON-WAIVER
No waiver of any provision hereof shall be effective unless the waiver is set forth in a writing
that(a) expressly identifies the provision being waived, and(b) is executed by the Party waiving
the provision. A Parry's waiver of one or more failures by the other Parry in the performance of
any of the provisions hereof shall not be construed as a waiver of any other failure or failures,
whether of a like kind or different nature.
SECTION 20
GOVERNMENTAL JURISDICTION
AND AUTHORIZATIONS
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This Agreement is subject to the jurisdiction of those Governmental Authorities having control
over either Party, the Facility, or this Agreement. During the Term, Seller shall maintain all
Permits required, as applicable, for the construction, operation, or ownership of the Facility.
SECTION 21
[INTENTIONALLY OMITTED]
SECTION 22
SUCCESSORS AND ASSIGNS
22.1 Restriction on Assignments. Except as expressly provided in this Section 20, neither
Party may assign this Agreement or any of its rights or obligations hereunder without the prior
written consent of the other Party, which consent shall not be unreasonably withheld.
22.2 Permitted Assignments. Notwithstanding Section 22.1, either Party may, without the need
for consent from the other Party(but with written notice to the other Party, including the names
of the assignees): (a) transfer, sell,pledge, encumber or assign this Agreement or the accounts,
revenues or proceeds therefrom in connection with project financing for the Facility; or(b)
transfer or assign this Agreement to an Affiliate meeting the requirements of this Agreement;
provided, however, that Seller shall not transfer, sell, encumber or assign this Agreement or any
interest herein to any Affiliate of Idaho Power without the prior written consent of Idaho Power.
Except with respect to collateral assignments for financing purposes in every assignment
permitted under this Section 22.2, the assignee must not be a Sanctioned Person, must agree in
writing to be bound by the terms and conditions hereof and must possess the same or similar
experience, and possess the same or better creditworthiness, as the assignor. Idaho Power may
assign this Agreement in whole or in part without the consent of Seller to any person or entity in
the event that Idaho Power ceases to be a load-serving entity, in which event Idaho Power shall
be released from liability hereunder upon approval of Idaho Power ceasing to be a load-serving
entity by the IPUC and OPUC. The Party seeking to assign or transfer this Agreement shall be
solely responsible for paying all costs of assignment.
SECTION 23
ENTIRE AGREEMENT
This Agreement supersedes all prior agreements, proposals, representations, negotiations,
discussions or letters, whether oral or in writing, regarding the subject matter hereof. No
modification hereof shall be effective unless it is in writing and executed by both Parties.
SECTION 24
NOTICES
24.1 Addresses and Delivery Methods. All notices, requests, statements or payments shall be
made to the addresses set out below. In addition, copies of a notice of termination of this
Agreement under Section 12.3 shall contain the information required by Section 12.3 and shall
be sent to the then-current President and General Counsel of Idaho Power. Notices required to be
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in writing shall be delivered by letter, facsimile or other tangible documentary form. Notice by
overnight mail or courier shall be deemed to have been given on the date and time evidenced by
the delivery receipt. Notice by hand delivery shall be deemed to have been given when received
or hand delivered. Notice by facsimile is effective as of transmission to each and all of the
telefacsimile numbers provided below for a Party, but must be followed up by notice by
registered mail or overnight carrier to be effective. Notice by overnight mail shall be deemed to
have been given the Business Day after it is sent, if sent for next day delivery to a domestic
address by a recognized overnight delivery service (e.g., Federal Express or UPS). Notice by
certified or registered mail, return receipt requested, shall be deemed to have been given upon
receipt.
To Seller:
To Idaho Power: Idaho Power
1221 W Idaho St
Boise, ID 83702
Attn: Vice President, Power Supply
Email: [e-mail]
with a copy to: Idaho Power
1221 W Idaho St
Boise, ID 83702
Attn: Energy Contracts
Email: [e-mail]
and termination notices to Idaho Power: Idaho Power
1221 W Idaho St
Boise, ID 83702
Attn: Vice President, Power Supply
Email: [e-mail]
and to: Idaho Power
1221 W Idaho St
Boise, ID 83702
Attn: Energy Contracts
Email: [e-mail]
24.2 Changes of Address. The Parties may change any of the persons to whom notices are
addressed, or their addresses, by providing written notice in accordance with this section.
SECTION 25
CONFIDENTIALITY
25.1 Confidential Business Information. The following constitutes "Confidential Business
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Information,"whether oral or written: (a) the Parties' proposals and negotiations concerning this
Agreement, made or conducted prior to the Effective Date, (b)the actual charges billed to Idaho
Power hereunder, and(c) any information delivered by Idaho Power to Seller prior to the
Effective Date relating to the market prices of energy or Green Tags and methodologies for their
determination or estimation. Seller and Idaho Power each agree to hold such Confidential
Business Information wholly confidential, except as otherwise expressly provided in this
Agreement. "Confidential Business Information" shall not include information that(x) is in or
enters the public domain through no fault of the Party receiving such information, or(y)was in
the possession of a Party prior to the Effective Date, other than through delivery thereof as
specified in subsections (a) and(c) above. A Parry providing any written Confidential Business
Information under this Agreement shall clearly mark all pages of all documents and materials to
be treated as Confidential Business information with the term"Confidential" on the front of each
page, document or material. If the Confidential Business Information is transmitted by electronic
means the title or subject line shall indicate the information is Confidential Business Information.
All Confidential Business Information shall be maintained as confidential, pursuant to the terms
of this Section 25.1, for a period of two (2)years from the date it is received by the receiving
Parry unless otherwise agreed to in writing by the Parties.
25.2 Duty to Maintain Confidentiality. Each Party agrees not to disclose Confidential Business
Information to any other person(other than its Affiliates, accountants, auditors, counsel,
consultants, lenders,prospective lenders, employees, and officers and directors), without the
prior written consent of the other Party,provided that: (a) either Party may disclose Confidential
Business Information, if and to the extent such disclosure is required(i)by Requirements of
Law, (ii) in order for Idaho Power to receive regulatory approval and recovery of expenses
related to this Agreement, (iii)pursuant to an order of a court or regulatory agency, or(iv) in
order to enforce this Agreement or to seek approval hereof, and(b)notwithstanding any other
provision hereof, Idaho Power may in its sole discretion disclose or otherwise use for any
purpose in its sole discretion the Confidential Business Information described in Sections 25.1(b)
or 25.1(c). In the event a Party is required by Requirements of Law to disclose Confidential
Business Information, such Party shall to the extent possible promptly notify the other Party of
the obligation to disclose such information.
25.3 Idaho Power Regulatory Compliance. The Parties acknowledge that Idaho Power is
required by Requirements of Law to report certain information that is or could otherwise embody
Confidential Business Information from time to time. Such reports include models, filings,
reports of Idaho Power's net power costs, general rate case filings, power cost adjustment
mechanisms, FERC-required reporting such as those made on FERC Form I or Form 714,
market power and market monitoring reports, annual state reports that include resources and
loads, integrated resource planning reports, reports to entities such as NERC, WECC, Pacific
Northwest Utility Coordinating Committee, WREGIS, or similar or successor organizations,
forms, filings, or reports, the specific names of which may vary by jurisdiction, along with
supporting documentation. Additionally, in regulatory proceedings in all state and federal
jurisdictions in which it does business, Idaho Power will from time to time be required to
produce Confidential Business Information. Idaho Power may use its business judgment in its
compliance with all of the foregoing and the appropriate level of confidentiality it seeks for such
disclosures. Idaho Power may submit Confidential Business Information in regulatory
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proceedings without notice to Seller.
25.4 Irreparable Injury; Remedies. Each Party agrees that violation of the terms of this Section
25 constitutes irreparable harm to the other, and that the harmed Parry may seek any and all
remedies available to it at law or in equity, including injunctive relief.
25.5 News Releases and Publicity. Except as otherwise provided in Section 7.14, before either
Parry issues any news release or publicly distributed promotional material regarding the Facility
that mentions the Facility, such Party shall first provide a copy thereof to the other Parry for its
review and approval. Any use of either Party's name in such news release or promotional
material must adhere to such Parry's publicity guidelines then in effect; any use of Idaho Power's
name requires Idaho Power's prior written consent.
SECTION 26
DISAGREEMENTS
26.1 Negotiations. Prior to proceeding with formal dispute resolution procedures as provided
below in this Section 26, the Parties must first attempt in good faith to resolve all disputes arising
out of, related to or in connection with this Agreement promptly by negotiation, as follows. Any
Party may give the other Parry written notice of any dispute not resolved in the normal course of
business. Executives of both Parties at levels one level above those employees who have
previously been involved in the dispute must meet at a mutually acceptable time and place within
ten(10) days after delivery of such notice, and thereafter as often as they reasonably deem
necessary, to exchange relevant information and to attempt to resolve the dispute. If the matter
has not been resolved within thirty(30) days after the referral of the dispute to such senior
executives, or if no meeting of such senior executives has taken place within fifteen (15) days
after such referral, either Party may initiate any legal remedies available to the Party. All
negotiations pursuant to this clause are confidential.
26.2 Choice of Forum. Each Parry irrevocably consents and agrees that any legal action or
proceeding arising out of this Agreement or the actions of the Parties leading up to this
Agreement shall be brought exclusively in the United States District Court for the District of
Idaho in Boise, Idaho, or if such court does not have jurisdiction, in the 4th Judicial District(Ada
County) Court of the State of Idaho. By execution and delivery hereof, each Party (a) accepts
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the exclusive jurisdiction of such court and waives any objection that it may now or hereafter
have to the exercise of personal jurisdiction by such court over each Party for the purpose of any
proceeding related to this Agreement, (b) irrevocably agrees to be bound by any final judgment
(after any and all appeals) of any such court arising out of such documents or actions, (c)
irrevocably waives, to the fullest extent permitted by law, any objection that it may now or
hereafter have to the laying of venue of any suit, action or proceedings arising out of such
documents brought in such court(including any claim that any such suit, action or proceeding
has been brought in an inconvenient forum) in connection herewith, (d) agrees that service of
process in any such action may be effected by mailing a copy thereof by registered or certified
mail,postage prepaid, to such Party at its address as set forth herein, and(e) agrees that nothing
herein shall affect the right to effect service of process in any other manner permitted by law.
26.3 Settlement Discussions. No statements of position or offers of settlement made in the
course of the dispute process described in this Section 26 will be offered into evidence for any
purpose in any litigation between the Parties, nor will any such statements or offers of settlement
be used in any manner against either Party in any such litigation. Further, no such statements or
offers of settlement shall constitute an admission or waiver of rights by either Party in
connection with any such litigation. At the request of either Party, any such statements and offers
of settlement, and all copies thereof, shall be promptly returned to the Party providing the same.
26.4 Waiver of Jury Trial. EACH PARTY KNOWINGLY, VOLUNTARILY,
INTENTIONALLY AND IRREVOCABLY WAIVES THE RIGHT TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED ON THIS AGREEMENT, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY AGREEMENT
EXECUTED OR CONTEMPLATED TO BE EXECUTED IN CONJUNCTION WITH THIS
AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO. THIS
PROVISION IS A MATERIAL INDUCEMENT TO EACH OF THE PARTIES FOR
ENTERING HEREINTO. EACH PARTY HEREBY WAIVES ANY RIGHT TO
CONSOLIDATE ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER AGREEMENT
EXECUTED OR CONTEMPLATED TO BE EXECUTED IN CONJUNCTION WITH THIS
AGREEMENT, OR ANY MATTER ARISING HEREUNDER OR THEREUNDER, WITH
ANY PROCEEDING IN WHICH A JURY TRIAL HAS NOT OR CANNOT BE WAIVED.
THIS SECTION WILL SURVIVE THE EXPIRATION OR TERMINATION OF THIS
AGREEMENT.
SECTION 27
COMPLIANCE
27.1 Nondiscrimination. Customer or its Affiliates is a federal contractor and maintains an
equal opportunity/affirmative action program in accordance with Applicable Law. As a result,
Seller must, to the extent required by Applicable Law, afford equal employment opportunity to
all of its applicants and employees, regardless of their race, color, national origin, sex, age,
religion, marital status, sexual orientation, gender identity and gender expression,protected
veteran status, disability, or other basis protected by law. Also as a result,but only if required by
66
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E. Hackett, IPC
Page 128 of 495

Applicable Law, Seller shall abide by the requirements of 41 CFR 60-1.4(a), 60-300.5(a) and 60-
741.5(a). These regulations prohibit discrimination against qualified individuals based on their
status as protected veterans or individuals with disabilities and prohibit discrimination against all
individuals based on their race, color, religion, sex, sexual orientation, gender identity, or
national origin. Moreover, these regulations require that covered prime contractors and
subcontractors take affirmative action to employ and advance in employment individuals without
regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability,
or veteran status. In connection with this Agreement and the Facility, Seller will comply with,
and cause all of its direct and indirect contractors and subcontractors to expressly agree to
comply with, all laws and regulations relating to forced, bonded (including debt bondage) or
indentured labor, involuntary or exploitative prison labor, slavery or trafficking of persons.
27.2 Anti-Corruption. In connection with the negotiation and performance of this Agreement
and the development, construction, and operation of the Facility or the Premises, Seller, on
behalf of itself, Seller's Parent Entity and any other direct or indirect upstream equity owners
that, notwithstanding percentage of equity ownership interest, have the voting power or
otherwise have the power to control the day-to-day management, operations and policies of
Seller, and such Affiliates that Seller contractually or otherwise controls or directs in the
management or operation of the Facility, and in each case, including the officers, directors,
employees and agents of such entities, represents and warrants that it has not engaged in, and that
it shall refrain from, offering,promising,paying, giving, authorizing the paying or giving of,
soliciting, or accepting money or Anything of Value, directly or indirectly, to or from (a) any
Government Official to (i) influence any act or decision of a Government Official in his or her
official capacity, (ii) induce a Government Official to act in violation of his or her lawful duty,
(iii) induce a Government Official to use his or her influence with a government or
instrumentality thereof, or(iv) otherwise secure any improper advantage, in each case to the
extent prohibited by applicable anti-corruption laws; or(b) any person in any manner that would
constitute bribery or an illegal kickback, or would otherwise violate applicable anti-corruption
laws. If Seller fails to comply with this Section 27.2 then Buyer may terminate this Agreement
in accordance with Section 12.1.2.12 . In connection with the performance of this Agreement
and all fees charged Buyer, Seller shall maintain books and records practices and internal
controls to ensure (a) that receipts and expenses are accurately recorded with reasonable detail
and are based on accurate and sufficient supporting documentation and(b) that no "off the
books" accounts are created or maintained. Unless otherwise required by law, such books and
records will be maintained for five (5)years after termination or expiration of this Agreement.
Seller will immediately report to Buyer any breach of this Section 27.2 by Seller or its
representatives. Seller will ensure that the contractors and subcontractors it retains in connection
with this Agreement expressly agree to anti-corruption undertakings, representations, and
warranties substantially similar to the provisions herein. If Buyer has reason to believe that a
breach of this Section 27.2 has occurred or will occur, Buyer shall have the right to audit Seller's
books and records insofar as they relate to performance of this Agreement and to withhold
further payments without any liability to Seller until reasonably satisfied that no breach has
occurred. If the Agreement is terminated pursuant to an Event of Default under Section
12.1.2.12, Buyer shall have no obligation to make further payments hereunder. Buyer's rights
and Seller's obligations under this Section 27.2 shall survive the termination or expiration of the
Agreement.
- 6'7 - Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 129 of 495

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
in their respective names as of the date last written below.
By: By:
Name: Name:
Title: Title:
Date: Date:
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Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 130 of 495

EXHIBIT I
MONTHLY POWER PRODUCTION AND SWITCHING REPORT
Month Year
Project Name Project Number:
Address Phone Number:
City State Zip State
Facility Station Metered
Output Usage Maximum Generation
Meter Number:
End of Month MWh Meter
Reading: MW
Beginning of Month MWh Meter:
Difference:
Times Meter Constant: Net Generation
MWh for the Month:
Metered Demand:
Breaker Opening Record Breaker Closing Record
Date Time Meter * Reason Date Time Meter
* Breaker Opening Reason Codes
1 Lack of Adequate Prime Mover
f Facility I hereby certify that the above meter readings are
2 Forced Outage o
3 Disturbance of I System true and correct as of Midnight on the last day of the
above month and that the switching record is accurate
4 Scheduled Maintenance and complete as required by the Energy Sales
5 Testing of Protection Systems Agreement to which I am a Party.
6 Cause Unknown
7 Other(Explain)
Signature Date
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 131 of 495

A-2 AUTOMATED METER READING COLLECTION PROCESS
Monthly, Idaho Power will use the provided Metering and Telemetry equipment and processes to collect
the meter reading information from the Idaho Power provided Metering Equipment that measures the Net
Energy and energy delivered to supply Station Use for the Facility recorded at 12:00 AM(Midnight)of the
last day of the month.
The meter information collected will include but not be limited to energy production, Station Use, the
maximum generated power (MW) and any other required energy measurements to adequately administer
this Agreement.
A-3 SELLER CONTACT INFORMATION
Seller's Contact Information
Name:
Telephone Number:
Cell Phone:
E-Mail:
24-Hour Project Operational Contact
Name:
Telephone Number:
Cell Phone:
E-Mail:
Project On-site Contact information
Name:
Telephone Number:
Cell Phone:
E-Mail:
70
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E. Hackett, IPC
Page 132 of 495

EXHIBIT 2
DESCRIPTION OF FACILITY
Project Name:
Project Number:
B-1 DESCRIPTION OF FACILITY
(Must include the Nameplate Capacity rating and VAR capability (both leading and lagging) of
all Generation Units to be included in the Facility)
Var Capability(Both leading and lagging)Leading is Lagging is
B-2 LOCATION OF FACILITY
Near:
Actual or nearest physical street address:
GPS Coordinates: Latitude Decimal Degrees:
Longitude Decimal Degrees:
State: County:
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 133 of 495

EXHIBIT 3
POINT OF DELIVERY/INTERCONNECTION FACILITIES
Instructions to Seller:
1. Include description of point of metering, and Point of Interconnection
2. Include description of Point of Delivery
3. Provide interconnection single line drawing of Facility including any transmission
facilities on Seller's side of the Point of Interconnection.
5. Describe Seller's arrangements for station service to the Facility and show on one-line
diagram how station service will be provided and metered.
6. Specify the maximum hourly rate (MW) at which Seller is permitted to deliver energy to
the Point of Delivery and in compliance with Seller's transmission rights between the Point of
Interconnection and the Point of Delivery("Maximum Transmission Rate"):
MW.
Seller to provide to Buyer with a copy of the final Generator Interconnection Agreement
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EXHIBIT 4
ESTIMATED MONTHLY NET OUTPUT
EXPECTED ENERGY-FIRST FULL CONTRACT YEAR
PERIOD ON-PEAK(MWh) OFF-PEAK(MWh) TOTAL (MWh)
January
February
March
April
May
June
July
August
September
October
November
December
First Year Total
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 135 of 495

EXPECTED ENERGY-ANNUAL REDUCTION
PERIOD EXPECTED ENERGY(MWh)
Year 0-1
Year 1-2
Year 2-3
Year 3-4
Year 4-5
Year 5-6
Year 6-7
Year 7-8
Year 8-9
Year 9-10
Year 10-11
Year 11-12
Year 12-13
Year 13-14
Year 14-15
Year 15-16
Year 16-17
Year 17-18
Year 18-19
Year 19-20
Under separate cover, Seller will also provide Idaho Power one (1) electronic and hard copy of
the solar plant performance estimation report using a Solar Performance Modeling Program no
later than ninety(90) days prior to the start of construction. This report will include, at a
minimum, estimated hourly MW generation output in MWh/h for the Premises and Facility, and
shall set forth additional losses related to availability, AC-side collection, transformers,
substation and no-load/overnight losses. On or prior to the Commercial Operation Date, Seller
shall provide an updated Exhibit A and solar plant performance estimation report based on
completed construction.
Upon the date of Final Completion, if different than the Commercial Operation Date, Seller shall
provide an updated Exhibit A and solar plant performance estimation report based on the final
completed construction.
74
Exhibit No. 1
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E. Hackett, IPC
Page 136 of 495

EXHIBIT 5
CONTRACT PRICE
Contract Price
Contract Year $/MWh
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 137 of 495

EXHIBIT 6
NERC EVENT TYPES
Event Description of Outages
Type
Unplanned(Forced) Outage—Immediate—An outage that requires immediate
U1 removal of a unit from service, another outage state or a Reserve Shutdown state.
This type of outage results from immediate mechanical/electrical/hydraulic
controls stems trips and operator-initiated trips in response to unit alarms.
Unplanned(Forced) OutageDelayed—An outage that does not require
U2 immediate removal of a unit from the in-service state but requires removal within
six 6 hours. This type of outage can only occur while the unit is in service.
Unplanned(Forced) Outage—Postponed—An outage that can be postponed
U3 beyond six hours but requires that a unit be removed from the in-service state
before the end of the next weekend. This type of outage can only occur while the
unit is in service.
Startup Failure—An outage that results from the inability to synchronize a unit
SF within a specified startup time period following an outage or Reserve Shutdown.
A startup period begins with the command to start and ends when the unit is
synchronized. An SF begins when the problem preventing the unit from
synchronizing occurs. The SF ends when the unit is synchronized or another SF
occurs.
Maintenance Outage—An outage that can be deferred beyond the end of the next
MO weekend,but requires that the unit be removed from service before the next
planned outage. (Characteristically, a MO can occur any time during the year, has
a flexible start date, may or may not have a predetermined duration and is usually
much shorter than a PO.
Maintenance Outage Extension—An extension of a maintenance outage (MO)
ME beyond its estimated completion date. This is typically used where the original
scope of work requires more time to complete than originally scheduled. Do not
use this where unexpected problems or delays render the unit out of service
be and the estimated end date of the MO.
Planned Outage—An outage that is scheduled well in advance and is of a
PO predetermined duration, lasts for several weeks and occurs only once or twice a
year. (Boiler overhauls, turbine replacement or inspections are typical planned
outages.)
Planned Outage Extension—An extension of a planned outage (PO)beyond its
PE estimated completion date. This is typically used where the original scope of work
requires more time to complete than originally scheduled. Do not use this where
unexpected problems or delays render the unit out of service beyond the estimated
end date of the PO.
76
Exhibit No. 1
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E. Hackett, IPC
Page 138 of 495

EXHIBIT 7
START-UP TESTING
(Seller to provide to Buyer before the First Generation Date)
77
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E. Hackett, IPC
Page 139 of 495

EXHIBIT 8
FORM OF GUARANTY—CREDIT SUPPORT OBLIGATION
FORMS OF LIQUID SECURITY
The Seller shall provide Idaho Power with commercially reasonable security instruments
such as Cash, Cash Escrow Security, Guarantee or Letter of Credit as those terms are
defined below or other forms of liquid financial security that would provide readily
available cash to Idaho Power to satisfy the security requirements within this Agreement.
For the purpose of this Appendix D,the term"Credit Requirements"shall mean acceptable
financial creditworthiness of the entity providing the security instrument in relation to the
term of the obligation in the reasonable judgment of Idaho Power, provided that any
guarantee and/or Letter of Credit issued by any other entity with a short-term or long-term
investment grade credit rating by Standard & Poor's Corporation or Moody's Investor
Services, Inc. or any successors shall be deemed to have acceptable financial
creditworthiness.
I. Cash — Seller shall deposit cash in the amount of the required security with Idaho
Power. Idaho Power will not be responsible to calculate or pay any interest on these
funds deposited with Idaho Power.
2. Cash Escrow Security— Seller shall deposit funds in an escrow account established by
the Seller in a banking institution acceptable to both Parties equal to the required
security. The Seller shall be responsible for all costs, and receive any interest earned
associated with establishing and maintaining the escrow account(s).
3. Guarantee or Letter of Credit Security — Seller shall post and maintain in an amount
equal to the required security: (a) a guaranty from a party that satisfies the Credit
Requirements, in a form acceptable to Idaho Power at its discretion, or (b) an
irrevocable Letter of Credit in a form acceptable to Idaho Power, in favor of Idaho
Power. The Letter of Credit will be issued by a financial institution acceptable to both
parties. The Seller shall be responsible for all costs associated with establishing and
maintaining the Guarantee(s) or Letter(s) of Credit.
78
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 140 of 495

EXHIBIT 9
REQUIRED FACILITY DOCUMENTS
1. Obtained Required Facility Documents:
Permits:
Conditional Use Permits from Twin Falls County for the construction and
operation of the Facility
Land Rights:
Solar Park Lease Agreement for the land, access, and interconnection of the
Facility.
2. To Be Obtained (Prior to Commercial Operation) Required Facility Documents:
Licenses, Permits and Authorizations:
Evidence of market-based rate authority under Section 205 of the Federal Power Act or evidence
of qualifying facility certification under the Public Utility Regulatory Policies Act
Access road easement
Electrical Permit
Building Permit
Interconnection approval
Utility easement
Crossing Agreement
Construction and Operations and Maintenance:
Contract for the Sale of Power Generation Equipment and Related Services between vendors and
engineering, procurement, and construction contractor and Seller
Generator Interconnection Agreement
Retail Electric Service Agreement
Proof of Insurance
Construction Agreements:
Balance of Plant/Construction Services Agreement
Operations and Maintenance Agreements:
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 141 of 495

Warranty, Service and Maintenance Agreement
SUCH LIST MAY BE UPDATED PURSUANT TO SECTION 2.2.3
80
Exhibit No. 1
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E. Hackett, IPC
Page 142 of 495

EXHIBIT 10
LEASES
(Seller to provide to Buyer before the Commercial Operation Date)
Memorandum of Solar Park Lease Agreement 1
Memorandum of Solar Park Lease Agreement 2
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 143 of 495

EXHIBIT 11
ENGINEER'S CERTIFICATIONS
ENGINEER'S CERTIFICATION
OF
OPERATIONS &MAINTENANCE POLICY
The undersigned , on behalf of himself/herself and
,hereinafter collectively referred to as"Engineer,"hereby states and certifies to the Seller as
follows:
l. That Engineer is a Licensed Professional Engineer in good standing in the State of Idaho.
2. That Engineer has reviewed the Energy Sales Agreement, hereinafter referred to as the
"Agreement," between Idaho Power as Buyer, and as Seller, dated
3. That the cogeneration or small power production project which is the subject of the Agreement and
this Statement is identified as Idaho Power Company Facility No. and is hereinafter
referred to as the"Project."
4. That the Project, which is commonly known as the Project, is located in
Section Township Range ,Boise Meridian, County,Idaho.
5. That Engineer recognizes that the Agreement provides for the Project to furnish electrical energy
to Idaho Power for a year period.
6. That Engineer has substantial experience in the design,construction and operation of electric power
plants of the same type as this Project.
7. That Engineer has no economic relationship to the Design Engineer of this Project.
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8. That Engineer has reviewed and/or supervised the review of the Policy for Operation and
Maintenance ("O&M")for this Project and it is his professional opinion that, said Project has been
designed and built to appropriate standards, and adherence to said O&M Policy will result in the Project's
producing at or near the design electrical output, efficiency and plant factor for the full Contact Term of
years.
9. That Engineer recognizes that Idaho Power,in accordance with paragraph 5.2 of the Agreement,is
relying on Engineer's representations and opinions contained in this Statement.
10. That Engineer certifies that the above statements are complete, true and accurate to the best of
his/her knowledge and therefore sets his/her hand and seal below.
By
(P.E. Stamp)
Date
83
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 145 of 495

ENGINEER'S CERTIFICATION
OF
ONGOING OPERATIONS AND MAINTENANCE
The undersigned , on behalf of himself/herself
and hereinafter collectively referred to as "Engineer," hereby states and
certifies to the Seller as follows:
I. That Engineer is a Licensed Professional Engineer in good standing in the State of Idaho.
2. That Engineer has reviewed the Energy Sales Agreement, hereinafter referred to as the
"Agreement," between Idaho Power as Buyer, and as Seller, dated
3. That the cogeneration or small power production project which is the subject of the Agreement and
this Statement is identified as Idaho Power Company Facility No. and hereinafter referred
to as the"Project".
4. That the Project, which is commonly known as the Project, is located in
Section Township Range ,Boise Meridian, County,Idaho.
5. That Engineer recognizes that the Agreement provides for the Project to furnish electrical energy
to Idaho Power for a year period.
6. That Engineer has substantial experience in the design,construction and operation of electric power
plants of the same type as this Project.
7. That Engineer has no economic relationship to the Design Engineer of this Project.
84
Exhibit No. 1
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E. Hackett, IPC
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8. That Engineer has made a physical inspection of said Project, its operations and maintenance
records since the last previous certified inspection. The Engineer certifies, based on the Project's
appearance and the information provided by the Project, that the Project's ongoing O&M has been
completed in accordance with said O&M Policy;that it is in reasonably good operating condition; and it is
in the Engineer's professional opinion that if adherence to said O&M Policy continues, the Project will
continue producing at or near its design electrical output, efficiency and plant factor for the remaining
years of the Agreement.
9. That Engineer recognizes that Idaho Power,in accordance with paragraph 5.2 of the Agreement,
is relying on Engineer's representations and opinions contained in this Statement.
10. That Engineer certifies that the above statements are complete,true and accurate to the best of
his/her knowledge and therefore sets his/her hand and seal below.
By
(P.E. Stamp)
Date
85
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 147 of 495

ENGINEER'S CERTIFICATION
OF
DESIGN&CONSTRUCTION ADEQUACY
The undersigned , on behalf of himself/herself and
hereinafter collectively referred to as"Engineer",hereby states and certifies
to Idaho Power as follows:
1. That Engineer is a Licensed Professional Engineer in good standing in the State of Idaho.
2. That Engineer has reviewed the Energy Sales Agreement, hereinafter referred to as the
"Agreement", between Idaho Power as Buyer, and as Seller, dated
i
3. That the cogeneration or small power production project, which is the subject of the
Agreement and this Statement, is identified as Idaho Power Company Facility No and
is hereinafter referred to as the"Project".
4. That the Project, which is commonly known as the Project is located in
Section Township Range ,Boise Meridian, County,Idaho.
5. That Engineer recognizes that the Agreement provides for the Project to furnish electrical
energy to Idaho Power for a year period.
6. That Engineer has substantial experience in the design, construction and operation of
electric power plants of the same type as this Project.
7. That Engineer has no economic relationship to the Design Engineer of this Project and has
made the analysis of the plans and specifications independently.
8. That Engineer has reviewed the engineering design and construction of the Project,
including the civil work, electrical work, generating equipment, prime mover conveyance system, Seller
furnished Interconnection Facilities and other Project facilities and equipment.
9. That the Project has been constructed in accordance with said plans and specifications, all
86
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E. Hackett, IPC
Page 148 of 495

applicable codes and consistent with Prudent Electrical Practices as that term is described in the Agreement.
10. That the design and construction of the Project is such that with reasonable and prudent
operation and maintenance practices by Seller,the Project is capable of performing in accordance with the
terms of the Agreement and with Prudent Electrical Practices for a year period.
11. That Engineer recognizes that Idaho Power, in accordance with paragraph 5.2 of the
Agreement, in interconnecting the Project with its system, is relying on Engineer's representations and
opinions contained in this Statement.
12. That Engineer certifies that the above statements are complete,true and accurate to the best
of his/her knowledge and therefore sets his/her hand and seal below.
By
(P.E. Stamp)
Date
87
Exhibit No. 1
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E. Hackett, IPC
Page 149 of 495

EXHIBIT 12
[RESERVED]
88
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E. Hackett, IPC
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EXHIBIT 13
REQUIRED INSURANCE
The Seller shall secure and continuously carry insurance as specified within this Appendix for the
term of the Agreement.
Insurance Requirements:
1. All insurance required by this Agreement shall be placed with an insurance company
with an A.M. Best Company rating of A- or better.
2. If the insurance coverage required in this Appendix is cancelled,materially changed or
lapses for any reason, the Seller will immediately notify Idaho Power in writing. This
notice will advise Idaho Power of the specific reason for cancellation, material change
or lapse and the steps being taken to comply with these Insurance Requirements.
Failure to provide this notice and to comply with these Insurance Requirements within
5 days of the cancellation, material change or lapse will constitute a material breach
and Idaho Power may terminate this Agreement.
3. Prior to the First Energy date and subsequently within 10 days of the annual anniversary
of the Operation Date,the Seller shall provide a Certificate of Insurance in the name of
Idaho Power Company and list Idaho Power Company as an Additional Insured
Endorsement and Waiver of Subrogation Endorsement.
4. The Certificate of Insurance shall evidence the appropriate insurance coverage of
Comprehensive General Liability Insurance for both bodily injury and property damage
with limits equal to[$1,000,000,] each occurrence, combined single limit. The
deductible for such insurance shall be consistent with current Insurance Industry Utility
practices for similar property.
Seller shall be entitled to self-insure these coverages with approval of Idaho Power, which shall
not be unreasonable withheld, delayed or conditioned.
1.5 Periodic Review. Idaho Power may review this schedule of insurance as often as once
every two (2)years. Idaho Power may in its discretion require Seller to make reasonable
changes to the policies and coverages described in this Exhibit to the extent reasonably necessary
to cause such policies and coverages to conform to the insurance policies and coverages typically
obtained or required for power generation facilities comparable to the Facility at the time Idaho
Power's review takes place.
89
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Case No. IPC-E-26-03
E. Hackett, IPC
Page 151 of 495

EXHIBIT 14
SELLER AUTHORIZATION TO RELEASE GENERATION DATA TO IDAHO
POWER
[DATE]
Idaho Power
1221 W Idaho St
Boise, ID 83702
Email: [e-mail]
To Whom it May Concern:
("Seller") hereby voluntarily authorizes Idaho Power's
Transmission business unit to share Seller's interconnection information with marketing function
employees of Idaho Power, including but not limited to those in Power Supply. Seller
acknowledges that Idaho Power did not provide it any preferences, either operational or rate-
related, in exchange for this voluntary consent.
-90-
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 152 of 495

EXHIBIT 15
ATTACHMENTS
(Seller to provide to Buyer before the First Generation Date)
1. Site Map
2. As-Builts
3. Manufacturer's performance warranties
5. [Other]
91
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EXHIBIT 16
AS-BUILT SUPPLEMENT
92
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EXHIBIT 17
[Reserved]
93
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EXHIBIT 18
FORM OF CONSTRUCTION PROGRESS REPORT
Construction Progress Report
of
("Seller")
provided to
[BUYER ENTITY]
("Buyer")
[Date]
Instructions.
Any capitalized terms used in this report which are not defined herein are defined in the Power
Purchase Agreement by and between , ("Seller") and [BUYER ENTITY] dated
, (the "Agreement").
Seller shall review the status of each milestone of the construction schedule for the Facility and
Seller shall identify such matters referenced in clauses (i)-(v)below as known to Seller and
which in Seller's reasonable judgment are expected to adversely affect the schedule, and with
respect to any such matters, shall state the actions which Seller intends to take to ensure that the
milestones will be attained by their required dates. Such matters may include:
(i) Any material matter or issue arising in connection with a Permit, or compliance
therewith, with respect to which there is an actual or threatened dispute over the interpretation of
an Applicable Law, actual or threatened opposition to the granting of a necessary Permit, any
organized public opposition, any action or expenditure required for compliance or obtaining
approval that Seller is unwilling to take or make, or in each case which could reasonably be
expected to materially threaten or prevent financing of the Facility, attaining any milestone, or
obtaining any contemplated agreements with other parties which are necessary for attaining any
milestone or which otherwise reasonably could be expected to materially threaten Seller's ability
to attain any milestone.
(ii) Any development or event in the financial markets or the independent power industry,
any change in taxation or accounting standards or practices or in Seller's business or prospects
which reasonably could be expected to materially threaten financing of the Facility, attainment of
any milestone or materially threaten any contemplated agreements with other parties which are
necessary for attaining any Milestone or could otherwise reasonably be expected to materially
threaten Seller's ability to attain any milestone;
(iii) A change in, or discovery by Seller of, any legal or regulatory requirement which would
reasonably be expected to materially threaten Seller's ability to attain any milestone;
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(iv) Any material change in Seller's schedule for initiating or completing any material aspect
of Facility;
(v) The status of any matter or issue identified as outstanding in any prior Construction
Progress Report and any material change in Seller's proposed actions to remedy or overcome
such matter or issue.
For guidance, each"overview" subsection shall include a summary of the status and progress of
major activities associated with that section, whether planned, in progress, or completed,
including relevant dates. Each"recent activities" subsection shall include details of activities
during the previous month. Each"expected activities" subsection shall include a brief list of
major activities planned for the current month.
Seller shall complete, certify, and deliver this form of Construction Progress Report to
[ ], together with all attachments and exhibits, with copies of this report delivered
to [ ].
1. Executive Summary
Please provide an overview of the Facility, including technology, size, location, and ownership.
Please provide a brief chronological cumulative summary of the major activities completed for
each of the following aspects of the Facility. Include the date each item was added to the
summary:
1.1 Milestones
1.2 Permits
1.3 Financing
1.4 Property Acquisition
1.5 Design and Engineering
1.6 Major Equipment procurement
1.7 Construction
1.8 Interconnection
1.9 Startup
2. Milestones
In this section, please include information on each significant milestone related to the Facility.
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2.1 Milestone schedule
Please state the status and progress of each milestone. Provide the date of completion of
completed milestone(s) and the expected date of completion of uncompleted milestone(s). The
expected date is the current best estimate, and may change from time to time as better
information becomes available.
2.2 Remedial Action Plan(applicable if Seller fails to achieve a milestone by the anticipated
milestone date)
Please describe in detail any delays (actual or anticipated)beyond the scheduled milestone dates.
Describe the cause of the delay (e.g., governmental approvals, financing, property acquisition,
design activities, equipment procurement, Facility construction, interconnection, or any other
factor). Describe Seller's remedial action plan which shall include detailed plans to achieve the
missed milestone and subsequent milestones.
3. Permits
In this section, please include information on each of the Permits required for the construction of
the Facility and the status thereof. List the applicable government agency, the type of
application/approval requested, and the dates (expected or actual) of significant activity.
Significant activity includes application submission, notice of complete application, notice of
preparation, public hearing or comment period, draft documents or approvals, final documents or
approvals, notice of determination, or issuance of permit. If the government agency maintains a
website with information on the approval process for the Facility,please provide a link.
3.1 Environmental Impact Report/Statement (EIR/EIS) of Conditional Use Permit (CUP)
Please describe the environmental review process and each of the Permit(s) to be obtained for the
Facility. Provide the status and completion date (expected or actual) of each significant activity
in the process.
3.2 Other Permits
Please describe each of the other Permits to be obtained for the Facility. Provide the status and
completion date (expected or actual) of each significant activity.
3.3 Recent Permit activities
Please describe in detail the Permit activities that occurred during the previous calendar month.
3.4 Expected Permit activities
Please list all Permit activities that are expected to be performed during the current calendar
month.
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4. Financing Activities
In this section, please include information on each separate phase of financing for the Facility.
Include information on debt, equity, or federal or state loans or grants.
4.1 Overview of financing activities
Please provide a summary of the status and progress of each major financing activity, including
the date of execution of significant documents, and information on the expected timing of future
significant activities.
4.2 Recent financing activities
Please describe in detail the financing activities that occurred during the previous calendar
month.
4.3 Expected financing activities
Please list the financing activities that are expected to be performed during the current calendar
month.
5. Property Acquisition Activities
In this section, please include information on property acquisition or site control activities for the
Facility.
5.1 Overview of property acquisition activities
Please provide a summary of the status and progress of each major property acquisition activity,
including the date of execution of significant documents, and information on the expected timing
of future significant activities.
5.2 Recent property acquisition activities
Please describe in detail the property acquisition activities that occurred during the previous
calendar month.
5.3 Expected property acquisition activities
Please list the property acquisition activities that are expected to be performed during the current
calendar month.
6. Design and Engineering Activities
In this section, please include information on the status of design and engineering for the
Facility.
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6.1 Overview of design activities
Please provide a summary of the status and progress of each major design or engineering
activity, including dates of completion of significant activities and expected timing of future
activities.
6.2 Recent design activities
Please describe in detail the design activities that occurred during the previous calendar month.
6.3 Expected design activities
Please list the design activities that are expected to be performed during the current calendar
month.
7. Major Equipment Procurement
In this section, please include information on all major equipment to be procured for all portions
of the Facility to be completed by Seller, including switchyards, substations and any other
interconnection equipment, in addition to generating and auxiliary equipment.
7.1 Overview of major equipment procurement activities
For each type of equipment, list the number of each major item to be procured, the manufacturer,
model number(if applicable), and rating. List the delivery schedule (expected or actual as
applicable), breaking out the number of each item (to be)procured or delivered in each month.
7.2 Recent major equipment procurement activities
Please describe in detail the major equipment procurement activities that occurred during the
previous calendar month.
7.3 Expected major equipment procurement activities
Please list the major equipment procurement activities that are expected to be performed during
the current calendar month.
8. Construction Activities
In this section, please include information on the status of any construction-related factors that
may affect the ability of the Facility to deliver the Facility Energy. Include information on the
Facility infrastructure, generating equipment, and major auxiliary equipment. Also include
information on the substations, switchyards, gen-ties, telecommunications equipment or other
interconnection facilities that are the direct responsibility of the Facility.
8.1 Overview of major construction activities
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Please provide a summary of the status and progress of each major construction activity for all
portions of the Facility, including a schedule showing expected or actual dates as applicable.
Provide the name of the EPC Contractor, the date of execution of the EPC Contract, and the date
of issuance of a Notice to Proceed (or equivalent). For each major type of equipment, break out
the number of each item (to be) installed or commissioned in each month.
8.2 Recent construction activities
Please describe in detail the construction activities that occurred during the previous calendar
month.
8.3 Expected construction activities
Please list the interconnection activities that are expected to be performed during the current
calendar month.
8.4 EPC Contractor Progress Report
Please attach a copy of the progress reports received during the previous calendar month from
the EPC Contractor pursuant to the construction contract between Seller and EPC Contractor,
certified by the EPC Contractor as being true and correct as of the date issued.
8.5 Look-ahead construction schedule
Please provide a look-ahead construction schedule covering at least three months.
8.6 OSHA Recordables
Please list all OSHA recordables from the previous calendar month.
8.7 Work stoppages
Please describe any work stoppage from the previous calendar month and its effect on the
construction schedule.
9. Interconnection Activities
In this section, please include information on interconnection-related factors that may affect the
ability of the Facility to deliver Facility Energy. Include information on the status of
interconnection studies, Interconnection Agreements, design and construction of interconnection
facilities (e.g., substations, switchyards, gen-ties, system protection schemes,
telecommunications equipment to the extent not already covered in the Facility construction
information in Section 8), network upgrades, and grid outage or interconnection schedules.
9.1 Overview of interconnection activities
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Please provide a summary of the status and progress of each major interconnection activity
including dates of completion of significant activities and expected timing of future activities.
9.2 Recent interconnection activities
Please describe in detail the interconnection activities that occurred during the previous calendar
month.
9.3 Expected interconnection activities
Please list the interconnection activities that are expected to be performed during the current
calendar month.
10. Startup
In this section, please include information on the status of activities related to preparation for
Commercial Operation, including equipment testing, commissioning, release to operations,
requirements of the grid operator, and any other activities that must be conducted before the
Facility may deliver Energy to the grid or declare Commercial Operation.
10.1 Overview of startup activities
Please provide a summary of the status and progress of each major startup activity including
dates of completion of significant activities and expected timing of future activities.
10.2 Recent startup activities
Please describe in detail the startup activities that occurred during the previous calendar month.
10.3 Expected startup activities
Please list the startup activities that are expected to be performed during the current calendar
month.
11. Other Information Reasonably Requested by Buyer
11.1 Litigation
Please list any communication received directly or indirectly from any third party that is in the
nature of a threat of litigation, a litigation hold notice, a summons and complaint, or a
commencement of a judicial, regulatory, or arbitration proceeding or investigation against Seller
or concerning the Facility
11.2 ]
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I, , on behalf of and as an authorized representative of ,
do hereby certify that any and all information contained in this Seller's Construction Progress
Report is true and accurate, and reflects, to the best of my knowledge, the current status of the
construction of the Facility as of the date specified below.
By:
Name:
Title:
Date:
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EXHIBIT 19
FORM OF OPERATIONS REPORT
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EXHBIT 20
[IDAHO POWER FORM OF WREGIS QRE AGREEMENT]
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EXHIBIT 21
FORM OF LENDER CONSENT
CONSENT AND AGREEMENT
This Consent and Agreement(this "Consent") is made and entered into as of 20 ,by and
between Idaho Power Corporation("Buyer"), and ("Lender").
RECITALS
A. ("Seller"), has entered into that certain Loan Agreement, dated as of
20 (as amended, restated, supplemented, or otherwise modified from time to time, the "Loan
Agreement"), with Lender in order to finance construction of a photovoltaic solar electric energy
generating facility owned by Seller and located at (the "Solar Project").
B. Seller and Buyer have entered into that certain Power Purchase Agreement, dated as of
(as amended, restated, supplemented or otherwise modified from time to time, the "PPA.
C. As part of the transactions contemplated by the Loan Agreement, Lender has received a
pledge of all the limited liability company interests in Seller(the "Pledged Equity"), and Seller
has collaterally assigned all of its rights, title and interests in, to and under the PPA (the "Pledged
PPA", collectively with the Pledged Equity, the "Assigned Interest") to Lender.
AGREEMENTS
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt, adequacy and legal
sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the
parties hereby agree as follows:
1. Consent to Assignment. Buyer hereby consents to the collateral assignment by
Seller to Lender of the Pledged PPA and the pledge to Lender of the Pledged Equity and
acknowledges the right of Lender to exercise Lender's rights and remedies as a secured creditor
with respect to the Assigned Interest.
2. Pledged PPA Step-In. "Subsequent Seller Requirements"means an entity that (a)
is acceptable to Buyer; (b) is not involved, and has no Affiliate involved, in any state or federal
litigation or regulatory proceeding adverse to Buyer or any Affiliate of Buyer; (c)has, or has
retained, a reputable entity acceptable to Buyer that has, at least five (5)years' experience in the
operation and maintenance of solar energy facilities of comparable size to the Facility and the
ability perform all aspects of the PPA; (d)has agreed in writing to be bound by the PPA and to
assume all of Seller's obligations under the PPA; and (e) is not a Sanctioned Person. Buyer
agrees that, if Lender has elected to exercise its rights and remedies to proceed against the
Pledged PPA, and has so notified Buyer, then, if and only if(i)the hereinafter-defined
Subsequent Seller meets all of the Subsequent Seller Requirements, (ii) Buyer is holding, and
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will be holding as of and after the date of assignment, the Project Development Security or
Default Security, as applicable, and(iii) Buyer has not terminated this PPA pursuant to the terms
thereof and of this Consent, then Lender or any assignee or designee of Lender, including Lender
or any purchaser in a foreclosure sale or in lieu of foreclosure of the Pledged PPA (a
"Subsequent Seller"), may be substituted for Seller under the PPA and Buyer shall recognize
such Subsequent Seller as its counterparty under the PPA and, subject to all rights and remedies
of Buyer under the PPA, continue to perform its obligations under the PPA in favor of such
Subsequent Seller. Lender shall have no liability or obligation under the PPA as a result of this
Consent except if Lender becomes a Subsequent Seller. Any Subsequent Seller succeeds to the
interests and obligations of Seller and must comply with the PPA. The transfer of the PPA from
Seller to a Subsequent Seller does not relieve or discharge Seller of its obligations and liabilities
to Buyer which accrued prior to the date of such transfer.
3. Change of Control. Buyer hereby consents to both (i)the pledge of the Pledged
Equity to Lender as part of the transactions contemplated by the Loan Agreement, and(ii) the
transfer of such Pledged Equity, in connection with such an exercise of Lender's remedies
against the Pledged Equity, to a Subsequent Seller that meets the Subsequent Seller
Requirements, provided that Lender provides written notice to Buyer in advance of any such
transfer.
4. Notice of Default. If Seller defaults in the performance of any of its obligations
under the PPA, Lender may cure such default by the deadline provided therefor in the PPA.
Buyer will not terminate the PPA before providing notice to Lender and giving Lender the
opportunity to cure such default as follows: (a)with respect to payment defaults, or a default
under Section 11.1(1) of the PPA, before the later of(i) ten (10) business days after Buyer's
delivery of notice to Lender of such default or(ii) five (5)business days plus the number of days
in the applicable cure period provided Seller in the PPA, and(b)with respect to other defaults
(except those set forth in Section 11.1(e)-O) of the PPA, for which no notice or extension is
promised by Buyer herein), within the greater of(i) ninety (90) days or(ii)thirty(30) days plus
the number of days in the applicable cure period provided Seller in the PPA following delivery
of such notice from Buyer to Lender; provided, however, that such cure period in clause (b)may
be extended by a reasonable period of time, not to exceed an additional ninety (90) days (or, with
respect to an Event of Default under Section 11.l(c) of the PPA, to a date that is no greater than
ninety (90) days after Buyer's delivery of notice to Lender of such default), if Lender has
commenced and is diligently pursuing appropriate action to cure such non-monetary default;
provided further, that to the extent that such default permits Lender to foreclose on its security
interests in the Assigned Interest and Lender needs to gain possession of the Solar Project in
order to perform such cure, Buyer will allow an additional reasonable amount of time, not to
exceed sixty(60) days, to permit Lender to do so.
5. PPA Termination. Buyer agrees that it shall not, without Lender's prior written
consent, mutually agree with Seller to a voluntary termination of the PPA; provided that
notwithstanding the foregoing, Buyer may terminate the PPA without Lender consent due to an
uncured Event of Default under the PPA after the expiration of Lender's rights to cure under
Section 4 hereof.
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6. No Setoff. Notwithstanding any provision to the contrary set forth in this
Consent, Lender may not use the Consent or any other setoff or other right set forth in the PPA
as a basis for any action under, or nonperformance of, its obligations under any letter of credit
naming Buyer or any affiliate as beneficiary, with respect to which the terms of such letter of
credit shall control.
7. Certifications of Bum. Buyer hereby certifies to Lender, as of the date hereof,
that(i) the execution, delivery and performance by Buyer of this Consent and the PPA have been
duly authorized by all necessary corporate action on the part of Buyer, (ii) each of this Consent
and the PPA is in full force and effect and constitutes the legal, valid and binding obligation of
Buyer, enforceable against Buyer in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting
the enforcement of creditors' rights generally and general equitable principles, (iii)the PPA and
the Acknowledgment of Consent and Agreement (attached hereto)with respect to this Consent
are the only agreements between Seller and Buyer, (iv) a true and correct copy of the PPA is
attached hereto as Exhibit A and the PPA has not been further amended, (v) Buyer is not in
default of any of its obligations under the PPA, (vi) solely to the best of the actual knowledge of
its employees with responsibility for administering the PPA, Seller is not in default of any of its
obligations under the PPA, (vii) solely to the best of the actual knowledge of its employees with
responsibility for administering the PPA, there are no material disputes between Buyer and Seller
under the PPA, (viii)Buyer has not assigned any interest it has in the PPA, and Buyer has no
notice of, and has not consented to, any previous assignment by Seller of all or any part of its
rights under the PPA, (ix)there are no actions pending against Buyer as a debtor under any
federal or state bankruptcy or insolvency laws, (x) there are no proceedings pending or, to
Buyer's knowledge, threatened against or affecting Buyer before any court, governmental
authority, or arbitration board or tribunal which could reasonably be expected to have a material
adverse effect on the ability of Buyer to perform its obligations under the PPA, (xi) solely to the
best of the actual knowledge of its employees with responsibility for administering the PPA, no
event of Force Majeure has occurred, and (xii) subject to Seller's obligation to declare the
Commercial Operation Date on or before the Guaranteed Commercial Operation date, solely to
the best of the actual knowledge of Buyer's employees with responsibility for administering the
PPA, no event or condition exists that would either immediately or with the passage of any
applicable grace period or giving of notice, or both, enable either Buyer or Seller to terminate or
suspend its obligations under the PPA.
8. Replacement Agreement. If the PPA is rejected or terminated as a result of any
bankruptcy, insolvency, reorganization or similar proceeding affecting Seller, Buyer will, at the
option of Lender exercised by providing written notice thereof to Buyer within forty-five (45)
days after such rejection or termination, enter into a new agreement with Lender(or its designee
or assignee)having identical terms as the PPA (subject to any conforming changes (none of
which may include limitation of Buyer's remedies)necessitated by the substitution of the seller
entity); provided that the following conditions shall apply: (i)the seller under the new agreement
must meet the Subsequent Seller Requirements; (ii) the term under such new agreement shall be
equal to the remaining balance of the term specified in the PPA and(iii) Lender(or its designee
or assignee) shall have cured any then-existing payment or performance defaults by Seller under
the PPA(other than the bankruptcy of Seller or a transfer of the Facility to Lender, or of Seller to
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Lender, that was in connection with Lender's foreclosure thereupon and in compliance with this
Consent but that was not in compliance with Section 9.2 of the PPA).
9. Notices. All notices given under this Consent shall be in writing and shall be
deemed effectively given: (a)upon personal delivery to the party to be notified; (b) one business
day after deposit with a reputable overnight courier,prepaid for overnight delivery and addressed
as set forth below, with a copy of the notice simultaneously emailed to each applicable recipient
at the email address shown below; provided that the sending party receives a confirmation of
delivery from the overnight courier service; or (c) three (3)business days after deposit with the
U.S. Post Office, postage prepaid, certified with return receipt requested and addressed to the
party to be notified at the address indicated for such party below with a copy of the notice
simultaneously emailed to each applicable recipient at the email address shown below. The
parties may designate alternative notice addresses upon ten(10) days' advance written notice to
the other parties:
If to Seller:
With a copy to:
If to Buyer:
With copies to all of-
If to Lender:
With a copy to:
10. Successors and Assigns. This Consent shall be binding upon Buyer and Seller
and their permitted successors and assigns.
11. Termination. Upon the satisfaction in full of Seller's obligations under the Loan
Agreement (other than contingent indemnification and reimbursement obligations that survive
repayment of the loans and advances, interest fees and other amounts owed under the Loan
Documents): (a) Lender shall notify Buyer of such fact and(b)this Consent shall terminate
without further action of the parties hereto. Additionally, upon Lender's consummation of all of
its remedies available under this Consent, this Consent shall terminate without further action of
the parties hereto.
12. Waiver of Right to Jury Trial. TO THE FULLEST EXTENT PERMITTED BY
LAW, EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS CONSENT. EACH PARTY
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FURTHER WAIVES ANY RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY
TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL
CANNOT BE OR HAS NOT BEEN WAIVED.
13. Governing Law. This Consent will be governed by and construed in accordance
with the laws of the State of New York, without giving effect to principles of conflicts of law.
14. Severability. If any provision of this Consent or the application thereof is
determined by a court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions hereof, or the application of such provision to the parties hereto or
circumstances other than those as to which it has been held invalid or unenforceable, shall
remain in full force and effect and shall in no way be affected, impaired or invalidated thereby,
so long as the economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any parry by the invalidity, unenforceability or
nullification of the offensive provisions.
15. Amendment. This Consent may not be amended, modified, or changed in any
respect except by an agreement in writing signed by Lender and Buyer. Nothing in this Consent
amends or modifies the PPA.
16. Counterparts; Rules of Construction; Definitions. This Consent may be executed
in one or more counterparts, each of which will be an original and all of which,when taken
together, will constitute one and the same original agreement. All references made (a) in the
neuter, masculine, or feminine gender are made in all such genders, and(b) in the singular or
plural includes the plural or singular number as well. Any capitalized term used but not defined
herein is defined in the PPA.
17. Third Part Rights.ights. Nothing in this Consent, expressed or implied, is intended or
shall be construed to confer upon, or give to any Person, other than Buyer and Lender,
respectively, rights, remedies or claims, legal or equitable,under or by reason hereof, or any
covenant or condition hereof, and this Consent and the covenants and agreements, here contained
are and shall be held for the sole and exclusive benefit of Buyer and Lender.
18. Seller Acknowledgement of Consent and Agreement. Buyer's obligations under
this Consent are conditioned upon the execution and delivery by Seller to Buyer of the
Acknowledgment of Consent and Agreement attached hereto.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Consent to be duly executed and
delivered by their duly authorized signatories as of the date first above written.
IDAHO POWER COPRPORATION
By:
Name:
Title:
[LENDER]
By
Its
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ACKNOWLEDGEMENT OF CONSENT AND AGREEMENT
Reference is made to the Consent and Agreement dated as of (the "Consent and
Agreement")between Idaho Power Corporation(as "Buyer"), and (as "Lender").
as "Seller"under the PPA (as defined in the Consent and Agreement) hereby directs Buyer to
pay any amounts payable by Buyer under the PPA, as and when required under the PPA,
pursuant to the payment instructions delivered and effective as of or proximate to the date hereof,
from Seller to Buyer, or as may otherwise be specified from time to time by Lender or Seller to
Buyer in writing. Any payment made to Seller or as Buyer in good faith believes to have been
directed by Seller or Lender shall discharge any obligation of Buyer to Seller with respect to the
making of such payment. Seller, by its execution of this Acknowledgment of Consent and
Agreement, acknowledges and agrees that, notwithstanding any term to the contrary in the PPA,
Buyer and Lender may perform all acts or obligations as set forth in the Consent and Agreement,
and Buyer may perform as set forth herein or as otherwise purportedly instructed by Lender,
including, without limitation, the manner and place of any payments to be made by Buyer that
would otherwise be required pursuant to the PPA, and further agrees and consents to the various
agreements made by Buyer in the Consent and Agreement, issues or confirms the instructions
contained in the Consent and Agreement or herein or as hereafter issued by Seller or Lender,
agrees to indemnify Buyer for any damages or liabilities suffered in the performance of the
Consent and Agreement or such instruction; and further agrees that none of the execution of the
Consent and Agreement, the performance by Buyer or Lender of any of their respective
obligations thereunder, the exercise of any of the rights of Buyer or Lender thereunder, or the
acceptance by Buyer of performance of the PPA by any parry acting at the direction of Seller,
Lender, or a Subsequent Seller shall subject Buyer to liability to Seller or release Seller from any
obligation of Seller under the PPA. Seller acknowledges that Buyer need not enter into any
agreement in the nature of the Consent and Agreement with any of Seller's other lenders prior to
the termination of the Consent and Agreement. Nothing in this Acknowledgment of Consent and
Agreement or in the Consent and Agreement amends or modifies the PPA. Seller shall have no
rights against Buyer, under the PPA or otherwise, arising out of or on account of the Consent and
Agreement or Buyer's performance (or nonperformance)thereunder or of the instruction.
Agreed to and Accepted:
By:
Its:
Date:
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EXHIBIT 22
FORM OF ESTOPPEL CERTIFICATE
ESTOPPEL CERTIFICATE
This Estoppel Certificate ("Estoppel") is dated , 20 Reference is made to that
certain Renewable Energy Purchase Agreement, dated as of (the "PPA"), by and
between Idaho Power Corporation("Buyer"), and ("Seller") concerning output of a
[wind/solar] energy generating facility owned by Seller and located in (the "Project").
This certificate is delivered by Buyer to ("Investor") and as Administrative
Agent(as defined in the Consent defined below) ("Administrative Agent"). Capitalized terms
used but not defined herein are defined in the PPA.
Buyer certifies that, as of the date hereof, that(i) the execution, delivery and performance by
Buyer of this Estoppel and the PPA have been duly authorized by all necessary action on the part
of Buyer, (ii) each of this Estoppel and the PPA is in full force and effect and constitutes the
legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance with its
terms, except as the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors' rights generally and
general equitable principles, (iii)the PPA and the Acknowledgment of Consent and Agreement
dated are the only agreements between Seller and Buyer, (iv) a true and correct copy of
the PPA is attached hereto as Exhibit A and the PPA has not been further amended, (v) solely to
the best of the actual knowledge of its employees responsible for administering the PPA, Buyer
is not in default of any of its obligations under the PPA, (vi) solely to the best of the actual
knowledge of its employees with responsibility for administering the PPA, Seller is not in default
of any of its obligations under the PPA, (vii) solely to the best of the actual knowledge of its
employees with responsibility for administering the PPA, there are no material disputes between
Buyer and Seller under the PPA, (viii) Buyer has not assigned any interest it has in the PPA, and
Buyer has no notice of, and has not consented to, any previous assignment by Seller of all or any
part of its rights under the PPA, (ix)there are no actions pending against Buyer as a debtor under
any federal or state bankruptcy or any other similar laws, (x)there are no proceedings pending
or, to Buyer's knowledge, threatened against or affecting Buyer before any court, governmental
authority, or arbitration board or tribunal which could reasonably be expected to have a material
adverse effect on the ability of Buyer to perform its obligations under the PPA, (xi) solely to the
best of the actual knowledge of its employees with responsibility for administering the PPA, no
event of Force Majeure has occurred, and [(xii) subject to Seller's obligation to declare the
Commercial Operation Date on or before the Guaranteed Commercial Operation Date, solely to
the best of the actual knowledge of Buyer's employees with responsibility for administering the
PPA][omit if estoppel delivered after COD], no event or condition exists that would either
immediately or with the passage of any applicable grace period or giving of notice, or both,
enable either Buyer or Seller to terminate or suspend its obligations under the PPA. Buyer
disclaims any obligation to advise Investor or Administrative Agent of any changes to the
foregoing.
IN WITNESS WHEREOF, the undersigned has caused this Estoppel to be signed by its
111
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 173 of 495

authorized signatory as of the date first set forth above.
IDAHO POWER CORPORATION
By:
Name:
Title:
112
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 174 of 495

Idaho Power 2032 All Source RFP �'.12IUm
Exhibit F.2—Draft Form Agreements for Resources Based Bids POMR®
An IDACORP Company
Respondent shall review and redline the following draft agreement into the submitted proposal for the specific
product type and ownership structure as defined in this RFP.
This draft Exhibit F is not comprehensive and does not constitute a binding offer, shall not form the bases for an
agreement by estoppel nor otherwise, and is not conditions upon each party's receipt of all requirement
management approvals (including final credit and legal approval) and all regulatory approvals. Any actions
taken by a party in reliance on the terms set forth in this working draft or on statements made during negotiations
pursuant to this working draft shall be at thatparty's own risk. Until this agreement is negotiated, approved by
management, executed, delivered, and approved by all required regulatory bodies, no party shall have any other
legal obligations, expressed or implied, or arising in any other manner under this working draft or in the course
of negotiations.
BUILD TRANSFER AGREEMENT
dated as of
[—,2 0—]
by and between
IDAHO POWER COMPANY
and
[DEVELOPER]
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 175 of 495

Table of Contents Page
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 Defined Terms...........................................................................................................................1
1.2 Interpretation..........................................................................................................................21
ARTICLE 2
PURCHASE AND SALE OF MEMBERSHIP INTERESTS
2.1 IPUC Approval..........................................................................................................................22
2.2 Sale and Transfer of Membership Interests.................................................................22
2.3 Firm Date...................................................................................................................................22
2.4 Full Notice to Proceed...........................................................................................................24
2.5 Closing Deliverables..............................................................................................................24
2.6 Purchase Price.........................................................................................................................26
2.7 Closing and Payment Structure.........................................................................................27
2.8 Further Assurances................................................................................................................27
2.9 Conditions Precedent to Buyer's Obligation to Complete the
Closing.........................................................................................................................................27
2.10 Conditions Precedent to Developer's Obligation to Complete the
Closing.........................................................................................................................................29
2.11 Early Termination..................................................................................................................30
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF DEVELOPER
3.1 Organization, Standing, and Power.................................................................................32
3.2 Authority; Execution and Delivery..................................................................................32
3.3 Binding Agreement................................................................................................................32
3.4 No Conflicts...............................................................................................................................33
3.5 No Proceedings........................................................................................................................33
3.6 Compliance with Laws..........................................................................................................33
3.7 Membership Interests...........................................................................................................33
3.8 Financial Resources...............................................................................................................34
3.9 Reports.......................................................................................................................................34
3.10 Due Diligence. ..........................................................................................................................34
3.11 No Material Adverse Change..............................................................................................34
3.12 Affiliate Transactions............................................................................................................35
3.13 Brokers.......................................................................................................................................35
Build Transfer Agreement-Page i
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 176 of 495

3.14 Absence of Certain Business Practices...........................................................................35
3.15 Solvency. ....................................................................................................................................35
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF DEVELOPER WITH RESPECT TO THE PROJECT
COMPANY AND THE FACILITY
4.1 Organization, Standing, and Power.................................................................................36
4.2 No Conflicts...............................................................................................................................36
4.3 No Proceedings........................................................................................................................37
4.4 Compliance with Laws..........................................................................................................37
4.5 No Prior Business...................................................................................................................37
4.6 Employees.................................................................................................................................37
4.7 Subsidiaries and Joint Ventures........................................................................................37
4.8 Managers and Bank Accounts............................................................................................37
4.9 No Undisclosed Liabilities...................................................................................................38
4.10 Project Assets...........................................................................................................................38
4.11 Project Company Contracts................................................................................................38
4.12 Project Company Permits; Project Company Regulatory Approvals.................38
4.13 Real Estate.................................................................................................................................39
4.14 Environmental Matters........................................................................................................41
4.15 Sufficiency of Assets..............................................................................................................42
4.16 Construction of the Project; Expertise...........................................................................42
4.17 Tax Benefits..............................................................................................................................43
4.18 Taxes............................................................................................................................................44
4.19 FERC. ...........................................................................................................................................45
4.20 Insurance...................................................................................................................................46
4.21 Books and Records.................................................................................................................46
4.22 Intellectual Property.............................................................................................................46
4.23 No Data Breaches. ..................................................................................................................46
4.24 No Other Representations...................................................................................................46
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF BUYER
5.1 Organization, Standing, and Power.................................................................................47
5.2 Authority; Execution and Delivery..................................................................................47
5.3 Binding Agreement................................................................................................................47
5.4 No Conflicts...............................................................................................................................47
Build Transfer Agreement-Page ii
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 177 of 495

5.5 No Proceedings........................................................................................................................48
5.6 Buyer Permits; Buyer Regulatory Approvals..............................................................48
5.7 Brokers.......................................................................................................................................48
5.8 Solvency. ....................................................................................................................................48
5.9 Sufficiency of Funds...............................................................................................................48
ARTICLE 6
CREDIT SUPPORT
6.1 Credit Support. ........................................................................................................................48
6.2 Utilization of Credit Support..............................................................................................49
6.3 Release of Credit Support....................................................................................................49
6.4 Contractor Credit Support. .................................................................................................49
ARTICLE 7
COVENANTS OF THE PARTIES
7.1 General Covenants of the Parties.....................................................................................50
7.2 Developer Covenants............................................................................................................50
7.3 Buyer Covenants.....................................................................................................................53
7.4 Updating of the Disclosure Schedules............................................................................53
ARTICLE 8
GENERAL OBLIGATIONS OF DEVELOPER
8.1 Developer's General Obligations......................................................................................54
8.2 Contractor and Subcontractors.........................................................................................55
8.3 Compliance with Law............................................................................................................56
8.4 Permits. ......................................................................................................................................56
8.5 Interconnection.......................................................................................................................56
8.6 Opportunities for Other Contractors..............................................................................57
8.7 Labor and Employment........................................................................................................57
8.8 Authority for Access for Inspection.................................................................................58
8.9 Contractor Drawings and Manuals..................................................................................58
8.10 Training......................................................................................................................................59
8.11 Safety...........................................................................................................................................59
8.12 Intellectual Property Rights...............................................................................................60
8.13 Developer's Representatives. ............................................................................................60
8.14 Developer's Personnel/Drugs,Alcohol and Firearms..............................................60
8.15 Spare Parts Inventory...........................................................................................................61
8.16 Further Assurances................................................................................................................61
Build Transfer Agreement-Page iii
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 178 of 495

8.17 Other Liens................................................................................................................................61
8.18 Restriction on Fundamental Changes.............................................................................62
8.19 Records and Accounts. .........................................................................................................62
8.20 Data Breaches..........................................................................................................................62
ARTICLE 9
GENERAL OBLIGATIONS OF BUYER
9.1 Buyer's General Obligations...............................................................................................62
9.2 Buyer's Representative........................................................................................................62
9.3 Standard of Conduct..............................................................................................................63
9.4 Buyer Response.......................................................................................................................63
ARTICLE 10
WORKING ARRANGEMENTS
10.1 Site Security..............................................................................................................................63
10.2 Preservation of Public and Private Access. ..................................................................63
10.3 Avoidance of Noise and Disturbance..............................................................................64
10.4 Fencing, Protection, Lighting.............................................................................................64
10.5 Site Services..............................................................................................................................64
10.6 Cleanup.......................................................................................................................................64
10.7 Regulated Materials...............................................................................................................64
10.8 Wildlife and Cultural Concerns.........................................................................................64
ARTICLE 11
PROJECT SCHEDULE
11.1 Project Schedule......................................................................................................................65
11.2 Form of Project Schedule. ...................................................................................................65
11.3 Rejection of Project Schedule. ...........................................................................................65
11.4 Alterations and Updates to Project Schedule..............................................................66
11.5 Recovery of Project Schedule. ...........................................................................................66
11.6 Progress Reports....................................................................................................................66
11.7 Progress Meetings..................................................................................................................67
11.8 Schedule Relief. .......................................................................................................................67
ARTICLE 12
CHANGE ORDERS
12.1 Changes......................................................................................................................................67
12.2 Procedure for Changes.........................................................................................................68
12.3 Continued Performance Pending Resolution of Disputes.......................................69
Build Transfer Agreement-Page iv
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 179 of 495

12.4 Preservation of Schedule and Contract Price..............................................................70
ARTICLE 13
WORKMANSHIP AND MATERIALS
13.1 Manner of Execution.............................................................................................................70
13.2 Condition of Materials..........................................................................................................70
13.3 Inspection..................................................................................................................................70
ARTICLE 14
DRAWINGS
14.1 Drawings....................................................................................................................................70
14.2 Buyer Design Review............................................................................................................71
14.3 Documents not in accordance with Agreement..........................................................71
14.4 Drawings Submitted..............................................................................................................72
14.5 Inspection of Drawings........................................................................................................72
14.6 Operating and Maintenance Instructions. ....................................................................72
14.7 Buyer's Use of Drawings......................................................................................................72
14.8 Errors in Drawings Supplied by Developer..................................................................72
ARTICLE 15
PERFORMANCE TESTS
15.1 Performance Guarantees.....................................................................................................73
15.2 Cost and Direction..................................................................................................................73
15.3 Buyer's Right to Validate.....................................................................................................74
15.4 Timing.........................................................................................................................................74
15.5 Test Reports. ............................................................................................................................74
15.6 Failure on Tests or Inspection...........................................................................................74
15.7 Duty to Advise of Defects, Errors, and Omissions......................................................75
ARTICLE 16
EPC MILESTONES AND TRANSFER OF CARE, CUSTODY AND CONTROL
16.1 EPC Milestones in the EPC Contract................................................................................75
16.2 Notice of Mechanical Completion.....................................................................................75
16.3 Notice of Substantial Completion.....................................................................................76
16.4 Notice of Final Completion. ................................................................................................76
16.5 Risk of Loss; Care, Custody and Control; Punch List Items....................................77
16.6 Dispatch Coordination..........................................................................................................78
16.7 Removal of Equipment.........................................................................................................78
Build Transfer Agreement-Page v
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 180 of 495

ARTICLE 17
TAX MATTERS
17.1 Tax Indemnification. .............................................................................................................78
17.2 Transfer Tax. ............................................................................................................................78
17.3 Purchase Price Allocation....................................................................................................78
17.4 Tax Benefits..............................................................................................................................79
17.5 Tax Returns...............................................................................................................................79
17.6 Tax Contests. ............................................................................................................................80
17.7 Duties and Excises..................................................................................................................81
17.8 Cooperation..............................................................................................................................81
17.9 Coordination with General Indemnification................................................................81
ARTICLE 18
ENVIRONMENTAL MATTERS
18.1 General Obligations. ..............................................................................................................81
18.2 Release On-Site........................................................................................................................82
18.3 Release Off-Site........................................................................................................................82
18.4 Liability.......................................................................................................................................82
18.5 Pre-existing Regulated Materials.....................................................................................82
18.6 Notice..........................................................................................................................................82
ARTICLE 19
WARRANTIES OF WORK
19.1 Warranties. ...............................................................................................................................83
19.2 Warranty Period.....................................................................................................................84
19.3 Repair of Defects.....................................................................................................................84
19.4 Warranty Period Extension................................................................................................85
19.5 Subcontractor Warranties. .................................................................................................85
19.6 Delay in Remedying Defects...............................................................................................85
19.7 Serial Defects............................................................................................................................85
19.8 Assignment of Warranties. .................................................................................................86
ARTICLE 20
LIQUIDATED DAMAGES
20.1 General........................................................................................................................................86
20.2 Delay Liquidated Damages. ................................................................................................86
20.3 Performance Liquidated Damages...................................................................................86
20.4 Offset of EPC Contract Liquidated Damages................................................................87
Build Transfer Agreement-Page vi
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 181 of 495

20.5 Calculations and Payments of Liquidated Damages.................................................87
ARTICLE 21
LIMITATION OF LIABILITY
21.1 Duty to Mitigate.......................................................................................................................88
21.2 Limitation of Liability...........................................................................................................88
21.3 Enforceability of Liquidated Damages...........................................................................88
ARTICLE 22
INDEMNIFICATION
22.1 Indemnification.......................................................................................................................88
22.2 Title Indemnity and Liens...................................................................................................90
22.3 Intellectual Property.............................................................................................................91
22.4 Indemnity Period....................................................................................................................92
22.5 Tax Treatment of Indemnity Payments.........................................................................92
ARTICLE 23
INSURANCE
23.1 Contractor's and Subcontractors' Insurance Coverage...........................................92
23.2 Buyer's Insurance...................................................................................................................93
23.3 Developer's Cooperation with Buyer..............................................................................93
ARTICLE 24
FORCE MAJEURE
24.1 Effect of Force Majeure........................................................................................................93
24.2 Notice of Occurrence.............................................................................................................93
24.3 Performance to Continue. ...................................................................................................94
24.4 Termination in Consequence of Force Majeure..........................................................94
24.5 Risk of Loss...............................................................................................................................94
ARTICLE 25
DEFAULT
25.1 Developer Default...................................................................................................................94
25.2 Buyer Default. ..........................................................................................................................95
25.3 Cure Rights................................................................................................................................96
ARTICLE 26
TERMINATION
26.1 Termination by Buyer...........................................................................................................96
26.2 Termination by Developer..................................................................................................97
Build Transfer Agreement-Page vii
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 182 of 495

ARTICLE 27
DISPUTE RESOLUTION
ARTICLE 28
ASSIGNMENT
28.1 Assignment of Developer's Interests..............................................................................97
28.2 Assignment of Buyer's Interests.......................................................................................98
ARTICLE 29
CONFIDENTIALITY
29.1 Confidentiality.........................................................................................................................98
ARTICLE 30
MISCELLANEOUS PROVISIONS
30.1 Notices, Consents, and Approvals.................................................................................100
30.2 Entire Agreement................................................................................................................100
30.3 Amendment; Waiver..........................................................................................................100
30.4 Successors and Assigns.....................................................................................................101
30.5 Third Party Beneficiaries..................................................................................................101
30.6 Severability............................................................................................................................101
30.7 Further Assurances.............................................................................................................101
30.8 Publicity. .................................................................................................................................101
30.9 Independent Contractor...................................................................................................101
30.10 Separation of Functions....................................................................................................102
30.11 Survival....................................................................................................................................102
30.12 Governing Law; Waiver of Jury Trial...........................................................................102
30.13 Counterparts.........................................................................................................................102
30.14 Captions...................................................................................................................................102
30.15 Offset. .......................................................................................................................................103
30.16 Time of the Essence............................................................................................................103
30.17 Non-Exclusive Remedy......................................................................................................103
30.18 Recitals. ...................................................................................................................................103
30.19 Developer Code of Conduct.............................................................................................103
30.20 Prohibited Technology......................................................................................................103
30.21 Performance Security........................................................................................................104
Build Transfer Agreement-Page viii
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 183 of 495

List of Appendices
Appendix A Technical Specification and Scope of Work
Appendix B Project Schedule
Appendix C Major Subcontractors
Appendix D-1 Form of Certificate of Mechanical Completion
Appendix D-2 Form of Certificate of Substantial Completion
Appendix D-3 Form of Certificate of Final Completion
Appendix E Major Equipment Warranties
Appendix F Manuals
Appendix G Engineering Documents, Drawings,and Other Deliverables
Appendix H Key Personnel
Appendix I Release and Waiver of Liens and Claims
Appendix J Critical Milestones
Appendix K Form of Progress Report
Appendix L-1 Developer Insurance
Appendix L-2 Buyer Insurance
Appendix M Contractor's Safety Assurance Program
Appendix N-1 Form of Change Order
Appendix N-2 Form of Change Order Request
Appendix N-3 Form of Change Order Notice
Appendix 0 Performance Tests
Appendix P Completion Criteria
Appendix Q List of Independent Engineers
List of Exhibits
Exhibit A Project Description
Exhibit B Reserved
Exhibit C Form of Assignment and Assumption Agreement
Exhibit D Form of Beginning of Construction Certificate
Exhibit E Form of Letter of Credit
Exhibit F Form of EPC Contract
Exhibit G Forms of Major Supply Agreements
Build Transfer Agreement-Page ix
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 184 of 495

Exhibit H Form of Consent
List of Schedules
Schedule 2.3(a)(i)(D) Firm Date Reports
Schedule 2.6(c) Pro-ratable Items
Schedule 3.4(b) Developer Consents
Schedule 3.5 No Proceedings (Developer)
Schedule 3.12 Affiliate Transactions
Schedule 4.2(b) Project Company Consents
Schedule 4.3(a) No Proceedings (Project Company)
Schedule 4.3(b) Force Majeure Notices
Schedule 4.9 Liabilities and Permitted Indebtedness
Schedule 4.10 Project Assets
Schedule 4.11 Project Company Contracts
Schedule 4.12(a) Project Company Permits
Schedule 4.12(b) Deferred Permits
Schedule 4.12(c) Permit Proceedings
Schedule 4.13(a) Real Property Contracts
Schedule 4.13(b) Easements
Schedule 4.13(e) Zoning, Land Use, Condemnation
Schedule 4.14(a) Environmental Reports
Schedule 4.14(c) Environmental Consents and Liens
Schedule 4.20 Insurance
Schedule 4.22 Intellectual Property
Schedule 5.4(b) Buyer Consents
Schedule 5.5 No Proceedings (Buyer)
Schedule 5.6(a) Buyer Permits
Schedule 5.6(b) Buyer Regulatory Approvals
Build Transfer Agreement-Page x
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 185 of 495

THIS WORKING DRAFT DOES NOT CONSTITUTE A BINDING OFFER, SHALL NOT
FORM THE BASIS FOR AN AGREEMENT BY ESTOPPEL OR OTHERWISE, AND IS
CONDITIONED UPON EACH PARTY'S RECEIPT OF ALL REQUIRED
MANAGEMENT APPROVALS (INCLUDING FINAL CREDIT AND LEGAL
APPROVAL) AND ALL REGULATORY APPROVALS. ANY ACTIONS TAKEN BY A
PARTY IN RELIANCE ON THE TERMS SET FORTH IN THIS WORKING DRAFT OR
ON STATEMENTS MADE DURING NEGOTIATIONS PURSUANT TO THIS
WORKING DRAFT SHALL BE AT THAT PARTY'S OWN RISK. UNTIL THIS
AGREEMENT IS NEGOTIATED, APPROVED BY MANAGEMENT, EXECUTED,
DELIVERED AND APPROVED BY ALL REQUIRED REGULATORY BODIES, NO
PARTY SHALL HAVE ANY OTHER LEGAL OBLIGATIONS, EXPRESSED OR
IMPLIED, OR ARISING IN ANY OTHER MANNER UNDER THIS WORKING DRAFT
OR IN THE COURSE OF NEGOTIATIONS.
BUILD TRANSFER AGREEMENT
THIS BUILD TRANSFER AGREEMENT (this "Agreement") is entered into as of [ ], 202_
(the"Execution Date"),by and between Idaho Power Company,an Idaho Corporation ("Buyer"),and
[ ], a [_] ("Developer"). Buyer and Developer are referred to individually as "Party" and,
collectively,as the "Parties."
RECITALS
WHEREAS, Developer owns one hundred percent (100%) of the outstanding membership
interests (the "Membership Interests") in [ ],a special purpose entity(the"Project Company");
WHEREAS, the Project Company is developing the [ ] facility (the "Project") as further
described in Exhibit A, a true and correct copy is attached hereto and incorporated into this
agreement as if set forth in full at this point; and
WHEREAS, upon Mechanical Completion of the Project, Buyer desires to purchase all of the
Membership Interests in the Project Company from Developer, subject to the terms and conditions
set forth herein.
NOW THEREFORE,in consideration of the premises and mutual representations,warranties,
covenants and agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,the Parties agree as follows.
AGREEMENT
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 Defined Terms.
Capitalized terms used in this Agreement have the meanings set forth below:
"1933 Act"means the Securities Act of 1933,as amended,and the rules and regulations promulgated
thereunder.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 186 of 495

" %/ ITC" means an ITC with respect to which the "energy percentage" (as defined in Section
48(a)(2) of the Code) is [_]percent([_]%).]1
"After-Tax Basis" means, with respect to any payment to be actually or constructively received by
any Person,the amount of such payment (the "base payment") supplemented by a further payment
(the "additional payment") to that Person so that the sum of the base payment plus the additional
payment shall,after deduction of the amount of all federal income taxes required to be paid by such
Person in respect of the receipt or accrual of the base payment and the additional payment,using an
assumed rate equal to the then-highest marginal U.S. federal income tax rate in effect applicable to
corporations subject to tax under subchapter C of the Code (currently 21%, and ignoring state and
local taxes),taking into account any federal income tax savings realized by the recipient as a result of
the payment or the event giving rise to the payment, using an assumed rate equal to such marginal
tax rate (and assuming the recipient has sufficient taxable income to fully utilize on a current basis
any tax benefits resulting from the payment or the event giving rise to the payment), equals the
amount required to be received.
"Accepted Update"shall have the meaning set forth in 7.4 b .
"Affiliate" means with respect to any Person, any other Person who, directly or indirectly, Controls
such first Person or is Controlled by such first Person or is under common Control with such first
Person.
"Agreement"shall have the meaning set forth in the preamble of this Agreement.
"Assignment and Assumption Agreement"shall have the meaning set forth in 2.5 a i .
"Authorized Signatory"means,for each of Developer and Project Company,any of[_].
"Auxiliary Load Guarantee" means the auxiliary load guarantee set forth in Appendix 0.
"Auxiliary Load Test"means the test performed in accordance with the requirements of Appendix 0.
Section 7, and Appendix A and related Design Documents to determine whether the Auxiliary Load
Guarantee has been achieved.
"Availability" shall have the meaning set forth in Appendix 0.
"Availability Guarantee"means the availability guarantee set forth in Appendix 0.
"Availability Tes "means the test performed in accordance with the requirements of Appendix 0,and
Appendix A and related Design Documents to determine whether the Availability Guarantee has been
achieved.
"Bankruptcy Code"means the United States Bankruptcy Code,as in effect from time to time.
"Bankruptcy Laws"shall have the meaning set forth in 25.1(h).
"Base Purchase Price" shall have the meaning set forth in 2.6 a 1.
"Benefit Plan" means any employee benefit plan, as that term is defined in Section 3(3) of ERISA, or
other material pension, bonus, profit sharing, stock option or other agreement or arrangement
providing for employee remuneration or benefits, including a multiemployer plan, as that term is
defined in Section 4001(a)(3) of ERISA.
Note to Bidders:For storage projects co-located with solar.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 187 of 495

"Business Day" means any day other than a Saturday, Sunday or other day on which banks are
authorized or required to be closed in Boise, Idaho.
"Buydown Amount" shall have the meaning set forth in 203(b).
"Buydown Right"shall have the meaning set forth in 20.3(b).
"Buyer" shall have the meaning set forth in the preamble to the Agreement.
"Buyer Consents"shall have the meaning set forth in 5.4 b .
"Buyer Default" shall have the meaning set forth in 25.2.
"Buyer Design Review Parties" shall have the meaning set forth in 14.2(a).
"Buyer Indemnified Parties" means Buyer and its Affiliates (including, after the Closing, Project
Company) and their respective directors, officers, employees,and agents.
"Buyer Material Adverse Change" means any change in condition after the Execution Date that
actually has, or is reasonably likely to have, a significant adverse effect on: (a) the validity or
enforceability of this Agreement or any of the other Transaction Documents as against Buyer; or (b)
the performance of or the ability of Buyer to perform its obligations under the Transaction
Documents to which it is a party.
"Buyer Obligation" shall have the meaning set forth in 11.2.
"Buyer Permits" shall have the meaning set forth in 5.6 a .
"Buyer's Knowledge"means,as of the date on which any representation and warranty or other matter
qualified by Buyer's Knowledge is required to be made by Buyer, the actual knowledge, after
reasonable inquiry of the employees of the Buyer or any of its Affiliates who are responsible for, or
have direct involvement, in the subject matter of the representation and warranty or other matter
involved, of any of one or more of the following persons (and any successor person holding the same
title or the functional equivalent and having responsibility for the transaction contemplated by this
Agreement): [ ].
"Buyer's Representative"means the natural Person designated as such by Buyer pursuant to Section
9.2 a which shall initially be [ ].
"Buyer-Caused Delay" shall mean an actual delay to the critical path of any portion of the Work that
in turn delays the completion of such Work past any applicable deadline established by this
Agreement or the EPC Agreement (as applicable) caused solely by Buyer's failure to respond in
accordance with Section 9.4. For the avoidance of doubt,where this Agreement or the EPC Contract
sets forth a period of time for review, approval or inspection by Buyer or "Owner," as such term is
defined under the EPC Contract, Buyer shall not be deemed to have delayed the critical path of the
Work until the date that occurs after the date by which Buyer or "Owner," as the case may be, was
required to act.
"Buyer-Caused Delay Costs" shall have the meaning set forth in 2.6 U.
"Buyer-Initiated Change"shall have the meaning set forth in 12.2(b).
"Buyer-Initiated Change Order Costs"shall have the meaning set forth in 2.6 0.
Exhibit No. 1
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"Calendar Quarter"means any of four quarters in a standard calendar year, specifically Quarter 1 is
January 1 -March 31,Quarter 2 is April 1 -June 30,Quarter 3 is July 1 -September 30,and Quarter
4 is October 1 - December 31.
"Capacity Guarantee"means the capacity guarantee set forth in Appendix 0.
"Capacity Test" means the test performed in accordance with the requirements of Appendix 0. and
Appendix A and related Design Documents to determine whether the Capacity Guarantee has been
achieved.
"CEII" means Critical Energy/Electric Infrastructure Information, as defined by the Code of Federal
Regulations,Title 18,Section 388. CEII includes both Critical Energy Infrastructure Information and
Critical Electric Infrastructure Information.As used in this Agreement,Critical Energy Infrastructure
Information means specific engineering, vulnerability, or detailed design information about
proposed or existing critical infrastructure that: (i) Contains detail about the production,generation,
transportation,transmission, or distribution of energy; (ii) Could be useful to a person planning an
attack on critical infrastructure; (iii) Is exempt from mandatory disclosure under the Freedom of
Information Act, 5 U.S.C. 552; (iv) Does not simply give the general location of the critical
infrastructure.
"Certificate of Final Completion"shall have the meaning set forth in 16.4(a).
"Certificate of Substantial Completion"shall have the meaning set forth in 16.3(a).
"Change" means any alteration of the Work whether by way of addition, deletion, modification,
substitution or omission as authorized in accordance with Section 12.1, but shall not include any
instruction to the extent that such instruction is issued as a result of any breach by Developer of this
Agreement or otherwise to require Developer to fulfill its obligations under this Agreement. Changes
shall include changes to Scope of Work,Project Schedule,and Purchase Price. Re-performance of any
Work required to rectify or recover Work that is necessary due to Developer's (or its Contractor's or
any Subcontractor's) negligence or breach of this Agreement shall not constitute a Change.
"Change in Law" means (i) the enactment, adoption, promulgation, modification, replacement,
successor or repeal or any change in application,after the Execution Date of any applicable Law; (ii)
the imposition of any material conditions on the issuance or renewal of any applicable Permit after
the Execution Date (notwithstanding the general requirements contained in any applicable permit
at the time of application or issue to comply with future laws, ordinances, codes, rules, regulations
or similar legislation); (iii) a change in any utility rate schedule or tariff approved by any
Governmental Authority; or (iv) revocation of any tax credit, which establishes requirements or
revokes beneficial laws or rules affecting the value or availability of tax credits, owning,supplying,
constructing, installing, operating, or maintaining the Project, or other performance of the Parties'
obligations hereunder or which has a material adverse effect on the cost to either Party of
performing such obligations..
"Change of Control"shall mean:
(a) with respect to any Person,the occurrence of any one of the following with respect to
such Person: (i)the consolidation with or merger into any other Person by such Person or by
any other Person, or (ii) a direct or indirect assignment, conveyance, transfer, lease,
exchange,conversion or other disposition of the equity interests in such Person or any other
Person, or in either case the voting rights with respect thereto; in either case, as a result of
Exhibit No. 1
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which the Person or Persons that Control, directly or indirectly, such Person shall cease to,
directly or indirectly, Control such Person; and
(b) with respect to Developer, Developer Parent ceases to be an Affiliate of Developer.
"Change Order" means any order identified as a "Change Order" and issued by Buyer to Developer
that affects the Work, and may affect the Project Schedule, and in accordance with the terms of this
Agreement.
"Change Order Notice" means the written notice of Change Order issued to Developer by Buyer
pursuant to ARTICLE 12,substantially in the form set forth in Appendix N-3.
"Change Order Request"means the written request for a Change Order issued to Buyer by Developer
pursuant to ARTICLE 12,substantially in the form set forth in Appendix N-2.
"Charge Rate Guarantee"means the charge rate guarantee set forth in Appendix 0.
"Charge Rate Test" means the test performed in accordance with the requirements of Appendix 0.
and Appendix A and related Design Documents to determine whether the Charge Rate Guarantee has
been achieved.
"Claim" or "Claims" means any indemnity, demand, demand letter, claim, litigation, cause of action,
notice of noncompliance or violation, or other proceeding.
"Closing" shall have the meaning set forth in 2.7 a .
"Closing Date"shall have the meaning set forth in 2.7 a .
"Code" means the Internal Revenue Code of 1986, as the same may be amended from time to time,
including any amendments or any substitute or successor provisions thereto.
"Confidential Information" shall have the meaning set forth in 29.1(a).
"Confidentiality Affiliates"shall have the meaning set forth in 29.1(a).
"Construction Period Credit Support"shall have the meaning set forth in 6.1(b).
"Contract" means any agreement, lease, license (other than a Permit), note, bond, evidence of
Indebtedness, mortgage, indenture, security agreement, purchase order, binding bid or other
instrument or contract,whether written or oral.
"Contractor"shall mean the primary contractor,as approved by Buyer,engaged by Project Company
pursuant to the EPC Contract.
"Contractor Drawings and Manuals" means all drawings and information developed by Contractor
and Subcontractors and provided to Developer in connection with Contractor's and any
Subcontractor's obligations under the EPC Contract, all in accordance with the requirements of the
Agreement.
"Contractor's Safety Assurance Program" means that certain safety program created and
administered by Contractor pursuant to the EPC Contract,to be attached as Appendix M.
"Control" of any Person means the possession, directly or indirectly, of the power either to (a) vote
fifty percent(50%) or more of the equity, capital or profits,or other interests having ordinary voting
power for the election of directors (or other comparable controlling body)of such Person or(b) direct
Exhibit No. 1
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or cause the direction of management or policies of such Person,whether through the ownership of
voting securities or interests,by contract or otherwise,excluding in each case,any secured lender of
such Person.
"Construction Costs" the amounts actually incurred by the Project Company, Developer or its
Affiliates for payments made under the EPC Contract.
"Corrupt Practices Laws" means (i) the Foreign Corrupt Practices Act of 1977 (Pub. L. No. 95-213,
§§101-104), as amended, and (ii) any other applicable law relating to bribery, kick-backs or anti-
corruption.
"Credit Support"shall mean [(a) cash collateral, (b) a Payment and Performance Bond, or (c) a letter
of credit in the form of Exhibit E,]z attached hereto,from a Creditworthy Bank.
"Creditworthy Bank" shall mean a U.S. state or federally chartered commercial bank (or U.S.branch
of a foreign commercial bank) which has (a) assets of at least ten billion dollars ($10,000,000,000)
and (b) senior unsecured long term debt or deposits that are rated at least "A-" (or its current
equivalent) by S&P or Fitch and at least"AT' (or its then current equivalent) by Moody's.
"Critical Milestones" means certain Milestones, set forth in Appendix i, designated in the Project
Schedule as milestones that are critical to the ability of the Project to achieve Substantial Completion
by the Outside Closing Date.
"Critical Milestone Completion Date" means the completion date, set forth in Appendix I. by which
Developer will achieve the corresponding Critical Milestone.
"Data Room" means the virtual data room set up for the Project Company and Project, accessible at
[-]-
"Defect" shall have the meaning set forth in 19.1 a i .
"Deferred Permit"means,as of any date,all Project Company Permits that have not yet been obtained,
(a) the procurement of which is not required to have occurred on or before such date by applicable
Law or the requirements of any Project Company Contract and (b) as to which Developer has a
reasonable expectation that such Project Company Permits will be obtained in the ordinary course
of business.
"Delay Liquidated Damages" means either Mechanical Completion Liquidated Damages or
Substantial Completion Liquidated Damages,or both.
"Delay Liquidated Damages Cap" shall have the meaning set forth in Section 20.2(b).
"Design Documents"shall have the meaning set forth in 14.2 a
"Developer" shall have the meaning set forth in the preamble of this Agreement.
"Developer Consents"shall have the meaning set forth in 3.4 b .
"Developer Default"shall have the meaning set forth in 25.1.
"Developer Firm Date Conditions" shall mean those conditions to achievement of the Firm Date, as
set forth in 2.3 a iii .
2 Note to Bidders: Forms of credit support remain subject to IPC review.
Exhibit No. 1
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"Developer IT Asset" means all of the software, computer systems, workstations, routers, hubs,
switches, circuits, servers and other information technology equipment of the Developer used in
connection with the Project Company or the Project Assets.
"Developer Party" means each of Developer, Contractor, any Subcontractor, and, if applicable,
Developer's guarantor.
"Developer Security"shall have the meaning set forth in 25.1.
"Developer's Equipment" means all of the equipment, materials, apparatus, structures, tools,
consumables, supplies and other goods provided and used by Developer, Contractor, and any
Subcontractors for performance of the Work but which are not intended to be incorporated into the
Project.
"Developer's Knowledge" means, as of the date on which any representation and warranty or other
matter qualified by Developer's Knowledge is required to be made by Developer, the actual
knowledge,after reasonable inquiry of the employees of the Developer or any of its Affiliates who are
responsible for, or have direct involvement,in the subject matter of the representation and warranty
or other matter involved, of any of one or more of the following persons (and any successor person
holding the same title or the functional equivalent and having responsibility for the Project or
transaction contemplated by this Agreement): [ ].
"Developer's Parent"means [_].
"Developer's Representative"shall have the meaning set forth in 8.13(a).
"Developer-Initiated Change"shall have the meaning set forth in 12.2(a).
"Dollars"and the I"symbol means the lawful currency of the United States of America.
"Draft Manuals" shall have the meaning set forth in 8.9 CO.
"Easements" shall have the meaning set forth in 4.13(b).
"Emerging Contaminants" shall mean chemicals and other substances that are not currently
regulated under any Environmental Law, have been discovered in natural streams, and potentially
cause deleterious effects in aquatic life, including vegetation and water quality, at environmentally
relevant concentrations,including but not limited to per-and polyfluoroalkyl substances.
"EMS"means the control and monitoring system,including central computer,remote PC system and
ancillary communication terminals and cables installed inside individual storage facility controllers,
as well as inside central control location,as more fully described in Appendix A.
"Energy Capacity" shall have the meaning set forth Appendix 0.
"Environmental Law" means any applicable Law that is in effect as of the Execution Date and relates
to Regulated Materials, pollution, occupational health and safety (to the extent such relates to
exposure to Regulated Materials),or the protection of the environment,natural resources,or wildlife,
including, without limitation, (a) the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. § 9601 et seq. ("CERCLA"), (b) the Resource Conservation and Recovery Act,
42 U.S.C. § 6901 et seq., (c) the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (the
"Clean Water Act"), (d)the Clean Air Act,42 U.S.C.§7401 et seq. ("CAA"), (e)the Hazardous Materials
Transportation Authorization Act of 1994, 49 U.S.C. § 5101 et seq., (f) the Occupational Safety and
Health Act, 29 U.S.C. § 651 et seq., (g) the Toxic Substances Control Act, 15 U.S.C. §§ 2601 through
Exhibit No. 1
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2629, (h) the Oil Pollution Act, 33 U.S.C. § 2701 et seq., (i) the Emergency Planning and Community
Right-to-Know Act,42 U.S.C.§11001 et seq.,(j)the Safe Drinking Water Act,42 U.S.C.§§300f through
300j, (k) the Federal Insecticide, Fungicide, & Rodenticide Act, 7 U.S.C. § 136 et seq., (1) the
Endangered Species Act, 16 U.S.C. § 1531 et seq., (m) the Migratory Bird Treaty Act, 16 U.S.C. § 703
et seq., (n)the Bald and Golden Eagle Protection Act, 16 U.S.C. § 668 et seq., (o)the National Historic
Preservation Act, 16 U.S.C.§§470a et seq.,(p)the National Environmental Policy Act,42 U.S.C.§4321
et seq., (q) the Rivers and Harbors Act of 1899, (r) state equivalents to items (a) through (q),and (s)
applicable implementing rules and regulations of Governmental Authorities for items (a)through(r).
"EPC Change Order" means any order identified as a "Change Order" and issued by the Project
Company to Contractor,pursuant to the EPC Contract.
"EPC Contract" means that certain Engineering, Procurement, and Construction Contract, to be
entered into by and between the Project Company and Contractor for the engineering,procurement,
construction,and commissioning of the Project,in form and substance acceptable to Buyer.
"EPC Contract Price"means the total amount that would be due to Contractor under the EPC Contract
for the full satisfaction of all of Contractor's obligations thereunder, including the completion of the
Project at the Planned Capacity.
"Equipment" means the equipment relating to the Project required for Developer to complete the
Work,as described in Appendix E, excluding any Developer's Equipment.
"Estoppels" shall have the meaning set forth in 2.5 a vii .
"Execution Date" shall have the meaning set forth in the preamble to this Agreement.
"Final Completion" means the Project demonstrates that all of the Final Completion Criteria have
been satisfied in accordance with the requirements of this Agreement.
"Final Completion Criteria" shall have the meaning set forth in Appendix P.
"Final Performance Test Report"shall have the meaning set forth in 15.5(b).
"Final Purchase Price Allocation"shall have the meaning set forth in 17.3.
"Firm Date" shall have the meaning set forth in 2.3(a).
"Firm Date Deadline" shall have the meaning set forth in 2.11(a)(viii).
"Firm Date Reports"shall mean those Reports specifically identified on Schedule 2.3(a)(i)(D).
"Force Majeure" means an event or circumstance which causes a delay to the critical path of any
portion of the Work that in turn delays the completion of such Work, but only if and to the extent
such event or circumstances (a) was not reasonably foreseeable, (b) is not within the reasonable
control of or caused by the fault or negligence of the Party affected thereby, (c) is such that the
affected Party has been unable to remedy, prevent, or overcome the event or circumstance, despite
having taken commercially reasonable precautions and measures in order to prevent or avoid such
event or circumstance or mitigate the effect of such event or circumstance, and (d) which by the
exercise of reasonable diligence consistent with Prudent Industry Practice such party could not
reasonably have been expected to avoid. To the extent that such event satisfies the requirements set
forth in the preceding sentence, Force Majeure may include: acts of God, earthquake, volcano,
tornado,or flood; sabotage,terrorism, war,revolution,civil disturbance,expropriation,confiscation
or nationalization, blockades, embargoes or sanctions (for the avoidance of doubt, excluding the
Exhibit No. 1
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imposition of taxes,duties,and tariffs);long-term port of entry closure,rationing or allocation,at the
request or insistence of any Governmental Authority; Judgment by court order of a Governmental
Authority; emergencies declared by a Governmental Authority requiring shutdown or forced
curtailment of the Project; or worldwide, national or regional labor disputes. Regardless of the
preceding sentences,none of the following shall constitute Force Maj eure,except to the extent caused
by an independent, identifiable event of Force Majeure causing such condition: (A) delay or failure
by Developer or Contractor to obtain any Project Company Permit, other than the delay or failure to
obtain Project Company Permits by: (1) revocation, stay, or similar action by a Governmental
Authority of a Project Company Permit after issuance thereof by a Governmental Authority, or (2)
the failure of a Governmental Authority to comply with rules,procedures,or other Law applicable to
such Governmental Authority; (B) delay or failure by Developer or Contractor to obtain permission
to operate or any other required approval to interconnect to the grid; (C) shipping accidents or
unavailability of preferred shipping methods; (D) supply chain issues; or (E) delays in customs
clearance or delays or other problems associated with the issuance, suspension, renewal,
administration or withdrawal of, or any other problem directly or indirectly relating to, any
governmental approval or the applications therefor, including but not limited to any such delays or
failures with respect to the Withhold Release Order issued by U.S.Customs and Border Protection on
June 24, 2021 pursuant to Section 307 of the Tariff Act of 193.
"Full Notice to Proceed" shall mean the notice to proceed, issued pursuant to the EPC Contract,that
authorizes the Contractor to begin the full scope of work of the EPC Contract and is not limited or
contingent upon the satisfaction of any condition.
"Fundamental Representation" means any of Sections 3.1 (Organization), 3.2 (Authority), 3_3
(Binding Agreement), 3_4 (No Conflicts), 1.7 (Membership Interests),4.1 (Organization of Project
Company), 4_2 (No Conflicts of Project Company), 4_5 (No Prior Business of Project Company), 4_7
(Subsidiaries and Joint Ventures), 5.1 (Organization), 5.2 (Authority), 5.3 (Binding Agreement), and
5.4 (No Conflicts).
"GAAP" means United States generally accepted accounting principles.
"Gap Warranty" shall have the meaning set forth in 19.1 c .
"Governmental Authority" means any supranational, federal, state, or other political subdivision
thereof, including any municipality, township, and county, and any entity exercising executive,
legislative,judicial,regulatory,or administrative functions of or pertaining to government,including
any corporation or other entity owned or controlled by any of the foregoing, in each case, having
jurisdiction over Developer, Contractor, any Subcontractor, Buyer,the Project, or this Agreement or
any other Transaction Document.
"Guaranteed Roundtrip Efficiency Liquidated Damages"shall have the meaning set forth in 20.3 b .
"Guaranteed Availability Liquidated Damages"shall have the meaning set forth in 20.3.
"Guaranteed Capacity Liquidated Damages"shall have the meaning set forth in 20.3.
"Guaranteed Power Capacity" shall have the meaning set forth in Appendix 0.
"Guaranteed Rated Energy Capacit " shall have the meaning set forth in Appendix 0.
"Guaranteed Substantial Completion Date"shall have the meaning set forth in 20.2(b).
Exhibit No. 1
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"Indebtedness" means (a) any indebtedness for borrowed money or issued in substitution for or
exchange of indebtedness for borrowed money, (b) any indebtedness evidenced by any note,bond,
debenture, or other debt security, (c) any indebtedness for the deferred purchase price of property
or services, (d) Liabilities under any interest rate protection agreement, interest rate future
agreement,interest rate option agreement,interest rate swap agreement,or other similar agreement
designed to protect the Project Company against fluctuations in interest rates or other currency
fluctuations, (e)all Liabilities with respect to any commitment by which the Project Company assures
a creditor against loss (including contingent reimbursement obligations with respect to letters of
credit)and all other Liabilities guaranteed in any manner by the Project Company, (0 any obligations
under capitalized leases, conditional sales contracts, and other similar title retention instruments
whether short term or long term, (g) any indebtedness secured by a Lien on any property or assets
of the Project Company and/or any off-balance sheet financings.
"Indemnified Party" shall have the meaning set forth in 22.1(c).
"Indemnifying Party" shall have the meaning set forth in 22.1(d).
"Indemnity Period" shall have the meaning set forth in 22.4.
"Independent Engineer" the engineering firm selected by the Parties for the Project from the list of
mutually acceptable nationally-recognized engineering firms included in Appendix Q,
"Initial Credit Support"shall have the meaning set forth in 6.1 a .
"Interconnection Agreement" means an agreement for interconnection services, by and between
Project Company and Transmission Provider,in form and substance reasonably acceptable to Buyer
and shall,at a minimum,provide Network Resource Interconnection Service.
"Interconnection Costs" means costs, including transmission customer interconnection costs,
transmission provider interconnection costs, network upgrades, and affected systems costs, if any,
charged by the Transmission Provider, applicable balancing authority, or operators of affected
systems, or costs incurred by the Developer, Project Company, or Contractor in connection with the
interconnection of the Project.
"IPUC"means the Idaho Public Utility Commission.
"IPUC Approval" shall have the meaning set forth in Section 2.1.
"IRS Notice" means IRS Notice 2018-59, 2018-28 I.R.B. 196 (as modified by Notice 2019-43, 2019-
31 I.R.B. 487, Notice 2020-41, 2020-25 I.R.B. 954, and Notice 2021-41, 2021-29 I.R.B.), and any
subsequent amendment or modification thereto or successor guidance.
["ITC'means the energy credit pursuant to Section 48 of the Code.
"ITC Representations" means the representations in Section 4.17(k) and in the Beginning of
Construction Certificate.]3
" ud ment" means any judgment, order, award, injunction, writ, or decree of any Governmental
Authority.
s Note to bidders: This would apply to any storage projects co-located with solar projects.
Exhibit No. 1
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"Key Personnel" means, with respect to Developer, Contractor, and any Major Subcontractor
performing a material portion of the Work, a project executive, a project manager, a project senior
superintendent,and a project superintendent for the Project.
"Late Payment Rate"means an amount equal to the Prime Rate plus 200 basis points; provided,that
in no event shall the Late Payment Rate exceed the maximum allowable usurious rate permitted by
Applicable Law.
"Law" means all laws (including each Environmental Law), statutes, codes, acts, ordinances, orders,
judgments, decrees, injunctions, rules, regulations,permits, licenses, authorizations, directions, and
requirements of any Governmental Authority having the force and effect of law,and as to any Person,
the organizational, or governing documents of such Person.
"Lender" means the lender and/or equity investor (including any trustee or agent on behalf of such
lender and/or equity investor (including tax equity investors)) of any Party or any of its Affiliates
(including Project Company) directly or indirectly providing development, bridge, construction
and/or permanent equity and/or debt financing or refinancing of the development, construction,
ownership, leasing, operation or maintenance (including working capital) of the Project, whether
that financing or refinancing takes the form of private or public debt or equity or any other form,and
any Person providing interest rate protection agreements to hedge any of the foregoing obligations.
"Level 3 Project Schedule" shall mean a project coordination schedule using an integrated critical
path methodology that includes detailed input from the project management team. The Level 3
Project Schedule shall include, at a minimum, all major milestones, including the Critical Path
Milestones, and all material elements of design, engineering, procurement, construction, testing,
commissioning,and/or start-up.
"Liabilities" means all Claims including those relating to Environmental Laws, demands, damages,
losses,Taxes,liabilities, or judgments,including all interest,penalties,fines and other sanctions,and
any reasonable costs or expenses in connection therewith,including attorneys'and consultants'fees
and expenses.
"Lien" means any mortgage, pledge, security interest, encumbrance, option, defect, lien, charge, or
other similar right of any Person of any kind, including any lien or charge arising by statute or other
law.
"Made Available"shall mean that the materials (a)with respect to materials required to be provided
on or prior to the Execution Date,the Firm Date,or the Closing Date, (i)were posted to the Data Room
or otherwise provided by Developer at least seven (7) days prior to the relevant date or (ii) were
otherwise received by Buyer at least seven (7) days prior to the relevant date, and (b) with respect
to other materials, were posted to the Data Room or otherwise provided by Developer, with notice
thereof provided to Buyer's Representative.
"Major Equipment" means the electrochemical cells consisting of an anode and a cathode separated
by an electrolyte, power converters/inverters with controller, battery energy management system,
EMS,and transformers and switchgears.forming part of the Project.
"Major Equipment Warranties" means those certain manufacturer warranties for the Major
Equipment set forth in Appendix E.
"Major Subcontractors" means [_]and those other Subcontractors supplying Major Equipment.
Exhibit No. 1
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"Major SuI121v Agreements"means the agreements pursuant to which the Major Subcontractors will
supply the Major Equipment,specifically: [_], forms of which are attached hereto as Exhibit H.
"Manager" means I-].
"Material Adverse Change" means any change in condition after the Execution Date that has, or is
reasonably likely to have, a significant adverse effect on: (a) the validity or enforceability of this
Agreement, the Transaction Documents, or any of the other Project Company Contracts; (b) the
business, assets, prospects, operations, property, or condition (financial or otherwise) of the
Developer, Project Company, Contractor,any Major Subcontractor,any guarantor,or the Project; (c)
the Project's ability to operate and deliver energy to the System; (d)the performance of or the ability
of Developer, Project Company, Contractor, any Subcontractor, or any guarantor, if applicable, to
perform its respective obligations under the Transaction Documents or the Project Company
Contracts to which it is a party; or (e) Developer fails to meet the Credit Support requirements of
Article 6. For the avoidance of doubt,the following will not be considered when determining whether
a Material Adverse Change has occurred: any change,event,effect or occurrence (or changes,events,
effects, or occurrences taken together) resulting from (i) any change generally affecting the
international, national, or regional electric storage, supply chain, transmission, or distribution
industry; (ii) any change generally affecting the international,national,or regional wholesale or retail
markets for or costs of electric power; (iii) any change generally affecting the energy storage business;
(iv) any change in general regulatory or political conditions,including any engagements of hostilities,
acts of war, or terrorist activities or changes imposed by a Governmental Authority associated with
additional security; (v) any change in GAAP or other applicable accounting or auditing standards or
industry standards; (vi) any change in the financial, banking, or securities markets (including any
suspension of trading in, or limitation on prices for, securities on the New York Stock Exchange,
American Stock Exchange,or Nasdaq Stock Market), or any change in the general national or regional
economic financial conditions; or (vii) any actions or omissions required to be taken or not taken by
Developer or the Project Company in compliance with this Agreement,the Transaction Documents,or
otherwise consented to by,or at the written request of, Buyer pursuant to this Agreement.
"Material Update"shall have the meaning set forth in 7.4 b .
"Materials" means the Intellectual Property, equipment, machinery, apparatus, materials, articles,
and things of all kinds to be provided and incorporated into the Project by Developer,Contractor and
the Subcontractors pursuant to this Agreement (including spare parts and tools to be supplied
hereunder), other than the Equipment.
"Mechanical Completion" means all of the Mechanical Completion Criteria has been satisfied in
accordance with the requirements of this Agreement.
"Mechanical Completion Criteria"shall have the meaning set forth in Appendix P.
"Mechanical Completion Delay Liquidated Damages"shall have the meaning set forth in 20.2(a).
"Membership Interests" shall have the meaning set forth in the recitals to the Agreement.
"Milestone" shall have the meaning set forth in 11.1.
"Milestone Completion Dates" shall have the meaning set forth in 11.1.
"Moody's"means Moody's Investors Service, Inc.
Exhibit No. 1
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"Mutual Firm Date Conditions" shall mean those conditions to achievement of the Firm Date, as set
forth in 2.3 a i .
"Network Resource Interconnection Service" shall have the meaning set forth in the Transmission
Provider's Open Access Transmission Tariff.
"Noise Guarantee" means the noise guarantee set forth in Appendix 0.
"Noise Test" means the test performed in accordance with the requirements of Appendix 0, and
Appendix A and related Design Documents to determine whether the Noise Guarantee has been
achieved.
"Operating Period Credit SuRport"shall have the meaning set forth in 6.1 d .
"Outside Closing Date" shall have the meaning set forth in 2.11 a v as may be extended pursuant
to Section 20.2(a).
"Par "and"Parties" shall have the meanings set forth in the preamble of this Agreement.
"Performance Guarantee Tests" means the Auxiliary Load Test, the Availability Test, the Capacity
Test,the Charge Rate Test,the Noise Test,the Power Factor Test,the Ramp Rate Test,the Response
Time Test,and the Roundtrip Efficiency Test,all as set forth in Appendix 0 and intended,in each case,
to determine whether the respective Performance Guarantees have been achieved.
"Performance Guarantees" means the Auxiliary Load Guarantee, the Availability Guarantee, the
Capacity Guarantee, the Charge Rate Guarantee, the Noise Guarantee, the Power Factor Guarantee,
the Ramp Rate Guarantee,the Response Time Guarantee,and the Roundtrip Efficiency Guarantee,in
each case as set forth in Appendix 0.
"Performance Liquidated Damages" means the Guaranteed Capacity Liquidated Damages, the
Guaranteed Roundtrip Efficiency Liquidated Damages, and the Guaranteed Availability Liquidated
Damages.
"Performance Liquidated Damages Cap"shall have the meaning set forth in 20.3.
"Permit" means any written authorization, approval, consent, waiver, exception, variance, order,
notice,license, filing, registration, ruling,permit,tariff, certification, exemption, and other action by,
to,or with any Governmental Authority.
"Permitted Equity Exceptions"means (a) restrictions on transfer of the Membership Interests under
any applicable federal, state, or foreign security laws and (b) the Liens described in clauses (d) and
(g) of the definition of Permitted Liens.
"Permitted Indebtedness" means (a) any Indebtedness that is (or will be) released on or prior to
Closing and (b) any Indebtedness set forth on Schedule 4.9.
"Permitted Liens" means any: (a) Lien for Taxes (i) not yet due and payable, or (ii) being contested
in good faith and for which adequate reserves have been established and held by the Project Company
in accordance with GAAP; (b) easements or other encumbrances on Real Property affecting the
Project required to be granted (i) pursuant to applicable Laws or (ii) by order of a Governmental
Authority; (c) mechanics', materialmen's (and other similar liens for construction in progress),
carriers', workers', repairers', and other similar Liens arising or incurred in the ordinary course of
business which are (i) not yet due and payable or (ii) being contested in good faith and for which
adequate reserves have been established and held by the Project Company in accordance with GAAP;
Exhibit No. 1
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(d) Liens created pursuant to, or as a result of the existence of, this Agreement or any Transaction
Document; (e)any Liens approved or consented to in writing by Buyer,including any Liens expressly
granted under, or created by, existing, or pursuant to, the terms and conditions of the Project
Company Contracts or Project Company Permits included in Developer's disclosure schedules as of
the Execution Date or in any Accepted Update; (f) Liens relating to any Contract executed with a
Lender; (g) any Lien that is (or will be) released on or prior to Closing; (h) minor defects,easements,
rights-of-way, restrictions, and other similar encumbrances and minor imperfections in title that do
not impair the affected property or impair the development,construction,commissioning,ownership,
and commencement of operation of the Project at the Site; (i)any fee mortgage (other than where the
applicable Real Property is a fee)or ground lease or similar Lien that is superior to the interest granted
under the applicable Real Property Contract but is subject to a fully executed and recorded non-
disturbance agreement reasonably acceptable to Buyer; 0) exceptions to title listed in the Title Policy
and approved by Buyer; and (k) Liens arising by,through,or under Buyer.
"Person" means any natural person, corporation, general or limited partnership, limited liability
company, firm, joint venture, estate, association, trust, government, governmental agency, or any
other entity,whether acting in an individual,fiduciary,or other capacity.
"Phase I ESA"shall have the meaning set forth in 2.3(a)(ii)(E)..
"Phase II ESA"shall have the meaning set forth in 2.3(a)(ii)(E).
"Planned Roundtrip Efficiency Rate"means [ ] ([_]%]).
"Planned Capacity" means [_] megawatts ([_] MW) of storage capacity at [_] ([_]) hours of
continuous discharge.
"Power Factor Guarantee"means the power factor guarantee set forth in Appendix 0.
"Power Factor Test" means the test performed in accordance with the requirements of Appendix 0.
and Appendix A and related Design Documents to determine whether the Power Factor Guarantee
has been achieved.
"Pre-Closing Tax Period" means any taxable year or other taxable period ending on or before the
Closing Date.
"Pre-Closing Taxes" means (a) any Taxes imposed on or with respect to the Project Company, the
Project Assets,or the Project with respect to any taxable period ending on or prior to the Closing Date
and,in the case of any Straddle Period,the portion of such period ending on and including the Closing
Date; (b) any Taxes imposed on or with respect to the Developer, Contractor,any Subcontractor, or
any of their respective Affiliates; (c)any Taxes for which Developer is responsible under Section 17.2
and Section 17.7; (e) any Claims and Liabilities (including any Tax Benefits Loss) attributable to a
breach by Developer of any of its representations,warranties,or covenants pursuant to Section 4.17,
Section 4.18, or Article 17, (f) any Taxes and Tax Benefits Losses attributable to a breach by
Developer of any of its representations, warranties, or covenants in this Agreement; (g) Taxes
imposed on Buyer or any of its Affiliates,as a transferee or successor,by contract or pursuant to any
Law, which Taxes relate to an event or transaction occurring prior to the close of business on the
Closing Date; (h) payment of any Tax as a result of any obligation to indemnify any other Person or
as a result of any obligation under any agreement or arrangement (other than any obligation or
indemnification for Tax pursuant to any Project Company Contract relating to a Tax period beginning
after the Closing Date or the portion of any Straddle Period beginning after the Closing Date) entered
into on or prior to the Closing Date; (i) any withholding Taxes on Buyer or any of its Affiliates
Exhibit No. 1
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E. Hackett, IPC
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resulting from the transactions contemplated by this Agreement to the extent not withheld pursuant
to Section 2.7; and (j) any reasonable costs and expenses associated with the investigation, review,
remediation, and resolution of any of the foregoing items described in clauses (a) to (i), including
reasonable legal fees and expenses attributable thereto.
"Pre-Closing Liabilities" means each of the following with respect to the Developer or, on and prior
to the Closing Date,the Project Company:
(a) Liabilities from any violation of applicable Law (including Environmental Laws) at
the Site or with respect to the Project on or prior to the Closing Date and Liabilities from
any violations of applicable Law(including Environmental Laws)at the Site or with respect
to the facility on or prior to Final Completion of the Project to the extent caused by
Developer, Subcontractors, or any of its or their Affiliates or representatives;
(b) Liabilities from any environmental condition on or under the Site existing on or
prior to the Closing Date and Liabilities from any environmental condition on or under the
Site existing on or prior to Final Completion of the Project to the extent caused or worsened
by Developer, Subcontractors, or any of its or their Affiliates or representatives, in each
case, including remediation costs, natural resource damages, bodily injury, or property
damage;
(c) Liabilities from off-site transportation, disposal, recycling, or storage of any
hazardous substances or substance or material controlled by an Environmental Law on the
Site on or prior to the Closing Date and Liabilities from off-site transportation, disposal,
recycling, or storage of any hazardous substances or substance or material controlled by
an Environmental Law on the Site on or prior to Final Completion of the Project to the
extent caused by Developer, Subcontractors, or any of its or their Affiliates or
representatives,in each case,including Liabilities related to remediation,natural resource
damages,bodily injury, or property damage;
(d) Liabilities related to any employee benefit plan of Developer (or its Affiliates
(including ERISA Affiliates)) or any of its contractors with respect to its or their current or
former employees or contractors;
(e) Liabilities under the Project Contracts, the Real Property Contracts, and Project
Permits incurred or arising prior to Final Completion of the Project;
(0 Liabilities related to the development, engineering, procurement, construction,
commissioning, and operation, maintenance, repair, or use of the Project prior to Final
Completion of the Project,including construction costs;
(g) Liabilities for personal injury, property damage, or tort arising out of the
engineering,development,construction,commissioning of the Project Assets or the Project
(h) Liabilities for personal injury,property damage,or tort arising out of the operation,
maintenance, repair, or use of the Project Assets or the Project on or prior to the Closing
Date;
(i) Liabilities with respect to pending or threatened litigation, the Claim for which
arises on or before the Closing Date in connection with the Project Company,Project Assets,
or the Project (regardless of whether such Claim is asserted before or after the Closing
Date); and
Exhibit No. 1
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(j) Liabilities for Pre-Closing Taxes.
"Preliminary Performance Test Report"shall have the meaning set forth in 15.5(a).
"Prime Rate"means the rate per annum (rounded upwards to the nearest 1/100th of 1%per annum)
equal to the rate of interest which JP Morgan Chase in New York,New York or its successor announces
from time to time as its"prime lending rate"or equivalent rate or if such rate is not available,another
rate published as the "prime rate" as agreed by Buyer and Developer,with each change in such rate
to be effective on the day on which such change is effective.
"Pro-ratable Items" shall have the meaning set forth in 2.6 c .
"Procedures" shall have the meaning set forth in 18.1(b).
"Progress Report"shall have the meaning set forth in 11.6(a).
"Project" shall have the meaning set forth in the recitals of the Agreement.
"Project Assets"means all assets,properties,rights,and interests of every kind,nature,character and
description (whether real, personal, or mixed, whether tangible or intangible, and whether at or
deliverable to the Project Site (as defined below)) and any goodwill related thereto,owned or leased
by, or licensed to, or possessed by the Developer or, if applicable, the Project Company, as of the
Closing Date (as defined below),in each case,which relate to or are used or held for use in connection
with the development,construction,operation,maintenance,repair,ownership,or use of the Project,
including the shared facilities,if applicable,including but not limited to: (a) studies, data,books, and
records related to the Project (together with the real property agreements referenced in clause (b)
below, the Project Contracts, the Project permits referenced in clause (g) and the Project reports
referenced in clause (h) below, the "Books and Records"); (b) the Real Property (including any
leasehold interest,licenses,rights of way or easements) on which any portion of the Project is located
or which is used to access any portion of the Project and including any Project real property
agreements (collectively, the "Project Site"); (c) the Project fixtures and equipment, including any
buildings,fixtures and equipment on or associated with the Project Site; (d)all contracts,agreements
or other arrangements to which Developer, Project Company (if applicable) or any of their affiliates
is a party with respect to the Project, Project Site or any Project Asset (collectively the "Project
Contracts"); (e) the Project improvements; (0 intellectual property necessary for the development,
construction,operation,maintenance,repair,ownership or use of the Project; (g)the Project permits;
(h) the Project reports; (i) meteorological data and any perfor; (j) all interconnection rights; (k) any
warranties associated with the equipment and/or workmanship of the Project; and (1) any and all
attributes of the Project (including all tax credits and other credits, certificates, tags, offsets,
allowances, or similar products or rights, howsoever entitled, associated with the Project or such
attributes).
"Project Company"shall have the meaning set forth in the recitals of the Agreement.
"Project Company Consents"shall have the meaning set forth in 4.2 b .
"Project Company Contracts"means any Contract to which any Project Company is a party, or by the
terms of which any Project Company is bound, or to which the Project or any Project Assets are
subject, including any (a) Contract that is primarily or exclusively related to the development,
permitting, acquisition, design, installation, ownership, marketing, sale, or planned operation of the
Project or Project Company; (b) Contract between Developer and any of its Affiliates concerning the
Project or the related Project Assets; (c) teaming agreement in connection with the development of
the Project; (d) interconnection or transmission-related agreements or applications for
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 201 of 495

interconnection or transmission of or from the Project; (e) any agreement for the sale of power or
environmental attributes of the Project, (f) the EPC Contract and Major Supply Agreements; (g)
exclusivity agreements with any contractor,or other supplier or utility to which the Project Company
is bound; (h) [contract providing for the borrowing of Indebtedness or the mortgaging,pledging or
otherwise placing a Lien on any of the Project Assets,] or the guarantying of any obligation (other
than endorsements made for collection) or otherwise material and related to any Indebtedness;
(i) contract that provides for non-monetary obligations in connection with the Project or Project
Assets, the non-performance of which obligations could reasonably be expected to have a Material
Adverse Change; 0) lease, license, easement, or other real property interest necessary for the
installation or operation of the Project, including any Real Property Contracts; (k) any agreement
with or award from a Governmental Authority with respect to environmental, financial, or tax
incentives;(1)any warranty agreement with respect to the procurement of Equipment for the Project;
and (m) amendment or supplement to any of the foregoing.
"Project Company Permits"shall have the meaning set forth in 4.12(a).
"Project Company Regulatory Approvals"shall mean [_]4
"Project Problem"has the meaning set forth in 11.6 b i .
"Project Schedule"shall have the meaning set forth in 11.1.
"Proposed Purchase Price Allocation"shall have the meaning set forth in 17.3.
"Prudent Industry Practice" means any of the practices, methods, and acts relating to construction,
interconnection, and electrical work engaged in or approved by a significant portion of the energy
storage industry in the Pacific Northwest for energy storage facilities of a type and size and having
geographical and climatic attributes similar to the Project which,including guidance from the Edison
Electric Institute, OSHA Best Practices, and other generally accepted industry practices, in the
exercise of reasonable judgment in light of the facts known at the time the decision was made,would
have been expected to accomplish the desired result in a cost-efficient manner consistent with good
business practices and reliability criteria, safety considerations and expediency. Prudent Industry
Practice is not intended to be limited to the optimum practice, method, or act to the exclusion of all
others but,rather,to be a spectrum of acceptable industry practices,methods,or acts.
"Punch List Holdback Amount" means 200% of the value of any Punch List items outstanding as of
Substantial Completion as valued and certified by the Buyer's Engineer as part of its Substantial
Completion certification.
"Purchase Price"shall have the meaning set forth in 2.6 b .
"Qualified Operator" means a Person that directly or indirectly through its Affiliates has developed,
owned,or operated for (or has hired another Person to develop and operate the Project that has for)
at least [five (5) consecutive] years utility scale battery storage assets in the United States with an
aggregate storage capacity of[_].
"Ramp Rate Guarantee"means the ramp rate guarantee set forth in Appendix 0.
a Note to Bidders:Please provide a list,if any.
Exhibit No. 1
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"Ramp Rate Test"means the test performed in accordance with the requirements of Appendix 0,and
Appendix A and related Design Documents to determine whether the Ramp Rate Guarantee has been
achieved.
"Real Property" means all real property and interests in real property (including any leasehold
interests, licenses, rights of way, or Easements, and including the rights and interests in the Real
Property Contracts)to develop,construct,commission,own,and commence operations of the Project
at the Site.
"Real Property Contracts"shall have the meaning set forth in 4.13(a).
"Real Property EstoRpels"shall have the meaning set forth in 2.5 a viii .
"Regulated Materials"means any substance,material,or waste,including special waste,which is now
or hereafter becomes listed,defined,or regulated in any manner as hazardous,extremely hazardous,
corrosive,toxic,ignitable,explosive,radioactive,or flammable by any United States federal,state,or
local Environmental Law and includes any oil, petroleum, petroleum products, polychlorinated
biphenyls,asbestos in any form,and polyfluorinated and per fluorinated aromatic compounds.
"Release" means any release, deposit, discharge, emission, leaking, spilling, seeping, migrating,
injecting, pumping, pouring, emptying, escaping, dumping, disposing, or other movement of
Regulated Material.
"Reliability Run Period"has the meaning set forth in Appendix 0.
"Remediation"includes any response,remedial,removal,or corrective action,any activity to cleanup,
detoxify, decontaminate, contain, or otherwise remediate any Regulated Material, any actions to
prevent,cure,or mitigate any Release of any Regulated Material,any action required to comply with
any Environmental Laws or with any Permits issued pursuant thereto,any inspection,investigation,
study, monitoring, assessment, audit, sampling and testing, laboratory or other analysis, or
evaluation required under Environmental Laws and relating to any Regulated Material.
"Reports" means the Phase I ESA, as well as all other environmental impact studies, geotechnical
reports, interconnection system impact studies, cultural assessments, hydrology reports, and
wetland delineation reports,in each case,with respect to the Project and the Site.
"Required Change Order"shall have the meaning set forth in 12.2 c .
"Response Time Guarantee"means the response time guarantee set forth in Appendix 0.
"Response Time Test" means the test performed in accordance with the requirements of Appendix
0 and Appendix A and related Design Documents to determine whether the Response Time
Guarantee has been achieved.
"Roundtrip Efficiency Guarantee"means the roundtrip efficiency guarantee set forth in Appendix 0.
"Roundtrip Efficiency Test" means the test performed in accordance with the requirements of
Appendix 0. and Appendix A and related Design Documents to determine whether the Roundtrip
Efficiency Guarantee has been achieved.
"Scope of Work"shall have the meaning set forth in Appendix A.
Exhibit No. 1
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E. Hackett, IPC
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"Serial Defect" means a Defect occurring during the Warranty Period that includes [ ]([_] %) or
more of the same or substantially similar component(s) resulting from the same failure mode of the
same manufacturer.
"Serial Defect Warranty Period"means a period of[_] years beginning on [ ].
"Significant Defect"means a single or recurring Defect which occurs at any time within the Warranty
Period which results in the cessation of operation of the Project or will not, unless corrected, allow
Buyer to operate the Project within parameters required to comply with applicable Law for a period
of either three (3) consecutive days or an aggregate of five (5) days in the case of a recurring Defect.
"Site Acreage"means the total number of acres that comprise the Site.
"Straddle Period" means a taxable period that includes but does not end on the Closing Date.
"Subcontractor" means any Person (including vendors, suppliers, contractors, and consultants),
other than Contractor,retained by Developer to perform a part of Developer's obligations under any
Transaction Document,including the Major Subcontractors.
"Substantial Completion" means the Project has successfully completed commissioning to allow
routine and normal operations and demonstrates that all of the Substantial Completion Criteria has
been satisfied in accordance with the requirements of this Agreement.
"Substantial Completion Criteria"shall have the meaning set forth in Appendix P.
"Substantial Completion Date"means the date on the Certificate of Substantial Completion provided
by Developer which is accepted in accordance with the requirements of 16.3. Developer shall ensure
that the Project does not achieve Substantial Completion in any Calendar Quarter prior to the
Calendar Quarter in which the Guaranteed Substantial Completion Date falls.
"Substantial Completion Delay Liquidated Damages"shall have the meaning set forth in 20.2 b .
"System" means the electric transmission sub-station and distribution facilities owned, operated, or
maintained by Transmission Provider,which shall include, after construction and installation of the
Project, the circuit reinforcements, extensions, and associated terminal facility reinforcements or
additions required to complete the Project,all as set forth in the Interconnection Agreement.
"Tax" or"Taxes" means any and all federal, state, local, foreign, or other taxes, charges, fees, levies,
tariffs, duties,liabilities,impositions, or other assessments in the nature of a tax (together with any
and all interest,penalties,additions to tax,and additional amounts imposed relating or attributable
to any failure to comply with any requirement regarding Tax Returns) imposed by any tax authority
or other Governmental Authority, including income, gross receipts, profits, excise, real or personal
property, environmental, sales, use, value-added, ad valorem, withholding, social security,
retirement, rollback, employment, unemployment, customs duties, worker's compensation,
occupation,escheat,unclaimed property,recapture,service,license,net worth,capital stock,payroll,
franchise, gains, stamp,transfer and recording taxes, and shall include any liability for the Taxes of
any other person or entity under Treasury Regulations Section 1.1502-6 (or similar provisions of
state or local law), or as a transferee or successor,by indemnification,contract, or otherwise.
"Tax Benefit" means the [ [_]% ITC], accelerated depreciation (including bonus depreciation),
amortization and state level credits,deductions,and incentives.
Exhibit No. 1
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"Tax Benefits Loss"means any denial,disallowance,loss,reduction, or recapture of, or any inability
to claim, any Tax Benefits (including any Claim or Liability thereto) resulting from a breach by
Developer of any of its representations,warranties, or covenants in this Agreement.
"Tax Returns" means any return, declaration, report, Claim for refund, or information return or
statement relating to Taxes, in each case, including any such document prepared on a consolidated,
combined, or unitary basis and also including any schedule or attachment thereto, filed or
maintained,or required to be filed or maintained,in connection with the calculation,determination,
assessment, or collection of any Tax and includes any amended returns required as a result of
examination adjustments made by the Internal Revenue Service or other Governmental Authority.
"Technical Specification"means the specification for the Work set forth in Appendix AA and Appendix
P and any modifications thereof made pursuant to the terms of this Agreement.
"Ten Percent Holdback"shall have the meaning set forth in 2.7(b).
"Tipping Basket Amount"shall have the meaning set forth in 22.1(c).
"Title Company"means [ ] or such other title insurance company reasonably acceptable to Buyer
and Seller.
"Title Policy"means a title insurance policy issued by Title Company at Developer's expense (except
as set forth herein) insuring Buyer's leasehold and fee simple rights, as applicable, in the Real
Property, including the Easements as appurtenant easements, that (a) is in form and substance and
contains such requirements,modifications,and endorsements as Buyer may reasonably approve, (b)
contains such additional affirmative coverage and endorsements (at Buyer's cost and expense) as
Buyer may reasonably request (provided, that Buyer shall bear the expense of any requested tax
credit endorsements), (c) is in such amount as Buyer may negotiate with the Title Company, which
shall in no event exceed the Purchase Price, (d) insures that Buyer is the sole holder of all insured
leasehold and fee simple rights, as applicable, title and interests with respect to the Real Property,
subject to such exceptions to title as Buyer may reasonably approve, (e) names Buyer and Project
Company as the insured, (f) is issued on or before the Closing Date by the Title Company, (g) shows
as exceptions only the Permitted Liens,and(h)does not contain the standard pre-printed exceptions
that appear in the related title insurance commitment,which are able to be deleted with the delivery
of affidavits and certifications signed or obtained by Developer and acceptable to the Title Company.
"Transaction"shall have the meaning set forth in 29.1(b).
"Transaction Documents" means once executed and in full force and effect, this Agreement, the
Assignment and Assumption Agreement, and any other assignments, novation agreements,
delegation agreements, conveyances, and other ancillary documents necessary to effect the
transaction contemplated herein; provided, that the Project Company Contracts shall not be
considered Transaction Documents hereunder.
"Transfer Tax" shall have the meaning set forth in 17.2.
"Transferred Warranties" means all those warranties offered or transferred by Developer to Buyer
pursuant to ARTICLE 19.
"Transmission Provider" means Idaho Power Transmission.
"Treasury Regulations"means the United States Treasury Regulations promulgated under the Code.
"Unidentified Project Problem" shall have the meaning set forth in 11.6(c).
Exhibit No. 1
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"Updating Information"shall have the meaning set forth in 4 a .
"Warranty" shall have the meaning set forth in 19.1(a).
"Warranty Period"shall have the meaning set forth in 19.2.
"Work" means the Equipment and Materials to be supplied and the entire works and services to be
performed,or caused to be performed,by Developer under this Agreement,including all Equipment,
Materials, and services in connection with the development, design, permitting, engineering,
procurement,and construction of the Project,together with any modifications thereto in accordance
with the terms hereof.
1.2 Interpretation.
(a) Unless the context requires otherwise,in this Agreement:
(i) Headings and the rendering of text in bold or italics are for convenience and
reference purposes only and do not affect the meaning or interpretation of this Agreement.
(ii) A reference to an Appendix, Exhibit, Schedule, Article, Section, or other
provision shall, unless otherwise specified, be deemed to be a reference to appendices, exhibits,
schedules, articles, sections, or other provisions of this Agreement, which appendices, exhibits, and
schedules are incorporated herein by reference.
(iii) Any reference in this Agreement to another Contract or document shall be a
reference to that other Contract or document as the same may be amended,modified,supplemented,
or replaced from time to time.
(iv) Any reference in this Agreement to "this Agreement," "herein," "hereof,"
"hereunder," or"herewith" shall be a reference to this Agreement as a whole and not limited to the
particular Appendix,Article, Section, Exhibit, Schedule, or provision in which the relevant reference
appears and to this Agreement as amended,modified,supplemented, or replaced from time to time.
(v) References to any Party shall include any successors and assigns of the Party
but,if applicable, only if such successors and assigns are permitted by this Agreement.
(vi) References to the term"includes"or"including"shall mean"includes,without
limitation"or"including,without limitation."
(vii) Words importing the singular shall include the plural and vice versa and the
masculine,feminine,and neuter genders shall include all genders.
(viii) The word"or"shall be deemed to be disjunctive but not necessarily exclusive
(i.e., unless the context dictates otherwise, "or" shall be interpreted to mean "or" rather than
"either/or").
(ix) The terms"shall"and"will"are each mandatory,meaning must; and the term
"may" is permissive.
(x) Relative to the determination of any period of time, "from" shall mean
"including and after," "to" shall mean "to but excluding," and "through" shall mean "through and
including."
Exhibit No. 1
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(xi) If the time for performing an obligation under this Agreement occurs or
expires on a day that is not a Business Day, the time for performance of such obligation shall be
extended until the next succeeding Business Day.
(xii) References to Laws shall be references to the same as amended, modified,
supplemented,or reenacted and in effect from time to time,and shall include references to all bylaws,
instruments, orders, rules, and regulations for the time being made thereunder or deriving validity
therefrom,unless the context otherwise requires.
(xiii) References to any amount of money shall mean a reference to the amount in
United States dollars.
(xiv) Any reference in this Agreement to time of day refers to the prevailing
Mountain Time.
(xv) Unless specifically stated to the contrary, all references to days, months and
years in this Agreement refer to calendar days,months, and years,respectively.
ARTICLE 2
PURCHASE AND SALE OF MEMBERSHIP INTERESTS
2.1 IPUC Approval.
This Agreement is subject to,and the obligations of Buyer and Developer to purchase,sell and
deliver Net Output, Green Tags and Capacity Rights hereunder shall only become fully effective upon
the IPUC's approval of all terms and provisions hereof without change or condition, declaration that
all payments to be made to Developer hereunder shall be allowed as prudently incurred expenses for
ratemaking purposes, and approval of the accounting and regulatory treatment requested by Idaho
Power in its application to the IPUC, all to the satisfaction of Buyer (the"IPUC Approval"). Buyer will
agree to submit to the IPUC an application ("IPUC Submission") for necessary regulatory approvals
of cost recovery through rates no later than sixty(60) days following the execution of the Agreement.
2.2 Sale and Transfer of Membership Interests.
On the terms and subject to the conditions set forth in this Agreement, Developer shall
irrevocably and unconditionally sell, convey, transfer, deliver, and assign to Buyer, and Buyer shall
purchase, receive, and accept from Developer, the Membership Interests, free and clear of all Liens
and Liabilities,and the Parties shall take or cause to be taken the other actions described herein.
2.3 Firm Date.
(a) Following the Execution Date, each Party shall use commercially reasonable efforts
to ensure the achievement of the "Firm Date." which shall be the first date on which all of the
following conditions ("Firm Date Conditions") have been satisfied (or waived by the Party entitled to
do so)and signifies completion of Project development and commencement of construction activities
for the Project:
(i) Buyer and Developer Firm Date Conditions. The following conditions
must be satisfied or otherwise waived in whole or in part by either Party in its sole discretion:
(A) The final form of the CCMA has been mutually agreed to by the Parties;
(ii) Buyer Firm Date Conditions. The following conditions must be satisfied or
otherwise waived by Buyer in its sole discretion:
Exhibit No. 1
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(A) An agreed upon list of Project permits to be specified in the
Agreement as being required by the Firm Date (a) have been obtained and issued for the Project, (b)
are in full force and effect,and (c) satisfy any requirements of the Agreement with respect to review
and approval of permits;
(B) An agreed upon list of consents to be specified in the Agreement as
required to be in place by the Firm Date have been duly obtained,made or given and are in full force
and effect;
(C) Developer has delivered to Buyer the agreed upon list of reports to be
specified in the Agreement as required and any additional reports or Design Documents required
pursuant to the Agreement and such reports or Design Documents have satisfied any other
requirements of the Agreement with respect to the preparation, sufficiency and material findings
thereof,
(D) The Interconnection Agreement has been finalized and executed by
the parties thereto in accordance with the requirements of the Agreement and is in form and
substance acceptable to Buyer in its reasonable discretion;
(E) Developer has delivered to Buyer a Phase I ESA (and, if indicated in
the Phase I ESA, a Phase II ESA) with respect to the Project Site, current and valid on the Firm Date
under ASTM Standard Practice E1527-13, addressed to Buyer,and accompanied by a reliance letter
incorporating user-provided information from Buyer in form and substance reasonably satisfactory
to Buyer;
(F) Developer's representations and warranties are true, correct and
complete as of the Firm Date in all material respects except for Developer's fundamental
representations and warranties and representations and warranties qualified by a materiality
standard,which will be true, correct and complete in all respects;
(G) Developer has performed its obligations in the Agreement to be
performed prior to the Firm Date in all material respects;
(H) There is no Developer, Project Company (if applicable) or Project
Material Adverse Change;
(I) Developer and Buyer have agreed on all Firm Date title objections and
required exceptions and Developer has delivered all non-disturbance agreements and curative
documents in accordance with the standards and processes set forth in the Agreement;
(J) The form of ALTA title policy to be issued as of the Closing Date has
been finalized and agreed; and
(K) Developer has caused the relevant title company to issue a pro forma
policy of title insurance consistent with the updated title commitment and the agreed upon Firm Date
title objections and required exceptions.
(iii) Developer Firm Date Conditions. The following conditions must be
satisfied or otherwise waived by Developer in its sole discretion:
(A) Buyer's representations and warranties are true, correct, and
complete as of the Firm Date in all material respects except for Buyer's Fundamental Representations
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 208 of 495

and its representations and warranties that are qualified by a materiality standard, which will be
true, correct,and complete in all respects.
(B) There is no Buyer Material Adverse Change.
(C) Buyer has performed its obligations under the Agreement in all
material respects.
2.4 Full Notice to Proceed.
At or following satisfaction of the Firm Date Conditions,the Developer, or if applicable,the
Project Company shall issue a Full Notice to Proceed with respect to the performance of the
construction of the Project.
2.5 Closing Deliverables.
(a) Developer's Deliverables. At the Closing,Developer shall execute and deliver to Buyer
the following documents and such other documents,bills of sale,assignments,and other instruments
of transfer or assignment:
(i) a counterpart signature page to an assignment and assumption agreement
with respect to the Membership Interests (the "Assignment and Assumption Agreement"), in form
and substance set forth in Exhibit C, duly executed by an Authorized Signatory of Developer;
(ii) a duly completed and executed IRS Form W-9;
(iii) a certificate of a duly authorized officer of Developer certifying that:
(A) attached thereto is a true,correct,and complete copy of a certificate of good standing with respect
to Developer, issued by the Secretary of State of[_] as of a date not more than ten (10) days prior
to the Closing Date; (B) attached thereto are true,accurate,and complete copies of the organizational
documents of Developer,and all amendments thereto,as in effect at Closing; (C)attached thereto are
copies of resolutions duly adopted by the Manager,authorizing the sale of the Membership Interests
to Buyer and the execution, delivery, and performance by Developer of this Agreement and the
transactions contemplated hereby and attesting that such resolutions are in full force and effect
without amendment or modification at Closing; (D) attached thereto is the name,title,and signature
of each of the Authorized Signatory authorized to execute and deliver this Agreement and the
Transaction Documents,and any other document or instrument contemplated hereby or thereby,by
or on behalf of Developer; and (E) the conditions specified in 2.9 a and 2.9 b have been satisfied;
(iv) a certificate of a duly authorized officer of Project Company certifying that:
(A)attached thereto is a true,correct,and complete copy of a certificate of good standing with respect
to Project Company,issued by the [ ] as of a date not more than ten(10) days prior to the Closing
Date; (B) attached thereto are true, accurate, and complete copies of the organizational documents
of Project Company, and all amendments thereto, as in effect at Closing; and (C) attached thereto is
the name,title,and signature of each of the Authorized Signatories authorized to execute and deliver
the Transaction Documents and any other document or instrument contemplated hereby or thereby,
by and on behalf of Project Company;
(v) the Title Policy naming Project Company as the insured,together with a date
down endorsement showing any new matters of record and an endorsement naming Buyer as an
additional insured,such endorsements to be issued no earlier than five (5) Business Days before the
Closing Date in form and substance reasonably acceptable to Buyer;
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 209 of 495

(vi) an ALTA/ACSM standard survey of the Real Property, dated no more than
thirty (30) days before the date Full Notice to Proceed is issued, in accordance with minimum
ALTA/ACSM standards then in effect and sufficient in form and substance to permit issuance of the
Title Policy, prepared and certified as correct by a licensed land surveyor reasonably satisfactory to
Buyer. Such survey shall show the location of the Site and all planned improvements based on the
issued for construction civil engineering plans for the Project thereon, and the location of all
easements and rights-of-way, whether above or underground, and shall show no encroachments of
any improvements onto such easements or rights-of-way(except as permitted under the documents
governing such easements and rights-of-way or pursuant to a consent,crossing agreement,or similar
agreement) or onto property outside the boundaries of the Site as shown on the survey;
(vii) estoppels, in form and substance reasonably acceptable to Buyer, from each
applicable counterparty to all Project Company Contracts that are not executed with a Governmental
Authority (except the Real Property Contracts which are to be delivered in accordance with
subsection(viii)below),including the EPC Contract and the Major Supply Agreements,dated no more
than fifteen(15) days prior to the Closing,each of which shall include a statement that the respective
Contract is in full force and effect(the"EstoRpels");
(viii) estoppels, in form and substance reasonably acceptable to Buyer, from each
applicable counterparty to the Real Property Contracts and dated no more than sixty(60) days prior
to the Closing Date,each of which shall include a statement that the respective Real Property Contract
is in full force and effect(the"Real Property EstoRpels").
(ix) a Beginning of Construction Certificate substantially in the form of Exhibit D.
duly executed by Developer and current as of the Closing Date.
(x) such releases of Liens and Liabilities and certificates as Buyer shall deem
necessary or Buyer may reasonably request to affect the Closing contemplated by this Agreement,all
of which shall be in form and substance reasonably satisfactory to Buyer.
(b) Buyer's Deliverables. At the Closing,Buyer shall execute and deliver to Developer the
following documents and such other documents, deeds, bills of sale, assignments, and other
instruments of transfer or assignment:
(i) a counterpart signature page to the Assignment and Assumption, duly
executed by an Authorized Signatory of Buyer; and
(ii) a certificate of the Secretary or an Assistant Secretary of Buyer certifying that:
(A)attached thereto is a true,correct,and complete copy of a certificate of good standing with respect
to Buyer,issued by the Secretary of State of the State of Idaho as of a date not more than thirty (30)
days prior to the Closing Date; (B) attached thereto are copies of resolutions duly adopted by Buyer's
board of directors (or similar body),authorizing the purchase of the Membership Interests by Buyer
and the execution, delivery, and performance by Buyer of this Agreement and the transactions
contemplated hereby and attesting that such resolutions are in full force and effect without
amendment or modification at Closing; (C) attached thereto is the name,title, and signature of each
of the Authorized Signatories of Buyer authorized to execute and deliver this Agreement and the
Transaction Documents, and any other document or instrument contemplated hereby or thereby;
and (D)the conditions specified in 2.10 a and 2.10 b have been satisfied;
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 210 of 495

2.6 Purchase Price.
(a) Base Purchase Price. Subject to Section 2.6(b, the aggregate consideration payable
by Buyer to Developer for(i)the Membership Interests and(ii)the Developer's obligations to deliver
a Project that has achieved Final Completion shall be$[ ] (the"Base Purchase Price").
(b) Purchase Price Adjustments. The Base Purchase Price shall be adjusted as follows:
(i) decreased for the Guaranteed Capacity Liquidated Damages,if any;
(ii) decreased for Guaranteed Roundtrip Efficiency Liquidated Damages,if any;
(iii) decreased for Guaranteed Availability Liquidated Damages,if any;
(iv) increased or decreased, as applicable,for Buyer's or Developer's net pro-rata
share of the Pro-Ratable Items;
(v) increased for the Buyer-Caused Delay Costs,if any; and
(vi) increased for the Buyer-Initiated Change Order Costs,if any.
(as so adjusted,the"Purchase Price").
(c) Pro-Ratable Items. The "Pro-Ratable Items" include each of those Project-related
liabilities as set forth on Schedule 2.6(c).5 Buyer's pro-rata share shall not exceed the amount set
forth on Schedule 2.6(c).
(d) Buyer-Caused Delay Costs. The "Buyer-Caused Delay Costs" shall be equal the
reasonable, documented actual costs incurred by Developer as a direct result of liabilities arising
under the EPC Contract to the extent caused by a Change Order issued due to a circumstance set forth
in 12.2 c ii
(e) Buyer-Initiated Change Order Costs. The "Buyer-Initiated Change Order Costs" shall
be equal to the reasonable documented actual costs incurred by Developer and approved by Buyer
in accordance with 12.2 b as a direct result of liabilities arising under the EPC Contract that are
directly and solely caused by a Buyer-Initiated Change Order.
(f) Withholding. Notwithstanding any other provision in this Agreement to the contrary,
Buyer and each of its Affiliates shall be entitled to deduct and withhold from amounts otherwise
payable to any Person pursuant to this Agreement such amounts as it determines are required to be
deducted and withheld with respect to the making of such payment under any provision of applicable
Law. Such deducted or withheld amounts shall be treated for all purposes of this Agreement as
having been paid to the relevant Person in respect of which such deduction and withholding was
made. If Buyer determines that withholding of payments to a Person are required to be made
pursuant to this 2.6 , Buyer shall, as soon as reasonably practicable, notify such Person of such
determination and,to the extent possible consistent with applicable Law, provide such Person with
a reasonably opportunity to produce any required documentation to reduce or eliminate such
withholding requirement.
5 Note to Bidders: Schedule 2.5(d) to provide for proration of(a) post-closing property taxes,(b) rents or property taxes
due to increased valuation due to the installation of the Project that is applied pre-closing,to the extent applicable,and/or
(c)specified prepayments under specified Project Contracts paid prior to Closing but relating to periods after Closing,such
as completion or operation-based lease payments.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
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2.7 Closing and Payment Structure.
(a) Closing Date, Place and Time. The closing of the transactions contemplated by this
ARTICLE 2 (the"Closing")shall take place at[ ] or such other location as the Parties shall agree,
at 10:00 a.m. (Mountain Time) on the date that is three (3) Business Days from the date that all of the
conditions precedent set forth in 2.9 and 2.1010 have been satisfied (or waived in writing by Buyer
or Developer, as applicable),which date shall be on or before the Outside Closing Date, as such date
may be extended in accordance with 20.2 a or at such other time and date as the Parties shall
mutually designate in writing (the "Closing Date"). The Closing shall be effective as of 12:01 a.m.
(Mountain Time) on the Closing Date.
(b) Closing Payment. At the Closing, Buyer shall pay to Developer the ninety percent
(90%) of the Base Purchase Price (the"Closing Payment")via wire transfer of immediately available
federal funds to an account that is (i) located in the United States and (ii) designated by Developer at
least ten (10) Business Days prior to the Closing Date.
(c) Substantial Completion Payment. Within ten (10) Business Days after the Buyer's
Engineer certifies that the Project has achieved Substantial Completion, Buyer will pay to Developer
the Purchase Price,less the Closing Payment,less the Punch List Holdback Amount.
(d) Payment of Punch List Holdback Amount. Within ten (10) Business Days after the
Buyer's Engineer certifies that the Project has achieved Final Completion,Buyer will pay to Developer
the Punch List Holdback Amount, provided that, after Substantial Completion but before Final
Completion, Developer may submit invoices for partial release of the Punch List Holdback Amount
prior to Final Completion for Punch List items completed to the extent such items completed
aggregate to$[_] or more.
2.8 Further Assurances.
From time to time after the Closing Date,Developer shall,at the request of Buyer but without
further consideration,promptly execute and deliver to Buyer such other agreements,certificates and
further instruments of sale, assignment, transfer, and conveyance and take such other and further
actions as Buyer may reasonably request in order to vest or perfect in Buyer or its assigns, and put
Buyer or its assigns in possession of, the Membership Interests, the Project Assets, and the Project
Company Contracts and to carry out and implement the Closing and the transactions contemplated
in this ARTICLE 2,including any regulatory requirements of Buyer.
2.9 Conditions Precedent to Buyer's Obligation to Complete the Closing.
The obligation of Buyer to effect the Closing and the transactions contemplated in this
ARTICLE 2 is subject to the satisfaction or waiver by Buyer on or prior to the Closing Date of each of
the following conditions:
(a) Accuracy of Representations and Warranties. The representations and warranties
made by Developer in this Agreement that are qualified with respect to materiality shall be true and
accurate in all respects, the representations and warranties made by Developer in this Agreement
that are not so qualified shall be true and accurate in all material respects, and the Fundamental
Representations and warranties shall be true and correct in all respects,on and as of the Closing Date
(or on the date when made in the case of any representation and warranty which specifically relates
to an earlier date).
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 212 of 495

(b) Performance. Developer and the Project Company, as the case may be, shall have
performed or complied in all material respects with all obligations and covenants required by this
Agreement to be performed or complied with by it on or prior to the Closing Date.
(c) Deliveries. Developer shall have executed and Made Available or caused to be
executed and Made Available to Buyer the items set forth in 2.5fal and any other final reports and
Design Documents required to be delivered on or prior to the Closing Date.
(d) Absence of Orders: Law. No preliminary or permanent injunction or other Judgment
of any Governmental Authority to prevent the consummation of the transactions contemplated by
this Agreement,including the Closing,shall be in effect or pending,and no applicable Law shall have
been enacted by any Governmental Authority that makes consummation of such transactions illegal.
(e) Transaction Documents and Credit Support. All of the Transaction Documents
(together with all amendments,supplements,schedules,and exhibits thereto)and the Credit Support
provided by Developer, shall be in full force and effect, and shall be in form and substance
substantially similar to the form attached hereto or otherwise satisfactory to Buyer in its discretion.
(0 Project Company Permits. All of the Project Company Permits necessary for the
development, construction, ownership, operation, maintenance, repair, and use of the Project shall
have been duly issued and obtained and shall be in full force and effect and shall be in form and
substance satisfactory to Buyer in its reasonable discretion.
(g) Project Company Consents. All of the Project Company Consents shall have been duly
obtained, made or given, shall be in full force and effect, and shall be in form and substance
satisfactory to Buyer in its reasonable discretion.
(h) Project Company Reports. All of the Reports shall be in form and substance
satisfactory to Buyer in its reasonable discretion.
(i) Material Adverse Change. No Developer Material Adverse Change shall have occurred
and be continuing.
(j) Substantial Completion. Developer shall have achieved Substantial Completion, as
certified by the Independent Engineer, and Developer shall have Made Available to Buyer the
unabridged and unredacted final report concerning the energy storage potential of the Project
prepared by the Independent Engineer.
(k) reserved
(1) Beginning of Construction Certificate. Buyer shall have received a Beginning of
Construction Certificate substantially in the form of Exhibit D,and current as of the Closing Date,duly
executed by Developer and current as of the Closing Date.
(m) Project Company Contracts. The Project Company Contracts, including the EPC
Contract and the Major Supply Agreements, shall be in full force and effect, in form and substance
required by this Agreement,without any modifications,amendments,or change orders thereto,other
than such modifications,amendments,or change orders that have been approved by Buyer in writing
and no party to the Project Company Contracts shall be in breach. The Independent Engineer shall
have certificated that the Project Contracts and schedules support achievement of applicable
milestones.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 213 of 495

(n) Regulatory Approvals. All of the Project Company Regulatory Approvals shall have
been duly obtained,made,or given,shall be in full force and effect,and shall be in form and substance
satisfactory to Buyer in its reasonable discretion.
(o) Conformity with Standards. Developer has certified to Buyer that to Developer's
Knowledge, the Project conforms to applicable engineering and installation standards set forth
herein, including the technical specifications and Applicable Laws, and the Developer has no
knowledge of any defects in workmanship or equipment caused by the Contractor or Subcontractors
with respect to the Project.
(p) Title Matters.Any objections to the Title Policy and survey matters have been cured
to Buyer's reasonable satisfaction.
(q) Tax Benefit. Developer has provided documentation satisfactory to Buyer with
respect to qualification for any applicable tax credits or other benefits (or, in each case,payments or
deemed refunds in lieu thereof), for the Project including under [specify applicable sections of the
Code based on the applicability of any relevant tax credits].
(r) Credit Support. Developer's or, if applicable, Project Company's credit support is in
full force and effect.
2.10 Conditions Precedent to Developer's Obligation to Complete the Closing.
The obligation of Developer to effect the Closing and the transactions contemplated in this
ARTICLE 2 is subject to the satisfaction or waiver by Developer on or prior to the Closing Date of
each of the following conditions:
(a) Accuracy of Representations and Warranties. The representations and warranties
made by Buyer in this Agreement that are qualified with respect to materiality shall be true and
accurate in all respects, the representations and warranties made by Buyer in this Agreement that
are not so qualified shall be true and accurate in all material respects, and the Fundamental
Representations and warranties shall be true and accurate in all respects, on and as of the Closing
Date (or on the date when made in the case of any representation and warranty which specifically
relates to an earlier date).
(b) Performance. Buyer shall have performed or complied in all material respects with
all obligations and covenants required by this Agreement to be performed or complied with by it on
or prior to the Closing Date.
(c) Deliveries. The Closing Payment has been paid and Buyer shall have executed and
Made Available or caused to be executed and Made Available to Developer the items set forth in
2.5(bl.
(d) Absence of Orders; Law. No preliminary or permanent injunction or other Judgment
of any Governmental Authority to prevent the consummation of the transactions contemplated by
this Agreement,including the Closing,shall be in effect or pending,and no applicable Law shall have
been enacted by any Governmental Authority that makes consummation of such transactions illegal.
(e) Transaction Documents. All of the Transaction Documents (together with all
amendments,supplements,schedules,and exhibits thereto) shall be in full force and effect,and shall
be in form and substance substantially similar to the form attached hereto or otherwise satisfactory
to Developer in its reasonable discretion.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 214 of 495

(f) Buyer Consents. All of the Buyer Consents shall have been duly obtained, made or
given,shall be in full force and effect,and shall be in form and substance satisfactory to Developer in
its reasonable discretion.
(g) Buyer Regulatory Approvals. Buyer shall have received final non-appealable
regulatory approval providing for satisfactory cost recovery assurance and any necessary regulatory
accounting authorization from the IPUC,All of the Buyer's other regulatory approvals shall have been
duly obtained, made, or given, shall be in full force and effect, and shall be in form and substance
satisfactory to Buyer in its discretion.
(h) Material Adverse Change. No Buyer Material Adverse Change shall have occurred and
be continuing.
2.11 Early Termination.
(a) Notwithstanding anything contained in this Agreement to the contrary,in addition to
the termination rights of the Parties set forth in Article 26,this Agreement may be terminated at any
time prior to the Closing Date as follows:
(i) by the mutual written agreement of the Parties;
(ii) Prior to Closing, by either Party, if any Law shall become effective after the
Execution Date or a Governmental Authority shall have issued a final and non-appealable order,
injunction,Judgment, decree, or ruling, in each case, restraining, enjoining, or otherwise prohibiting
or making illegal the Closing or the transactions contemplated in connection therewith;
(iii) Prior to Closing,by either Party, as applicable: (a) if the other Party breaches
any representation, warranty, or covenant in the Agreement, and (i) such breach would result in a
failure of, or inability of the other Party to satisfy the applicable closing conditions, and (ii) such
breach has not been cured to Buyer's or Developer's, as applicable, reasonable satisfaction within
thirty (30) days following receipt of written notice of such breach or an extended cure period not to
exceed the Outside Closing Date; or (b) a disclosure schedule update is delivered by a Party in
accordance with 7_4, which discloses a matter or matters resulting in Developer Material Adverse
Effects or Buyer Material Adverse Effects, as applicable, and which has not been cured within thirty
(30) days following receipt of written notice of such breach or an extended cure period not to exceed
the Outside Closing Date;
(iv) By either Party,upon the bankruptcy of the other Party;
(v) By either Party, if the Closing has not occurred by [_]6 (the"Outside Closing
Date." subject to any extension granted pursuant to 20.2(a)); provided, further, that the right to
terminate this Agreement pursuant hereto shall not be available to any Party whose breach of this
Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before the
Outside Closing Date;
(vi) By either Party, if a Force Majeure event or delay event causes a delay in
development or construction of the Project that will last longer than the Outside Closing Date;
(vii) Prior to IPUC Approval: by Buyer, if a Material Adverse Change occurs
(including as a result of a disclosure schedule update is delivered by a Party in accordance with 7_4)
with respect to Developer; and by Developer, if a Buyer Material Adverse Change occurs (including
6 Note:Project development timeline to be discussed.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 215 of 495

as a result of a disclosure schedule update is delivered by a Party in accordance with 7_4)with respect
to Buyer;
(viii) by either party, if the Firm Date has not occurred by [_]7 (the "Firm Date
Deadline"); provided,however,that the right to terminate this Agreement pursuant hereto shall not
be available to Developer,if Developer is in breach of this Agreement and such breach has been the
cause of, or resulted in,the failure of the Project to achieve the Firm Date on or before the Firm Date
Deadline;
(ix) by Buyer, if a Change in Law regarding taxes increases Buyer's costs to own
and operate the Project in a dollar amount in excess of$[_];
(x) by Buyer,if the EPC Contract and the Major Supply Agreements have not been
agreed to by the Project Company and applicable contractors in form and substance on terms equal
to or better than those attached hereto as Exhibit G and Exhibit H.within sixty[60] days of execution
of the Agreement;
(xi) by Buyer,if the EPC Contract and the Major Supply Agreements have not been
executed by the Project Company and applicable contractors on terms equal to or better than those
attached hereto as Exhibit G and Exhibit H,within one hundred eighty(180) days of the execution of
the Agreement;
(xii) by Buyer, if this Agreement has not been approved by the Board of Directors
of Buyer or Buyer has not received all required internal approvals,including formal approvals by its
executive management,prior to the date that is thirty(30) days after execution of this Agreement;
(xiii) By Buyer, if (a) IPUC Approval is not obtained by six (6) months following
Buyer's submission of the Agreement to the IPUC and (b) after good faith efforts of the Parties to
consult with each other for a period of thirty(30)days,they are not able to agree that the Project will
achieve the Guaranteed Substantial Completion Date, notwithstanding the delay, or if the Parties
agree that the Project will not timely achieve the Guaranteed Substantial Completion Date,then the
Agreement may be terminate by Buyer;
(xiv) By either Party, if(a) IPUC Approval is not obtained by twelve (12) months
following Buyer's submission of the Agreement to the IPUC or(b) Buyer's other regulatory approvals
in form and substance satisfactory to Buyer in its discretion are not obtained on or prior to [_];
(xv) by Buyer, if the Closing has not occurred by [_]$ (which date, for the
avoidance of doubt, is not subject to extensions); provided, further, that the right to terminate this
Agreement pursuant hereto shall not be available if Buyer's material breach of this Agreement has
been the cause of,or resulted in,the failure of the Closing to occur on or before such date;
(b) Either Party desiring to terminate this Agreement pursuant to 2.11 a shall give
written notice thereof to the other Party.
(c) If validly terminated, then all further obligations of the Parties will end (other than
those specified herein this Agreement that are intended to survive termination), with respect to a
termination due to a breach as set forth in clause 2.11(a)(iii) or 2.11(a)(iv), the terminating Party
will be entitled to pursue all rights or remedies available at law or in equity;provided,however,that
liability for such a pre-closing termination shall be capped at [$_million]. If validly terminated by
7 Note:Project development timeline to be discussed.
$Note:Project development timeline to be discussed.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 216 of 495

either Party pursuant to 2.11(a)(i), 2.11(a)(ii), 2.11(a)(v), 2.11(a)(vi), 2.11(a)(vii), 2.11(a)(viii),
2.11(a)(x),or 2.11(a)(xiv)then neither Party shall have any liability to the other with respect to such
termination.
(d) If this Agreement is terminated by Buyer pursuant to 2.11(a)(viii). 2.11(a)(xi),
2.11(a)(xii). 2.11(a)(xv) then Developer shall be liable to Buyer for an early termination fee in the
amount of [ ], all further obligations of the Parties under this Agreement (other than the
provisions which by their terms are intended to survive the expiration or termination of this
Agreement) shall be terminated (with no fees or damages payable by Buyer).
(e) The Parties agree that,to the extent that liquidated damages are provided for in this
2.11, it is because actual damages as a result of termination of this Agreement pursuant to the
applicable section would be extremely difficult or impracticable to determine. After negotiation,the
Parties have agreed that the above liquidated damages are in the nature of liquidated damages and
are a reasonable and appropriate measure of the damages that Buyer or Developer, as applicable,
would incur as a result of such delays or failures,and do not represent a penalty.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF DEVELOPER
Developer hereby represents and warrants to Buyer that all of the statements contained in
this ARTICLE 3 are true and correct: (a) as of the Execution Date, except to the extent such
representations and warranties are specifically made as of a particular date (in which case such
representations and warranties are true and correct as of such date); (b) as of the Firm Date; and (c)
as of the Closing Date.
3.1 Organization,Standing,and Power.
Developer is duly formed,validly existing and in good standing,under the applicable Laws of
the jurisdiction of its formation. Developer has the requisite limited liability company power and
authority to own, operate, and lease its properties and assets and to carry on its business as now
being conducted and as proposed to be conducted pursuant hereto. Developer is duly qualified or
licensed to do business and is in good standing in all jurisdictions in which the character of the
properties owned or held under lease by it or the nature of the business now being transacted by it
or proposed to be transacted by it pursuant hereto makes qualification necessary,including the State
of Idaho.
3.2 Authority; Execution and Delivery.
Developer has full limited liability company power and authority to execute and deliver this
Agreement and the Transaction Documents to which it is a party in connection with the transactions
contemplated hereby, to perform its obligations hereunder and thereunder, and to complete the
transactions contemplated hereby and thereby. The execution and delivery by Developer of this
Agreement and the Transaction Documents to which it is a party,and the performance by Developer
of its obligations hereunder and thereunder,have been duly and validly authorized by all necessary
limited liability company action.
3.3 Binding Agreement.
This Agreement and the Transaction Documents to which Developer is a party have been duly
executed and delivered by Developer and, assuming due and valid authorization, execution and
delivery thereof by Buyer and each other party thereto, this Agreement and the Transaction
Documents to which it is a party are valid and binding obligations of Developer enforceable against
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 217 of 495

Developer in accordance with their terms, subject to applicable bankruptcy, insolvency,
reorganization,moratorium,or other similar applicable Laws relating to or affecting the enforcement
of creditors' rights generally and to general principles of equity.
3.4 No Conflicts.
The execution and delivery by Developer of this Agreement and the Transaction Documents
to which Developer is a party does not, and the performance by Developer of its obligations
hereunder and thereunder and the completion of the transactions contemplated hereby and thereby,
shall not:
(a) conflict with or result in a violation or breach of any of the terms, conditions or
provisions of Developer's organizational documents;
(b) assuming all of the consents and approvals set forth on Schedule 3.4(b) (the
"Developer Consents") have been obtained or given, result in a breach, default or violation (or give
rise to any right of termination, cancellation or acceleration) under any of the terms, conditions or
provisions of any Contract associated with the Project to which Developer or any Affiliate of
Developer(other than Project Company) is a party or Permit associated with the Project obtained by
Developer or any Affiliate of Developer(other than Project Company) (with or without notice or lapse
of time or both), except for such breaches, defaults, or violations (or rights of termination,
cancellation or acceleration)as to which requisite waivers or consents have been obtained in writing
(true and correct copies of which have previously been furnished to Buyer);9
(c) assuming all of the Developer Consents have been obtained or given, conflict with or
result in a violation or breach in any term or provision of any applicable Law applicable to Developer
or the Project; or
(d) assuming all of the Developer Consents have been obtained or given, result in the
imposition or creation of any Lien of any nature on the Membership Interests or Project, other than
Permitted Liens or Permitted Equity Exceptions.
3.5 No Proceedings.
Except as set forth on Schedule 3.5,there are no actions,suits,investigations,or proceedings
by or before any Governmental Authority or arbitrator or, to Developer's Knowledge, threatened
against or affecting Developer, which would reasonably be expected to impact the transactions
contemplated herein.
3.6 Compliance with Laws.
Developer is, and at all times has been, and to Developer's Knowledge, Contractor and each
Subcontractor is, and at all times has been compliance with all applicable Laws, including those
relating to occupational health and safety,data privacy,and anti-corruption and anti-bribery,and the
Project Company Permits with respect to the Project, including the design, engineering, supply,
construction,installation,testing,commissioning,operation,and ownership of the Project.
3.7 Membership Interests.
The Membership Interests held by Developer represent one hundred percent(100%) of the
ownership interests in the Project Company. Developer has good title to and is the lawful, legal,
9 Note to Bidders:Parties to discuss whether any Developer Consents will be relevant to the development and construction
of the Facility.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 218 of 495

record,and beneficial owner of the Membership Interests and Buyer,at the Closing,will receive good
title to the Membership Interests, free and clear of all Liens. Other than with respect to Permitted
Equity Exceptions, there is no subscription, option, warrant, purchase right, call, or commitment of
any character relating to or entitling any Person to purchase or otherwise acquire the Membership
Interests. Other than with respect to Permitted Equity Exceptions,there is no outstanding security,
instrument, or obligation that is or may be convertible into or exercisable or exchangeable for any
Membership Interest or other ownership interest in the Project Company. Other than with respect
to Permitted Equity Exceptions, there are no contracts under which the Project Company may
become obligated to sell or otherwise issue any ownership interests in the Project Company. The
Membership Interests are an "uncertificated security" within the meaning of such term under
ARTICLE 8 of the Delaware Uniform Commercial Code. Developer has owned the Membership
Interests of Project Company continuously since the date of Project Company's formation, and the
Membership Interests have been duly authorized, validly issued, fully paid, and non-assessable, in
each case to the extent applicable.
3.8 Financial Resources.
Developer has the financial resources, assets, operating capital, credit, and other resources
and means necessary to fulfill, on a timely basis, all of (a) Developer's obligations under this
Agreement and the other Transaction Documents to which Developer is or will be a party and (b)
Developer's and Project Company's obligations under the EPC Contract and Major Supply
Agreements.
3.9 Reports.
(a) Developer has Made Available to Buyer a true, accurate, and complete copy of each
Firm Date Report on or before the Firm Date.
(b) Prior to the Closing Date, Developer has Made Available to Buyer (a) all updates and
supplements to the Firm Date Reports and (b) true, accurate, and complete copies of any additional
Reports received by Developer or the Project Company prior to the Closing Date.
(c) To Developer's Knowledge, there has been no material change in any findings or
conclusions of any Report delivered or Made Available by Developer to Buyer other than for which
Developer has Made Available and redelivered such Report to Buyer in final form as revised to
address any such change.
3.10 Due Diligence.
Developer has Made Available for Buyer's review all material information in its possession or
control or in the possession or control of its Affiliates relating to the Project Company and the Project
requested by Buyer in connection with Buyer's due diligence examination conducted with respect to
the transactions contemplated by this Agreement. To Developer's Knowledge, none of the
information provided by Developer or its Affiliates to Buyer contains any untrue or incorrect
statement of fact, or omits to state any fact necessary to make the information, in light of the
circumstances in which it was provided,not misleading.
3.11 No Material Adverse Change.
No Material Adverse Change has occurred and is continuing and,to Developer's Knowledge,
no event, result, occurrent, development, fact, change, or effect of whatever natures or kind exists
that would reasonably be expected to result in a Material Adverse Change.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 219 of 495

3.12 Affiliate Transactions.
Except as set forth on Schedule 3.12, (a) neither Developer nor any of its Affiliates nor any
manager,officer,employee,director,member,or stockholder of Developer or any of its Affiliates is a
party to any contract,agreement,instrument,or transaction with the Project Company;and (b) none
of such Persons has any beneficial or contractual interest in or will derive any financial gain from any
property or assets, real or personal,tangible or intangible,used in or pertaining to the Membership
Interests or the Project,except for prior to the Closing,the normal rights of a stockholder or member.
3.13 Brokers.
All negotiations relative to this Agreement and the other Transaction Documents and the
transactions contemplated hereby and thereby have been carried out by Developer directly with
Buyer without the intervention of any Person on behalf of Developer in such manner as to give rise
to any valid Claim by any Person against Buyer or any of its Affiliates for a finder's fee, brokerage
commission, or similar payment.
3.14 Absence of Certain Business Practices.
Neither Developer nor Project Company, nor any of their respective directors, officers,
employees or agents, or any other Person acting on their behalf, directly or indirectly, have to
Developer's Knowledge,given or agreed to give any gift or similar benefit to any customer,supplier,
governmental employee, or any other person that would violate Corrupt Practices Laws, or could
reasonably be expected to subject Project Company to any material damage or penalty in any civil,
criminal, or governmental litigation or proceeding under Corrupt Practices Laws. Developer further
represents and warrants that (a) no unrecorded fund or asset of Project Company has been
established for any purpose, (b) no accumulation or use of corporate funds of Project Company has
been made without being properly accounted for in the books and records of Project Company, and
(c) no payment has been made by or on behalf of Project Company with the understanding that any
part of such payment is to be used for any purpose other than that described in the documents
supporting such payment. Neither Developer nor Project Company,nor any current director,officer,
employee or, to Developer's Knowledge, any agent or other Person acting on behalf of Project
Company, have made, accepted, or received any unlawful contribution, payment, gift, kickback,
expenditure, or other item of value in violation of Corrupt Practices Laws.
3.1S Solvency.
No petition or notice has been presented,no order has been made and no resolution has been
passed for the bankruptcy,liquidation,winding-up,or dissolution of Developer. No receiver,trustee,
custodian, or similar fiduciary has been appointed over the whole or any part of Developer's assets
or the income of Developer. Developer does not have any plan or intention of, or has received any
notice that any other Person has any plan or intention of, filing, making, or obtaining any such
petition, notice, order, or resolution or of seeking the appointment of a receiver, trustee, custodian,
or similar fiduciary.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 220 of 495

ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF DEVELOPER WITH RESPECT TO THE PROJECT
COMPANY AND THE FACILITYlo
Developer hereby represents and warrants to Buyer that all of the statements contained in
this ARTICLE 4 are true and correct: (a) as of the Execution Date, except to the extent such
representations and warranties are specifically made as of a particular date (in which case such
representations and warranties are true and correct as of such date); (b) as of the Firm Date; and (c)
as of the Closing Date.
4.1 Organization,Standing,and Power.
The Project Company is a limited liability company, duly organized, validly existing, and in
good standing under the Laws of Delaware. Project Company is duly qualified or licensed to do
business and is in good standing in all jurisdictions in which the character of the Real Property owned
or held under lease by it or the nature of the business now being transacted by it or proposed to be
transacted by it pursuant hereto makes qualification necessary, including the State of Idaho. True,
correct, and complete copies of the charter documents of the Project Company, all in such form as
currently in effect, have been Made Available to Buyer. The only business activity that has been
carried on or is currently carried on by the Project Company is the development, construction,
operation,and ownership of the Project.
4.2 No Conflicts.
The execution and delivery by Developer of this Agreement and the Transaction Documents
to which Developer is a party does not, and the performance by Developer of its obligations
hereunder and thereunder and the completion of the transactions contemplated hereby and thereby,
shall not:
(a) conflict with or result in a violation or breach of any of the terms, conditions or
provisions of Project Company's organizational documents;
(b) assuming all of the consents and approvals set forth on Schedule 4.2(b) (the"Project
Company Consents")have been obtained or given,result in a breach,default,or violation(or give rise
to any right of termination, cancellation or acceleration) under any of the terms, conditions, or
provisions of any Contract to which Project Company is a party(or by which the Assets of the Project
Company may be bound) or Permit obtained by Project Company(with or without notice or lapse of
time or both),except for such breaches,defaults,or violations (or rights of termination,cancellation,
or acceleration) as to which requisite waivers or consents have been obtained in writing (true and
correct copies of which have previously been furnished to Buyer);
(c) assuming all of the Project Company Consents have been obtained or given, conflict
with or result in a violation or breach in any term or provision of any applicable Law applicable to
the Project Company or the Project; or
(d) assuming all of the Project Company Consents have been obtained or given,result in
the imposition or creation of any Lien of any nature on the Project,other than Permitted Liens.
io Note to Bidders: All project representations and warranties are subject to IPC's ongoing due diligence review of the
project.Parties to discuss process for updating the disclosure schedules before the Closing.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 221 of 495

4.3 No Proceedings.
Except as set forth in Schedule 4.3(a),there have been no actions,suits,or legal or arbitration
proceedings pending to which the Project Company is or was a party or pertaining to any Project
Assets or the Membership Interests,and neither Developer nor the Project Company nor any of their
respective Affiliates has received written or oral notice of any threatened actions, suits or legal or
arbitration proceedings against or affecting the Project Assets, the Membership Interests, or the
Project Company,nor have any of their respective directors,managers,members,or officers received
written or oral notice of any such threatened proceedings,in any such case at law or in equity before
any Governmental Authority or arbitral body against or affecting the Project Company, the Project
Assets or the Project. The Project Company does not owe any indemnity pursuant to a claim for
indemnity that has been made against the Project Company by any counterparty to any Project
Company Contract. Developer has Made Available all notices of force majeure or any similar notices
with respect to any Project Company Contract,as set forth in Schedule 4.3(W.
4.4 Compliance with Laws.
(a) Project Company is,and at all times has been,in compliance with all applicable Laws,
including those relating to occupational health and safety, and the Project Company Permits with
respect to the Project. Neither the Developer nor the Project Company has received any written
notice or claim that the Developer or the Project Company has violated any applicable Law relating
to the Project Company or the Project Assets.
(b) The Project is being,and at all times has been,developed,constructed,and permitted
in compliance with all applicable Laws,all Project Company Permits,and Prudent Industry Practices.
As constructed,the Project shall conform to and comply with all zoning,environmental,wildlife,land
use,and other applicable Laws and the requirements of all Project Company Permits.
4.5 No Prior Business.
Since the date of its formation,Project Company has not conducted any business or acquired
any property or asset, except in each case in connection with the development and construction of
the Project. Project Company does not own any interest in any other Person. Project Company has
good and valid title to its assets and properties, free and clear of all Liens (other than Permitted
Liens).
4.6 Employees.
The Project Company does not have, nor has it ever had any employees. The Project
Company does not have,nor has it ever,maintained or participated in any Benefit Plan.
4.7 Subsidiaries and Joint Ventures.
The Project Company does not own, nor has it ever owned, any capital stock, security,
membership, or partnership interest or other equity interest of any kind in any corporation,
partnership,limited liability company,joint venture,association, or other entity.
4.8 Managers and Bank Accounts.
The Project Company does not have any managers, officers, or directors. The Project
Company does not have any bank accounts.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 222 of 495

4.9 No Undisclosed Liabilities.
Except as otherwise disclosed in Schedule 4.9 and Made Available to Buyer, the Project
Company does not have any Liabilities of any nature (whether secured or unsecured, accrued,
absolute or contingent, unliquidated, or otherwise and whether due or to become due) including
book entry between Affiliates or any other method or means except for Liabilities for future
performance arising in the ordinary course under the Project Company Contracts and Project
Company Permits listed in the Schedule 4.9 (none of which is a Liability for breach of contract,breach
of warranty or tort). Except as set forth in Schedule 4.9, all invoices or other demands for payment
received prior to Closing by the Project Company or by Developer or its Affiliates with respect to any
existing Project Company Contracts have been paid in full, and the Project Company does not
otherwise have any obligations to make any payment as of the Closing Date. Upon the Closing, the
Project Company has no Indebtedness, except for Permitted Indebtedness.
4.10 Project Assets.
As of the Execution Date and the Firm Date, Schedule 4.10 contains a true, correct, and
complete list of all Project Assets. As of the Closing Date, Schedule 4.10 contains a true, correct,and
complete list of all Project Assets that are not the Project or the subcomponents thereof. Other than
as set forth on Schedule 4.10, the Project Company has good and valid title (or leasehold title, as
applicable)to each of its Project Assets,free and clear of Liens (other than Permitted Liens),and will
continue to have such title notwithstanding the Closing hereunder.
4.11 Project Company Contracts."
(a) Schedule 4.11 contains a true,correct,and complete list of all Project Company Contracts
(other than any real property agreements, which are listed on Schedule 4.13(a)), (b) true, correct,
and complete copies of all such Project Company Contracts have been Made Available to Buyer, and
(c) neither the Project Company nor any Affiliate thereof that is a party to any such Project Company
Contract is in default (and, to Developer's Knowledge, no other party thereto is in default) of any
material obligation under any such Project Company Contract, and, to Developer's Knowledge, no
conditions exist that,with the passage of time or the giving of notice,would be reasonably expected
to constitute a default of any material obligation under any such Project Company Contract. Each
Project Company Contract constitutes the legal, valid, binding, fully effective, and enforceable
obligation of the Project Company and any Affiliate thereof that is a party to any such Project
Company Contract and,to Developer's Knowledge,any other party thereto except as may be limited
by applicable bankruptcy and similar laws affecting the enforcement of creditors'rights and general
equitable principles. All of the representations and warranties made under each Project Company
Contract by the Project Company or any Affiliate thereof that is a party to any such Project Company
Contract were true and correct when made. Neither the Project Company nor any Affiliate thereof
has received any written notice from any counterparty to any Project Company Contract that such
Person is considering the amendment,termination,revocation,or cancellation of any of such Project
Company Contract. Neither is the Project Company a party to,nor is the Projector the Project Assets
bound by or subject to,any Contract other than a Project Company Contract.
4.12 Project Company Permits; Project Company Regulatory Approvals.12
(a) Schedule 4.12(a) sets forth all Permits (other than Deferred Permits) required by
applicable Law in connection with the development, engineering, procurement, construction,
11 Note to Bidders:Please confirm that all contracts will be with the Project Company and not the Developer.
12 Note to Bidders:Please confirm that all permits will be in the name of the Project Company.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 223 of 495

commissioning, ownership, and commencement of operation of the Project (the "Project Company
Permits"). Developer has Made Available to Buyer all Project Company Permits.
(b) Schedule 4.12(b) sets forth all Deferred Permits required by applicable Law in
connection with the development, engineering, procurement, construction, commissioning,
ownership, operation, and maintenance of the Project in accordance with this Agreement and the
other Transaction Documents as of the date that the Project achieves Final Completion. Developer
has Made Available to Buyer all Deferred Permits that it has obtained as of the Closing Date and as of
the date the Project achieves Final Completion.For the avoidance of doubt,once the Project Company
obtains a Deferred Permit,Developer shall revise Schedules 4.12(a) and 4.12 b accordingly.
(c) All Project Company Permits that are required by applicable Law on or prior to the
date this representation is made or deemed made pursuant to this Agreement listed on Schedule
4.12 a have been obtained in the name of the Project Company,are in full force and effect,are final
(and all public comment and/or appeal periods under applicable Law have expired or terminated)
and satisfy all requirements of this Agreement with respect to review and approval thereof. To
Developer's Knowledge, no event has occurred and is continuing that reasonably would be
anticipated to permit, or after notice or lapse of time or both reasonably would be anticipated to
permit, any materially adverse modification, revocation, or termination of, or any other material
change in, any Project Company Permit. Except as set forth in Schedule 4.12(cl. there is no action,
suit, investigation, or proceeding with respect to the Project Company, any Project Assets, or the
Project,nor,to Developer's Knowledge,threatened,that reasonably would be anticipated to result in
any material adverse modification, or the rescission, termination, or suspension of any Project
Company Permit.
(d) To Developer's Knowledge, no facts or circumstances concerning the Project, the
Project Assets, or the Project Company exist that would reasonably be expected to hinder, impair,
restrict, limit, or disqualify Project Company or the Project from obtaining any Deferred Permit or
any ministerial Permit in the ordinary course prior to the time it is required to be obtained
hereunder,under the other Transaction Documents,the EPC Contract,and,in any event,prior to the
time required by applicable Law.There does not exist any condition that,with notice,passage of time,
or both, would reasonably be expected to cause the Project Company to not be able to acquire the
Deferred Permits and any necessary ministerial Permits in the ordinary course,on reasonable terms,
and in a reasonable period of time
4.13 Real Estate.13
(a) Schedule 4.13(a) sets forth all "Real Property Contracts" that grant the Project
Company real property rights required for the Project, including the design, engineering, supply,
construction, installation, testing, commissioning, operation, and ownership of the Project. Neither
Developer nor any of its Affiliates (other than Project Company) owns or leases any real property
associated with the Project Company,the Site,or the Project. Except asset forth in Schedule 4.13(a),
the Project Company does not own or lease any Real Property. The Real Property Contracts are in
full force and effect,and the applicable landlords have not given Developer,the Project Company,or
any of its Affiliates any notice of breach,default,or termination of any of the Real Property Contracts.
There exists no breach, default,or event or condition which,with the giving of notice or the passage
of time or both, would constitute a breach or default under the Real Property Contracts by the
Developer, the Project Company or, to Developer's Knowledge, the applicable landlord. The rent,
13 Note to Bidders: Please confirm that all site control will be in the name of the Project Company.Please confirm that no
real property is currently owned by the Project Company.For the parcels that will be purchased,please describe the process
and timing for purchase.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 224 of 495

fees,and other sums due and payable under the Real Property Contracts have been paid through the
Closing Date. There exists no lease superior to the Real Property Contracts,and there is no mortgage,
deed of trust, or security interest which may disturb or encumber the Real Property Contracts, as
long as there is no tenant default under the Real Property Contracts. To Developer's Knowledge,
other than uses reserved to landlord in the Real Property Contracts and rights holders identified in
the Title Policy,no other Person has the right to occupy the Real Property. As of the Closing Date,the
Project Company will have good and Af to the Real Property Contracts, and such Real Property
Contracts are free and clear of all Liens other than Permitted Liens.Without limiting the generality
of the foregoing,as of the Closing Date,any oral farming leases pertaining to any part of the Site have
been properly and legally terminated in accordance with Idaho Law.
(b) Schedule 4.13(b) sets forth all easements (other than those easements included in
Real Property Contracts) required for the installation and maintenance of overhead or underground
transmission for the Project,collection or communication lines and facilities for the Project,and other
appliances and fixtures for use in connection with such lines and facilities ("Easements"). The
Easements are in full force and effect,and the applicable landowners under the Easements have not
given Developer,Project Company,or any of its Affiliates any notice of breach,default,or termination
of any of the Easements. There exists no breach,default,or event or condition which,with the giving
of notice or the passage of time or both,would constitute a breach or default under the Easements by
the Developer, the Project Company, or the applicable landowner. Any amounts due and payable
under the Easements have been paid through the Closing Date. There is no mortgage, deed of trust,
or security interest which may disturb or encumber the Easements,as long as there is not default by
grantee under the Easements. As of the Closing Date, the Project Company will have good and
marketable title to the Easements, and such Easements are free and clear of all Liens other than
Permitted Liens.
(c) Developer has delivered and Made Available to Buyer true, correct, and complete
copies of(i) the Real Property Contracts, (ii) the Easements, and (iii) the most recent leasehold title
insurance commitments or proforma title policy (together with exceptions thereto), as applicable,
and survey with respect to the Real Property and the Site that are in the possession of Developer and
Project Company.
(d) Developer has Made Available and delivered to Buyer true, correct, and complete
copies of all Contracts providing for the sale,lease,transfer,or other disposition,including any option
Contracts, on,for,or with respect to the Real Property or the Site.
(e) Except as set forth on Schedule 4.13(el.there are no pending zoning or other land use
or Permit-related proceedings (including condemnation or eminent domain proceedings) and there
is no contemplated or threatened zoning or other land use or Permit-related proceedings (including
condemnation or eminent domain proceedings) affecting the Real Property or the Site or any part
thereof, or any sale or other disposition of the Real Property or the Site or any part thereof in lieu of
condemnation.
(0 To Developer's Knowledge, except for assessments occurring on a regular basis in
accordance with applicable Law, there is no pending or contemplated reassessment of any parcel
included in the Site that is reasonably expected to increase the real estate Tax assessment for such
parcels.
(g) Developer has not violated,and to Developer's Knowledge there is no violation of,any
applicable Law relating to or affecting the Real Property or the Site.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 225 of 495

(h) The Real Property,including the Site and any setbacks and associated borders,within
the fence line does not exceed an area of[_] acres.The aggregate costs and expenses under the Real
Property and Easements for the total Real Property,including developed and undeveloped land,does
not exceed an average of$[_]/acre/year (subject to an escalation equal to the greater of(i) 2% per
year on a compounded basis or (ii) by the percentage change, if any, in the CPI for the preceding
available four quarters),for a minimum of[25] years after Substantial Completion.
4.14 Environmental Matters.
(a) Schedule 4.14(a) sets forth all environmental reports, assessments, and audits,
including reports, assessments, and audits relating to wetlands, air quality, and air pollutant
emissions or discharges,and studies relating to threatened or endangered species and avian species,
including those species protected by Environmental Law, and studies relating to archaeological,
cultural, and historical resources prepared by or on behalf of Project Company14 in connection with
the Project or otherwise in Developer's possession or control with respect to the Project. Developer
has Made Available and provided Buyer with copies of the materials set forth in Schedule 4.14(a).
(b) (i) as of the Closing Date,Project Company holds and is in compliance with all Project
Company Permits, including all applicable environmental Permits; (ii) the Project has been
constructed, and the Work has been performed, in compliance with all Environmental Laws; (iii)
neither Developer nor Project Company has received any written notice of a pending or threatened
Claim, or inquiry by any Governmental Authority or other Person relating to any actual or alleged
violations of Environmental Laws or any actual or potential obligation on the part of Developer or
Project Company to investigate or take any corrective action relative to any Regulated Material or
threatened Release of any Regulated Material, in each case, related to the Project; (iv) neither
Developer nor Project Company has entered into or agreed in writing to any final decree or order
with any Governmental Authority and neither Developer nor Project Company is subject to any
Judgment relating to compliance of the Project with any Environmental Law or to the investigation
or cleanup of Regulated Materials at the Project; (v)to Developer's Knowledge and except as set forth
in the Environmental Report, no Person has generated, transported, treated, stored, disposed of,
arranged to be disposed of, Released or threatened to Release any Regulated Materials at, on, from,
or under the Site in violation of, or as would reasonably be expected to result in liability under,any
Environmental Laws; (vi) except as set forth in the Permits and Project Company Contracts, neither
Developer nor Project Company has assumed any contractual liabilities or obligations arising under
any Environmental Law in connection with the Project; and (vii) neither Developer nor Project has
utilized any underground storage tanks or Equipment using polychlorinated biphenyls, Emerging
Contaminants,or asbestos in violation of Environmental Law at the Site. For the avoidance of doubt,
compliance with Environmental Laws includes performance of all studies required or recommended
under Environmental Law to assess the impacts of the Project on the environment, wildlife, or
cultural resources and the development and implementation of best management practices and
mitigation measures to reduce or avoid impacts to environmental, wildlife, or cultural resources,
including, as applicable, any species conservation strategy or conservation agreement and any
cultural resources treatment plan
(c) Except as set forth in Schedule 4.14(cl.no Environmental Law requires Developer or
Project Company to obtain the consent of a Governmental Authority to any transaction contemplated
by this Agreement or any Transaction Document, including (i) any requirement to modify or to
transfer any Project Company Permit,(ii)any requirement to file any notice or other submission with
any Governmental Authority, (iii)the placement of any notice, acknowledgment or covenant in any
14 Note to Bidders:Please confirm that all environmental studies and reports will be for the benefit of the Project Company.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 226 of 495

land records,or (iv) the modification of or provision of notice under any Contract, consent order, or
consent decree. No Lien has been placed upon any Real Property under any Environmental Law.
4.15 Sufficiency of Assets.
(a) Developer has,or will have at the Closing,the power and right to sell,convey,deliver,
transfer,and assign to Buyer,the Membership Interests and,thereby,the Project Assets free and clear
of all Liens, other than Permitted Liens on the Project Assets.
(b) Other than the Transaction Documents, the Project Assets, the Project Company
Permits, the Project Company Contracts, the Real Property Contracts, the Easements, the EPC
Contract,the Major Supply Agreements,the Reports,the Transferred Warranties,the Equipment,and
the Materials,there are no other material assets or rights of any kind,whether tangible or intangible,
real or personal, owned or held by Developer or the Project Company or any of its Affiliates relating
to,associated with, or concerning the Project.
(c) As of the Firm Date, the Transaction Documents, the Project Assets, the Project
Company Permits, the Project Company Contracts, the Real Property Contracts, the Easements, the
EPC Contract,the Major Supply Agreements,and the Reports constitute all of the material Contracts,
Permits, assets, and properties necessary to develop, permit, design, engineer, supply, procure,
construct, install,test, commission, own,and commence operation of the Project in accordance with
applicable Law, Prudent Industry Practice, the Project Company Permits, and the Transaction
Documents.
(d) As of the Closing Date, the Transaction Documents, the Project Assets, the Project
Company Permits, the Project Company Contracts, the Real Property Contracts, the Easements, the
EPC Contract, the Major Supply Agreements, the Reports, the Transferred Warranties, the
Equipment,and the Materials,constitute all of the material Contracts,Permits,assets,and properties
necessary to develop, permit, design, engineer, supply, procure, construct, install,test, commission,
use, own, and commence operations of the Project in accordance with applicable Law, Prudent
Industry Practice,the Project Company Permits,and the Transaction Documents.
4.16 Construction of the Project; Expertise.
(a) There exist no facts or circumstances that reasonably could be expected to hinder,
delay, restrict, or prevent: (i) the ability of the Project to be developed, permitted, designed,
engineered, supplied, constructed, installed, tested, and commissioned in all material respects in
accordance with the terms and conditions of the Transaction Documents,applicable Laws,the Project
Company Permits, and Prudent Industry Practice; (ii) the Project from achieving Mechanical
Completion on or before the Outside Closing Date;or(iii)the Project from achieving Final Completion
in accordance with the Project Schedule.
(b) The Project Assets constituting the Project to be transferred, conveyed, assigned, or
otherwise acquired and delivered to Buyer pursuant to this Agreement or any other Project Company
Contract, include all of the assets used, held by, or necessary or convenient for the ownership and
operation of the Project, and collectively will provide to Buyer an operational Project at the Site in
accordance with all Project Company Permits,applicable Law,and Prudent Industry Practice,and no
Person other than Developer, Project Company,or Buyer owns or has any rights in or to the Project.
(c) The development, permitting, design, engineering, supply, procurement,
construction,installation,testing,commissioning,ownership,use,operation,and maintenance of the
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Project in accordance with this and the other Transaction Documents is in compliance with all Project
Company Permits,applicable Law,and Prudent Industry Practice.
(d) Each of the Developer and Contractor have substantial experience and expertise in
the development, design, engineering, construction, and management of turnkey construction of
renewable energy facilities such as the Project and the capability to carry out the Work in accordance
with terms and conditions of this Agreement and the other Transaction Documents, and
acknowledges that Buyer is relying on such experience,expertise,and capability in entering into this
Agreement.
4.17 Tax Benefits.
(a) To Developer's Knowledge, no facts or circumstances concerning the Project or the
Project Company exist that would reasonably be expected to hinder,impair, restrict, limit,preclude,
or disqualify the Project or the Project Assets from qualifying for, and producing and giving rise to,
the Tax Benefits.
(b) The Project Company is the owner of the Project Assets and the Project for tax
purposes, and neither the Project Assets,the Project nor any property that is part of the Project has
been placed in service for federal income tax purposes (including Sections 48 and 168 of the Code).
Neither the Project nor any property that is part of the has been energized or synchronized to the
electric transmission system.Critical preoperational testing with respect to the Project has not been
completed. Daily operations at the Project have not commenced.
(c) There has been no"original use" (within the meaning of Section 48 or Section 168(k)
of the Code) of the Project Assets,the Project,or any property that is part of the Project.No property
that is a part of the Project Assets or the Project has been used by any Person other than in the
development, construction, or startup of the Project.
(d) Neither Developer nor any Developer Affiliate has claimed or intends to claim any
depreciation deductions, amortization deductions, tax credits (including the ITC), or other credits,
deductions,or allowances with respect to the Project or any property that is part of the Project or the
Project Assets.
(e) No property in the Project or the Project Assets is "dual use equipment" within the
meaning of Treasury Regulations Section 1.48-9(d)(6).
(0 No portion of the basis of the property in the Project is attributable to "qualified
rehabilitation expenditures"within the meaning of Section 47(c)(2)(A) of the Code.
(g) No portion of any property that is part of the Project or the Project Assets has
benefited from the proceeds of any grant or rebate program that would cause a reduction in the
amount of the ITC with respect to the Project or the Project Assets, and no application with respect
to any such grant or rebate has been filed or submitted.No portion of the Site is currently enrolled in
the U.S. Department of Agriculture's Conservation Reserve Program.
(h) No property that is part of the Project or the Project Assets is or has been (i) "tax-
exempt bond financed property" or"tax-exempt use property"within the meaning of Section 168 of
the Code, (ii) imported property of the kind described in Section 168(g)(6) of the Code, or (iii)
property used by a Person described in Section 50(b)(3) of the Code.
(i) The Project is located entirely within the United States.
Exhibit No. 1
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(j) [Construction of the Project began before [_] and after [_] within the meaning of
Sections 48(a)(2)(A)(i)(II), 48(a)(3)(A)(i) and 48(a)(6) of the Code and the IRS Notice.] The
certifications set forth in the Beginning of Construction Certificate are true, correct,and complete in
all respects.
(k) The transactions contemplated by this Agreement will not have an adverse effect on
the continuing validity and effectiveness of any Tax exemption,Tax holiday,other Tax abatement, or
incentives for which the Project is currently eligible.
(1) The Site has not been subject to a preferential or special property tax assessment,
value limitation, or other favored Tax treatment. The Site is not, has not been, and will not be (as a
result of the Closing and the transactions contemplated hereby) subject to rollback Taxes.
(m) All Tax Benefits attributable to, resulting from or arising in connection with the
Project shall belong to Buyer. Neither Developer nor Project Company has any legal obligation,
absolute or contingent, to any Person other than Buyer to transfer or effect a transfer of all or any
portion of the Project,including any electric power or Tax Benefits attributable to,resulting from, or
arising in connection with the Project.
4.18 Taxes.
(a) The Project Company is and has at all times been classified as an entity disregarded
as separate from Developer for U.S. federal tax purposes (and state and local tax purposes, as
applicable), and no election has been filed by or with respect to the Project Company to treat the
Project Company as an association taxable as a corporation for U.S.federal tax purposes.
(b) All Tax Returns that are required to be filed by or with respect to the Project
Company,the Project Assets,the Work, or the Project have been duly and timely filed in accordance
with all applicable Laws,all such Tax Returns are true, correct, and complete in all aspects and have
been prepared in substantial compliance with all applicable Laws, and all Taxes due and payable by
or with respect to the Project Company,the Project Assets, the Work, or the Project have been duly
and timely paid in full (whether or not shown as due on such Tax Returns).
(c) All Taxes that are required to be withheld or collected by or with respect to the Project
Company, the Project Assets, the Work, or the Project have been duly and timely withheld and
collected and have been duly and timely paid, remitted, or deposited to or with the appropriate
Governmental Authority.
(d) There are no Liens for Taxes (other than statutory Liens for Taxes that are not yet due
and payable) upon any assets of the Project Company, the Project Assets, the Work, or the Project,
nor are any such Liens pending or threatened.
(e) The Project Company (i) has no liability for the Taxes of any other Person (A) under
Treasury Regulations Section 1.1502-6 (or any similar provision of state,local,or foreign law) or (B)
as a transferee or successor, and (ii) is not and has not been a party to, and does not have has any
liability under, any Tax sharing, Tax allocation, Tax indemnity, Tax reimbursement, or similar
agreement or arrangement, other than any agreement or arrangement entered into in the ordinary
course of business the primary purchase of which is not Tax sharing, allocation, indemnity, or
reimbursement.
(0 Neither the Project Company nor Buyer or any of its Affiliates (as a result of Buyer
being a direct or indirect owner of the Project Company after the Closing) is required to include any
item of income in, or exclude any item of deduction from, taxable income for any Tax period (or
Exhibit No. 1
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portion thereof) ending after the Closing as a result of any(i) change in method of accounting for any
taxable period (or portion thereof) ending on or before the Closing Date, (ii) use of an improper
method of accounting for a Tax period ending on or prior to the Closing, (iii) "closing agreement" as
described in Section 7121 of the Code (or any corresponding or similar provision of state, local or
foreign Law) executed on or prior to the Closing, (iv)installment sale or open transaction disposition
made on or prior to the Closing,(v)prepaid amount received on or prior to the Closing,or(vi)election
under Section 108(i) of the Code (or any corresponding or similar provision of state,local,or foreign
Tax Law) made prior to the Closing.
(g) The Project Company has not engaged in any "reportable transaction" as defined in
Treasury Regulations Section 1.6011-4(b)(2) (or any transaction requiring disclosure under a
corresponding or similar provision of state,local, or foreign Tax law).
(h) No Claim has been made by a Governmental Authority in a jurisdiction where Tax
Returns of a particular type are not filed by or with respect to the Project Company,the Project Assets,
the Work, or the Project that the Project Company,the Project Assets, the Work, or the Project is or
may be subject to such type of taxation by that jurisdiction.
(i) The Project Company is in compliance with all state unclaimed property and escheat
Laws and has timely and accurately filed all required unclaimed property or escheat reports or Tax
Returns.
(j) There is no audit,action,claim,assessment,examination,levy,deficiency,adjustment,
or other judicial or administrative proceeding pending, threatened, or to Developer's Knowledge,
proposed or contemplated with respect to any Tax imposed on or with respect to the Project
Company,the Project Assets,the Work or the Project.
(k) There are no agreements, consents, or waivers extending the statutory period of
limitation applicable to the collection or assessment of any Taxes imposed on or with respect to the
Project Company, the Project Assets, the Work, or the Project and no Governmental Authority has
requested any such agreement,consent,or waiver.The Project Company is not the beneficiary of any
extension of time within which to file any Tax Return.
(1) No power of attorney is currently in effect, and no private letter ruling, technical
advice memorandum, closing agreement, or similar item has been requested or obtained from any
Governmental Authority with respect to the Project Company, the Project Assets, the Work, or the
Project, including any application for a ruling, advice, agreement, or similar item that has been
withdrawn.
(m) Developer is not a"foreign person"within the meaning of Section 1445 of the Code.
4.19 FERC.
The Project Company is not subject to, or is exempt from, regulation as a "holding company"
under the Public Utility Holding Company Act of 2005 and FERC's regulations and orders issued
thereunder.The Project Company is not a"public utility" under Section 201(e) of the Federal Power
Act and FERC's regulations and orders issued thereunder. The Project Company is not subject to
financial, organizational, or rate regulation as a "public utility," "electric utility," or similar
designation under any Law.
Exhibit No. 1
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4.20 Insurance.
Schedule 4.20 contains (a)copies of certificates of insurance for all current insurance policies
that insure the Project Company,the Project Assets and the Project until the date of the Closing,and
(b) a true, complete, and correct list of all Claims made under such insurance policies since the
formation of the Project Company. All such insurance policies are in full force and effect, neither
Developer nor the Project Company has defaulted in any material respect(or is in material breach of
such insurance policies, including any such breach or default with respect to the payment of
premiums or the giving of notice of Claims),with respect to its obligations under any such insurance
policies or have been denied insurance coverage thereunder,and no written notice of cancellation or
termination has been received by Developer or the Project Company respect to any such policy which
was not replaced on substantially similar terms prior to the date of such cancellation.
4.21 Books and Records.
True and correct copies of the Project Company's Books and Records have been Made
Available to Buyer, including such Books and Records that may be maintained by Developer.
4.22 Intellectual Property.
Except as set forth in Schedule 4.22,Project Company does not own any copyright,intellectual
property right, patent, patent application, domain name, trade secret, trademark, trademark
application, service mark, service mark application, assumed name, or trade name. Neither Project
Company nor, with respect to the Project, Developer have interfered with, infringed upon,
misappropriated, or violated any intellectual property rights of third parties in any respect, and
neither Project Company nor, with respect to the Project, Developer have received any charge or
complaint, claim, demand, or notice alleging any such interference,infringement, misappropriation,
or violation.
4.23 No Data Breaches.
There has been no security breach, cyberattack, other data security or cyber incident or
unauthorized access to any Developer IT Asset, which resulted in the unauthorized use,
misappropriation, modification, encryption, corruption, disclosure, or transfer of any material
information or data contained therein relating to the Project Company or the Project Assets that
would reasonably be expected to result in a Material Adverse Change.
4.24 No Other Representations.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN
THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, NEITHER DEVELOPER, THE
PROJECT COMPANY, NOR ANY AFFILIATE OR REPRESENTATIVE OF DEVELOPER MAKES ANY
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE MEMBERSHIP
INTERESTS,THE PROJECT COMPANY,THE FACILITY,THE PROJECT ASSETS,OR THE BUSINESS,
ASSETS, OPERATIONS, CONDITION (FINANCIAL OR OTHERWISE) OR PROSPECTS OF THE
PROJECT COMPANY,OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Developer that the statements contained in this
ARTICLE 5 are true and correct: (a) as of the Execution Date, except to the extent such
representations and warranties are specifically made as of a particular date (in which case such
Exhibit No. 1
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representations and warranties are true and correct as of such date); (b) as of the Firm Date; and (c)
as of the Closing Date.
5.1 Organization,Standing,and Power.
Buyer is duly formed,validly existing, and in good standing under the applicable Laws of the
jurisdiction of its formation. Buyer has the requisite corporate power and authority to own,operate,
and lease its properties and assets and to carry on its business as now being conducted and as
proposed to be conducted pursuant hereto. Buyer is duly qualified or licensed to do business and is
in good standing in all jurisdictions in which the character of the properties owned or held under
lease by it or the nature of the business now being transacted by it or proposed to be transacted by
it where qualification or license is necessary.
5.2 Authority; Execution and Delivery.
Buyer has full corporate power and authority to execute and deliver this Agreement and the
Transaction Documents to which it is a party in connection with the transactions contemplated
hereby, to perform its obligations hereunder and thereunder, and to complete the transactions
contemplated hereby and thereby. The execution and delivery by Buyer of this Agreement and the
Transaction Documents to which it is a party, and the performance of its obligations hereunder and
thereunder,have been duly and validly authorized by all necessary corporate action.
5.3 Binding Agreement.
This Agreement and the Transaction Documents to which Buyer is a party have been duly
executed and delivered by Buyer and,assuming due and valid authorization,execution and delivery
thereof by Developer and each other party thereto,this Agreement and the Transaction Documents
to which it is a party are valid and binding obligations of Buyer enforceable against Buyer in
accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium, or other similar applicable Laws relating to or affecting the enforcement of creditors'
rights generally and to general principles of equity.
5.4 No Conflicts.
Buyer's execution and delivery of this Agreement and the Transaction Documents to which it
is a party does not, and the performance by Buyer of its obligations hereunder and thereunder, and
the completion of the transactions contemplated hereby and thereby,shall not:
(a) conflict with or result in a violation or breach of any of the terms, conditions, or
provisions of Buyer's organizational documents;
(b) assuming all of the consents and approvals set forth on Schedule 5.4(bl (the "BIWer
Consents") have been obtained or given, result in a breach, default, or violation (or give rise to any
right of termination, cancellation, or acceleration) under any of the terms, conditions, or provisions
of any material Contract or Permit (with or without notice or lapse of time or both) with respect to
which Buyer is a party or by which Buyer or its assets may be bound, except for such breaches,
defaults, or violations (or rights of termination, cancellation, or acceleration) as to which requisite
waivers or consents have been obtained in writing(true and correct copies of which have previously
been furnished to Developer) or which would not reasonably be expected to result in a Material
Adverse Change; or
(c) assuming all of the Buyer Consents have been obtained or given,conflict with or result
in a violation or breach in any term or provision of any applicable Law applicable to Buyer.
Exhibit No. 1
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5.5 No Proceedings.
Except as set forth on Schedule 5.5,there are no actions,suits,investigations,or proceedings
by or before any Governmental Authority or arbitrator pending against Buyer or, to Buyer's
Knowledge, threatened against Buyer, which would reasonably be expected to result in a Buyer
Material Adverse Change.
5.6 Buyer Permits; Buyer Regulatory Approvals.
(a) Schedule 5.6(a)sets forth all Permits required with respect to the design,engineering,
development, construction, startup, testing, commissioning, and completion of the Project that are
the responsibility of Buyer to obtain (the"Buyer Permits").
(b) Except for IPUC Approval and as set forth on Schedule 5.6(bl,no consent or approval
of, filing with, or notice to, any Governmental Authority by Buyer is required in connection with the
execution, delivery, and performance by Buyer of this Agreement or any of the Transaction
Documents to which it is a party or the completion of the transactions contemplated hereby or
thereby.
5.7 Brokers.
All negotiations relative to this Agreement and the other Transaction Documents and the
transactions contemplated hereby and thereby have been carried out by Buyer directly with
Developer without the intervention of any Person on behalf of Buyer in such manner as to give rise
to any valid Claim by any Person against Developer or any of its Affiliates for a finder's fee,brokerage
commission or similar payment.
5.8 Solvency.
No petition or notice has been presented,no order has been made and no resolution has been
passed for the bankruptcy, liquidation, winding-up, or dissolution of Buyer. No receiver, trustee,
custodian,or similar fiduciary has been appointed over the whole or any part of Buyer's assets or the
income of Buyer. Buyer does not have any plan or intention of, or has received any notice that any
other Person has any plan or intention of,filing,making,or obtaining any such petition,notice,order,
or resolution or of seeking the appointment of a receiver,trustee, custodian, or similar fiduciary.
5.9 Sufficiency of Funds.
Upon satisfaction of the conditions precedent set forth in 2_9, Buyer will have sufficient cash
on hand or other sources of,or access to,immediately available funds to enable it to pay the Purchase
Price in accordance with 2.7 b .
ARTICLE 6
CREDIT SUPPORT
6.1 Credit Support.
(a) Within five(5) Business Days of Buyer's submission of the executed Agreement to the
IPUC in accordance with 2_1 and thereafter until the Firm Date, Developer shall be obligated to
furnish Credit Support to Buyer,in the aggregate amount of$[_] (the"Initial Credit Support").
Exhibit No. 1
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(b) Within five(5)Business Days of the Firm Date until Final Completion,Developer shall
be obligated to furnish Credit Support to Buyer in the aggregate amount of$[_] (the"Construction
Period Credit Support").ls
(c) Within five (5) Business Days of Final Completion until the first (1st) anniversary of
Final Completion, Developer shall be obligated to furnish Credit Support to Buyer in the aggregate
amount of$[_] (the"Post-Construction Period Credit Support").16
(d) Within five (5) Business Days of the first anniversary of Final Completion and
continuing until the fifth (5th) anniversary of Final Completion, Developer shall be obligated to
furnish Credit Support to Buyer in the aggregate amount of $[_] (the "Operating Period Credit
Support").
6.2 Utilization of Credit Support.
Buyer shall be entitled to draw upon and/or be paid from any Credit Support provided by the
Developer for any obligation of Developer arising under this Agreement and the Transaction
Documents that is not paid when due (subject to any applicable cure periods).
6.3 Release of Credit Support.
The Initial Credit Support shall be returned to Developer within fifteen (15) Business Days
after Developer furnishes the Construction Period Credit Support in accordance with 6.1 b . The
Construction Period Credit Support shall be returned to Developer within fifteen (15) Business Days
after Developer furnishes the Post-Construction Period Credit Support in accordance with 6.1 c .
The Post Construction Period Credit Support shall be returned to Developer or released within fifteen
(15)Business Days after Developer furnishes the Operating Period Credit Support in accordance with
6.1(d). The Operating Period Credit Support shall be returned to Developer within fifteen (15)
Business Days after the fifth (5th)anniversary of Final Completion. Notwithstanding anything herein
to the contrary, upon the expiration or earlier termination of this Agreement, the Credit Support
required under 6.1 shall remain in place in an amount equal to the aggregate value of the Claims by
Buyer under this Agreement made in good faith and then pending, if any, but no more than the
aggregate amount required under 6_1, which Credit Support provided under 6_1 shall only then be
released once such pending Claims are resolved and any monies due in connection therewith have
been paid to Buyer.
6.4 Contractor Credit Support.
Developer shall cause the EPC Contract to require the Contractor to post Credit Support or
obtain a guaranty from a creditworthy parent company,in the aggregate amount of the EPC Contract
Price. The amount of any such Credit Support may be reduced dollar-for-dollar with any EPC
Contract Price sums paid to Contractor.If Contractor's Credit Support is furnished by way of a parent
guaranty or a letter of credit, such guaranty, or letter of credit shall name Buyer as an additional
beneficiary.
15 Construction Period Credit Support up to 10%of Purchase Price
16 Post-Construction Period Credit Support up to 20%of Purchase Price
Exhibit No. 1
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ARTICLE 7
COVENANTS OF THE PARTIES
7.1 General Covenants of the Parties.
(a) Each Party shall each (a) as promptly as is reasonably practicable, diligently and in
good faith use commercially reasonable efforts to cause each Firm Date condition and Closing
condition in this Agreement to be satisfied as soon as reasonably possible, and (b) coordinate and
cooperate with the other Party in providing such information and supplying such assistance as may
be reasonably requested by such other Party up to the Final Completion of the Project. Without
limiting the generality of the foregoing or any other provision of this Agreement regarding approvals,
the Developer and Buyer shall each individually use commercially reasonable efforts to obtain all
authorizations,consents,orders,and approvals of,and to give all notices to and make all filings with,
all Governmental Authorities (including those pertaining to the Permits and Regulatory Approvals)
and third parties up to Final Completion of the Project that may be or become necessary for the
performance of its obligations under this Agreement and shall cooperate fully with the other Party in
promptly seeking to obtain all such authorizations, consents, orders, and approvals, giving such
notices, and making such filings; provided, however, that Developer shall be primarily responsible
for seeking and obtaining such approvals, consents, and orders and preparing and submitting such
notices and filings (other than Buyer's obligation to submit this Agreement for IPUC Approval).
(b) Each Party shall use commercially reasonable efforts to do and perform or cause to
be done and performed all further acts and things and shall execute and deliver all further
agreements, certificates, instruments, and documents as any other Party may reasonably request in
order to effect the agreements set forth in the Transaction Documents and the consummation of the
transactions contemplated herein. Developer shall promptly provide Buyer with all materials and
documentation reasonably requested by Buyer for its due diligence review of the Membership
Interests and the Project. Developer shall promptly and diligently cooperate with Buyer in such due
diligence process, including responding within a commercially reasonable period to all reasonable
inquiries.
7.2 Developer Covenants.
(a) Prior to the Closing Date, Developer shall take the following actions:
(i) Design the Project so as to achieve the Performance Guarantees, each as
confirmed by the Performance Guarantee Tests,respectively;
(ii) Obtain and maintain,or cause to be obtained or maintained,insurance on the
Project and Project Site effective as of the start of construction in accordance with Appendix L-1;
(iii) Deliver true, correct, and complete copies of draft and final Project reports,
studies and Design Documents required to be delivered pursuant to this Agreement with respect to
the Project;
(iv) Ensure all Project Assets are legally and beneficially owned and titled in the
name of the Project Company prior to Closing;
(v) Ensure Buyer and the Buyer's Engineer and their respective representatives
have a right to a representative with a full-time presence at the Project Site and a right to reasonably
access and inspect the Project Site,the Project Assets, and the Books and Records;
Exhibit No. 1
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(vi) deliver to Buyer (i) one or more commitments for title insurance for the
Project Site, and (ii) a current preliminary ALTA survey. Buyer may provide to Developer a title
objection letter that identifies Firm Date title objections and required exceptions; and
(vii) conduct its business and, if applicable, that of the Project Company in the
ordinary course(subject to certain approval rights of Buyer pursuant to the terms of this Agreement),
protecting Buyer's and, if applicable, the Project Company's interests against material changes, but
affording Developer and, if applicable, Project Company the flexibility to continue necessary
development of the Project.
(b) Prior to the Closing Date, Developer shall cause the Project Company to conduct its
business in the ordinary course of business, consistent with past practice; provided that Developer
shall not, and shall cause the Project Company and its Affiliates not to, take any of the following
actions without the prior written consent of Buyer;
(i) except as required by this Agreement,modify in any material respect,amend,
or terminate any Project Company Contract(including,but not limited to the EPC Contract,the Major
Supply Agreements, and the Interconnection Agreement) or Real Property Contract; provided
however, that such actions will only be deemed "material" if the adverse impact to Buyer (or after
the Closing, the Project Company or the Project), individually or in the aggregate, is greater than
$[ ];
(ii) enter into an engineering procurement and construction agreement or major
supply agreement that does not conform (in all material respects) to the requirements of this
Agreement,including the forms of such agreements attached hereto as Exhibits I and Exhibit H.
(iii) other than the EPC Contract, the Major Supply Agreements, and the
Interconnection Agreement, enter into any material Project Company Contract or Real Property
Contract; provided however,that such actions will only be deemed "material" if the adverse impact
to Buyer (or after the Closing,the Project Company,or the Project),individually or in the aggregate,
is greater than$[ ];
(iv) send any notices declaring an event of force majeure or the default of any
counterparty to a Project Company Contract,or any notice that could reasonably be expected to have
a Material Adverse Change,under any Project Company Contract without first notifying Buyer;
(v) initiate or threaten to initiate any litigation or adversarial proceeding that
would reasonably be expected to impact the Project Company, the Site, the Project Assets, or the
Project;
(vi) release,waive, settle, or compromise any dispute or pay damages under any
settlement or compromise of any proceeding relating to the Project, the Project Company, or the
applicable Project Assets;
(vii) sell, lease, license, assign, transfer, or encumber (including transfers to
Developer or any of its Affiliates) any Project Assets to any Person;
(viii) make any material change in the book or accounting methods used by or
applicable to the Project Company or Project, except as required by GAAP;
(ix) merge or consolidate with any other Person or adopt any plan of dissolution
or liquidation, or make any voluntary bankruptcy or insolvency filing (or consent to any such
involuntary filing) or reorganization;
Exhibit No. 1
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(x) loan,gift,sell,convey,or transfer in any manner any applicable Project Assets
to Developer or any other Person,other than as contemplated under this Agreement;
(xi) incur or assume Indebtedness (excluding any Indebtedness outstanding as of
the Execution Date),other than the Permitted Indebtedness;
(xii) admit any new member,manager,or holder of membership interests or other
Membership Interests;
(xiii) redeem or repurchase, directly or indirectly, any Membership Interest of the
Project Company or declare,set aside or pay any dividends or make any other distributions(whether
in cash or in kind)with respect to any Membership Interests;
(xiv) issue, sell, or transfer any notes, bonds, other debt securities, or any
membership interest(including the Membership Interests) of the Project Company;
(xv) acquire (by merger, consolidation, or acquisition of stock or assets or
otherwise) any corporation, partnership, or other business organization or division thereof or
collection of assets constituting all or substantially all of a business or business unit;
(xvi) make, revoke, or change any Tax election, change any Tax accounting
methods, policies, or practices, file any amended Tax Return or claim for refund, enter into any
closing agreement, settle, or otherwise compromise any Tax claim or assessment relating to the
Project Company, the Project Assets or the Project, file any request for rulings or special Tax
incentives with any Governmental Agency,surrender any right to claim a refund of Taxes,or consent
to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating
to the Project Company, the Project Assets or the Project, enter into any Tax allocation, sharing,
reimbursement,or indemnity agreement,or take any other similar action;
(xvii) incur, create, or assume any Lien other than Permitted Liens created in the
ordinary course of business;
(xviii) enter into any transaction or contract with Developer or any of its Affiliates
(except as contemplated by this Agreement);
(xix) change or authorize any change in the organizational documents of the
Project Company;
(xx) amend or materially modify the organizational documents of Developer in a
manner that would have a material adverse effect on the ability of Developer to consummate the
transactions contemplated by this Agreement
(xxi) take any action that would result in any additional Governmental Authority
having jurisdiction over the Project Company or the Project, except as contemplated 4.12, 4.16 d
and 5_6; or
(xxii) amend, modify, terminate, or fail to renew any insurance policy listed on
Schedule 4.20, or cause any such policy to no longer be in full force and effect, fail to pay premiums
owed with respect to any such policy and provide a notice of cancellation or termination of any such
policy;
(xxiii) materially and adversely amend or modify, fail to maintain or obtain, or
terminate any Permit;
Exhibit No. 1
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(xxiv) hire any employees or establish,adopt,amend,or commence participation in,
or incur any liability under,any Benefit Plan in respect of Project Company;
(xxv) solicit third parties to acquire the Project or the Project Company;
(xxvi) take any action or fail to take any action that would reasonably be expected
to materially adversely affect the Project or the Project Assets;
(xxvii) Make or change any material tax election related to the Project or, if
applicable,the Project Company, and
(xxviii) commit or agree to do any of the foregoing.
(c) Notwithstanding anything herein to the contrary,Developer is responsible for all EPC
Contract, Major Supply Agreement, and other Project Contract payments, milestone payments, and
any other obligations under the arising thereunder,whether incurred or payable prior to,on,or after
the Closing Date. Developer is responsible for all costs associated with EPC Change Orders whether
submitted or approved prior to or after Closing; provided, however, that certain Required Change
Orders may allow for an adjustment to the Purchase Price in accordance with 2.6 b . For the
avoidance of doubt, Buyer shall not be responsible for any costs associated with EPC Change Orders,
whether they arise or are payable before,on, or after the Closing Date.
(d) Within three (3) Business Days of receipt, Developer shall provide to Buyer a copy of
any feasibility studies, systems studies, and/or facilities studies that contain an estimate or a final
determination of Interconnection Costs. Developer is responsible for all Interconnection Costs
incurred or payable on or prior to Closing. To the extent that any refund of any portion of the
Interconnection Costs shall be received by the Developer or otherwise due from the Transmission
Provider,the full amount of such refund shall be paid to the Buyer. If any additional Interconnection
Costs are assessed by Transmission Provider against the Project Company after Closing, Buyer shall
be responsible for such additional Interconnection Costs.
7.3 Buyer Covenants
Buyer will submit the executed Agreement for IPUC Approval in accordance with 2.1;
7.4 Updating of the Disclosure Schedules.
(a) Developer may supplement or amend the Developer's disclosure schedules after the
Execution Date with respect to (a) deletions of Contracts that expire in accordance with their terms,
in the absence of any breach or default, (b) additions of and amendments to Contracts executed in
accordance with this Agreement, (c) additions of and amendments to Project Company Permits, (d)
additions of, updates to, and supplements to Reports, and (e) any other changes that have occurred
with respect to the Project Company, the Project Assets, or the Project since the Execution Date
("Updating Information"). Such updates shall occur no more than monthly and shall be Made
Available on the same day and in the same manner as the Progress Reports delivered in accordance
with 11.6.
(b) If any Updating Information includes information which relates to events or changes
since the Execution Date that, individually or in the aggregate, has had or would reasonably be
expected to have a Material Adverse Change then such Updating Information shall be a "Material
Update." Buyer may, in its sole discretion, as a result of a Material Update proposed by Developer
that has not been cured, elect to terminate this Agreement pursuant to 26.1 a (after expiration of
the cure periods set forth therein) and Buyer shall be the non-defaulting Party in connection
Exhibit No. 1
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therewith. If Buyer consents in writing to any Material Update, notwithstanding the Updating
Information provided prior to each such date, then the information constituting such Updating
Information shall be deemed an "Accepted Update." With respect to any Accepted Update, (i) any
incorrectness or breach caused by the Accepted Update shall be deemed cured as of the applicable
Closing Date, (ii) the relevant Developer disclosure schedules shall be deemed to be supplemented,
modified, or amended by such Accepted Update for all purposes of this Agreement, and (iii) any
applicable representations and warranties to which such Accepted Update refers shall be deemed
qualified by such Accepted Update.
ARTICLE 8
GENERAL OBLIGATIONS OF DEVELOPER
8.1 Developer's General Obligations.
(a) In consideration of the Purchase Price, Developer's general obligations under this
Agreement are as follows:
(i) Prior to Closing, cause the Project to achieve Mechanical Completion in
accordance with the terms of this Agreement and the EPC Contract.
(ii) At Closing, convey to Buyer the Membership Interests, which shall thereby
convey all Project Assets and rights to the Project; and
(iii) After Closing,cause the Project to be completed and achieve Final Completion
in accordance with the terms of this Agreement and the EPC Contract.
(b) On and prior to Closing, Developer shall work to accomplish its obligations, both
independently and by and through the Project Company,as applicable.
(c) The Work shall be manufactured and executed in the manner set forth in the
Technical Specification set forth in Appendix A, Appendix 0, and Appendix P, or, where not so set
forth, to the reasonable satisfaction of Buyer's Representative and all Work on the Site shall be
carried out in accordance with Prudent Industry Practice and such reasonable directions as Buyer or
Buyer's Representative may give.
(d) Obligations Prior to Closing. The key terms and conditions of the EPC Contract and
the Major Supply Agreements are attached to this Agreement as Exhibit G and Exhibit H,respectively.
Developer shall: (i)cause the Project Company to promptly(but in no event later than sixty(60)days
after the Firm Date)enter into an EPC Contract on terms equal to or better(from Buyer's perspective
as the future owner of the Project Company)than those attached hereto as Exhibit G and,within two
(2) Business Days thereafter,issue the Full Notice to Proceed under each such Contract, (ii)cause the
Project Company to promptly (but in no event later than sixty (60) days after the Firm Date) enter
into the Major Supply Agreements on terms equal to or better(from Buyer's perspective as the future
owner of the Project Company)than those attached hereto as Exhibit H and,within two (2) Business
Days thereafter, issue the notice to proceed (or similar) under each such Contract, (iii) cause
Contractor and Major Subcontractors to carry out and complete the Work in accordance with the
requirements, duties and obligations imposed on Contractor and Major Subcontractors pursuant to
the EPC Contract and the Major Supply Agreements; (iv) ensure that Contractor and every Major
Subcontractor design and perform the Work in compliance with applicable Laws and the other
requirements of this Agreement and the Transaction Documents; (v) maintain the requisite
resources,experience,qualifications,and capabilities as are required to fully perform its obligations
under this Agreement; (vi) keep Buyer informed as to the status of deliveries, and if any such
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Materials or Major Equipment are not being properly manufactured or fabricated in accordance with
the requirements of the Transaction Documents and, if different, the Project Company Contracts
pursuant to which they were purchased, or do not otherwise conform with such requirements,
promptly making Buyer aware thereof and taking necessary corrective action; (vii)subject to Buyer's
prior review and approval, enter into all necessary Project Company Contracts (including the Real
Property Contracts for necessary site control of the Site); (viii) manage the interconnection queue
process and ensure the completion of all necessary interconnection studies and processes,including
any affected system studies; (ix) subject to Buyer's prior review and approval,execute,and perform
under the Interconnection Agreement; (x) obtain all Permits necessary for the design, engineering,
development, construction, startup, testing, commissioning, completion, ownership, and
commencement of operation of the Project, consistent with the Project Schedule; (xi) ensure that all
of the Project Assets are legally and beneficially owned and titled in the name of the Project Company
prior to Closing;and (xii) accomplish all other tasks that are incidental and necessary to Developer's
general obligation hereunder to ensure that the Project is completed in accordance with this
Agreement.
(e) Obligations After Closing.Developer shall accomplish all tasks that are incidental and
necessary to Developer's general obligation hereunder to ensure that the Project is completed in
accordance with this Agreement and to achieve Final Completion. For the avoidance of doubt,
Developer shall be fully liable to Buyer hereunder for all acts and omissions of Contractor to the same
extent as though any such act or omission had been performed or omitted to be performed by
Developer directly until the achievement of Final Completion.
8.2 Contractor and Subcontractors.
(a) In connection with its performance of this Agreement, Developer shall purchase the
Major Equipment from the Major Subcontractors set forth in Appendix C pursuant to the Major
Supply Agreements,and Developer shall cause Contractor to procure any other materials,equipment,
or other goods and services required for performance of the work under the EPC Contract. For
procurement of services or equipment (other than the Major Equipment) from any Subcontractor
not identified on Appendix C, Developer will be required to obtain the prior approval of Buyer prior
to engaging such Subcontractor and any contract with any such Subcontractor shall comply with the
minimum warranty requirements set forth herein; provided that, Developer shall cause any such
contract to include without limitation, the provision of assignability of applicable warranties
thereunder.
(b) Prior to Closing, Developer shall be fully liable to Buyer hereunder for all acts and
omissions of Contractor and each Subcontractor to the same extent as though any such act or
omission had been performed or omitted to be performed by Developer directly. In no case shall
Developer's or the Project Company's engagement of Contractor or any Subcontractor relieve
Developer of any of its obligations or Liabilities hereunder and, notwithstanding the use of
Contractor or any Subcontractors hereunder, Developer shall remain fully and primarily liable to
Buyer for the full and complete performance of Developer's obligations hereunder.
(c) Buyer shall have no contractual obligation to and shall not be deemed to be in privity
with Contractor or any Subcontractor until Buyer takes assignment of the Membership Interests at
Closing. Notwithstanding the above,after Closing,Buyer will indirectly be party to the EPC Contract,
solely by and through its ownership of the Project Company.
Exhibit No. 1
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8.3 Compliance with Law.
(a) Developer shall comply with all applicable Laws and Prudent Industry Practices,and
shall cause Contractor and each Major Subcontractor to comply with all applicable Laws and Prudent
Industry Practices with respect to the Work to be performed by such Contractor or Major
Subcontractor. As between Developer and Buyer,Developer shall be responsible for ascertaining the
nature and extent of any applicable Law,which may affect the Work,the Project or the operation of
the Project prior to Substantial Completion, or the Site as a result of the performance by Developer
of its obligations under this Agreement. Prior to Closing, Developer shall ensure that all the Work
complies with applicable Laws, Prudent Industry Practice, the Project Company Permits, and the
product manuals, copies of which are included in Appendix F.
(b) Subject to the preceding paragraph, Developer shall be responsible for Liabilities
which may arise (including those that Buyer pays or becomes liable to pay) as a direct result of
Developer's, Contractor's, or Major Subcontractor's non-compliance with applicable Law, or as a
result of Buyer's inability to operate the Project in compliance with applicable Law due to the
inaccuracy of Developer's representations and warranties or the breach by Developer of any of its
obligations under this Agreement, other than Liabilities arising directly from any act or omission of
Buyer or its employees and agents or,after the Closing Date,the Project Company.
8.4 Permits.
(a) Developer shall obtain and maintain in accordance with applicable Laws all Project
Company Permits required in connection with the design, engineering, development, construction,
startup, testing, commissioning, completion, ownership, and operation of the Project in accordance
with this Agreement and the other Transaction Documents. Buyer shall be properly included as the
permitee,co-permitee, or authorized party with respect to all Project Company Permits.
(b) Developer shall and shall cause Contractor and the Major Subcontractors to
undertake commercially reasonable efforts to support Buyer in obtaining the Buyer Permits,
including providing such engineering and environmental data and statistical information as may be
reasonably requested by Buyer.
(c) Developer shall and cause Contractor and any Subcontractor to, at its or their sole
cost and expense, obtain and maintain all applicable construction and construction-related Permits
which are required by applicable Law in order to undertake and perform the Work and their
respective obligations under the Project Company Contract to which they are a party.
8.5 Interconnection.
Developer shall establish a queue position with Transmission Provider for all requisite
systems studies in order for Project Company and Transmission Provider to enter an Interconnection
Agreement that allows for the Project to achieve Substantial Completion in accordance with the
Project Schedule. Developer shall oversee and manage all necessary system studies and affected
systems studies and shall engage in all necessary Transmission Provider processes. Developer shall
pay for any and all Interconnection Costs,in accordance with 7.2 d . Developer shall be responsible
for the management of the interconnection queue process. In the event that a Project is
interconnected with the Buyer's transmission system, the Parties will also acknowledge in the
Agreement that Buyer is acting solely in its capacity as an electric supplier as defined by Idaho Code
61-332A, that its activities under the Agreement are separate and apart from its duties as a
transmission provider and that Buyer shall have no liability in its role as a transmission provider
arising out of the Agreement.
Exhibit No. 1
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8.6 Opportunities for Other Contractors.
Developer shall, in accordance with Buyer's reasonable instructions, afford to other
contractors identified by Buyer all reasonable opportunities for carrying out their observation and
inspection at the Site,provided that the same shall not materially obstruct or disturb the progress of
the Work. Developer shall also afford access to Buyer's employees, including employees who will
operate and maintain the Project,to perform their work at the Site.
8.7 Labor and Employment.
(a) Developer shall,and shall cause Contractor and each Major Subcontractor to,ensure
that all construction Contracts and subcontracts of any tier for the Project be awarded in compliance
with all applicable Law.Developer shall,and shall cause Contractor and each Major Subcontractor to,
refrain from any discrimination against any employee on the basis of such employee's membership
in any labor organization, or his or her lack of such membership. All employees working on the
Project shall be permitted to exercise their right to engage in protected concerted activity,as defined
in Section 7 of the National Labor Relations Act,as amended,or to refrain from doing so,without any
discrimination or other adverse consequence. Developer shall, and shall cause Contractor and each
Major Subcontractor to, comply with applicable Law regarding labor relations and employment
matters. Any administrative or civil proceedings filed against a Developer Party shall be promptly
reported to Buyer. Nothing in this provision shall affect any obligation of a Major Subcontractor
under a lawful collective bargaining agreement applicable to some or all of such Person's operations
on the Project.
(b) Developer shall be aware of, and familiar with, all collective bargaining agreements,
which do or may pertain to or affect the work under this Agreement. Developer shall plan and
conduct its operations so that its employees and Subcontractors of any tier will work harmoniously
with Buyer employees and other workers employed on the same or related projects to assure that
there will be no delays,work stoppages, excessive labor costs, or other labor difficulties. Developer
shall ensure that Contractor and each and every Major Subcontractor comply with all applicable Laws
pertaining to such labor and employment.
(c) Scarcity and Quality of Labor. Notwithstanding anything to the contrary set forth
herein,Developer shall have no Claim for an extension of the Outside Closing Date or a Claim for loss,
damage,or additional costs and expenses of any kind in respect of any alleged or proved unsuitability,
scarcity,inefficiency of the labor it may engage or wish to engage or any requirement to engage union
labor.
(d) Equal Employment Opportunity and Other Non-Discrimination Clauses.
(i) Developer shall and shall cause Contractor and all Subcontractors, to at all
times, comply with all applicable Laws applicable to employees, including those governing wages,
hours, employment discrimination, disability and medical leave, employment of minors, health and
safety. Developer shall comply with equal opportunity applicable Laws to the extent that they are
applicable.
(ii) Developer shall indemnify, defend, and hold harmless Buyer Indemnified
Parties from, for, and against all losses, costs, and damages by reason of any violation thereof and
from, for, and against any Claims and Liabilities and other costs arising out of Developer's failure to
comply with the provisions set forth in Section 8.7(d).
Exhibit No. 1
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(iii) Developer shall execute and Make Available to Buyer a certificate of
compliance with respect to equal employment opportunity compliance using applicable Buyer's form
of certificate before starting to perform Work under this Agreement.
(e) Workers Compensation. Developer shall comply with all applicable Laws regarding
workers' compensation and shall, prior to commencing Work, furnish proof thereof satisfactory to
Buyer.Developer shall ensure Contractor and Subcontractors have obtained workers'compensation
insurance required by Law and as further set forth in this Agreement.
8.8 Authority for Access for Inspection.
Inspection of the Work at the Site and attendance at meetings(whether conducted in-person,
telephonically or through similar medium) relating to the Project which are attended by Developer
and Contractor or Major Subcontractor and related to status, progress, quality, scope,schedule and
coordination shall at all times be afforded by Developer to Buyer, Buyer's Representative,and such
other Persons as shall be designated by Buyer or Buyer's Representative. Buyer, in its inspection,
shall give due consideration to the needs of Developer to carry out Developer's obligations and strive
not to hinder or unduly impede Developer while carrying out such inspection. Buyer, in its
inspection,may observe the progress and quality of the Work to determine if the Work is proceeding
in accordance with the Transaction Documents and Project Company Contracts. Inspections under
this 8_8 are solely for the benefit of Buyer and any inspection or failure to inspect and any objection
or failure to object by Buyer shall not(a) relieve Developer,Contractor, or any Major Subcontractor
of its respective obligations under any Project Company Contract, or (b) be used as evidence that
Buyer agreed that Developer, Contractor, or any Major Subcontractor had fulfilled any obligations
under any Transaction Document or Project Company Contract or that Buyer had waived any of its
rights under any Transaction Document.Buyer,Buyer's Representative,Buyer's employees,Buyer's
invitees, and such other Persons as shall be designated by Buyer or Buyer's Representative shall
follow and comply with the Contactor's Safety Assurance Program at all times while present on the
Site.
8.9 Contractor Drawings and Manuals.
(a) Developer shall at all times keep a copy of the most recent version of the Contractor
Drawings and Manuals at Developer's office on the Site to be made available for Buyer's review. In
addition, Developer shall provide and make available to Buyer electronic versions of the Contractor
Drawings and Manuals accessible by Buyer through a file transfer protocol site to be maintained by
Developer.
(b) Developer shall cause to be set forth in the Contractor Drawings and Manuals
provided to Buyer such information as is required to operate and maintain the Work, including the
information set forth in Appendix G. The Contractor Drawings and Manuals shall be (i) prepared in
accordance with the Technical Specification,Appendix F and Appendix G,and when completed,shall
be in sufficient detail to accurately represent the Project as constructed. The Contractor Drawings
and Manuals shall be maintained and be available, with up-to-date drawings, specifications, and
design sheets,for the training of Buyer's personnel as set forth in 8.10.
(c) At least sixty (60) days prior to the expected Closing Date, Developer shall provide
Buyer with initial drafts of the final Contractor Drawings and Manuals for review (the "Draft
Manuals"). The Draft Manuals shall contain such information described in 8.9 b , other than the
drawings which, in accordance with this 8_9,will be maintained to be up-to-date. Two (2) complete
sets of the Draft Manuals shall be provided to Buyer at least sixty (60) days prior to Substantial
Completion and shall be a condition to the achievement of Substantial Completion.
Exhibit No. 1
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(d) Developer shall provide to Buyer both hard and electronic final copies of the
Contractor Drawings and Manuals. Developer shall provide to Buyer five (5) final hard copies of the
Contractor Drawings and Manuals within sixty (60) days after achievement of Substantial
Completion. Neither Buyer nor the Project Company shall be required to deliver the Certificate of
Final Completion until all such Contractor Drawings and Manuals have been so delivered.
(e) Any modifications to the Contractor Drawings and Manuals made necessary as a
consequence of any punch list items or modifications to the Work shall be issued as addenda to the
Contractor Drawings and Manuals within thirty(30) days following completion thereof.
8.10 Training.
(a) Training of Buyer's personnel (or other employees or agents of Buyer) shall be given
by Developer or Contractor prior to the Substantial Completion Date as required by the Technical
Specification, in accordance with the EPC Contract, and shall include training (including on-site and
classroom) on the interconnection and technical specifications of the Project and operation and
maintenance of the Project.Such training shall be provided directly to Buyer's personnel and shall be
conducted by a trainer experienced in the operation,and maintenance of the Project.
(b) Starting at least sixty(60) days prior to the energization of the Project at the Site and
continuing until Final Completion,Developer shall oversee the development of and provide qualified
and experienced support for Buyer's execution of a practical and participatory training program at
the Site for an adequate number of employees designated by Buyer, which personnel shall be
experienced in energy storage facility operations appropriate to their respective job descriptions.
8.11 Safety.
(a) Developer shall be solely responsible for being aware of and initiating, maintaining
and supervising compliance with all safety Laws, regulations, precautions, and programs in
connection with the performance of this Agreement. Prior to Closing, the Contractor's health and
safety plan for the Project will be attached hereto as Appendix M (the"Contractor's Safety Assurance
Program"). Prior to the start of,and throughout the performance of,the Work,Developer shall ensure
that each of its employees, together with all employees of its Contractor and each Major
Subcontractor, are fully informed concerning all safety, health, and security Laws and requirements
pertaining to the Work and the Contractor's Safety Assurance Program; are qualified to perform the
Work under applicable Occupational Safety and Health Administration ("OSHA") regulations; have
completed all training required under applicable OSHA regulations to perform the Work; have all
licenses and certifications required to perform the Work;and understand Prudent Industry Practice.
Developer shall conduct all operations under this Agreement in accordance with the Contractor's
Safety Assurance Program.
(b) In the event Developer, Contractor, or Major Subcontractor fails to promptly correct
any violation of applicable Law, Prudent Industry Practice, or the Contractor's Safety Assurance
Program, Buyer may suspend all or any part of the Work until such time as Developer corrects the
violation. Developer shall not be entitled to any extension of time or reimbursement for costs caused
by any such suspension order. Failure of Buyer to order discontinuance of any or all of Developer's
operations shall not relieve Developer of its responsibility for breaches of applicable Law or the
Contractor's Safety Assurance Program. Developer shall maintain an accurate record of and shall
promptly report to Buyer all cases of property damage in excess of One Hundred Dollars ($100.00)
to property of third parties (not including Contractor or any Subcontractor) and of death,
occupational diseases,or injury to employees or any other third parties and incident to performance
Exhibit No. 1
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of Work under this Agreement. Developer shall promptly notify Buyer and provide a copy of any
safety citation issued by any Governmental Authority.
8.12 Intellectual Property Rights.
(a) Developer shall not take any action that would violate or infringe any Person's
intellectual property rights.
(b) Developer shall, at its sole expense, settle or defend and pay any costs (including
attorneys' fees) and damages awarded in connection with, and shall defend, indemnify, and hold
harmless each Buyer Indemnified Party from, for, and against any and all Claims and Liabilities,
including without limitation, suits or proceedings based on a Claim that any part of the Work or the
ownership or operation of the Project infringes or violates any patent, copyright, or any other
intellectual property right belonging to a third party. Buyer shall give Developer notice of any such
Claim promptly after Buyer has actual knowledge thereof, provided that the omission of Buyer to
give such notice shall not relieve Developer of its obligations hereunder except to the extent that such
omission results in a failure of actual notice to Developer and Developer is damaged as a result of
such failure. The provisions of ARTICLE 22 and Article 31 shall also apply to any Claim under 8.12(b).
(c) Developer shall obtain and transfer to Buyer perpetual, fully-paid up, royalty free,
transferable licenses to use all computer programs and any other intellectual property necessary for
the ownership and operation of the Project from and after the Closing,together with all warranties
related thereto.
8.13 Developer's Representatives.
(a) Developer shall employ (directly or through contract) one or more competent
representatives (each, a "Developer's Representative"), whose name or names and details of
qualifications and previous experience shall have been provided to Buyer and Buyer's Representative
by Developer,to manage the Work and who shall have Developer's authority in respect of all matters
arising out of or in connection with this Agreement and the Work.Any orders or instructions which
Buyer or Buyer's Representative may give to Developer's Representative shall be deemed to have
been given to Developer.
(b) Key Personnel.
(i) Prior to beginning the Work, Developer shall provide to Buyer, a list setting
forth the name of the natural Person for each Key Personnel position for itself, Contractor and all
Major Subcontractors performing material portions of the Work. Throughout performance of the
Work, all employees assigned by Developer to perform any of Developer's or Project Company's
obligations shall be fully qualified, certified, and licensed to perform the tasks assigned them.
(ii) Appendix H shall be amended when Key Personnel change during the
performance of the Work.
(iii) Developer shall give Buyer fifteen (15) days advance written notice in the
event Developer intends to remove or change any of its Key Personnel assigned to the Work or to
reassign any such Key Personnel to another project.
8.14 Developer's Personnel/Drugs,Alcohol and Firearms.
With regard to the performance of the Work, Developer shall, and shall ensure that
Contractor and any Major Subcontractor shall, only employ Persons qualified to perform the Work.
Exhibit No. 1
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Developer represents that Developer maintains a workplace violence standard that prohibits
violence, firearms, and other weapons on the Work site and a drug-free workplace policy that
complies with all Laws and prohibits the use of controlled substances or alcohol while performing
the Work under this Agreement, and Developer shall ensure Contractor, Subcontractors at all tiers,
and their respective employees and agents shall not possess, use, sell or be under the influence of
alcohol,drugs,or other controlled substances (excluding those used or possessed pursuant to a valid
prescription and which do not adversely affect the Work.)
8.1S 16.7ARTICLE 27ARTICLE 27ARTICLE 12Spare Parts Inventory.
(a) The EPC Contract shall include all spare parts and consumables necessary for the
installation, startup, and commissioning of the Project and the complete performance of the Work
through Final Completion. Such spare parts and consumables shall be located at the Site and
immediately available to Developer Parties to ensure that all Work, including testing and
commissioning activities continue unimpeded by the absence of such onsite spare parts and
consumables. Buyer shall not be liable in any way for Developer's inability to achieve Substantial
Completion or Final Completion due to lack of any spare parts or consumables and the Contractor
shall not be entitled to a Change Order in respect of the same.
(b) Developer shall submit to Buyer a proposed list of spare parts and associated pricing
for the operation of the Project following Final Completion in accordance with the EPC Contract.
Within thirty (30) days of receipt of the proposed list, Buyer shall determine, in its discretion, to
procure such spare parts or, at Buyer's election pursuant to a Buyer-Initiated Change, request
Developer to procure or cause to be procured such spare parts and have such spare parts delivered
to the Site prior to the Closing Date. Upon the request of Buyer,Developer shall meet with Buyer and
its designees to discuss the proposed inventory of spare parts.
(c) If available, Buyer shall allow Developer to use any spare parts or consumables
owned by Buyer,but in no event shall Buyer be liable or shall Developer be entitled to a Change Order
in the event that the absence of any particular spare part or consumable impacts completion of the
Work. In the event Developer uses Buyer's spare parts and consumables with Buyer's written
consent, such spare parts and consumables shall be expeditiously replaced by Developer at its sole
cost and expense. Buyer does not warrant the condition, quality, suitability, absence of defects,
fitness for any purpose,or aspect of any Buyer-supplied spare part and if Developer uses any Buyer-
supplied spare part,it does so at its own risk.
8.16 Further Assurances.
(a) Developer shall take all such further actions and execute all such further documents
and instruments as Buyer may at any time reasonably determine to be necessary to further carry out
and consummate the transactions contemplated by the Transaction Documents.
8.17 Other Liens.
(a) Developer shall not create,incur,assume,or suffer to exist,directly,or indirectly,any
Lien on any of the Project Assets or the Project Company,whether now owned or hereafter acquired
in connection with the Project.
(b) On or prior to the Closing Date, Developer shall cause Contractor and all Major
Subcontractors to deliver Lien releases to Project Company covering all work performed and
materials furnished as of the Closing Date,in the forms attached in Appendix I.
Exhibit No. 1
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8.18 Restriction on Fundamental Changes.
(a) Until after Final Completion shall have occurred,Developer shall not,without Buyer's
prior written consent, enter into any business combination, merger, or consolidation, or liquidate,
wind-up, dissolve (or suffer any liquidation or dissolution),or discontinue its business.
(b) Until after Final Completion shall have occurred,and except in the ordinary course of
business(such as the replacement or substitution of items from customary wear and tear),Developer
shall not convey,sell,lease,assign,transfer, or otherwise dispose of any of Project Assets.
8.19 Records and Accounts.
Developer and Project Company shall maintain all records and accounts in accordance with
GAAP consistently applied and in Dollars in order to support any and all invoices, Claims, and
disputes under this Agreement. Developer shall permit Buyer, upon reasonable prior notice and
during business hours, to audit Developer's records and accounts related to the Membership
Interests and the Project to verify invoice amounts and to confirm any increases or decreases to the
EPC Contract Price and any EPC Change Orders, as well as any report or correspondence related to
Project Company Permits or safety or environmental compliance.
8.20 Data Breaches.
Developer shall promptly notify Buyer upon the occurrence of any security breach,
cyberattack,other data security, or cyber incident or unauthorized access to any Developer IT Asset,
which resulted in the unauthorized access, unauthorized use, misappropriation, modification,
encryption,corruption,disclosure,or transfer of any material information or data contained therein
relating to the Project Company or the Project Assets.
ARTICLE 9
GENERAL OBLIGATIONS OF BUYER
9.1 Buyer's General Obligations.
Buyer shall:
(a) keep Developer informed as to the status of any governmental or regulatory or other
activities undertaken by Buyer that relates to the Project and that is likely to materially and adversely
affect Developer's ability to perform the Work;
(b) comply with all applicable Laws;
(c) plan and conduct its operations so that its employees and subcontractors of any tier
will work harmoniously with Developer employees and other workers employed on the same or
related projects; and
(d) maintain its records and accounts in accordance with GAAP consistently applied in
order to support any and all invoices, Claims,and disputes under this Agreement.
9.2 Buyer's Representative.
(a) Buyer's Power to Delegate. Buyer may at any time delegate to its representative (the
"Buyer's Representative")any of its duties and obligations(other than its payment obligations)under
this Agreement. Except as explicitly provided herein,any written decision,instruction,or order given
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 247 of 495

by Buyer's Representative to Developer in accordance with such delegation shall have the same effect
as though it had been given by Buyer.
(b) Duties of Buyer's Representative. Buyer's Representative shall carry out such duties
as are specified in this Agreement but except as expressly provided in this Agreement neither the
performance of or the failure to perform such duties whether properly or at all by Buyer's
Representative, nor the fact that a Buyer's Representative has been appointed by Buyer shall in any
way relieve Developer of any responsibility or liability for any of its obligations under this
Agreement. No approval of,or consent to,or failure to approve or consent to any matter by Buyer or
Buyer's Representative shall relieve Developer of any liability or any of its obligations under this
Agreement.
9.3 Standard of Conduct.
Unless explicitly stated otherwise in this Agreement, whenever the Parties or their
representatives are required to exercise their discretion: (a) to make a decision, (b) to give consent
or approval, (c) to express satisfaction or approval, (d) to determine value, or (e) otherwise to take
action which may affect their respective rights and obligations hereunder, the exercise of such
discretion shall be made in a reasonable manner and in good faith consistent with this Agreement so
as to reasonably minimize any disruption to the other Party, and having regard to all the
circumstances reasonably applicable thereto.
9.4 Buyer Response.
If Developer is required to obtain the approval of, or consent from, Buyer pursuant to the
terms of this Agreement, upon receipt of a request for such approval or consent from Developer,
Buyer shall, in its reasonable discretion (which shall not be unreasonably withheld, conditioned, or
delayed),respond (a)granting such approval or consent, (b) denying such approval or consent or(c)
requesting supporting material or information, in the time expressly specified in this Agreement or
when no time is referenced,within a reasonable time.
ARTICLE 10
WORKING ARRANGEMENTS
10.1 Site Security.
(a) Developer shall be responsible for Site security, which shall be in accordance with
Developer's established security procedures,which, at a minimum,shall ensure compliance with all
requirements of applicable Laws,the Project Company Permits,the Technical Specification and this
ARTICLE 10. All Developer Parties shall strictly adhere to all Site security provisions.
(b) Unless and until care, custody, control and risk of loss transfer to Buyer pursuant to
this Agreement, Developer shall be fully responsible for all Materials and Equipment.
10.2 Preservation of Public and Private Access.
Developer Parties shall not damage, close, or obstruct any highway, road, or other public or
private easement, except to the extent allowed by applicable Laws or the Project Company Permits.
If such facilities are closed, obstructed, damaged, or made unsafe by Developer Parties, Developer
shall, at its sole cost and expense, make such repair as necessary and shall also provide such
temporary guards, lights, and other signals as may be necessary or required for safety or by
applicable Laws or the Project Company Permits.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 248 of 495

10.3 Avoidance of Noise and Disturbance.
All Work at the Site shall be carried out in such a way as to minimize noise and disturbance
and Developer shall defend, indemnify, and hold harmless all Buyer Indemnified Parties from and
against all third party Claims and Liabilities for injury,including death,and property damage caused
by, arising out of, or in connection with noise or other disturbance, falling outside of the limits
specified in applicable Laws or the Project Company Permits and created by Developer Parties in
connection with performing the Work.
10.4 Fencing,Protection,Lighting.
Developer Parties shall provide adequate safety barriers, signs, lanterns, and other warning
devices and service to properly protect any person having access to or near the Site in accordance
with the requirements of applicable Laws, Permits, and the Technical Specification. Developer shall
be solely responsible for any act of trespass or any damage to adjacent property resulting from or in
connection with the Work or its operations under this Agreement.
10.5 Site Services.
Developer Parties shall be responsible for obtaining and the cost of electricity,water,fuel,air,
or other services as the Developer Parties may require for the purposes of the Work.
10.6 Cleanup.
Developer Parties shall keep the Site, including the Work area and storage areas used by
Developer Parties,free from accumulation of waste materials or garbage arising out of the Work,and
shall, prior to completion of the Work, remove and properly dispose of any such waste materials or
garbage from and about the Site in accordance with applicable Laws. Upon completion of the Work,
Developer Parties shall leave the Site in a condition reasonably satisfactory to Buyer.
10.7 Regulated Materials.
At all times Developer is responsible for preventing Releases of Regulated Materials brought
to or generated at the Site by Developer Parties or preexisting at the Site. On and prior to the Closing
Date, Developer shall manage and be responsible for any Regulated Materials, whether brought on
to or generated at the Site by Developer Parties or pre-existing at the Site, according to applicable
Law.
10.8 Wildlife and Cultural Concerns.
(a) If any species surveys or studies indicate that a direct or indirect taking of wildlife
listed as threatened, endangered, or other special status under Environmental Laws, or any impacts
to habitat of such wildlife,will occur as a result of development or construction activities (including
due to grading,ground disturbance,tree clearing,or nest removal)or during operation of the Project,
Developer shall consult with the relevant Governmental Authorities to determine whether incidental
take authorization or a species habitat conservation or management plan is required under
Environmental Laws for the Project or the Site. If required by any Project Company Permit,
Developer shall coordinate with Buyer to develop a plan for addressing such impacts, which may
include coordination with federal and state wildlife Governmental Authorities. During development
and construction of the Project,any wildlife protected by Environmental Laws discovered on the Site
shall be reported in accordance with any applicable conservation or management plans,if any.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 249 of 495

(b) Developer shall prepare and implement an unanticipated discoveries plan that
specifies the procedures Developer and its contractors and subcontractors will follow if any relics,
items,or structures with archaeological,cultural,or historical value or any articles (including fossils,
coins,articles of value or antiquity, or any Native American relics) are discovered on Site.
ARTICLE 11
PROJECT SCHEDULE
11.1 Project Schedule.
Attached hereto as Appendix B is a preliminary project schedule setting forth the major tasks
that must be completed by Developer or Project Company, as the case may be (each a "Milestone"),
and completion dates for such tasks ("Milestone Completion Dates") as provided by Developer in
accordance with the Technical Specification,including the Critical Milestones and associated Critical
Milestone Completion Dates which will be consistent with Appendix 1. The preliminary project
schedule shall include a Milestone (and a corresponding Milestone Completion Date) for
development of a final project schedule (the "Project Schedule") setting forth in more detail the
Milestones and Milestone Completion Dates, including the Critical Milestones and Critical Milestone
Completion Dates. Subject to 11.4, Developer may update the Project Schedule, in accordance with
the EPC Contract at its sole discretion, provided that the Milestone Completion Dates for the final
three Milestones (Mechanical Completion, Substantial Completion, and Final Completion) remain
unchanged.
11.2 Form of Project Schedule.
The Project Schedule shall be in the form set forth in Appendix B. The Project Schedule shall
specify any tasks, obligations, or responsibilities under this Agreement (each a "Buyer Obligation")
which Buyer must perform or fulfill for Developer to achieve the Milestone Completion Dates for each
Milestone,and the date by which Buyer is required to fulfill each Buyer Obligation in accordance with
this Agreement. Developer shall deliver the Project Schedule and any updates thereto in a native
scheduling software format reasonably acceptable to Buyer.
11.3 Rejection of Project Schedule.
(a) No later than thirty(30)days following execution of the EPC Contract,Developer shall
submit a final Project Schedule to Buyer's Representative for its review and comment(provided that
the Critical Milestones and associated Critical Milestone Completion Dates are not different from the
Critical Milestones and Critical Milestone Completion Dates set forth in Appendix 1).
(b) Subject to 9.2 b if Buyer's Representative comments on any Project Schedule
submitted by Developer, Developer shall,within seven (7) days of such comments,submit a copy to
Buyer's Representative of the final form of Project Schedule consistent with the Buyer's
Representative's comments.
(c) Buyer's Representative shall have the right to reasonably request Developer to vary,
amend, substitute, or otherwise change the Project Schedule after approval thereof. Any such
variation, amendment, substitution, or other change (other than as provided in 11.5 or caused by
Developer's failure to perform any of its obligations in accordance with the terms of this Agreement)
shall be considered a Buyer-Initiated Change under 12.1.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
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11.4 Alterations and Updates to Project Schedule.
Following Buyer's acceptance of the final Project Schedule, Developer shall not,without the
prior written consent of Buyer's Representative,make any material change to the Project Schedule,
including changing any Critical Milestone or Critical Milestone Completion Date;provided,that Buyer
shall respond to such request by Developer within seven(7)Business Days of receipt from Developer,
and Buyer's failure to respond within such seven (7)-Business Day period shall be a Buyer-Caused
Delay. Developer shall provide a Level 3 Project Schedule and any updates thereto on(a)prior to the
issuance of the Full Notice to Proceed, a monthly basis and (b) following the issuance of the Full
Notice to Proceed, a weekly basis, including the incorporation of delay and acceleration analyses
where appropriate.
11.5 Recovery of Project Schedule.
If, at any time or from time to time, Developer fails to achieve a date or Milestone on the
Project Schedule,then,upon the written request of Buyer,Developer shall promptly,but in any event
within five (5) Business Days of such request, submit a written recovery plan to complete all
necessary Work to the extent reasonably practicable to achieve the remaining dates or milestones in
the Project Schedule. Buyer shall promptly submit reasonable suggestions to such written recovery
plan. To the extent reasonable and feasible, Developer shall incorporate such suggestions into such
recovery plan or shall provide reasonable explanation for why such suggestions were not
incorporated,which reasonable explanations may include alternative Work acceleration proposals.
Developer shall diligently prosecute the Work in accordance with such recovery plan. Neither
approval by Buyer of such recovery plan nor Developer's prosecution of the Work in compliance with
such recovery plan shall(a)be deemed in any way to have relieved Developer of its obligations under
this Agreement relating to the failure to timely achieve a date or Milestone on the Project Schedule
or(b) be a basis for a Change Order or any other compensation or an increase in the Purchase Price.
11.6 Progress Reports.
(a) Developer shall Make Available to Buyer a progress report addressing all material
elements of the Work (each, a "Progress Report") on or before the fifth (5th) day of each month for
Work during the previous month. Developer shall Make Available an update to any Progress Report
upon Buyer's reasonable request. Developer shall promptly notify Buyer in writing at any time that
Developer has reason to believe that there will be a material deviation in the Project Schedule and
shall set forth in such notice the corrective action planned by Developer to remedy the same.
(b) In addition to the applicable requirements set forth in the Technical Specification and
Appendix K.the Progress Reports submitted by Developer shall specify in detail:
(i) any fact, event, or circumstance (each a "Project Problem") encountered by
any Developer Party during the preceding month(including the failure of Buyer to perform any Buyer
Obligations under this Agreement) which might (A) prevent Developer from completing any
Milestone by its respective Milestone Completion Date or (B) cause Developer to incur additional
expenses in completing any Milestone;
(ii) the estimated length of any delay and the estimated amount of any additional
costs and expenses, if any,which may be chargeable to Buyer hereunder, as a result of any Project
Problem identified pursuant to this Agreement; and
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 251 of 495

(iii) to Developer's Knowledge, the cause of any Project Problem specified
pursuant to this Agreement and the specific steps taken or proposed to be taken by Developer to
correct such Project Problem.
(c) In the event that Developer fails to specify in writing any Project Problem (an
"Unidentified Project Problem") with respect to a given monthly period in the appropriate Progress
Report and in such manner and at such time as specified pursuant to this Agreement as a Project
Problem, Developer shall not be entitled to rely on any such Unidentified Project Problem as a
purported justification for either (i) claiming that it is entitled to receive any additional amounts
pursuant to this Agreement(including damages arising out of any alleged failure by Buyer to perform
any of Buyer Obligations) or (ii) failing to complete any Milestone by the specified Milestone
Completion Date.
11.7 Progress Meetings.
Progress meetings will be held as deemed necessary by Buyer, but normally shall be held
once every two (2) weeks. Buyer, Buyer's Representative, and Buyer's Engineer shall be entitled to
attend such progress meetings. Progress meetings will be utilized to review the progress of the Work
and its compliance with the Project Schedule and discuss any delays, unusual conditions, or critical
items,which have affected or could affect the progress of the Work.
11.8 Schedule Relief.
Developer will be entitled to schedule relief for certain events affecting Developer's
performance under the Agreement,including:
(a) Material delays caused by a delay of Buyer or its representatives beyond the response
time period specified in the Agreement in responding to or commenting upon Project engineering
and designs ("Buyer-Caused Delays"), which shall entitle Developer to cost relief for demonstrable
additional direct costs due to such delay as provided in the Agreement in addition to schedule relief;
and
(b) Force Majeure events with mutually agreed upon mitigation, notice, materiality
thresholds,and documentation requirements as set forth in Article 24.
ARTICLE 12
CHANGE ORDERS
12.1 Changes.
(a) No Change shall be effective unless authorized by Buyer's Representative and issued
by the Project Company in accordance with the provisions of this ARTICLE 12. The EPC Contract
shall include provisions similar to those contained in this ARTICLE 12, to ensure its enforcement,
including a form of Change Order that substantially conforms to Appendix N-1.
(b) Buyer shall, when reviewing each potential Change and determining the nature and
extent of any Change Order which is requested or required in connection with this Agreement,
consider the following information:
(i) The nature, scope, and extent of the Change, including any additions or
deletions from the Scope of Work;
(ii) The effect,if any,of the Change on the Project Schedule,including the Outside
Closing Date;
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 252 of 495

(iii) For Buyer-Caused Delays, the effect, if any, of the Change on the Purchase
Price; and
(iv) Such other information as may reasonably be necessary for the
implementation of the Change Order,including the effect on any other provisions hereof which may
be impacted by the Change.
Buyer shall,in the case of a Buyer-Initiated Change or Required Change Order and may,if it elects to
do so, in the case of a Developer-Initiated Change, approve such Change Order having regard to all
such circumstances as is just and equitable and in a form substantially similar to the form of Change
Order attached hereto as Appendix N-1 which shall address,to the extent required, all of the issues
set out in this 12.1(b).
(c) Developer shall make any request for a Change Order which is permitted to be made
in accordance with 12.2 in the form of a Change Order Request which shall be delivered to Buyer in
writing as soon as possible and in any event within five (5) days after Developer becomes aware of
the facts or circumstances giving rise to a Change which it reasonably believes necessitates a Change
Order. In no case shall Developer Parties be entitled to recover costs in a Change Order that arise
prior to the date of the Change Order Request. Any Change Order Request shall be substantially and
in all material respects in the form attached hereto as Appendix N-2 and include the following
information: (i)the facts or circumstances giving rise to the Change; (ii)the impact,if any,which the
proposed Change is likely to have on Project Company or Developer's costs under the third-party
Project Company Contracts, including the EPC Contract Price, the Project Schedule, including the
Outside Closing Date,and any other provisions hereof; and (iii) such other information which Buyer
may reasonably request in connection with such proposed Change.
(d) The issuance of a Change Order shall not result in the invalidation of this Agreement.
(e) Notwithstanding any provision to the contrary in this Agreement, no facts or
circumstances will constitute grounds for a Change Order unless and only to the extent that the costs
of such Change Order is in excess of [_] ($[_]). Neither Party shall manipulate the foregoing
process,by aggregating or disaggregating cost or facts or circumstances,as the case may be, for the
purpose of recovering or avoiding additional cost or time in accordance with the foregoing.
(f) For the avoidance of doubt, a Change Order will only result in an adjustment to the
Purchase Price if the Project Company or Developer's costs under any third-party Project Company
Contract, including the EPC Contract Price, are increased due to (i) a Buyer-Caused Delay or (ii) a
Buyer-Initiated Change. EPC Change Orders that increase Project Company or Developer's costs
under any third-party Project Company Contract, including the EPC Contract Price, for any reason
other than a Buyer-Caused Delay or a Buyer-Initiated Change,whether such Change Order is issued
before, on or after Closing, will be the sole responsibility of Developer and will not result in an
increase of the Purchase Price.
12.2 Procedure for Changes.
(a) Changes Initiated by Developer. Developer may,at any time,submit a Change Order
Request to Buyer pursuant to 12.1 c for improvements, efficiencies, cost savings,and other similar
Changes to the Work(each a"Developer-Initiated Change"),but no such Change Order Request shall
be carried out by Developer except pursuant to a Change Order executed by Buyer's Representative,
which execution shall be in Buyer's discretion. Any Change Order Request submitted pursuant to
this 12.2 a shall also contain and be supplemented with such information as Buyer may reasonably
require in order to determine whether to accept or reject the Change Order Request.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 253 of 495

(b) Changes Initiated by Buyer. If Buyer desires to make a Change to the Scope of Work
or to the Project Schedule (each a "Buyer-Initiated Change") not comprising recovery Work due to
the negligence of or breach of this Agreement by any Developer Party, Buyer will submit a written
Change Order Notice to Developer,substantially in the form of Appendix N-3,comprising the nature
and extent of the proposed change to the Scope of Work together with, to the extent available or
applicable, Buyer's opinion as to those matters required to be taken into account in accordance with
12.1. Developer will promptly review the Change Order Notice and notify Buyer in writing within a
reasonable amount of time of the options for implementing the proposed Buyer-Initiated Change
(including,if possible,any option that does not involve an increase in Project Company or Developer's
costs under any third-party Project Company Contract, including the EPC Contract Price, and an
extension of the Project Schedule) and the estimated effect(s), if any, that each such option would
have on Project Company or Developer's costs under any third-party Project Company Contract,
including the EPC Contract Price, and Project Schedule, and any other affected provision herein, as
applicable. Such response shall also contain all those matters required to be set out in a Change Order
Request. Based upon such information, Buyer's Representative may,in his or her discretion,issue a
Change Order for a Buyer-Initiated Change.
(c) Required Change Orders. Project Company shall be entitled to the issuance of a
Change Order pursuant to this ARTICLE 12 in connection with any circumstances which constitute a
Change and which are attributable to the matters identified in subparagraphs (i)and(ii)below(each
a"Required Change Order"):
(i) Due to Change in Law. If and to the extent that a Change in Law after the
Execution Date but before Final Completion, results in a material increase in the cost of the Work or
a material extension of the Project Schedule.
(ii) Change Order Due to Buyer-Caused Delay. If and to the extent that Developer
is entitled to a Change Order due to a Buyer-Caused Delay pursuant to 9_41 provided that such failure
is not the result of Developer Parties'negligence or breach of this Agreement.
Developer shall use or have used commercially reasonable efforts to mitigate potential delays to the
Project Schedule or potential increases to Project Company or Developer's costs under any third-
party Project Company Contract,including the EPC Contract Price (the cost of such mitigation efforts
to be addressed in any applicable Change Order). For the avoidance of doubt, a Change Order will
only result in an adjustment to the Purchase Price if Project Company or Developer's costs under any
third-party Project Company Contract, including the EPC Contract Price, are increased due to (i) a
Buyer-Caused Delay or(ii)a Buyer-Initiated Change. Any costs or expenses(including those incurred
as a result of a delay) associated with Required Change Orders due to a Change in Law,as set forth in
12.2 c i will be the sole responsibility of Developer except to the extent an adjustment to the
Purchase Price is expressly required in accordance with 2.6 b .
(d) Except in the circumstances as set out in this 12.2 and with respect to which an
application is properly made in accordance with this ARTICLE 12, Developer shall not be entitled to
seek a Change,a Change Order,extension of the Project Schedule,including the Outside Closing Date,
an increase of Project Company or Developer's costs under any third-party Project Company
Contract, including the EPC Contract Price, or the receipt of additional remuneration or
reimbursement with respect to the Work.
12.3 Continued Performance Pending Resolution of Disputes.
Notwithstanding and pending the resolution of any dispute with respect to a Change or
Change Order, Developer Parties must proceed with the Work and the performance of any Change
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 254 of 495

ordered by Buyer as a result of a Buyer-Initiated Change or a Required Change Order,unless Buyer's
Representative directs Developer not to proceed.
12.4 Preservation of Schedule and Contract Price.
Where any proposed Change may give rise to an extension of the Project Schedule or an
increase in Project Company or Developer's costs under any third-party Project Company Contract,
including the EPC Contract Price,then Buyer reserves,in its discretion and to the extent possible,the
right to require Developer to vary,amend,or effect such other Change to the Work in such a manner
as will mitigate or avoid the requirement for such extension of the Project Schedule or increase in
Project Company or Developer's costs under any third-party Project Company Contract,including the
EPC Contract Price.
ARTICLE 13
WORKMANSHIP AND MATERIALS
13.1 Manner of Execution.
The Work to be supplied, including all materials, manufactured components and labor and
services to be performed, shall be designed and executed in the manner set out in this Agreement
and the EPC Contract. Except where the manner of design, manufacture,and execution is otherwise
specifically set out in this Agreement or the EPC Contract,the Work shall be designed,manufactured
and executed in a proper and workmanlike manner, all in accordance with accepted industry
standards, applicable safety standards,and Prudent Industry Practice.
13.2 Condition of Materials.
The Materials and Equipment, including any rented Equipment, fixtures, software, any
related items of personal property, and other tangible personal property of Developer Parties
constituting the Project shall be new and carrying the manufacturer's warranties and guarantees
required under ARTICLE 19, and shall be suitable for their current use in the storage of energy in
accordance with the Technical Specification.All Equipment and Materials shall be procured solely for
use in connection with the Project.
13.3 Inspection.
Developer shall require that Contractor use commercially reasonable efforts to include rights
in all contracts with Subcontractors to permit Buyer and the Buyer's Engineer to audit, inspect,test,
and observe the Major Equipment at the facilities of any Subcontractor or the manufacturer of Major
Equipment, or the location where such Major Equipment is being transported or stored, and, if
permitted, Developer shall ensure reasonable, adequate, and safe access to such facilities for such
purposes, subject to any reasonable safety rules or restrictions imposed by such Subcontractor or
manufacturer.
ARTICLE 14
DRAWINGS
14.1 Drawings.
(a) Following receipt and approval of the Project Schedule, Developer shall prepare a
contract documentation and drawing list identifying those key data, calculations (as required for
regulatory purposes and consents), drawings, technical specifications, and concepts required for
review for conformance with this Agreement.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 255 of 495

(b) Developer shall,within the time detailed in the Project Schedule or elsewhere in this
Agreement, submit to Buyer's Representative in hard copy and electronic form (the specific form of
which shall be agreed to by the Parties)such key data,calculations,drawings,technical specifications,
and concepts.
(c) Developer shall timely submit to Buyer's Representative drawings of temporary and
permanent buildings and structures and any other information required under the terms and
conditions of consents,licenses,and planning permissions obtained by Developer or Buyer.
(d) Buyer's Representative may, in its discretion, disapprove any drawing; provided.
however, it shall notify Developer of any such disapproval within ten (10) Business Days of receipt,
except for documents and information (including calculations) which are required by Buyer's
Representative for consultation with Buyer's third-party contractors for the purposes of the
interconnections at terminal points,where the period shall be fifteen(15) Business Days. Developer
shall supply additional copies of documents or information (including calculations) in the form and
numbers stated in this Agreement. Without waiver of or prejudice to any rights of Buyer,Developer
shall bear all risk in relation to its performance of work arising from or in relation to all documents
or information (including calculations).
14.2 Buyer Design Review.
(a) Developer will ensure that the EPC Contract provides Buyer, Buyer's Representative,
and Buyer's Engineer (the "Buyer Design Review Parties") with commercially reasonable review
rights, in respect of certain design drawings, specifications, and similar documents which shall set
forth in detail the requirements for the construction of the Project, including the right to review [(i)
thirty percent (30%) systems designs, (ii) sixty percent (60%) systems designs, (iii) ninety percent
(90%) systems designs],and (iv) issued for construction designs ("Design Documents"). The Design
Documents shall incorporate engineering and design specifications for the Project for an installed
capacity equal to the Planned Capacity.
(b) The Buyer Design Review Parties will have fifteen (15) Business Days from receipt of
the Design Documents to provide comments. Such comments will address conformance of such
Design Documents to the Technical Specification and the Transaction Documents.
(c) If the Buyer Design Review Parties timely provide comments on any Design
Documents,Developer Parties must resubmit revised Design Documents that are responsive to such
comments. The Buyer Design Review Parties will then have ten (10) Business Days from receipt of
the resubmission to provide any additional comments. The Developer Parties may only proceed with
the Work once the Buyer Design Review Parties either approve of the Design Documents without
comment or offer written consent that the comments do not have to be incorporated into the Design
Documents.
(d) A delay or lack of comments from the Buyer Design Review Parties will not relieve
the Developer from meeting its obligations under the Transaction Documents or the Contractor from
meeting its obligations in the EPC Contract,and Buyer reserves the right to allow the work to proceed
"under protest."
14.3 Documents not in accordance with Agreement.
Any documents or information (including calculations) which Buyer's Representative
identifies as not in compliance with this Agreement shall be modified to be in compliance and
resubmitted without delay.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
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14.4 Drawings Submitted.
Developer shall not deviate from drawings accepted or approved by Buyer or Buyer's
Representative or issued by Developer as approved for construction, except with the prior written
consent of Buyer or Buyer's Representative.
14.5 Inspection of Drawings.
Developer shall maintain and provide to Buyer's Representative from time to time or upon
request of Buyer's Representative a complete list of drawings, identifying which are approved for
construction. Buyer and Buyer's Representatives shall have the right at all reasonable times to
inspect all drawings of any part of the Work.
14.6 Operating and Maintenance Instructions.
(a) All operating and maintenance manuals, startup and shutdown manuals, and
drawings of the Work as-built shall be in such detail as will enable Buyer to operate, maintain, and
repair all parts of the Work, as described in Appendix F and Appendix G.
(b) The provision by Developer of the final operation and maintenance manuals and
drawings of the Work as-built in accordance with the provisions of this 14.6 shall be identified as a
Milestone in Appendix B and the provisions of ARTICLE 11 shall apply.
14.7 Buyer's Use of Drawings.
(a) Drawings and information created by Developer Parties for purposes of designing,
developing,constructing,commissioning,and operating the Project constitute"work made for hire,"
and Developer hereby transfers and assigns all rights in and to such drawings and information to
Buyer. The EPC Contract shall similarly require that Contractor so transfer and assign all rights in
and to such drawings and information.
(b) Drawings and information supplied by Developer Parties that are not created by
Developer specifically for or in connection with the Project, but that are necessary or useful for the
operation and maintenance of the Project,the Work,or any portion of thereof,may be used by Buyer
for the purposes of completing, maintaining, operating, improving, adapting, renewing, enlarging,
dismantling, re-assembly, adjusting, and repairing the Work, and for any other legal purpose,
pursuant to the license granted in 14.7(c).
(c) Developer grants to Buyer an irrevocable, perpetual, royalty free license to use all
drawings and information for the foregoing purposes and Developer shall provide Buyer with copies
of such drawings and information.
14.8 Errors in Drawings Supplied by Developer.
(a) Developer shall be responsible for the accuracy, completeness, and suitability of all
drawings, samples, patterns, models,calculations, or information submitted by Developer Parties in
connection with the Work. Notwithstanding Buyer's or Buyer's Representative's inspection or
approval of drawings, samples, patterns, models, calculations, or information submitted by
Developer Parties, Developer shall not be relieved of any responsibility or liability imposed on it by
any provisions of this Agreement and shall be responsible for any errors,omissions,or discrepancies
therein.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 257 of 495

(b) Developer shall bear any and all third-party costs Developer or Buyer may incur as a
result of delay in providing such drawings,samples,patterns,models,calculations,or information or
as a result of material errors, omissions,or discrepancies therein or for the correction thereof.
(c) Developer shall,at its sole cost and expense, carry out or cause to be carried out any
alterations or remedial work necessitated by such errors, omissions, or discrepancies for which it is
responsible and modify the drawings, samples, patterns, models, calculations, or information
accordingly.
ARTICLE 15
PERFORMANCE TESTS
15.1 Performance Guarantees.
(a) Prior to Substantial Completion, Developer shall conduct or cause to be conducted
the Performance Guarantee Tests (with the exception of the Availability Test,which is addressed in
(b),below)as soon as practicable in accordance with the Technical Specification,the procedures and
protocols of Appendix 0 and the other tests, procedures, and protocols as may be developed by the
Parties pursuant hereto.At least 60 days prior to each Performance Guarantee Test, Developer shall
deliver to Buyer a supplement to Appendix 0 further outlining in detail the tests, procedures and
protocols to be followed in conducting the Performance Guarantee Tests. Such supplement shall
include, at a minimum, provisions addressing: (a) testing procedures for each item of Major
Equipment; and (b) any other activities that, in accordance with Prudent Industry Practices, should
be included. Thereafter, the Parties shall promptly agree on modifications to such supplement so
that Appendix 0,as supplemented,is satisfactory Buyer.
(b) Prior to Final Completion, Developer shall perform the Availability Test and related
obligations and provide the Availability Guarantee,as provided in Appendix 0;provided,if Developer
does not achieve the Availability Guarantee as determined in accordance with the terms of Appendix
0 on or before the Final Completion Date, then Developer shall pay as liquidated damages for such
failure and not as a penalty,the Guaranteed Availability Liquidated Damages for each Day during the
Reliability Run Period in which Developer fails to demonstrate compliance with the Availability
Guarantee.
15.2 Cost and Direction.
(a) Buyer will cooperate with Developer's reasonable requests in connection with each
Performance Guarantee Test but shall not be required to provide any materials, electricity, fuel,
water,or stores in connection therewith.
(b) Developer shall provide all materials, charging electricity, consumables, and stores,
and all personnel necessary to supervise startup and the conducting of the Performance Guarantee
Tests and shall provide all necessary technical assistance and advice in connection with the
Performance Guarantee Tests. Except as approved by Buyer in writing, Developer shall not use
personnel in excess of the normal contingent of Project operations staff to operate the Project during
the Performance Guarantee Tests. During training and conducting the Performance Guarantee Tests,
Buyer's operating personnel shall be working under the technical direction and instruction of
Developer and Developer shall be responsible for the accuracy of its instructions/directions provided
to Buyer's operating personnel.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 258 of 495

15.3 Buyer's Right to Validate.
Buyer and Buyer's Representative shall have the right and opportunity to be present and
observe the Performance Guarantee Tests and shall have the right and opportunity in advance or
during the Performance Guarantee Tests to inspect and validate all meters,meter readings,and other
pertinent data necessary to verify the results of the Performance Guarantee Tests. Buyer shall
provide reasonable notice to Developer of any such observation and inspection,including the specific
information desired and method of obtaining such information. Developer and Buyer shall
coordinate such observation, inspection, and validation so as not to interfere with the Performance
Guarantee Tests and provide for a verifiable result.
15.4 Timing.
Developer shall provide Buyer at least [ninety (90)] days' prior written notice of the
anticipated date on which the Performance Guarantee Tests will begin and at least five(5)days'prior
notice of the actual date(or any change to the actual date)on which the Performance Guarantee Tests
will begin.
15.5 Test Reports.
(a) Developer shall Make Available to Buyer a preliminary test report,including the test
data sheets and calculated results for each Performance Test (the "Preliminary Performance Test
Report"), promptly after completion of each Performance Guarantee Test, together with a notice to
Buyer certifying completion of the applicable Performance Test in accordance with this Agreement
and the results of each such Performance Guarantee Test. Promptly after receipt of such Preliminary
Performance Test Report, Buyer and Developer shall consult concerning the results of each such
Performance Guarantee Test, and within three (3) days thereafter, Buyer shall provide Developer
written notice that it either accepts or disputes the results of the applicable Performance Guarantee
Test,including the reasons for any dispute.
(b) Within fifteen (15) Business Days following completion of an applicable Performance
Guarantee Test, Developer shall provide to Buyer a final test report, including test data sheets and
calculated results of each Performance Test(the"Final Performance Test Report") and a final notice
to Buyer certifying completion of the Performance Guarantee Test. Each Final Performance Test
Report shall reflect the Parties' consultation with one another with respect to the Preliminary
Performance Test Report. Within fifteen(15) days of receipt of such documentation from Developer,
Buyer shall provide Developer written notice that it either accepts or disputes the results of the
applicable Performance Guarantee Test,including the reasons for any dispute. If Buyer disputes the
results of the Performance Guarantee Test in the Final Performance Test Report,then Developer shall
re-perform the applicable Performance Test(or part thereof) in accordance with the procedures set
forth in Appendix 0. If the results of the re-test confirm the accuracy of the initial Performance
Guarantee Test, then Buyer shall pay the increased costs directly resulting from the re-test. If the
results of the re-test do not confirm the accuracy of the initial Performance Guarantee Test, then
Developer shall pay the increased costs directly resulting from the re-test.
15.6 Failure on Tests or Inspection.
Following any failed Performance Guarantee Test, Developer shall replace or repair the
applicable Work, Project, Equipment or Materials and re-submit the same for test or inspection in
accordance with this ARTICLE 15. All expenses reasonably incurred by or on behalf of Buyer in
connection with such re-testing or inspection shall paid for by Developer. Buyer's rights pursuant to
this 15.6 are in addition to its rights pursuant to ARTICLE 15.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 259 of 495

15.7 Duty to Advise of Defects,Errors,and Omissions.
Developer shall promptly advise Buyer upon it becoming aware of any Defect in any Work
performed or Equipment, Materials or the Project supplied or used by Developer Parties or error or
omission that might affect the Work,the Equipment,the Materials, or the Project and its operability,
operational life, or maintenance.
ARTICLE 16
EPC MILESTONES AND TRANSFER OF CARE,CUSTODY AND CONTROL
16.1 EPC Milestones in the EPC Contract.
Developer shall cause the EPC Contract to have the following final EPC Milestones: (i)
Mechanical Completion; (ii) Substantial Completion; and (iii) Final Completion.
16.2 Notice of Mechanical Completion.
(a) Developer shall provide Buyer and Buyer's Engineer with no less than ten (10)
Business Days' notice prior to its expected delivery of the Certificate of Mechanical Completion.
When Developer determines that the Work meets the Mechanical Completion Criteria set forth in
Appendix Q, Developer shall so notify Buyer and Buyer's Engineer and provide Buyer and Buyer's
Engineer a certificate of an Authorized Signatory of Developer,in the form of Appendix D-11 certifying
that the Mechanical Completion Criteria have been achieved and the date thereof(the"Certificate of
Mechanical Completion").
(b) Within five (5) Business Days after receipt of each Certificate of Mechanical
Completion, Buyer's Engineer shall provide written notice to Developer and Buyer of either: (i) its
rejection of such Certificate of Mechanical Completion (if reasonable cause exists for doing so) or
(ii) its acceptance of the Certificate of Mechanical Completion. Within five (5) Business Days after
receipt of notice from Buyer's Engineer in the preceding sentence,Buyer shall either: (i)if reasonable
cause exists for doing so (including but not limited to a rejection by Buyer's Engineer), reject such
Certificate of Mechanical Completion and by written notice specify the Mechanical Completion
Criteria Developer failed to achieve; or (ii) accept the Certificate of Mechanical Completion by
countersigning the Certificate of Mechanical Completion,in which case,Mechanical Completion shall
be deemed to occur on the date set forth in the Certificate of Mechanical Completion. Any failure of
Buyer to respond within such five (5)-Business Day period may serve as the basis of a Required
Change Order,in accordance with 12.2 c (ii).
(c) If Buyer rejects a Certificate of Mechanical Completion pursuant to 16.2 b i then
Developer shall promptly provide to Buyer a plan and schedule for remedying the deficiencies
specified in Buyer's written notice, and shall carry out such plan at its own cost and expense. Upon
completion of such remedial work and Developer's belief that the Mechanical Completion Criteria are
satisfied, Developer shall issue a new Certificate of Mechanical Completion to Buyer pursuant to
16.2(a).
(d) The foregoing procedure shall be repeated until Buyer accepts the Certificate of
Mechanical Completion pursuant to 16.2 b ii . Disputes as to whether Developer has achieved
Mechanical Completion shall be resolved pursuant to ARTICLE 27.
(e) In no event shall Mechanical Completion be achieved if the installed storage capacity
is less than the Planned Storage Capacity.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 260 of 495

16.3 Notice of Substantial Completion.
(a) Developer shall provide Buyer and Buyer's Engineer with no less than ten (10)
Business Days' notice prior to its expected delivery of the Certificate of Substantial Completion.
When Developer determines that the Work meets the Substantial Completion Criteria set forth in
Appendix Q, Developer shall so notify Buyer and Buyer's Engineer and provide Buyer and Buyer's
Engineer a certificate of an Authorized Signatory of Developer,in the form of Appendix D-21 certifying
that the Substantial Completion Criteria have been achieved and the date thereof(the "Certificate of
Substantial Completion").
(b) Within five (5) Business Days after receipt of each Certificate of Substantial
Completion, Buyer's Engineer shall provide written notice to Developer and Buyer of either: (i) its
rejection of such Certificate of Substantial Completion (if reasonable cause exists for doing so) or
(ii) its acceptance of the Certificate of Substantial Completion. Within five (5) Business Days after
receipt of notice from Buyer's Engineer in the preceding sentence,Buyer shall either: (i)if reasonable
cause exists for doing so (including but not limited to a rejection by Buyer's Engineer), reject such
Certificate of Substantial Completion and by written notice specify the Substantial Completion
Criteria Developer failed to achieve; or (ii) accept the Certificate of Substantial Completion by
countersigning the Certificate of Substantial Completion,in which case,Substantial Completion shall
be deemed to occur on the date set forth in the Certificate of Substantial Completion. Any failure of
Buyer to respond within such five (5)-Business Day period may serve as the basis of a Required
Change Order,in accordance with 12.2 c (ii).
(c) If Buyer rejects a Certificate of Substantial Completion pursuant to 16.3 b i , then
Developer shall promptly provide to Buyer a plan and schedule for remedying the deficiencies
specified in Buyer's written notice, and shall carry out such plan at its own cost and expense. Upon
completion of such remedial work and Developer's belief that the Substantial Completion Criteria are
satisfied, Developer shall issue a new Certificate of Substantial Completion to Buyer pursuant to
16.2(a).
(d) The foregoing procedure shall be repeated until Buyer accepts the Certificate of
Substantial Completion pursuant to 16.2 b ii . Disputes as to whether Developer has achieved
Substantial Completion shall be resolved pursuant to ARTICLE 27.
(e) In no event shall Substantial Completion be achieved if the Planned Capacity, as set
forth in the Technical Specification, is less than the Capacity Guarantee.
16.4 Notice of Final Completion.
(a) Developer shall provide Buyer and Buyer's Engineer with no less than ten (10)
Business Days' notice prior to its expected delivery of the Certificate of Final Completion. When
Developer determines that the Work meets the Final Completion Criteria set forth in Appendix Q,
Developer shall so notify Buyer and Buyer's Engineer and provide Buyer and Buyer's Engineer a
certificate of an Authorized Signatory of Developer, in the form of Appendix D-31 certifying that the
Final Completion Criteria have been achieved and the date thereof (the "Certificate of Final
Completion").
(b) Within five (5) Business Days after receipt of each Certificate of Final Completion,
Buyer's Engineer shall provide written notice to Developer and Buyer of either: (i) its rejection of
such Certificate of Final Completion (if reasonable cause exists for doing so) or (ii) its acceptance of
the Certificate of Final Completion. Within five (5) Business Days after receipt of notice from Buyer's
Engineer in the preceding sentence, Buyer shall either: (i) if reasonable cause exists for doing so
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 261 of 495

(including but not limited to a rejection by Buyer's Engineer), reject such Certificate of Final
Completion and by written notice specify the Final Completion Criteria Developer failed to achieve;
or(ii) accept the Certificate of Final Completion by countersigning the Certificate of Final Completion,
in which case, Final Completion shall be deemed to occur on the date set forth in the Certificate of
Final Completion. Any failure of Buyer to respond within such five (5)-Business Day period may
serve as the basis of a Required Change Order,in accordance with 12.2 c ii).
(c) If Buyer rejects a Certificate of Final Completion pursuant to 16.4 b i then
Developer shall promptly provide to Buyer a plan and schedule for remedying the deficiencies
specified in Buyer's written notice, and shall carry out such plan at its own cost and expense. Upon
completion of such remedial work and Developer's belief that the Final Completion Criteria are
satisfied,Developer shall issue a new Certificate of Final Completion to Buyer pursuant to 16.2(a).
(d) The foregoing procedure shall be repeated until Buyer accepts the Certificate of Final
Completion pursuant to 16.2 b)(ii). Disputes as to whether Developer has achieved Final Completion
shall be resolved pursuant to ARTICLE 27.
(e) In no event shall Final Completion be achieved if any Performance Guarantee Test
demonstrates that a Performance Guarantee is not met.
16.5 Risk of Loss; Care,Custody and Control; Punch List Items.
(a) Developer shall cause the EPC Contract to provide that risk of loss with respect to the
Work,including all Equipment, Materials,and the Project,shall pass to the Project Company prior to
the Substantial Completion Date.
(b) Developer shall be responsible for risk of loss of the Work, including all Equipment,
Materials, and the Project, and shall make good at Developer's own cost and expense any loss or
damage that may occur to the Work or any part thereof from any cause whatsoever on or before the
Substantial Completion Date.
(c) Care, custody, and control of the Work, including all Equipment, Materials, and the
Project,shall be transferred to the Project Company prior to the Substantial Completion Date. Buyer
shall begin to compile a preliminary punch list as the Work progresses (with Developer and Buyer,
with the advisement of Buyer's Engineer and in good faith,mutually determining the Dollar value of
such list). Buyer shall submit to Developer the completed preliminary punch list at least fifteen (15)
Business Days prior to the anticipated Substantial Completion Date. At least five (5) Business Days
prior to the Substantial Completion Date, Developer and Buyer, with the advisement of Buyer's
Engineer, shall mutually agree on the final punch list of items, the value related thereto and on a
schedule for completion of such items (the "Final Punch List"). All of the items on the Final Punch
List shall be completed expeditiously after the Substantial Completion Date and in accordance with
the schedule for completion provided as part of the Final Punch List. Buyer shall provide to
Developer for such purpose reasonable access to the Work. Developer's Credit Support shall remain
in place until all items on the Final Punch List have been completed or otherwise waived by Buyer.
(d) Buyer shall begin to compile a preliminary punch list as the Work progresses (with
Developer and Buyer, with the advisement of Buyer's Engineer and in good faith, mutually
determining the Dollar value of such list). The list of punch list items with respect to Work not
completed as of the Substantial Completion and the applicable Punch List Holdback Amount with
respect thereto,shall be certified by Buyer's Engineer. Upon the Final Completion, Buyer shall pay to
Developer the Punch List Holdback Amount.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 262 of 495

16.6 Dispatch Coordination.
During the startup, testing, and commissioning of the Project, Developer shall coordinate
with Buyer's Representative and Buyer's operating personnel for the orderly startup and shut-down
of the Project. Sixty (60) days prior to the initial startup of the Project, Developer shall provide to
Buyer a schedule of dispatch for the Project during the commissioning period,including expected net
Project output and duration of the commissioning activities. Developer shall also provide seventy-
two (72) hours'advance notice to Buyer of the planned dispatch profile including net Project output
and duration of the commissioning period.
16.7 Removal of Equipment.
(a) Prior to Final Completion, Developer shall remove from the Site all Developer's
Equipment,materials,temporary structures constructed by or on behalf of Developer or other items
of any nature required for execution or completion of the Work,but excluding equipment,materials,
appliances, or other items intended to form or forming part of the Work, including the Equipment,
Materials,and the Project.
ARTICLE 17
TAX MATTERS
17.1 Tax Indemnification.
Developer shall defend, indemnify, and hold harmless the Buyer Indemnified Parties from,
for,and against any Pre-Closing Taxes.
17.2 Transfer Tax.
Developer shall be responsible for any sales, use, value added, gross receipts, excise,
registration,stamp duty,transfer,or other similar Taxes or governmental fees(including any interest
or penalties related thereto) that may be payable in connection with the development, design,
engineering, construction, and commissioning of the Project and the Work and Buyer's purchase of
the Membership Interests in the Project Company(the"Transfer Tax'). Developer shall prepare and
file all Tax Returns for any Transfer Tax and shall remit the Transfer Tax shown as due on each such
Tax Return. Buyer and Developer shall, upon request, use their commercially reasonable efforts to
obtain any certificate or other document from any Governmental Authority or any other person that
may be necessary to mitigate,reduce,or eliminate any Tax described in this 17.2.
17.3 Purchase Price Allocation.
The Parties acknowledge and agree that, for federal income Tax purposes (and state, local,
and foreign income Tax purposes, as applicable), the sale of the Membership Interests is properly
treated as a sale to Buyer of all of the assets of the Project Company and an assumption by Buyer of
all of the liabilities of the Project Company. Within ninety (90) days after the Closing Date, Buyer
shall prepare and provide to Developer an allocation of the Purchase Price and any liabilities properly
included for U.S. federal income Tax purposes among the assets of the Project (the "Proposed
Purchase Price Allocation"). Within thirty (30) days of receipt of such Proposed Purchase Price
Allocation, Developer shall provide to Buyer any comments with respect to such Proposed Purchase
Price Allocation,and Buyer and Developer will thereafter work together in good faith to resolve any
disagreement with respect to such Proposed Purchase Price Allocation to agree on a final Purchase
Price allocation(the"Final Purchase Price Allocation"). Buyer and Developer shall file all Tax Returns
in a manner consistent with the Final Purchase Price Allocation and shall not take any position on
any Tax Return,in any audit,administrative,or judicial proceeding,or otherwise that is inconsistent
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 263 of 495

with the Final Purchase Price Allocation except as otherwise required applicable Law; provided.
however that if Developer and Buyer are unable to resolve any disagreements with respect to the
Proposed Purchase Price Allocation within thirty (30) days after Buyer's receipt of Developer
comments(if any)to the Proposed Purchase Price Allocation(or such longer period as may be agreed
upon in writing by Developer and Buyer), the Developer and the Buyer may take inconsistent Tax
reporting positions with respect to the allocation of purchase price hereunder.
17.4 Tax Benefits.
(a) Neither Developer nor any Affiliate of Developer will engage in any action or fail to
take any action that would be reasonably likely to jeopardize the realization by or allowance to Buyer
or any of its Affiliates of any Tax Benefits or the eligibility of the Project(or any property that is part
of the Project) for any other Tax benefit.
(b) Neither Developer nor any Affiliate of Developer will take any action that would, or
omit to take any action the omission of which would, cause the construction of the Project to have
begun on or after[_]within the meaning of Sections 48(a)(2)(A)(i)(II),48(a)(3)(A)(i)and 48(a)(6)
of the Code and the IRS Notice or otherwise cause to be untrue, incorrect or incomplete any
certification contained in the Begun Construction Certificate. Developer will notify Buyer in writing
within ten (10) days of Developer or any of its Affiliates becoming aware of any Safe Harbor
Controversy
(c) Developer shall cause the Project to be placed in service within the meaning of
Sections 48 and 168 of the Code and the IRS Notice no later than
17.5 Tax Returns.
(a) Developer shall prepare and duly and timely file all Tax Returns required to be filed
by or with respect to the Project Company,the Project Assets and the Project for any taxable period
ending on or before the Closing Date, and such Tax Returns shall be prepared in accordance with
applicable Laws and this Agreement. Developer shall provide Buyer with copies of all such Tax
Returns (except, for the avoidance of doubt, federal and applicable state income Tax Returns of
Developer)at least fifteen(15)Business Days prior to the due date of such return(taking into account
any valid extensions thereof)for Buyer's review and comment,and Developer shall take into account
any of Buyer's reasonable comments that are requested at least five (5) Business Days in advance of
the due date (taking into account any valid extensions thereof).
(b) Buyer shall prepare and duly and timely file all Tax Returns required to be filed by or
with respect to the Project Company,the Project Assets,and the Project with respect to any Straddle
Period, and such Tax Returns shall be prepared in accordance with applicable Laws and this
Agreement. Buyer shall provide Developer with copies of all such Tax Returns (except, for the
avoidance of doubt, federal and applicable state income Tax Returns of Buyer) at least fifteen (15)
Business Days prior to the due date of such return(taking into account any valid extensions thereof)
for Buyer's review and comment,and Buyer shall consider in good faith any of Developer's comments
that are requested reasonably at least five (5) Business Days in advance of the due date (taking into
account any valid extensions thereof). Developer shall remit Developer's allocable share of any Taxes
due by or with respect to the Project Company, the Project Assets or the Project in respect of any
Straddle Period to Buyer within five (5) days of Buyer's request therefor, except to the extent such
Taxes were taken into account in the Purchase Price as Pro-ratable Items.
17 Note to Bidders:Applicable to storage projects co-located with solar.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 264 of 495

(c) All real and personal property Taxes that are due or become due with respect to the
assets and properties of the Project Company, the Project Assets or the Project for any Straddle
Period shall be apportioned between Developer,on the one hand,and Buyer,on the other hand,as of
the Closing Date, based on the ratio of the number of days in the Straddle Period through (and
including) the Closing Date, on the one hand,to the number of days in the Straddle Period after the
Closing Date, on the other hand. Subject to the foregoing sentence, with respect to any Straddle
Period,the amount of Taxes allocable to the portions thereof ending on (and including) the Closing
Date and beginning on the day after the Closing Date shall be determined using an interim closing of
the books method as of the close of business on the Closing Date.
(d) Neither Buyer nor the Project Company may file an amended Tax Return with respect
to any Pre-Closing Tax Period or Straddle Period without the written consent of Developer, which
shall not be unreasonably withheld, conditioned, or delayed. Any refund of Tax with respect to any
Pre-Closing Tax Period relating to the Project Company, the Project Assets and the Project shall be
the property of Developer,and any refund of any Tax with respect to any Straddle Period relating to
the Project Company, the Project Assets and the Project shall be apportioned between Buyer and
Developer in the manner set forth in 17.5 b hereof.
17.6 Tax Contests.
Buyer shall notify Developer upon receipt by Buyer,the Project Company, or any of Buyer's
other Affiliates of a written notice of a U.S. federal or state Tax audit or assessments that may
materially affect the Tax liabilities of the Project Company, and for which Developer is or may be
liable hereunder,as soon as reasonably practicable after receiving such notice but in any event within
fifteen (15) days of such receipt, provided that failure to comply with this provision shall not affect
Buyer's right to indemnification hereunder, except to the extent such failure actually and materially
prejudices Developer. Developer shall have the sole right to control any audit, action, claim,
assessment,examination,levy,deficiency,adjustment,or other judicial or administrative proceeding
by any Governmental Authority, and contest, resolve, and defend against any assessment for
additional Taxes,notice of Tax deficiency or other adjustment of Taxes of or relating solely to one or
more of the Project Company, the Project Assets, or the Project and solely with respect to a Pre-
Closing Tax Period; provided that (a) that Developer must first acknowledge its liability for any
resulting Taxes in writing,(b)Developer shall provide written notice to Buyer of any such proceeding
and keep Buyer reasonably apprised of the initiation and status of any such proceeding, (c) Buyer
shall have the right, at its own expense,to review and comment on any written submissions and to
participate in any proceedings relating to any such proceeding controlled by Developer,
(d) Developer shall not settle any such proceeding without Buyer's written consent,which shall not
be unreasonably withheld, conditioned, or delayed, and (e) Developer shall have no right control or
contest any audit, action, claim, assessment, examination, levy, deficiency, adjustment, or other
judicial or administrative proceeding with respect to Taxes reported on any consolidated,combined,
unitary or similar Tax Return for which Buyer is a member. Buyer shall have the sole right to control
any audit, action, claim, assessment, examination, levy, deficiency, adjustment, or other judicial or
administrative proceeding by any Governmental Authority,and contest,resolve,and defend against
any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of or
relating to the Project Company, the Project Assets, or the Project for all other taxable periods;
provided,that with respect to any administrative or court proceeding relating to any Straddle Period,
(i) Developer shall have the right, at its own expense, to review and comment on any written
submissions and to participate in any proceedings relating to any such proceeding controlled by
Buyer, (ii) Buyer shall provide written notice to Developer of any such proceeding and keep
Developer reasonably apprised of the initiation and status of any such proceeding, and (iii) Buyer
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 265 of 495

shall not settle any such proceeding without Developer's written consent, which shall not be
unreasonably withheld,conditioned, or delayed.
17.7 Duties and Excises.
The Purchase Price includes any and all Taxes (including any related customs broker fees or
similar charges)imposed on the sale or delivery of the Project Company,the Project Assets,the Work
or the Project, and Developer shall duly and timely remit any such Taxes in accordance with all
applicable Laws (including all customs and import duties arising upon the importation of the Project,
Equipment, and Materials into the applicable port of entry). Developer shall provide Buyer such
information and data as requested by Buyer,and fully cooperate,in connection with (i)the reporting
of any such Taxes, (ii) any audit relating to any such Taxes, or (iii) any assessment, claim, or
proceeding relating to any such Taxes.
17.8 Cooperation.
Buyer and Developer shall cooperate fully, as and to the extent reasonably requested, in
connection with the filing of Tax Returns and any audit, litigation, or other proceeding with respect
to Taxes. Such cooperation shall include the retention and (upon request) the provision of records
and information that are reasonably relevant to the filing of such Tax Returns and any such audit,
litigation, or other proceeding and making employees available on a mutually convenient basis to
provide additional information and explanation of any material provided hereunder.
17.9 Coordination with General Indemnification.
The provisions of this ARTICLE 17 shall govern the indemnification rights and obligations of
Buyer, Developer, and their Affiliates with respect to Tax matters in the event of any conflict or
overlap between the provisions of Article 22 and this ARTICLE 17, and, for the avoidance of doubt,
any Claim arising under both ARTICLE 17 and ARTICLE 22 shall be treated for all purposes of the
Agreement(including Error! Reference source not found.and ARTICLE 22)as arising solely under
this ARTICLE 17.
ARTICLE 18
ENVIRONMENTAL MATTERS
18.1 General Obligations.
(a) Neither Developer nor Project Company shall (a) install or operate or permit its
contractors or other representatives to install or operate any underground storage tanks on the Site,
(b) disturb (other than through demolition and removal or other abatement) any asbestos contained
in or that forms part of any building, building component, structure, or office space on the Site, and
(c) use or store any polychlorinated biphenyls at the Site in connection with construction of the
Project.
(b) Not less than ninety (90) days prior to the Closing, Developer shall prepare and
submit to Buyer materials management and emergency response procedures in accordance with
Environmental Law covering any Regulated Materials Developer expects to be used in the completion
and testing of the Work, which procedures shall be reasonably satisfactory to Buyer. Unless Buyer
provides written comments on the procedures within fourteen (14) days of receipt from Developer,
Buyer shall be deemed to have approved the procedures. Developer shall materially comply, and
shall cause all other Developer Parties to materially comply, at all times with the Buyer-approved
materials management and emergency response procedures (the "Procedures"). No Regulated
Materials shall be Released on the Site in violation of Environmental Laws.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 266 of 495

18.2 Release On-Site.
Developer shall immediately notify Buyer of any Release of Regulated Materials at the Site by
the Developer Parties or otherwise that violates or, to Developer's Knowledge, has the potential to
violate Environmental Laws, including but not limited to state and federal laws and regulations
relating to water pollution, hazardous material disposal, and hazardous materials Release
requirements. In addition, Developer shall immediately notify any applicable Governmental
Authorities of any Release that is reportable to Governmental Authorities under applicable
Environmental Laws and take such emergency measures consistent with Prudent Industry Practice
and necessary to comply with the Procedures and applicable Law, including with respect to the
immediate containment of any such Release and Remediation of the affected area.
18.3 Release Off-Site.
In the event of a Release by any Developer Party of a Regulated Material off the Site but
related to the Work which is reportable to Governmental Authorities under applicable
Environmental Laws, Developer shall be responsible for notifying all applicable federal, state, and
local Governmental Authorities in accordance with applicable Law or for causing such notification to
occur by the Developer Party responsible for such action. Developer shall take all appropriate steps
consistent with the Procedures and required by applicable Law for containment of any such Release
and Remediation of the affected area.
18.4 Liability.
Developer shall be liable to Buyer for any Release of Regulated Materials at or from the Site
to the extent such Release has occurred as of the Closing Date, except to the extent such Release is
negligently or intentionally exacerbated by Buyer or any third party after the Closing Date.
18.5 Pre-existing Regulated Materials.
(a) Developer shall develop a contingency plan to address the investigation and, if
required under Applicable Law, corrective action with respect to the presence or Release of
Regulated Materials encountered in surface or subsurface soils, surface water, or groundwater
during construction of the Project. The contingency plan shall,at a minimum,provide for:
(i) a staging area for soil containing Regulated Materials to avoid or minimize
construction delays;
(ii) the handling of any groundwater containing Regulated Materials in
accordance with applicable Permits and Environmental Laws; and
(iii) the off-site disposal of all Regulated Materials and impacted soil and
groundwater that does not qualify under Environmental Law for return to or placement at the Site.
(b) Developer shall be responsible for implementing any requirements under
Environmental Law relating to pre-existing Regulated Materials identified in any environmental
surveys or reports.
18.6 Notice.
Developer shall notify Buyer as soon as reasonably practicable of the occurrence of any event
that would reasonably be expected to result in any actual or potential violation of or noncompliance
with any Environmental Law relating to the Work,the Project, or the Site,or otherwise constitutes a
Material Adverse Change under this Agreement.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 267 of 495

ARTICLE 19
WARRANTIES OF WORK
19.1 Warranties.
(a) Developer shall cause the EPC Contract to provide a warranty (the "Warranty"), for
the duration of the applicable Warranty Period, as set forth in this ARTICLE 19. The scope of the
Warranty shall include:
(i) that the Project and all Equipment and Materials and other Work furnished
by Contractor or any Major Subcontractor,including installation,but excluding the Major Equipment
to which the Major Equipment Warranties in Appendix E apply(provided,that Work related to such
Equipment shall not be excluded) shall: (A) be free from improper workmanship and defects in
design,engineering,construction,fabrication,workmanship,materials,and operations (collectively,
"Defects." and individually"Defect"), (B) be new and unused (except for use as part of the Project),
(C) be of good quality, undamaged, and in good condition, and (D) conform to the applicable
requirements of this Agreement and the other Transaction Documents, including the Scope of Work
and Technical Specification,in each case,in effect as the Final Completion Date;
(ii) that the procurement,design,engineering,and construction services included
as part of the Work (including for the avoidance of doubt, Work related to installation of the
Equipment) shall be performed with Contractor's and Major Subcontractor's best skill and judgment,
in a good and workmanlike manner,and conform to and be designed,engineered,and constructed in
accordance with the terms and conditions of the Transaction Documents,including the Scope of Work
and Technical Specification, Prudent Industry Practice, applicable Laws, and the Project Company
Permits, in each case, in effect as of the Final Completion Date, and conform with, and be designed
and engineered according to professional standards and skill, expertise and diligence of design
professionals regularly involved in energy storage projects similar to the Project, and contain the
Equipment, Materials,and supplies described in the Scope of Work;
(iii) that the completed Work shall perform its intended functions as a complete,
integrated energy storage system as explicitly described or implied in the Transaction Documents;
and
(iv) that none of the Work, the Project, the Equipment, the Materials, the final
plans, and the design, engineering, and other services rendered by Contractor or any Major
Subcontractor hereunder, nor the use or ownership thereof by Project Company or Buyer in
accordance with the licenses granted hereunder, infringes, violates, or constitutes a
misappropriation of any trade secrets, proprietary rights, intellectual property rights, patents,
copyrights, or trademarks.
(b) The Warranty shall not extend to Defects or deficiencies to the extent resulting from:
(i) operation by Buyer's personnel in a manner inconsistent with or contrary to instructions
contained in the operation and maintenance manuals provided by Developer pursuant to 14.6; (ii)
repairs or alterations by Buyer's personnel in a manner inconsistent with or contrary to instructions
provided by Developer or as contained in the operation and maintenance manuals provided by
Developer pursuant to 14.6; or (iii) normal wear and tear.
(c) Developer shall provide a gap warranty(the"Gap Warranty"),for the duration of the
applicable Warranty Period, as set forth in this ARTICLE 19. The scope of the Gap Warranty shall
include:
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 268 of 495

(i) that the Project and all Equipment and Materials and other Work furnished
by Developer, including installation, but excluding the Major Equipment to which the Major
Equipment Warranties in Appendix E apply (provided, that Work related to such Equipment shall
not be excluded) shall: (A) be free from improper workmanship and Defects, (B)be new and unused
(except for the beginning of construction transformer, which began production in [_]), (C) be of
good quality, undamaged,and in good condition,and (D) conform to the applicable requirements of
this Agreement and the other Transaction Documents, including the Scope of Work and Technical
Specification,in each case,in effect as the Final Completion Date;
(ii) that the procurement, design, engineering, and construction services
performed by Developer as part of the Work (including for the avoidance of doubt,Work related to
installation of the Equipment)shall be performed with Developer's best skill and judgment,in a good
and workmanlike manner, and conform to and be designed, engineered, and constructed in
accordance with the terms and conditions of the Transaction Documents, including the Scope of
Work, and Technical Specification, Prudent Industry Practice, applicable Laws, and the Project
Company Permits, in each case, in effect as of the Final Completion Date, and conform with, and be
designed and engineered according to professional standards and skill, expertise, and diligence of
design professionals regularly involved in energy storage projects similar to the Project,and contain
the Equipment, Materials,and supplies described in the Scope of Work;
(iii) that the Work completed by Developer shall perform its intended functions
as a complete,integrated energy storage system as explicitly described or implied in the Transaction
Documents; and
(iv) that none of the Work, the Project, the Equipment, the Materials, the final
plans and the design, engineering,and other services rendered by Developer hereunder,nor the use
or ownership thereof by Project Company or Buyer in accordance with the licenses granted
hereunder, infringes, violates, or constitutes a misappropriation of any trade secrets, proprietary
rights,intellectual property rights,patents, copyrights,or trademarks.
19.2 Warranty Period.
Subject to the provisions in this ARTICLE 19, the Warranty and Gap Warranty and shall
remain in full force and effect for a period beginning on the Final Completion Date and ending on the
date that is thirty-six (36)months thereafter ("Warranty Period");provided,however,that if a Serial
Defect occurs within the Warranty Period, then the Warranty or Gap Warranty, as applicable, for
such components of that type or the components that were the subject of the successful claim,
respectively, shall be automatically extended for an additional one (1) year from the date of Buyer
became aware of the failure that caused the Serial Defect.
19.3 Repair of Defects.
If Buyer or Developer discovers that the Work, or any portion thereof, fails to meet the
Warranty or the Gap Warranty,then it shall notify the other Party of such failure within a reasonable
time after discovery, along with the reasonable basis therefore. Buyer shall immediately relay any
notice of Defect to Contractor or Developer upon Buyer's discovery of the Defect or Developer's
notice of the Defect to Buyer. Upon receipt of such notice, Contractor(with respect to the Warranty)
or Developer (with respect to the Gap Warranty), as applicable, shall (a) cure such failure in
accordance with the Warranty or Gap Warranty, as applicable and (b) perform such tests as Buyer
may reasonably require demonstrating the cure of such failure. Contractor and Developer shall
coordinate repairing, replacing, or re-performing any of the Work with Project Company and Buyer
so as to minimize any adverse effects on the operation of the Project.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 269 of 495

19.4 Warranty Period Extension.
(a) Extension for Corrected Work. Any Work re-performed and any part of the Site that
is reworked, repaired, or replaced in satisfaction of Contractor's obligations in connection with the
Warranty or Gap Warranty will be re-warranted by Contractor or Developer, pursuant to the same
Warranty or Gap Warranty, as applicable, as set forth in this ARTICLE 19, and Contractor and
Developer will have the same obligations in relation thereto as set forth in this ARTICLE 19 for a
period ending either (i) twelve (12) months from the date such re-performance, rework, repair or
replacement is completed or (ii) as of the end of the applicable warranty period,whichever is later.
(b) Extension for Total Shutdown. If, during the Warranty Period, the Project is shut
down(other than for the purpose of scheduled or routine maintenance)and such shutdown is caused
by a defect or failure covered by the Warranty or Gap Warranty, then the Warranty Period will be
extended by a period equal to the duration of the shutdown required to repair such defect or failure.
19.5 Subcontractor Warranties.
Developer will procure from each Major Subcontractor the Major Equipment Warranties set
forth in Appendix E.Any Major Equipment Warranties still in effect at the expiration of the Warranty
Period,to the extent assignable,will be assigned to Buyer or,if applicable, Project Company.
19.6 Delay in Remedying Defects.
If any such Defect or damage is not remedied by Contractor or Developer within a reasonable
time or requires prompt remediation as a result of an emergency situation existing at the Site,then
Buyer may proceed to do the Work or have others perform such Work at Contractor's or Developer's
risk and expense provided that it does so in a reasonable manner and notifies Developer and
Contractor of Buyer's intention so to do. Developer reserves the right to investigate and determine
the eligibility for such Work to classify as part of a warranty claim. All costs incurred by or on behalf
of Buyer in connection with such Work shall be deducted from the Purchase Price or be paid by
Developer to Buyer within thirty(30) days of Buyer's demand for such payment.
19.7 Serial Defects.
With respect to the Equipment, if a Serial Defect occurs during the Serial Defect Warranty
Period, Developer shall:
(a) Prepare a root cause report for the component(s) subject to the Serial Defect and
deliver such report to Buyer within ten (10) Business Days from discovery of or notice of a Serial
Defect.
(b) If the root cause is determined to be a manufacturing Defect, prosecute and
administer the applicable Major Equipment Warranty or other warranty with the manufacturer to
ensure the repair,replacement,or otherwise correction of the Defect.
(c) If the root cause is determined to be a design defect, prosecute and administer the
applicable Major Equipment Warranty or other with the manufacturer to ensure the manufacturer
formulates a reasonable retrofit design that resolves the cause and effect of such component(s) and
causes all affected components of the Project to be retrofitted with the new design as promptly as
possible.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 270 of 495

19.8 Assignment of Warranties.
Unless otherwise assigned to the Project Company in the Major Supply Agreements,
Developer and each Subcontractor shall enter into a partial assignment agreement, in form and
substance acceptable to Buyer, pursuant to which Developer and each Subcontractor shall assign to
Buyer or Project Company all of Developer's rights with respect to the warranties provided by such
Subcontractor on or before the Final Completion Date (including but not limited to such other
existing Developer, Contractor, and Major Subcontractor warranties as may exist with respect to
ARTICLE 20
LIQUIDATED DAMAGES
20.1 General.
(a) The Parties agree that it is difficult or impossible to determine with precision the
amount of damages that would be incurred by Buyer as a result of Developer Party's failure to timely
achieve Mechanical Completion and to timely achieve Substantial Completion by the Guaranteed
Substantial Completion Date,or achieve the Planned Capacity,if applicable. Accordingly,the Parties
expressly agree that if Developer fails to timely achieve Substantial Completion by the Guaranteed
Substantial Completion Date, or achieve certain of the Performance Guarantees as described below,
any sums which would be payable under this ARTICLE 20 because of such failures are liquidated
damages and not a penalty, and are fair and reasonable and any such sums represent a reasonable
estimate of fair compensation for the losses that may reasonably be anticipated from such failures.
20.2 Delay Liquidated Damages.
(a) If the Project fails to achieve Mechanical Completion on or prior to , then
Developer shall pay Buyer liquidated damages of[_] ($[_]) per day that the Project fails to achieve
Mechanical Completion (the"Mechanical Completion Delay Liquidated Damages").
(b) If the Project fails to achieve Substantial Completion on or before [ , 20_] (the
"Guaranteed Substantial Completion Date"), Developer shall pay Buyer liquidated damages of two
hundred dollars ([$200]) per MWh per day of Planned Capacity that has not achieved Substantial
Completion,escalating to three hundred dollars ([$300])per MWh per day beginning on [ ,20_]
("Substantial Completion Delay Liquidated Damages") The Guaranteed Substantial Completion Date
will be extended due to Buyer-Caused Delays and Force Majeure;provided that no delays for Force
Majeure will extend the Guaranteed Substantial Completion Date for the Project beyond [ ,20_].
(c) In the event that the Project achieves Substantial Completion by the Guaranteed
Substantial Completion Date, but Developer previously paid Mechanical Completion Delay
Liquidated Damages,then Buyer shall reimburse to Developer all such Mechanical Completion Delay
Liquidated Damages through an adjustment to the Purchase Price.
20.3 Performance Liquidated Damages.
(a) Notwithstanding the foregoing, Developer may declare that it has achieved
Substantial Completion if the Project achieves less than the Planned Capacity in the Capacity Test,
but in no case less than the Capacity Guarantee,by paying Buyer the Guaranteed Capacity Liquidated
Damages. In the event that the Project's actual capacity achieved in the Capacity Test is less than the
Capacity Guarantee, then Developer shall not be entitled to declare Substantial Completion and
Developer shall,at Developer's sole cost and expense, promptly rectify any such deficiencies so that
the capacity of the Project achieved in the Capacity Test at least meets or exceeds the Capacity
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 271 of 495

Guarantee (and to the extent, after such repairs,the capacity of the Project achieved in a subsequent
Capacity Test is less than the Planned Storage Capacity but greater than the Guaranteed Capacity,pay
Buyer the Guaranteed Capacity Liquidated Damages). As used herein, the "Guaranteed Capacity
Liquidated Damages"shall be the greater of two hundred Dollars per MW([$200/MW]),prorated for
fractional MWs, below the Guaranteed Power Capacity, or two hundred Dollars per MWh
([$200/MWh]),prorated for fractional MWhs,below the Guaranteed Rated Energy Capacity,for each
Day after the Guaranteed Substantial Completion Date in which Developer does not demonstrate
compliance with the Capacity Guarantee.
(b) Developer may declare that it has achieved Substantial Completion if the Facility
achieves less than the Planned Roundtrip Efficiency Rate in the Roundtrip Efficiency Test,but in no
case less than the Roundtrip Efficiency Guarantee, by paying Buyer the Guaranteed Roundtrip
Efficiency Liquidated Damages. In the event that the Project's actual efficiency achieved in the
Roundtrip Efficiency Test is less than the Roundtrip Efficiency Guarantee, then Developer shall not
be entitled to declare Substantial Completion and Developer shall, at Developer's sole cost and
expense, promptly rectify any such deficiencies so that the efficiency of the Project achieved in the
Roundtrip Efficiency Test at least meets or exceeds the Roundtrip Efficiency Guarantee (and to the
extent,after such repairs,the efficiency of the Project achieved in a subsequent Roundtrip Efficiency
Test is less than the Planned Roundtrip Efficiency Rate but greater than the Roundtrip Efficiency
Guarantee,pay Buyer the Guaranteed Roundtrip Efficiency Liquidated Damages).As used herein,the
"Guaranteed Roundtrip Efficiency Liquidated Damages"shall be product of(i)the percentage amount
by which the efficiency achieved in the Roundtrip Efficiency Test is less than the Roundtrip Efficiency
Guarantee and (ii) $[_] per MWh.
(c) Developer may declare that it has achieved Final Completion if the Project achieves
less than the Planned Availability by paying Buyer the liquidated damages set forth in Appendix 0.
Section 2 (the "Guaranteed Availability Liquidated Damages"). In the event that the Availability,
based on the Availability Test, is [_] ([_]%) less than the Availability Guarantee, then Developer
shall not be entitled to declare Final Completion and Developer shall, at Developer's sole cost and
expense, promptly rectify any such deficiencies so that the Availability Guarantee is achieved based
on the results of one or more retests of the Availability Test.
(d) In no event shall Developer be required to pay liquidated damages in connection with
the Performance Guarantees in excess of [_] ($[_]) (the "Performance Test Liquidated Damages
Cap").
20.4 Offset of EPC Contract Liquidated Damages.
After the Closing, with respect to any failure by the Contractor to achieve Mechanical
Completion (as defined in the EPC Contract) on or prior to the Guaranteed Mechanical Completion
Date (as defined in the EPC Contract), Buyer shall cause the Project Company to seek Delay
Liquidated Damages (as defined in the EPC Contract) from the Contractor to the maximum extent
available under the EPC Contract. The amount of any Mechanical Completion Liquidated Damages
payable by Developer under 20.2 shall be reduced dollar-for-dollar by the amount of any Delay
Liquidated Damages (as defined in the EPC Contract) received by the Project Company from the
Contractor under the EPC Contract.
20.5 Calculations and Payments of Liquidated Damages.
(a) All amounts payable as liquidated damages under this ARTICLE 20 shall be made by
Developer to Buyer no later than ten (10) days after the final day of each month during which
liquidated damages became payable. Buyer shall have the right to audit Developer's calculations of
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 272 of 495

all liquidated damages. Developer shall itemize such calculations and such calculations shall include
such supporting documentation as Buyer may reasonably request and shall be in sufficient detail to
permit Buyer to verify each calculation. Buyer shall notify Developer,as soon as reasonably possible,
of any portion of the calculations with which Buyer disagrees.
(b) Liquidated damages shall bear interest at the Late Payment Rate, compounded daily
from the date such amount was due, but not to exceed the maximum rate of interest permitted by
applicable Law.
ARTICLE 21
LIMITATION OF LIABILITY
21.1 Duty to Mitigate.
Except for losses indemnified pursuant to ARTICLE 17, but subject to any right or remedy
which the Party may have under or by virtue of this Agreement, the Party establishing or alleging a
breach or default of this Agreement or a right to recover damages or to be indemnified in accordance
with this Agreement shall be under a duty to take all commercially reasonable actions necessary to
mitigate any loss which has occurred.
21.2 Limitation of Liability.
SUBJECT TO THE OBLIGATION OF DEVELOPER TO PAY LIQUIDATED DAMAGES TO BUYER
UNDER THIS AGREEMENT AND OTHERWISE AS PROVIDED IN 2.11 AND 21.3,AND EXCEPT AS TO A
PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, NEITHER DEVELOPER NOR
BUYER SHALL BE LIABLE TO THE OTHER BY WAY OF INDEMNITY OR BY REASON OF ANY BREACH
OR DEFAULT OF THIS AGREEMENT OR ANY STATUTORY DUTY OR TORT(INCLUDING NEGLIGENCE
BUT EXCLUDING ANY DAMAGES PAYABLE TO A THIRD PARTY CAUSED BY A TRESPASS OR
NUISANCE FOR WHICH DEVELOPER IS RESPONSIBLE PURSUANT TO THIS AGREEMENT) FOR ANY
INDIRECT OR CONSEQUENTIAL (INCLUDING LOST PROFITS,TO THE EXTENT SUCH DAMAGES ARE
INDIRECT), MULTIPLE, PUNITIVE, OR EXEMPLARY DAMAGES THAT MAY BE SUFFERED BY THE
OTHER; PROVIDED, THAT LOSSES OR DAMAGES ATTRIBUTABLE TO, RESULTING FROM OR
ARISING IN CONNECTION WITH THE LOSS, DISALLOWANCE, REDUCTION OR RECAPTURE OF, OR
INABILITY TO CLAIM, TAX BENEFITS SHALL NOT CONSTITUTE SPECIAL, INDIRECT,
CONSEQUENTIAL, MULTIPLE, PUNITIVE, OR EXEMPLARY DAMAGES FOR PURPOSES OF THIS
AGREEMENT.
21.3 Enforceability of Liquidated Damages.
The Parties explicitly agree and intend that the provisions of ARTICLE 20 shall be fully
enforceable by any court exercising jurisdiction over any dispute between the Parties arising under
this Agreement. Each Party hereby irrevocably waives any defenses available to it under law or
equity relating to the enforceability of the liquidated damages provisions set forth in ARTICLE 20.
ARTICLE 22
INDEMNIFICATION
22.1 Indemnification.
(a) From and after the Closing, Developer shall defend, indemnify, and hold harmless
Buyer and the other Buyer Indemnified Parties from, for, and against all Claims and Liabilities
(including third party Claims and Liabilities) caused by, arising out of, or in connection with: (i)
breach by Developer of its representations and warranties under this Agreement; (ii) breach by
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 273 of 495

Developer of its covenants, agreements, or obligations pursuant to this Agreement or any
Transaction Document; (iii) Developer's fraud,gross negligence, or willful misconduct; (iv) any loss
in value of, or any inability to claim or otherwise take advantage of,relevant federal,state,and local
tax credits and accelerated deprecation (MACRS) due to any act or omission by Developer; (v) any
security breach, cyber-attack, other data security, or cyber incident or unauthorized access to any
Developer IT Asset, which resulted in the unauthorized use, misappropriation, modification,
encryption,corruption,disclosure,or transfer of any material information or data contained therein
relating to the Project Company or the Project Assets, (vi) Intellectual property infringement with
regard to the Project Assets; (vii)Claims or Liabilities arising from any oral farming leases pertaining
to the any part of the Site that were not properly and legally terminated in accordance with Idaho
law prior to the Closing Date, (viii) Claims or Liabilities of the Project Company arising on or prior to
the Closing Date, including Pre-Closing Liabilities, (ix) of any ITC benefit, and (x) any payments or
other obligations to the Contractor or other Subcontractors under any of the Project Contracts
(including but not limited to Construction Costs,Interconnection Costs,or other payments under the
EPC Contract and Major Supply Agreements), whether such payments or obligations arise or are
incurred prior to,on,or after the Closing Date.
(b) From and after the Closing, Buyer shall defend, indemnify, and hold harmless
Developer and its Affiliates, directors, officers, employees, and agents, from, for, and against all
Claims and Liabilities (including third-party Claims and Liabilities) caused by, arising out of, or in
connection with: (i) breach by Buyer of its representations and warranties under this Agreement;
(ii) breach by Buyer of its covenants, agreements, or obligations pursuant to this Agreement or any
Transaction Document; (iii) Buyer's fraud, gross negligence, or willful misconduct; and (iv) and,
except to the extent part of Developer's obligations under this Agreement (including its
indemnification obligations set forth herein, including pursuant to 22.1 a Claims or Liabilities of
the Project Company first arising after the Closing Date.
(c) Notwithstanding any other provision of this Agreement or any other Transaction
Document, following the Closing Date, a Party seeking indemnification under this Agreement (the
"Indemnified Party") shall not be entitled to make any Claim for indemnification under 22.1 a or
22.1 b above with respect to the inaccuracy of any representation or warranty unless and until the
aggregate amount of all Claims and Liabilities for indemnification exceeds one percent (1%) of the
Purchase Price (the "Tipping Basket Amount"). If and when the Tipping Basket Amount is reached,
the Indemnified Party shall be entitled to make a Claim for indemnification for all Claims and
Liabilities with respect to the inaccuracy of representations or warranties.
(d) An Indemnified Party's claim shall not exceed one hundred percent (100%) of the
Purchase Price (the "Liability Cap"), except in the case of fraud, willful misconduct, or gross
negligence of a Party or its related persons, and for intellectual property infringement, liens,
construction costs,and specified Pre-Closing Liabilities,for which there will be no Liability Cap.
(e) Buyer's right to indemnification based on representations, warranties, covenants,
and other obligations in the Agreement will not be limited, diminished, or otherwise affected by any
investigation conducted or knowledge obtained by Buyer before or after Closing with respect to the
accuracy or inaccuracy of such representations,warranties,covenants or other obligations.
(0 The Indemnified Party shall give notice to the Party required to provide
indemnification hereunder (the "Indemnifying Party") promptly after the Indemnified Party has
actual knowledge of any Claim as to which indemnity may be sought hereunder,and the Indemnified
Party shall permit the Indemnifying Party (at the expense of the Indemnifying Party) to assume the
defense of any Claim resulting therefrom; provided that:
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 274 of 495

(i) counsel for the Indemnifying Party who shall conduct the defense of such
Claim shall be reasonably satisfactory to the Indemnified Party;
(ii) the Indemnified Party may participate in such defense at its own expense,
except the Indemnifying Party shall reimburse the Indemnified Party for its participation in such
defense to the extent that the Indemnifying Party requests the Indemnified Party to participate in its
own defense; and
(iii) the omission by the Indemnified Party to give notice as provided herein shall
not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent
that such omission results in a failure of actual notice to the Indemnifying Party and the Indemnifying
Party is damaged as a result of such failure to give notice.
Notwithstanding the foregoing,the Indemnifying Party may not settle any Claim or Liability related
to the indemnity being provided hereunder without the consent of the Indemnified Party, such
consent not to be unreasonably withheld or delayed.
(g) With regard to any Claim or Liability which is the result of the joint or concurrent
fault or negligence of Developer and Buyer or either Party and the Project Company,as the case may
be,the Parties agree to jointly defend any Claim or Liability with respect thereto that is based on such
joint or concurrent fault or negligence of Buyer and Developer or either Party and the Project
Company, as the case may be. Any Liability or Claim of contribution or indemnification between
Buyer and Developer relating to such Liabilities Claims shall be resolved on the basis of the
percentage of fault or negligence and the Parties agree to reserve the determination of such
percentage until after resolution of such Claim or Liability. Such pro rata share shall be based upon
a final judicial determination of the Parties'comparative fault or negligence or,in the absence of such
determination,by mutual agreement of the Parties.
(h) Nothing in this 22.1 is intended to allow any Indemnified Party to be indemnified
from and against any third party Claims and Liabilities caused by,arising out of,or in connection with
the performance of this Agreement or any other Transaction Document to the extent any of such
Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection
with its own breach of any representation,warranty,or obligation under this Agreement or any other
Transaction Document to which it is a party or its negligence,gross negligence or willful misconduct.
(i) For the purposes of determining whether an Indemnified Party has the right to
indemnification under 22.1 and for the purposes of determining the amount of Claims or Liabilities
under 22.1, the representations and warranties contained in this Agreement that are qualified by
reference to"material,""materially,""Material Adverse Change,"or any similar term shall be deemed
to have been made without giving effect to such materiality qualifiers and such certificates shall be
deemed to have been delivered without any"material" qualification.
(j) The amount of any indemnity payment made under this 22.1 shall be reduced by the
amount of any indemnity or other payment received by the Indemnified Party from any counterparty
to a Project Company Contract in respect of the event giving rise to the right of indemnity under this
22.1.
22.2 Title Indemnity and Liens.
(a) Developer shall promptly pay or cause to be paid when due all obligations for labor
and material in connection with the Work. Developer shall discharge at once,or bond with a bonding
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 275 of 495

company or surety acceptable to Buyer or otherwise secure against all Liens and attachments which
are filed in connection with the Work.
(b) Developer shall keep the Work and the Site free and clear of and shall promptly
release or cause the release of all Liens and Claims, including recorded notices, Claims for
nonpayment and lis pendens, arising from the performance of any Work covered by this Agreement
or any other Transaction Document by the Developer Parties and all laborers, materialmen,
mechanics,and other such persons. Developer shall have the right to contest any such Lien or Claim;
provided,that Developer first provide to Buyer financial assurances in amount, form,and substance
satisfactory to Buyer and otherwise complies with applicable Law with respect to removal of such
Lien or Claim.
(c) Developer shall indemnify, defend, and hold harmless all Buyer Indemnified Parties
from, for, and against (i) all laborers', material men's, and mechanics' Liens, or Claims made or filed
upon the Work or the Site on account of any labor performed or labor, services, equipment, and
materials furnished by the Developer Parties and all laborers, materialmen, mechanics, and other
persons in connection with the Work and (ii) any defect in title upon any of Work, including the
Equipment, Materials,and the Project,supplied pursuant to this Agreement.
(d) If any Lien or Claim arising out of this Agreement or any other Transaction Document
is filed before or after Work is completed,Developer,within ten (10) days after receiving from Buyer
written notice of such Lien or Claim, shall obtain release or provide financial assurance satisfactory
to Buyer to protect Buyer from or otherwise satisfy such Lien or Claim. If Developer fails to do so,
Buyer may take such steps and make such expenditures as in its discretion it deems advisable to
obtain release of or otherwise satisfy any such Lien or Claim, and Developer shall upon demand
reimburse Buyer for all costs incurred and expenditures made by Buyer in obtaining such release or
satisfaction including administrative costs, attorneys' fees and other expenses or Buyer shall have
the right to deduct the amount of such costs from the amount payable to Developer.
(e) Developer's obligation to indemnify, defend, and hold harmless Buyer Indemnified
Parties from Liens and Claims shall not in any way be rendered unenforceable, or altered,amended,
eliminated, or otherwise conditioned by any applicable Laws related to processing such Liens or
Claims. Buyer shall have no obligation to deliver a copy of any notice of Claim or right to a Lien to
Developer or any other person or entity.
(f) Developer shall at its own expense defend any suit or proceeding based on any Claim
for which Developer is responsible under this 22.3. Buyer shall give Developer such assistance as
Developer may reasonably require in the defense of such Claim,and Buyer shall have the right to be
represented therein by counsel of its own choosing at its own expense. If Developer fails to defend
diligently any such Claim, Buyer may, in its reasonable discretion, either defend or settle the Claim
without the consent of Developer and without relieving Developer of the obligation to indemnify as
provided herein. In such a case Developer's obligation to defend shall include reimbursement of
Buyer's reasonable legal fees and related costs incurred in defending or settling the Claim.
22.3 Intellectual Property.
In case any part of the Work or the ownership or operation of the Project is held to infringe
or violate any patent, copyright, or other intellectual property right of a third party, and the use of
the Work, or the operation of the Project is restricted or prohibited as a result thereof, Developer
shall, at its sole cost and expense, at Developer's option, either (i) procure for Buyer the right to
continue using the Work, (ii) replace the same with non-infringing comparable substitute Work, or
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(iii) modify the Work so that it becomes non-infringing; provided, that such modification does not
adversely affect the Work.
22.4 Indemnity Period.
The Parties' obligation to indemnify one another consistent with the provisions of this
ARTICLE 22 shall continue after the Closing Date as follows (collectively,the"Indemnity Period"):
(a) Developer Indemnity of Buyer Indemnified Parties.
(i) Except as set forth in 22.4 ii -hiii).below,Developer's obligation to indemnify
Buyer Indemnified Parties pursuant to 22.1 a i and 22.1 a (iv) shall survive for two (2) years
following the Closing Date.
(ii) Developer's obligation to indemnify Buyer Indemnified Parties pursuant to
22.1 a i for a breach of Developer's Fundamental Representation and a breach of the
representations and warranties set forth in 4_6, 4.17, 4.18 and ARTICLE 17, and pursuant to
22.1(a)(iii), 22.1(a)(v), 22.1(a)(vi) and 22.1(a)(vii),in each case,shall survive indefinitely.
(iii) Developer's obligation to indemnify Buyer Indemnified Parties pursuant to
22.1 a i for a breach of the representations and warranties set forth in 4.14 shall survive for a
period of five (5) years following the Closing Date.
(iv) Developer's obligation to indemnify Buyer Indemnified Parties pursuant to
22.1 a (ii) shall survive until such covenants are fully performed.
(b) Buyer Indemnity of Developer.
(i) Buyer's obligation to indemnify Developer Indemnified Parties pursuant to
22.1 a i for a breach of Buyer's Fundamental Representation or pursuant to 22.1(a)(iv), shall
survive indefinitely.
(ii) For all other Claims and Liabilities,Buyer's obligation to indemnify Developer
Indemnified Parties pursuant to 22.1 a shall survive for twenty-four (24) months following the
Closing Date.
22.5 Tax Treatment of Indemnity Payments.
All indemnity payments under ARTICLE 17 or this ARTICLE 22 will be treated as a non-
taxable adjustment of the Purchase Price, unless otherwise required by applicable Laws (as
reasonably determined by Buyer),in which case the payment will be paid on an After-Tax Basis.
ARTICLE 23
INSURANCE
23.1 Contractor's and Subcontractors' Insurance Coverage.
Developer shall maintain,shall cause the Project Company to maintain,and shall require and
cause Contractor and all Major Subcontractors, while performing work on the Site, to provide, pay
for, and continuously maintain in full force and effect insurance coverage in accordance with the
requirements of Appendix L-1.
Exhibit No. 1
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23.2 Buyer's Insurance.
Buyer shall during the term of this Agreement maintain in full force and effect insurance
coverage in accordance with the requirements of Appendix L-2.
23.3 Developer's Cooperation with Buyer.
Developer agrees to provide such assistance and documentation as Buyer may request in
connection with Claims Buyer may make under its insurance policies purchased in connection with
the Project for damage or events that occur after the Execution Date and prior to the expiration of
the applicable Warranty Period.
ARTICLE 24
FORCE MAJEURE
24.1 Effect of Force Majeure.
With the exceptions of Developer's obligation to completely fund all Construction Costs and
Interconnection Costs and all of Developer's payment and indemnity obligations hereunder, neither
Party shall be in default or in breach of its obligations under this Agreement or otherwise be liable to
the other Party for any delay or failure in the performance of any of its obligations under this
Agreement if and to the extent such delay or failure is a result of Force Majeure. The protections
afforded under this 24.1 to a Party shall be of no greater scope and no longer duration, than is
required by the Force Majeure. Notwithstanding anything to the contrary contained in this 24.1, no
Force Majeure shall relieve,suspend, or otherwise excuse any Party from performing any obligation
to make any payment owed to another Party or to indemnify,defend,or hold harmless another Party
pursuant to this Agreement. In no event may Developer claim a Force Majeure for economic reasons
or for changes in Developer's costs or the costs of Contractor or Subcontractors,including commodity
price changes, disruption in supply chain, changes in labor markets, increased cost of labor or
transportation, or due to changes in scope due to changes in engineering, design, or applied
engineering not requested by Buyer. The Parties agree that no delay caused by any Force Majeure
will result in a change to the Purchase Price.
24.2 Notice of Occurrence.
If either Party considers that any event of Force Majeure has occurred which may affect
performance of its obligations under this Agreement,it shall promptly notify the other Party thereof
stating the full particulars, including the obligations that are affected thereby, the estimated period
during which performance may be delayed or prevented, and the particulars of the program to be
implemented to resume normal performance hereunder. If a"Force Majeure"event under any of the
Project Company Contracts occurs with respect to or is claimed by Contractor or any Major
Subcontractor, then Developer shall promptly provide notice thereof to Buyer describing: (i) the
obligations of Contractor or Major Subcontractor that are affected; (ii) the estimated period during
which performance may be delayed or prevented; and (iii) the particulars of the program to be
implemented by Contractor or Major Subcontractor in order to resume normal performance
thereunder; provided,that in no event shall Developer be relieved of any of its obligations under this
Agreement as a result of Contractor or any Major Subcontractor's claimed "Force Majeure" event
under the applicable Project Company Contract unless such "Force Majeure" under the applicable
Project Company Contract independently qualifies as an event of Force Majeure under this
Agreement.
Exhibit No. 1
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24.3 Performance to Continue.
Upon the occurrence of any event of Force Majeure, the affected Party shall use reasonable
efforts to mitigate the effects of Force Majeure,resume normal performance of this Agreement within
the shortest time practicable and continue to perform its obligations under this Agreement insofar
as they are not affected by the Force Majeure.
24.4 Termination in Consequence of Force Majeure.
If an event of Force Majeure continues for a period of one hundred twenty (120) days in the
aggregate that materially affects the ability of Developer to perform the Work,and as a result thereof
there is a corresponding delay in the schedule for performance of the Work and the Guaranteed
Substantial Completion Date of at least one hundred twenty (120) days, then, notwithstanding that
Developer may by reason thereof have been granted an extension of the schedule for performance of
the Work and the Outside Closing Date, by Change Order, Buyer shall be entitled to terminate this
Agreement upon thirty (30) days advance written notice to Developer. If at the expiration of such
thirty (30)-day period such Force Majeure shall still continue, this Agreement shall automatically
terminate without any further action on the part of either Party and the provisions of 26.1 shall apply.
24.5 Risk of Loss.
Prior to termination of this Agreement,nothing in this ARTICLE 24 shall change the allocation
to Developer of the risk of loss or damage prior to the Substantial Completion Date and any Change
Order resulting from a Force Majeure shall take into account such allocation of the risk of loss or
damage.
ARTICLE 25
DEFAULT
25.1 Developer Default.
Developer shall be in default(a"Developer Default") hereunder if:
(a) Developer fails to pay Buyer any undisputed amount due Buyer under this
Agreement,and such failure continues for fifteen (15) Business Days after Developer receives notice
thereof from Buyer;
(b) Developer fails to pay Contractor any undisputed amount due Contractor under the
EPC Contract and such failure continues for fifteen (15) Business Days after Developer receives
notice thereof from Buyer;
(c) Developer fails to deliver and maintain Credit Support as required by ARTICLE 6,and
such failure continues for seven (7) Business Days after Developer receives notice thereof from
Buyer;
(d) Contractor fails to deliver and maintain Credit Support as required by the EPC
Contract and such failure continues for five(5) Business Days after Developer receives notice thereof
from Buyer;
(e) Developer accrues Delay Liquidated Damages in excess of the Delay Liquidated
Damages Cap;
(f) Developer accrues Performance Liquidated Damages in excess of the Performance
Liquidated Damages Cap;
Exhibit No. 1
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(g) Developer fails in any material respect to comply with any of its other material
obligations under this Agreement (not otherwise described in this 25.1) and such failure continues
for thirty(30)days after Developer receives notice thereof from Buyer;provided,however,that such
period of thirty(30) days shall be extended for a period not to exceed an additional thirty (30) days
if: (i) such breach is reasonably capable of cure and curing such breach reasonably requires more
than thirty (30) days; (ii) Developer commences such cure as soon as reasonably practicable after
Developer receives notice thereof;and(iii) Developer continuously and diligently pursues such cure;
(h) Developer shall (i) commence a voluntary case under the Bankruptcy Code; (ii) file a
petition seeking to take advantage of any other Laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding up, or composition or adjustment of debts (collectively,
"Bankruptcy Laws"); (iii)consent to or fail to contest in a timely and appropriate manner any petition
filed against it in an insolvency case under Bankruptcy Laws; (iv) apply for, or consent to or fail to
contest in a timely and appropriate manner, the appointment of, or the taking of possession by, a
receiver, custodian, trustee, liquidator, or the like of itself or of a substantial part of its assets; (v)
admit in writing its inability to pay, or generally not be paying, its debts (other than those that are
the subject of bona fide disputes) as they become due; (vi) make a general assignment for the benefit
of creditors; (vii)take any action for the purpose of effecting any of the foregoing; or(viii)have a case
or other proceeding commenced by a third party against it seeking (A) relief under the Bankruptcy
Code or under any other Bankruptcy Laws or (B) the appointment of a trustee, receiver, custodian,
liquidator,or the like of such Developer Party of all or any substantial part of its assets,and such case
or proceeding shall continue undismissed or unstayed for a period of sixty(60) days;
(i) any representation or warranty made by Developer for which an express remedy is
not provided shall prove to have been false in any material respect as of the date made or deemed
made; provided, however, that if the circumstances which make such representation or warranty
false are subject to cure or remedy by Developer within a period of thirty (30) Business Days and
Developer is diligently pursuing such cure or remedy, then such representation or warranty being
false in any material respect shall not become a Developer Default until thirty (30) Business Days
after Developer receives notice thereof from Buyer (unless such representation and warranty is no
longer false in any material respect prior thereto); or
(j) Developer makes a Material Update to the disclosure schedules which has not been
cured within thirty(30) days following receipt of written notice of such Material Update.
25.2 Buyer Default.
Buyer shall be in default(a"Buyer Default") hereunder if:
(a) Buyer fails to pay Developer any undisputed amount due Developer under this
Agreement, and such failure continues for fifteen (15) Business Days after Buyer receives notice
thereof from Developer;
(b) Buyer fails in any material respect to comply with any of its other material obligations
under this Agreement (not otherwise described in this 25.2); provided,however, that if such failure
can be cured or remedied by Buyer within a period of thirty (30) Business Days and Buyer is
diligently pursuing such cure or remedy, then such failure shall not become a Buyer Default until
thirty (30) Business Days after Buyer receives notice thereof from Developer (unless such failure is
cured or remedied prior thereto);
(c) Buyer shall (i) commence a voluntary case under the Bankruptcy Code; (ii) file a
petition seeking to take advantage of any Bankruptcy Laws; (iii) consent to or fail to contest in a
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timely and appropriate manner any petition filed against it in an insolvency case under the
Bankruptcy Laws; (iv) apply for,or consent to or fail to contest in a timely and appropriate manner,
the appointment of, or the taking of possession by, a receiver, custodian, trustee, liquidator, or the
like of itself or of a substantial part of its assets; (v) admit in writing its inability to pay, or generally
not be paying, its debts (other than those that are the subject of bona fide disputes) as they become
due; (vi) make a general assignment for the benefit of creditors; (vii)take any action for the purpose
of effecting any of the foregoing;or(viii)have a case or other proceeding commenced by a third party
against it seeking (A) relief under the Bankruptcy Code or under any other Bankruptcy Laws or (B)
the appointment of a trustee, receiver, custodian, liquidator or the like of Buyer of all or any
substantial part of its assets,and such case or proceeding shall continue undismissed or unstayed for
a period of sixty(60) days; or
(d) any representation or warranty made by Buyer in this Agreement for which an
express remedy is not provided shall have been false in any material respect as of the date made;
provided however,that if the circumstances which make such representation or warranty false are
subject to cure or remedy by Buyer within a period of thirty (30) Business Days and Buyer is
diligently pursuing such cure or remedy, then such representation or warranty being false in any
material respect shall not become a Buyer Default until thirty(30)Business Days after Buyer receives
notice thereof from Developer (unless such representation and warranty is no longer false in any
material respect prior thereto).
25.3 Cure Rights.
(a) Cure Rights. During the occurrence and continuance of any Developer Default and
upon receipt of any notice that Developer is in default of any of its obligations under this or any of
the Transaction Documents,and in addition to any other rights Buyer may have hereunder or at law
or in equity, Buyer shall have the right,but not the obligation, to cure any Developer Default under
this or any Transaction Document. If Buyer at any time exercises its right under this 25.3(a)
Developer shall indemnify Buyer from,for,and against any third-party costs incurred to exercise its
right under this 25.3(a).
(b) No Excuse. Notwithstanding the exercise by Buyer of any of its rights under this 25.3,
nothing set forth in this 25.3 shall excuse Developer of its obligations to remedy a Developer Default
and perform its obligations hereunder.
ARTICLE 26
TERMINATION
26.1 Termination by Buyer.
(a) Upon the occurrence and continuation of a Developer Default, this Agreement shall
terminate as follows:
(i) with respect to a Developer Default described in 25.1, upon delivery to
Developer of written notice of termination after the end of the applicable cure period provided for in
25.1, and if no such cure period is provided for in 25.1, then fourteen (14) days after delivery to
Developer of such written notice of termination.
(b) Notwithstanding anything to the contrary in this Agreement, in the event of any
termination by Buyer under this 26.1 or otherwise, Buyer shall be entitled to seek all damages
available at law or in equity with respect to any Claims or Liabilities arising as a result of such
Developer Default,notwithstanding a termination of this Agreement.
Exhibit No. 1
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26.2 Termination by Developer.
(a) Upon the occurrence and continuation of a Buyer Default, this Agreement shall
terminate as follows:
(i) with respect to a Buyer Default described in 25.2 c ,immediately; and
(ii) with respect to a Buyer Default described in 25.2 (other than 25.2 c ), upon
delivery to Developer of written notice of termination after the end of the applicable cure period
provided for in 25.1, and if no such cure period is provided for in 25.1,then fourteen (14) days after
delivery to Developer of such written notice of termination.
Notwithstanding anything to the contrary in this Agreement, in the event of any termination by
Developer under this 26.2 with respect to a Buyer Default set forth in 25.2 a Developer shall be
entitled to seek all damages available at law or in equity with respect to any Claims or Liabilities
arising as a result of such Buyer Default, notwithstanding a termination of this Agreement. OTHER
THAN AS EXPRESSLY SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE,THE RIGHTS AND
REMEDIES OF DEVELOPER SET FORTH IN 26.2(a) FOR A BUYER DEFAULT ARE THE EXCLUSIVE
REMEDIES OF DEVELOPER AND NO OTHER REMEDIES OF ANY KIND WHATSOEVER SHALL EXIST
OR APPLY IN THE EVENT OF A BUYER DEFAULT OR TERMINATION OF THIS AGREEMENT BY
DEVELOPER IN ACCORDANCE WITH THIS ARTICLE 26.
ARTICLE 27
DISPUTE RESOLUTION
Following written notice from either Party to the other Party setting forth a dispute arising
from, relating to or otherwise in connection with or arising out of this Agreement, the Parties shall
use good faith efforts to settle such dispute through negotiation between Buyer's Representative and
Developer's Representative. If the dispute is not resolved by such negotiations within fifteen (15)
days after delivery of such initial notice,either Party may,by delivering a subsequent written notice
to the other Party, cause the matter to be referred to a meeting of appropriate senior management
representatives of the Parties with the power and authority to resolve such dispute. Such meeting
shall be held within thirty(30) days following the delivery of the subsequent notice. If the matter is
not resolved within thirty (30) days after the first such meeting of the senior management
representatives or such later date as may be mutually agreed upon by the Parties, either Party may
then, subject to the terms of this Agreement, commence legal action in a court of competent
jurisdiction in order to resolve the dispute.
ARTICLE 28
ASSIGNMENT
28.1 Assignment of Developer's Interests.
(a) Developer shall not sell,transfer, or otherwise assign (directly or indirectly,through
merger,Change of Control,or otherwise),in whole or part,this Agreement without the prior written
consent of Buyer; provided, however, that Buyer's consent shall not be required for (i) a collateral
assignment of the Agreement to any Lender for the purpose of construction financing of the Project;
or (ii) to an Affiliate that is wholly-owned by the ultimate parent of Developer; provided that such
assignment to an Affiliate shall only be allowed if(A) such Affiliate remains an Affiliate of Developer
(B)the Credit Support provided by Developer or,if applicable,Project Company remains in place and
covers such Affiliate's obligations,(C)such Affiliate shall execute an assumption agreement assuming
all of Developer's obligations under this Agreement, (D) such Affiliate is (or has contracted with) a
Exhibit No. 1
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Qualified Operator, and (E) such Affiliate (or its parent company) has experience in project
development and construction management of similar projects of a similar size.
(b) A Change of Control with respect to Developer's Parent shall be considered an
assignment of this Agreement to a third party and shall be subject to 28.1(a).
(c) In the event Developer desires to make an assignment pursuant to 28.1 a i above,
Buyer agrees to use commercially reasonable efforts to cooperate with Developer's pursuit of
construction financing,including by providing such customary certificates,opinions,and consents as
lenders may reasonably require in connection therewith,provided that any such consents shall be in
the form attached to this Agreement as Exhibit I unless Buyer agrees to any deviations thereto, and
provided further that Developer shall reimburse Buyer for its out-of-pocket costs and expenses
(including reasonable attorney's fees and expenses) in regards to such certificates, opinions, and
consents.
28.2 Assignment of Buyer's Interests.
Buyer shall not sell, transfer, or otherwise assign (directly or indirectly, through merger,
Change of Control,or otherwise),in whole or part,this Agreement without the prior written consent
of Developer; provided, however, that Developer's consent shall not be required for Buyer's
assignment of the Agreement to an Affiliate or successor-in-interest that is equally creditworthy(or
better) to Buyer and which assignee executes an assumption agreement assuming all of Buyer's
obligations under this Agreement.
ARTICLE 29
CONFIDENTIALITY
29.1 Confidentiality
(a) Information may be exchanged between Buyer and Developer that is CEII or the
disclosing Party considers proprietary and confidential. Each Party agrees that it shall and shall
cause its Affiliates and its and their respective officers, directors, consultants, employees, legal
counsel, agents, and representatives (together with the Affiliates,the "Confidentiality Affiliates") to:
(i) hold confidential and not disclose (other than to its Confidentiality Affiliates having a reasonable
need to know in connection with the permitted purposes hereunder), without the prior consent of
the other Party, all CEII, known confidential or proprietary written or oral information or data
(including sources of equity or other financing, development strategy, competitor information, cost
and pricing data, warranties, technical information, research, developmental, engineering,
manufacturing, marketing, sales, financial, operating, performance, business and process
information or data,knowhow and computer programming and other software techniques)provided
or developed by the other Party or its Confidentiality Affiliates in connection herewith or the Work
("Confidential Information");and (ii) use such Confidential Information or CEII only for the purposes
of performing its obligations or exercising its rights hereunder. In no event shall any Confidential
Information or CEII be disclosed to any competitor of Developer or Buyer. For Confidential
Information that is not CEII or a trade secret under applicable Law, the foregoing obligations shall
expire three (3)years after the Substantial Completion Date. The obligation to not disclose and hold
CEII as confidential survives indefinitely.
(b) The obligations contained in the preceding paragraph shall not apply, or shall cease
to apply,to Confidential Information if or when,and to the extent that,such Confidential Information
(i) was known to the receiving Party or its Confidentiality Affiliates prior to receipt from the
disclosing Party or its Confidentiality Affiliates; (ii) was, or becomes through no breach of the
Exhibit No. 1
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receiving Party's obligations hereunder, known to the public; (iii) becomes known to the receiving
Party or its Confidentiality Affiliates from other sources under circumstances not involving any
breach of any confidentiality obligation between such source and the disclosing Party's or disclosing
Party's Confidentiality Affiliates or a third party; (iv) is independently developed by the receiving
Party or its Confidentiality Affiliates; (v) is required to be publicly disclosed by applicable Law or
Governmental Authority or applicable legal process (this does not include disclosures that are made
under a protective agreement or similar instrument); or (vi) relates to the tax treatment or tax
structure of any transaction contemplated by this Agreement(the "Transaction"). The Parties (and
any employee, representative, or agent of any party) may disclose to any and all persons, without
limitation of any kind,the tax treatment and tax structure of the Transaction and all other materials
of any kind (including opinions or other tax analyses) that are provided to any party hereto to the
extent relating to such tax treatment and tax structure, it being understood that this ARTICLE 29 is
intended to prevent the Transaction from being treated as a"reportable transaction"as a result of it
being a transaction offered to a taxpayer under conditions of confidentiality within the meaning of
Sections 6011,6111 and 6112 of the Code(or any successor provision)and the Treasury Regulations
thereunder(as clarified by Notice 2004-80 and Notice 2005-22) and shall be construed in a manner
consistent with such purpose. Developer acknowledges that Buyer is subject to regulation as a public
utility, and as such may be required to disclose all or substantially all information provided by
Developer pursuant to this Agreement, including the terms of this Agreement and any Transaction
Document,by order of state and federal Governmental Authorities, and that such disclosure shall in
no event be deemed a violation of this ARTICLE 29.
(c) When required by a Governmental Authority, a Party may disclose the Confidential
Information (but not CEII) of the other Party to such Governmental Authority; provided however,
that prior to making any such disclosure, such Party shall (unless prohibited from doing so by
applicable Law or the Governmental Authority): (i) provide the other Party with timely advance
notice of the Confidential Information requested by such Governmental Authority and the intent of
such Party to so disclose; (ii)minimize to the extent possible(consistent with applicable Law and the
requirements of the Governmental Authority involved)the amount of Confidential Information to be
provided to the Governmental Authority involved;and(iii)make every reasonable effort(which shall
include participation by the other Party in discussions with the Governmental Authority involved)to
secure confidential treatment and to minimize the Confidential Information to be provided. In the
event that efforts to secure confidential treatment are unsuccessful, the other Party shall have the
prior right to revise such information to minimize the disclosure of such Confidential Information in
a manner consistent with applicable Laws and the requirements of the Governmental Authority
involved
(d) Notwithstanding anything to the contrary contained herein, Buyer may disclose
Confidential Information upon reasonable notice to Developer if Buyer reasonably determines,based
upon its status as a regulated public utility,that disclosure to a Governmental Authority is necessary
or appropriate in connection with any submission or application to, or response from, any such
authorities regarding this Agreement, the effect thereof on Buyer's rates or investment return or
similar matters;provided,that Buyer shall(i)use commercially reasonable efforts to keep Developer
informed with respect to such disclosures, (ii) file a written request in the form of a motion for
protective order or for confidential treatment or other comparable written request that any
Confidential Information be afforded confidential treatment and otherwise endeavor to obtain
confidential treatment of Confidential Information,and (iii) notify Developer promptly if it receives
notice of any challenge to the request that such Confidential Information be afforded confidential
treatment.
Exhibit No. 1
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(e) Buyer's disclosure of drawings and manuals received from Developer Parties to third
parties in accordance with Buyer's rights and obligations hereunder shall not be a breach of this
ARTICLE 29.
ARTICLE 30
MISCELLANEOUS PROVISIONS
30.1 Notices,Consents,and Approvals.
Contact information for notices, requests, demands and other communications required or
permitted hereunder is as follows:
(a) if to Developer,to:
1
or to such other person(s) or address(es) as Developer shall provide to Buyer from time to time in
accordance with this 30.1;
(b) if to Buyer,to:
I
and:
1
with copies to:
or to such other person(s) or address(es) as Buyer shall provide to Developer from time to time in
accordance with this 30.1.
(c) All notices (including acceptances, consents, approvals, agreements, deliveries of
information, designations), requests, demands, and other communications required or permitted
hereunder shall be in writing, properly addressed as provided in paragraphs (a) and (b) above, and
given by (i) hand delivery, (ii) a national overnight courier service, (iii) confirmed e-mail
transmission, followed by a hard copy, or (iv) certified or registered mail, return receipt requested,
and postage prepaid. Any such notice,request,demand,or other communication shall be deemed to
have been duly given as of the date delivered if by hand delivery,national overnight courier service,
or confirmed e-mail transmission (provided a hard copy promptly follows by other means provided
herein). Any notice shall be deemed delivered five (5) days after mailing if by certified or registered
mail.
30.2 Entire Agreement.
This Agreement, together with the Appendices, Schedules, and Exhibits attached hereto,
contains the entire agreement and understanding of the Parties with respect to the subject matter
hereof and supersedes all prior agreements and understandings, whether written or oral, of the
Parties relating to the subject matter hereof. Any oral or written representation,warranty,course of
dealing,or trade usage not contained or referenced herein shall not be binding on either Party.
30.3 Amendment;Waiver.
No amendment or other modification of any provision of this Agreement shall be valid or
binding unless it is signed by each of the Parties. No waiver of any provision of this Agreement shall
Exhibit No. 1
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be valid or binding unless it signed by the Party waiving compliance with such provision. No delay
on the part of either Party in exercising any right, power, or privilege hereunder shall operate as a
waiver thereof, nor shall any waiver or any partial exercise of any such right, power, or privilege
preclude any further exercise thereof or the exercise of any other such right,power,or privilege. No
waiver of any breach,term,or condition of this Agreement by any Party shall constitute a subsequent
waiver of the same or any other breach,term,or condition of this Agreement.
30.4 Successors and Assigns.
Each and all of the rights, obligations, covenants, terms, provisions, and agreements herein
contained shall be binding upon and inure to the benefit of the Parties hereto and, to the extent
permitted by this Agreement,their respective successors and assigns.
30.5 Third Party Beneficiaries.
The provisions of this Agreement shall only be for the benefit of, and enforceable by, the
Parties hereto and shall not inure to the benefit of or be enforceable by any third party.
30.6 Severability.
In the event any one or more of the provisions contained in this Agreement should be held
invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the
remaining provisions contained herein shall not in any way be affected or impaired thereby.
30.7 Further Assurances.
Each Party shall execute and deliver or cause to be executed and delivered such documents
and instruments not otherwise specified herein,and take or cause to be taken all such other actions,
as the other Party may reasonably request to more fully and effectively carry out the intent and
purposes of this Agreement.
30.8 Publicity.
Except as required by applicable Law,the Parties agree that neither Party will issue or release
for external publication any press release, article, advertising, or other publicity matter in any form
(including print, electronic, or interview) relating to the Project, or to this Agreement without first
consulting with and obtaining the prior written consent of the other Party,which consent shall not
be unreasonably withheld or delayed; provided, however, that a press release or other public
announcement, regulatory filing, statement, or comment made without such consent shall not be in
violation of this 30.8 if it is made in order for the disclosing Party or any of its Affiliates to comply
with applicable Laws or applicable stock exchange rules and in the reasonable judgment of the Party
making such release or announcement, and prior review and joint approval by the Parties, despite
reasonable efforts to obtain the same,would prevent dissemination of such release or announcement
in a sufficiently timely fashion to comply with such applicable Laws or rules.
30.9 Independent Contractor.
Developer is an independent contractor with respect to the Work,and each part thereof,and
in respect of all work to be performed hereunder. Neither Developer nor any of the other Developer
Parties shall be deemed to be agents,representatives,joint ventures,employees,or servants of Buyer
by reason of their performance hereunder or in any manner dealt with herein. Neither Party shall
perform any act or make any representation to any Person to the effect that Developer or any other
Developer Parties is the agent of Buyer.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 286 of 495

30.10 Separation of Functions.
Developer hereby acknowledges that (i) Buyer is acting solely in its capacity as a local
distribution company, (ii)the activities of Buyer or its Affiliates as Transmission Provider are outside
the scope of this Agreement, and (iii) neither Buyer nor its Affiliates shall not have any liabilities or
obligations hereunder arising out of any actions or inactions of Buyer or its Affiliates acting in its role
as Transmission Provider.
30.11 Survival.
The provisions of ARTICLE 20 (LIQUIDATED DAMAGES) ARTICLE 21 (LIMITATION OF
LIABILITY), ARTICLE 22 (INDEMNIFICATION), ARTICLE 27 (DISPUTE RESOLUTION), ARTICLE 29
(CONFIDENTIALITY), 8.19 (Records and Accounts), and 30.12 (Governing Law, Waiver of Jury Trial.)
of this Agreement shall survive the expiration or earlier termination of this Agreement indefinitely;
provided, that the foregoing enumeration shall not be interpreted to bar survival of any other
provision hereof which by its express terms or by operation of Law would otherwise be deemed to
survive.
30.12 Governing Law;Waiver of Jury Trial.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF IDAHO (WITHOUT GIVING EFFECT TO THE PRINCIPLES
THEREOF RELATING TO CONFLICTS OF LAW).
(B) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY CONSENTS AND AGREES
THAT ANY LEGAL ACTION OR PROCEEDINGS WITH RESPECT TO THIS AGREEMENT SHALL BE
BROUGHT EXCLUSIVELY IN ANY OF THE COURTS OF THE UNITED STATES OF AMERICA LOCATED
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO,HAVING SUBJECT MATTER
JURISDICTION, OR IF SUCH COURT LACKS SUBJECT MATTER JURISDICTION, THEN THE STATE
COURT IN ADA COUNTY, IDAHO.
(c) EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT OR ANY MATTER ARISING HEREUNDER
OR THEREUNDER. EACH PARTY HEREBY WAIVES ANY RIGHT TO CONSOLIDATE ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
OR ANY OTHER TRANSACTION DOCUMENT OR ANY MATTER ARISING HEREUNDER OR
THEREUNDER IN WHICH A JURY TRIAL HAS NOT OR CANNOT BE WAIVED.
30.13 Counterparts.
This Agreement may be executed by the Parties in two or more separate counterparts
(including by PDF transmission), each of which shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute one and the same instrument.
30.14 Captions.
The captions for Articles and Sections contained in this Agreement,including the Appendices,
Schedules and Exhibits attached hereto,are for convenience and reference only and in no way define,
describe, extend or limit the scope or intent of this Agreement or the intent of any provision
contained herein.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
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30.15 Offset.
Notwithstanding any other provision of this Agreement to the contrary,any and all amounts
owing and payable by Buyer or Developer to the other hereunder for the Work, shall be subject to
offset and reduction in an amount equal to any amounts that may be owing at any time. Further,for
the avoidance of doubt, with respect to any provision of this Agreement that allows Buyer to offset,
setoff or draw against a bond or other credit support any amount then owed to Developer, Buyer
shall have the express right to include in the amount offset, set-off or drawn under a bond or other
credit support all of the reasonable costs and expenses it incurs in connection with enforcing such
provision (including attorneys' and other consultants'fees).
30.16 Time of the Essence.
Time is of the essence in the performance of the Work by Developer hereunder.
30.17 Non-Exclusive Remedy.
Except as otherwise provided in the Transaction Documents,duties and obligations imposed
by the Transaction Documents and rights and remedies available thereunder shall be in addition to
and not a limitation of duties,obligations,rights and remedies otherwise imposed or available at law
or in equity.
30.18 Recitals.
The Recitals in this Agreement are incorporated into this Agreement by reference.
30.19 Supplier Code of Conduct.
At all times during the term of this Agreement, Contractor agrees to comply with IPC's
Supplier Code of Conduct, as revised from time to time, and available at
www.idahopower.com/AboutUs/BusinessToBusiness/default.cfm.
30.20 Prohibited Technology.
Prohibited Technolog . Pursuant to Section 889 of the John S. McCain National Defense
Authorization Act for Fiscal Year 2019 and Federal Acquisition Regulation (FAR) 52.204-25
(Aug. 2020), Seller agrees, represents,and warrants that Seller shall not supply or deliver to
IPC any "covered telecommunications equipment or services" as a substantial or essential
component of any system or critical technology of any system. As defined in FAR 52.204-
25(a), "covered telecommunications equipment or services" includes equipment, systems,
products, or services made by any of the following companies, or any subsidiary or affiliate
thereof (including companies with the same principal word in the name, e.g., "Huawei" or
"Hytera"): Huawei Technologies Company; ZTE Corporation; Hytera Communications
Corporation; Hangzhou Hikvision Digital Technology Company; or Dahua Technology
Company. "Covered telecommunications equipment or services" may include, but are not
limited to, video/monitoring surveillance equipment/services, public switching and
transmission equipment, private switches, cables, local area networks, modems, mobile
phones, wireless devices, landline telephones, laptops, desktop computers, answering
machines,teleprinters,fax machines,and routers. "Covered telecommunications equipment
or services"do not include telecommunications equipment that cannot route or redirect user
data traffic or permit visibility into any user data or packets that the equipment transmits or
handles.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 288 of 495

To the extent that the systems, products, or services to be provided by Seller under this
Agreement may be procured by IPC in support of or to satisfy IPC's obligations under
agreements with a federal governmental entity, Seller further agrees that FAR 52.204-25
(Aug. 2020),except for paragraph(b)(2)thereof,shall be incorporated by reference into this
Agreement and is binding on Seller, and that Seller does not use any equipment, system, or
service that uses covered telecommunications equipment or services and will not supply any
covered telecommunications equipment or services to IPC. Seller further agrees that, if it
identifies covered telecommunications equipment or services used as a substantial or
essential component of any system or as critical technology as part of any system during
contract performance,or Seller is notified of such by a subcontractor at any tier or any other
source, Seller shall immediately notify IPC and reasonably cooperate with IPC's requests for
information
30.21 Performance Security.
Within five (5) Business Days after IPUC Submission,Developer shall provide,or cause to be
provided cash collateral or a letter of credit,at the option of Developer,including,without limitation,
Buyer's applicable credit support requirements,in the amount of$[_]million("Developer Security").
Within five (5) Business Days after IPUC Approval and through Final Completion,the amount
of Developer Security that Developer shall be required to provide shall increase to $[Project Cost]
million.
Within five (5) Business Days after Final Completion, through two years after the Final
Completion, the amount of Developer Security that Developer shall be required to provide shall be
decreased to$[_] million.
(Signature page follows)
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 289 of 495

IN WITNESS WHEREOF, each of the authorized representatives of the Parties have executed
this Agreement as of the first date set forth above.
DEVELOPER: [ ]
By:
Name:
Title:
BUYER: IDAHO POWER COMPANY
By:
Name:
Title:
Exhibit No. 1
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APPENDICES
Exhibit No. 1
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APPENDIX A
TECHNICAL SPECIFICATION AND SCOPE OF WORK
[See separate attachment]
Appendix A-1 Exhibit No. 1
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APPENDIX B
PROJECT SCHEDULE
[See separate attachment]
Appendix 13-1 Exhibit No. 1
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APPENDIX C
MAJOR SUBCONTRACTORS
[See separate attachment]
Appendix C-1 Exhibit No. 1
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APPENDIX D
D-1: FORM OF CERTIFICATE OF MECHANICAL COMPLETION
D-2: FORM OF CERTIFICATE OF SUBSTANTIAL COMPLETION
D-3: FORM OF CERTIFICATE OF FINAL COMPLETION
[See separate attachments]
Appendix D-1 Exhibit No. 1
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APPENDIX E
MAJOR EQUIPMENT WARRANTIES
[See separate attachment]
Appendix E-1 Exhibit No. 1
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APPENDIX F
MANUALS
[See separate attachment]
Appendix F-1 Exhibit No. 1
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APPENDIX G
ENGINEERING DOCUMENTS,DRAWINGS,AND OTHER DELIVERABLES
[See separate attachment]
Appendix G-1 Exhibit No. 1
Case No. IPC-E-26-03
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APPENDIX H
KEY PERSONNEL
Buyer's Key Person
Name:
Title:
Phone:
Email:
Developer's Key Person
Name:
Title:
Phone:
Email:
Contactor's Key Person (to be provided following execution of the EPC Contract.
Name:
Title:
Phone:
Email:
Major Subcontractor's Key Person (to be provided following execution of Major Subcontracts)
Name:
Title:
Company:
Phone:
Email:
Major Subcontractor's Key Person
Name:
Title:
Appendix H-1 Exhibit No. 1
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APPENDIX H
Company:
Phone:
Email:
Major Subcontractor's Key Person
Name:
Title:
Company:
Phone:
Email:
Appendix H-2 Exhibit No. 1
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APPENDIX I
RELEASE AND WAIVER OF LIENS AND CLAIMS
[See separate attachments]
Appendix I-1 Exhibit No. 1
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APPENDIX J
CRITICAL MILESTONES
[See separate attachment]
Appendix J-1 Exhibit No. 1
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APPENDIX K
FORM OF PROGRESS REPORT
1.0 Progress Report Requirements
Electronic copies of each complete and final Progress Report in accordance with the below
requirements and the requirements of Section 11.6 of the Agreement shall be provided in Microsoft
Word, Microsoft Excel, Microsoft Project,and Adobe Acrobat.
Each Progress Report shall satisfy the minimum requirements herein.
(a) Table of Contents- Progress Report
(b) Executive Summary- Current Month
A synopsis and narrative of project status, issues and near future plans addressing specific
aspects of the project shall be included in the Progress Report, including a description of
construction, engineering (by discipline), procurement (issuance of major purchase orders and
subcontracts),shipment/delivery of major items,and expected Milestone Completion Dates.
(c) Personnel Safety
A synopsis of Developer's safety performance for the preceding month shall be included in
the Progress Report, including numbers and types of injuries and lost time accidents.
(d) Environmental Report
A synopsis of Developer's environmental compliance for the preceding month shall be
included in the Progress Report, including a description of any deviations and reporting from
applicable regulations, codes,and standards.
(e) Summary of Progress and Status of Project.
Preceding Month -A synopsis of the project progress completed as of the preceding month
shall be included in the Progress Report. The reporting format shall be based on completion of
Critical Milestones and other critical path activities, and construction, engineering (organized by
discipline),procurement(issuance of purchase orders),shipment of materials and equipment to the
Site, status of material and equipment in storage,training,and start-up.
Next Month-The expected progress for the project in the next month shall be included in the
Progress Report in outline form based on engineering, procurement, shipment, construction, and
equipment installation and commissioning.
(f) Organization Chart
A current organization chart for the project, including all subcontractors on Site during the
previous month and expected to be on Site for the next month.
(g) Meeting Status
A summary with minutes of major meetings for the preceding month shall be included as well
as an agenda for next month's meeting identifying the date, location, expected attendees, and a one
or two-sentence summary of anticipated topics of discussion for the next month and schedule for the
next month meeting date.
(h) Priorities/Issues/Concerns
Appendix K-1 Exhibit No. 1
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APPENDIX K
Identification and evaluation of critical issues shall be included in the Progress Report.Any
critical issues shall be highlighted in the relevant section of the Progress Report.
(i) Schedule Update
Reporting on important items and events, such as purchases and dates of arrival of major
Equipment components and the completion of Critical Milestones shall be included in the Progress
Report.
The reporting format(hard and electronic copy)shall use Microsoft Project. An updated copy
of the Project Schedule shall be attached to the Progress Report with a written analysis of schedule
status, including forecasted and actual versus planned progress as indicated by the initial base line
Project Schedule (and any updates thereof), with reference to the Critical Milestones and Project
Schedule.
Progress curves measuring actual progress versus planned progress for the total progress as
well as for individual bulk quantities such as cable pulled,terminations,duct bank, concrete poured,
steel erected,structures erected,conductor installed, etc.,shall be included in the Progress Report.
(j) Permit Status
A list of Permits and Developer Regulatory Approvals shall be included in the Progress
Report, including current status and the date each Permit and Developer Regulatory Approval is to
be obtained.
(k) Drawings and Procurement Status
The updated engineering drawing list, engineering and procurement schedule, and current
status as compared to overall Project Schedule shall be included in the Progress Report. Depending
upon volume,this may be submitted on a monthly basis as a separate document.
(1) Project Financial Status
The section shall include the billing, forecast, and accrual breakdowns, for the preceding
month, a comparison of the progress payment schedule with the actual progress payments to date,
financial review of the project to date for each line segment and the substations, and updated
commodity curves for the project.
Appendix K-2 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
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APPENDIX L
Appendix L-1
DEVELOPERINSURANCE
Developer shall obtain or cause Project Company or Contractor to obtain all insurance
policies as set forth in Section (C) below. For purposes of this Appendix L-1: Developer Insurance,
insurance requirements shall be met by either Developer, Project Company or its Contractor, as set
forth in Section (C) below. Each such policy shall be set forth in Schedule 4.20.
A. Insurance and Indemnification
Prior to the Execution Date, and as may be required pursuant to any Permit or Developer
Regulatory Approval, Developer (or Project Company) will obtain, maintain, and pay for such
insurance as may be required by the Agreement and to effect the provisions of the indemnification
sections herein. The coverage of such policies is set forth below.
B. Insurance Certificates
Upon request by Buyer,Developer shall(or shall cause the Contractor or the Project Company
to) furnish certificates of insurance to Buyer evidencing that the insurance required below is in force
and effect, whether such policy is that of Developer, Project Company, or Contractor. Upon request
by Buyer, Developer shall (or shall cause the Contractor or the Project Company to) provide new,
replacement certificates, evidencing the procurement of successor policies to the expiration of each
required policy for so long as this Agreement is in effect.
C. Required Insurance and Limits of Liability
Prior to the Execution Date, and as may be required pursuant to any Permit or Developer
Regulatory Approval, and until Final Completion, Developer, Project Company or Contractor, as the
case may be, shall obtain and maintain in force and effect, at Developer's sole expense, insurance of
the following types and amounts from insurance companies authorized to engage in the business of
insurance in the state(s) in which Work will be performed, and rated by AM Best's A - VII (or
equivalent rating from such other nationally recognized insurer rating firm such as S&P, Fitch, or
Moody's) or better:
(i) WORKERS' COMPENSATION INSURANCE
(A) Developer (to the extent Developer employs any Person) and
Contractor shall carry Worker's Compensation Insurance affording statutory benefits in accordance
with all requirements of the applicable worker's compensation laws in the state(s)in which the Work
will be performed and covering Developer's and Contractor's employees.
(B) If the exposure exists and Developer's and/or Contractor's
performance of the Work involves work on navigable waters, Developer shall also obtain and
maintain in force insurance complying with the U.S. Longshoreman's and Harbor Worker's Act, the
Outer Continental Shelf Act,and covering Jones Act liability.
(ii) EMPLOYER'S LIABILITY INSURANCE
(A) Developer and Contractor shall carry Employer's Liability Insurance
with limits of not less than [$1,000,000] per accident or disease; [$1,000,000] disease-each
employee; [$1,000,000] disease-policy limit.
(iii) FEDERAL EMPLOYERS LIABILITY ACT (FELA) INSURANCE
Appendix L-1 Exhibit No. 1
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APPENDIX L
(A) If a railroad exposure exists, any railroad employee contracted by
Developer and/or Contractor to engage in the construction or work on railroads shall be covered
under the Federal Employers Liability Act of 1908 for injuries.
(iv) COMMERCIAL GENERAL LIABILITY INSURANCE
(A) Developer and Contractor shall carry Commercial General Liability
Insurance, including coverage for bodily injury and property damage, personal and advertising
injury, the products-completed operations hazard, insured contracts, and, if applicable, contractual
liability-railroads (CG 24 17) or equivalent, applicable in all states in which the Work is to be
performed, on a form no less broad that that promulgated by the Insurance Services Office dated
2004 or thereafter,and with limits of not less than:
Each Occurrence [$1,000,000]
General Aggregate [$2,000,000]
Products-Completed Operations Aggregate [$2,000,000]
Personal and Advertising Injury [$1,000,000]
(v) BUSINESS AUTOMOBILE LIABILITY INSURANCE
(A) Contractor shall carry Business Automobile Liability Insurance on a
form no less broad than that promulgated by the Insurance Services Office dated 1985 or thereafter,
will limits of not less than [$1,000,000] combined single limit for each accident and covering owned
(if any),hired or leased, and non-owned autos.
(vi) EXCESS OR UMBRELLA LIABILITY INSURANCE
(A) Developer and Contractor shall carry Excess or Umbrella Liability
Insurance applying excess of Employer's Liability Insurance,Commercial General Liability Insurance,
and Business Automobile Liability Insurance with limits of not less than [$20,000,000] per
occurrence and in the aggregate.
(vii) MARINE LIABILITY INSURANCE
(A) If a marine liability exposure exists, Developer and/or Contractor
shall carry Marine Liability Insurance, including Hull and Machinery Insurance, to include collision
liability coverage with sistership clause un-amended(assuming collision coverage is not provided by
P&I insurance),with limits of liability not less than the full value of all vessels used in performing the
Work,and without navigational limitations impeding performance of the Work. If vessels will engage
in towing operations, such insurance shall include full towers' liability with sistership clause un-
amended.
(B) If a marine liability exposure exists, Developer and/or Contractor
shall carry Marine Liability Insurance, including Protection and Indemnity (P&I) Insurance
evidenced through an entry with an international P&I Club or,alternatively,coverage under form SP-
23,such coverage to include,in either case,liability coverage for collision,towing,seepage,pollution,
contamination and cleanup, and to include coverage extensions for marine contractual liability,
removal of wreck and debris,with a limit of liability of not less than [$10,000,000] any one accident
or occurrence and in the aggregate.
Appendix L-2 Exhibit No. 1
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APPENDIX L
If P&I coverage is not provided by a P&I Club, Developer and/or Contractor shall also carry vessel
pollution insurance with the Water Quality Insurance Syndicate (WQIS), or its equivalent,to include
coverages for liability under those U.S. statues applicable to pollution from operations in the U.S.
waters, including the Gulf of Mexico, with a limit of liability of not less than [$5,000,000] any one
accident or occurrence and in the aggregate.
(C) If Developer,Project Company and/or Contractor will use non-owned
watercraft under a time charter agreement for the Work, then Developer and/or Contractor, as
applicable, shall also carry Charterer's Legal Liability Insurance or Comprehensive General Liability
Insurance with non-owned watercraft exclusions deleted, with a limit of liability of not less than
$5,000,000 any one accident or occurrence and in the aggregate.
(VIII) POLLUTION LIABILITY INSURANCE
(A) Contractor shall carry Pollution Liability Insurance in the form of
Contractor's Pollution Liability (CPL) Insurance for sudden and accidental, and gradual, pollution
conditions, arising directly or indirectly from the Work or from Contractor's operations with limits
of not less than [$5,000,000] per pollution event or claim and in the aggregate. Contractor's CPL
Insurance shall provide Developer and Buyer with additional insured status,a waiver of,and notice
of cancellation with thirty (30) days' written notice (except ten (10) days for non-payment of
premium).
(B) Contractor's CPL insurance shall remain in full force for not less than
two (2) years after completion of the Work, shall not exclude damage to Buyer's property, shall not
exclude liability assumed or indemnified for under this Agreement, and shall include coverage for
each of the following:
Completed Operations;
All premises where the Work will be performed,extending to pollution emanating from the premises
to adjacent or other property or waterways;
Bodily Injury (including death), Property Damage and Environmental Cleanup Costs, including for
mold, fungi, legionella, and silt and sedimentation. The coverage must apply to all premises and
extend to pollution emanating from premises;
Natural Resources Damages;
Fines and Penalties to the extent insurable under governing Law;
Transportation(by owned or non-owned vehicles)of any waste,including loading or unloading,from
jobsites to the final disposal location,as well as to any temporary storage location or transshipment
or transfer sites; and
Disposal locations,whether final or temporary, covered as non-owned disposal sites.
(ix) PROFESSIONAL LIABILITY INSURANCE
(A) Developer or Contractor shall carry Professional Liability Insurance
covering tortious errors and omissions in the performance of the Work,and not excluding damage to
Buyer,with limits of not less than [$1,000,000] per claim and in the aggregate.
(x) RAILROAD PROTECTIVE LIABILITY INSURANCE
Appendix L-3 Exhibit No. 1
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APPENDIX L
(A) If a railroad exposure exists, Developer and/or Contractor shall carry
Railroad Protective Liability Insurance with limits of liability of not less than[$2,000,000] per claim
and [$6,000,000] in the aggregate or limits as specified by the railroad.
(xi) PROPERTY AND BUILDER'S RISK INSURANCE
(A) Developer shall obtain and maintain in force property insurance
covering the entire Work prior to commencing the Work and until Mechanical Completion. Such
insurance shall be written in the amount at least equal to the initial contract sum as well as
subsequent modifications of that sum (subject to usual and customary policy sublimity for certain
perils /coverages). The insurance shall apply on a replacement cost basis or completed value form
(including foundations and other property below the surface of the ground).
(B) Such insurance shall provide coverage to the same extent generally
available on commercially reasonable terms for similar work, and shall include coverage for loss
during the ordinary course of transit and/or during offsite storage. Buyer,Developer,Contractor and
Subcontractors shall be included as insureds. Any insured loss shall be payable to Buyer and
Developer as their interests may appear.
(C) Such property insurance shall have the following minimum
requirements and other customary coverage in amounts and on terms and conditions as described
below:
Coverage shall be afforded from the point of groundbreaking for the Project and through the
Mechanical Completion Date;
The insurance shall be written to cover all risks of physical loss except those specifically
excluded in the policy and shall insure at a minimum the perils of fire, lightning, flood, earth
movement,windstorm,hurricane,hail,explosion,machinery breakdown,marine cargo (to the extent
exposure exists) inland transit;
Coverage shall be provided for the cost of removing debris including demolition as may be
made legally by the operation of law, ordinance or regulation in an amount that is reasonable and
customary for projects of the type of the Project;
Policy shall include as insured property scaffolding, false work and temporary buildings
located at the site,as applicable;
Off-site storage coverage with a per occurrence limit sufficient to cover off-site storage of
equipment and materials but in an amount not less than [$100,000];
Transit coverage with a per occurrence limit of the full insurable value of any single shipment;
Coverage for operational testing and startup in an amount not less than full replacement
value of the Project for all assets related to the Project with cover running continuously for machinery
breakdown from the beginning of testing until Mechanical Completion; and
Any and all deductibles or self-insured retentions of all insurance policies required
hereunder shall be assumed by, for the account of and at the Developer's or Contractor's,as the case
may be,sole risk and expense and shall not be billed to or payable by Buyer or its direct and indirect
subsidiaries and affiliates, including limited liability companies. All such policies may have
deductibles of not greater than [$250,000] per loss except as respects natural catastrophe perils.
Appendix L-4 Exhibit No. 1
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APPENDIX L
(D) Developer or Contractor shall provide property insurance on an 'all
risk'form covering all property,tools,equipment and machinery used by Developer or Contractor in
the performance of the Work (whether owned,leased, rented or borrowed) at full replacement cost
value and containing a waiver of subrogation in favor of Buyer; provided, that Contractor may self-
insure with respect to the above requirement regarding tools and equipment. In either case,
insurance or self-insurance, neither Developer nor Contractor may seek recovery from Buyer for
damaged or lost property, tools, equipment or machinery used by Developer or Contract in the
performance of the Work.
The forgoing required insurance is the minimum insurance required by this Agreement.
Developer may, in its sole discretion, procure additional insurance or higher limits of liability at
Developer's sole expense.
D. Buyer To Be Named An Additional Insured
To the extent allowed by law, the Commercial General Liability Insurance, Business
Automobile Liability Insurance, and Excess or Umbrella Insurance, as required above, shall be
endorsed to provide that Buyer,together with its owned or controlled subsidiaries and affiliates,and
their respective directors, officers and employees (collectively, the "Additional Insureds"), are
granted status as additional insureds for liability arising out of the Work,with coverage not limited
to liability caused by Developer or Developer's fault, and providing coverage for the Additional
Insureds'fault or vicarious liability no less broad than one or the other of the following alternatives:
(1) the coverage afforded to the named insured under the policy for liability arising out of the Work;
or (2) the coverage afforded by the inclusion of both Insurance Services Office Additional Insured
Endorsements CG 20 33 07 04 and CG 20 37 07 04, or equivalents.
The insurance policies required by Commercial General Liability Insurance and Business
Automobile Liability Insurance, above, shall provide that the Additional Insureds are covered on a
primary basis. Also, the insurance policies required by Commercial General Liability Insurance,
Business Automobile Liability Insurance, and Excess or Umbrella Liability Insurance, above, shall
also be endorsed to provide that coverage for the Additional Insureds does not apply excess of other
insurance coverage available to the Additional Insureds,and that Developer's insurers will not seek
contribution or recovery from such other insurance as may be available to the Additional Insureds.
E. Insurance Required of Subcontractors
Developer shall require Contractor and all Subcontractors who will perform any of the Work
to obtain the same insurance and limits of liability as required by Workers'Compensation Insurance,
Employer's Liability Insurance, Commercial General Liability Insurance, and Business Automobile
Liability Insurance above. Developer shall require Contractor and all Major Subcontractors who will
perform any of the Work to obtain the same insurance and limits of liability as required by Excess or
Umbrella Liability Insurance above and all other Subcontractors who will perform any of the Work
to obtain Excess or Umbrella Liability Insurance with limits of not less than [$5,000,000] per
occurrence and in the aggregate; provided, that if any such Subcontractor does not carry Excess or
Umbrella Liability Insurance meeting such requirements but does carry Excess or Umbrella Liability
Insurance meeting generally accepted industry standards for the scope of work to be performed by
such Subcontractor, such Subcontractor's coverage shall be deemed acceptable. Developer or
Contractor shall also require all such Subcontractors to cause their insurers to waive subrogation to
the same extent as required of Buyer's insurers by the following provision,Waiver of Subrogation in
Favor of Buyer.
Appendix L-5 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 309 of 495

APPENDIX L
F. Waiver of Subrogation in Favor of Buyer.
The Parties intend that none of Developer's insurers shall subrogate against Buyer, or any of
its owned or controlled subsidiaries or affiliates, or their respective directors, officers or employees.
Accordingly, Developer agrees to cause its insurers to waive subrogation against Buyer and all such
subsidiary or affiliated entities and persons. The foregoing release is effective even if Developer fails
to obtain the required insurance.
G. Notice of Cancellation.
Notice of cancellation shall be provided with thirty(30) days'written notice except ten (10)
days for non-payment of premium.
H. Notice of Impairment of Limits
Developer shall give written notice to Buyer no later than seven (7) days after the date on
which an impairment of an aggregate limit,due to the payment of a claim or defense expense,reduces
the available aggregate limit to an amount 50% or less than the aggregate limit required above. If
Developer's excess insurance will not drop down and comply with the insurance requirements,Buyer
may require reinstatement of an impaired aggregate limit up to the amount required.
I. Information Concerning Buyer's Insurance Program
If Buyer has questions concerning Developer's casualty insurance program,Developer agrees
to promptly answer them. Complete,true and correct copies of each policy required above shall be
furnished to Buyer promptly upon Buyer's request,but Developer may redact payroll,premium,and
other confidential information not related to the Project. Developer agrees to cooperate with Buyer,
and with Buyer's insurance broker, in the event Buyer elects to seek or obtain additional insurance
benefiting Buyer.
J. Developer's Compliance with Policy Conditions
Developer shall comply with and not violate or knowingly permit to be violated any condition
of the insurance policies required above. Developer agrees to give its insurers timely written notice
of all occurrences,accidents or claims arising out of the Work,with copy to Buyer.
K. Developer's Payment of Premiums,Deductibles and SIRs
Developer, not Buyer, shall be responsible for any and all policy premiums, deductibles, or
self-insured retentions payable in connection with Developer's insurance, including the insurance
required above.
L. Non-Waiver-No Limitation of Buyer's Rights
Developer unilaterally agrees to comply with the provisions of this Appendix L-1.
Accordingly, Buyer's knowledge concerning deficiencies in Developer's insurance, including non-
compliance with this Appendix shown by any insurance certificate or other information furnished to
Buyer, shall not affect Buyer's rights and shall not result in a waiver or otherwise limit or impair
Buyer's remedies for Developer's failure to comply with the requirements of this Appendix.
Nothing contained in this Appendix shall restrict, limit, impair or waive Buyer's rights or
Developer's duties under the other terms of this Agreement or under applicable Law. The
cancellation,expiration,or exhaustion of any of the insurance required shall not preclude Buyer from
recovery against Developer for any liability arising under this Agreement or Law.
Appendix L-6 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 310 of 495

APPENDIX L
M. Term of Insurance Requirement
All of the foregoing insurance requirements shall survive the termination of this Agreement.
All required insurance shall continue for at least thirty(30) days after final completion of the Work,
to include the performance of all warranty work.
In addition, Developer shall maintain in force and effect any required claims-made coverage
for a minimum of two (2) years after final completion of the Work and shall purchase an extended
reporting period, or"tail coverage",if necessary to comply with this requirement.
Appendix L-7 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 311 of 495

APPENDIX L
Appendix L-2
BUYERINSURANCE
A. Insurance and Indemnification
After Closing, Buyer will or will cause the Project Company to obtain, maintain, and pay for
such insurance as may be required by the Agreement and to effect the provisions of the
Indemnification section herein. The coverage of such policies is set forth below.
B. Insurance Certificates
Upon request by Developer, Buyer shall furnish certificates of insurance to Developer
evidencing that the insurance required below is in force and effect. Upon request by Developer,
Buyer shall provide new,replacement certificates, evidencing the procurement of successor policies
to the expiration of each required policy for so long as this Agreement is in effect.
Buyer warrants the accuracy of all information shown on each certificate furnished to
Developer by Buyer or on Buyer's behalf by Buyer's broker or other representative.
C. Required Insurance and Limits of Liability
After Closing, Buyer shall or shall cause Project Company to obtain and maintain in force and
effect, at Buyer's sole expense, insurance of the following types and amounts from insurance
companies authorized to engage in the business of insurance in the state(s) in which Work will be
performed,and rated by a Best's A-VII or better:
(i) COMMERCIAL GENERAL LIABILITY INSURANCE
(A) Buyer shall carry Commercial General Liability Insurance, including
coverage for bodily injury and property damage, personal and advertising injury, the products-
completed operations hazard, insured contracts, and contractual liability-railroads (CG 24 17),
applicable in all states in which the Work is to be performed, on a form no less broad that that
promulgated by the Insurance Services Office dated 2004 or thereafter, and with limits of not less
than:
Each Occurrence [$1,000,000]
General Aggregate [$2,000,000]
Products-Completed Operations Aggregate [$2,000,000]
Personal and Advertising Injury [$1,000,000]
(ii) BUSINESS AUTOMOBILE LIABILITY INSURANCE
(A) Buyer shall carry Business Automobile Liability Insurance on a form
no less broad than that promulgated by the Insurance Services Office dated 1985 or thereafter,will
limits of not less than[$1,000,000]combined single limit for each accident and covering owned,hired
or leased,and non-owned autos.
(iii) EXCESS OR UMBRELLA LIABILITY INSURANCE
(A) Buyer shall carry Excess or Umbrella Liability Insurance applying
excess of Employer's Liability Insurance, Commercial General Liability Insurance, and Business
Appendix L-8 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 312 of 495

APPENDIX L
Automobile Liability Insurance with limits of not less than [$10,000,000] per occurrence and in the
aggregate.
(iv) PROPERTY INSURANCE
(A) Buyer shall obtain and maintain in force all-risk property insurance
applying on a full replacement cost basis or completed value form (including foundations and other
property below the surface of the ground). Such insurance policy shall become effective as of
Mechanical Completion.
(B) Such property insurance shall have the following minimum
requirements and other customary coverage in amounts and on terms and conditions as described
below:
The insurance shall be written to cover all risks of physical loss except those specifically
excluded in the policy and shall insure at a minimum the perils of fire, lightning, flood, earth
movement, windstorm, hurricane, hail, explosion, machinery breakdown, marine cargo, inland
transit,and
Coverage shall be provided for the cost of removing debris including demolition as may be
made legally by the operation of law, ordinance or regulation in an amount not less than full
replacement value of the Project.
The forgoing required insurance is the minimum insurance required by this Agreement.
Buyer may,in its sole discretion,procure additional insurance or higher limits of liability at Buyer's
sole expense.
]]
Appendix L-9 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 313 of 495

APPENDIX M
CONTRACTOR'S SAFETY ASSURANCE PROGRAM
[To be attached prior to Closing]
Appendix M-1 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 314 of 495

APPENDIX N
N-1: FORM OF CHANGE ORDER
N-2: FORM OF CHANGE ORDER REQUEST
N-3: FORM OF CHANGE ORDER NOTICE
[See separate attachments]
Appendix N-1 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 315 of 495

APPENDIX O
PERFORMANCE GUARANTEES
Testing Frequency and Costs: The Performance Guarantee Tests will be run for the purpose of
achieving Substantial Completion and Final Completion at Developer's sole cost and expense. In the
event the Performance Guarantee Tests fail to achieve the Guaranteed Rated Energy Capacity or
Guaranteed Power Capacity,Developer shall have the right to re-test and shall have the right to make
adjustments to the Project Equipment to remedy any deficiencies between test attempts. Purchaser
has the right to request additional Performance Guarantee Tests. No material modifications to the
plant will be permitted between Purchaser's request and the performance of an additional
Performance Guarantee Test, but maintenance can be performed to address issues that have
occurred subsequent to a previous Performance Guarantee Test or are required to ensure equipment
is capable and set-up properly for a Performance Guarantee Test. Purchaser shall be responsible for
all costs incurred by conducting any additional Performance Guarantee Tests unless a Performance
Guarantee Test demonstrates that Developer has failed to achieve any of the Performance
Guarantees,in which case,Developer will be responsible for all costs of such Performance Guarantee
Tests until Developer demonstrates the Project meets the Performance Guarantees. Purchaser shall
be responsible for any costs associated with purchase or supply of power for the purpose of charging
the Project for all Performance Guarantee Tests and Project Commissioning.
Test Records: Developer shall record the results of each Performance Guarantee Test,provide all raw
data, records and results associated with each Performance Guarantee Test, and submit a testing
report detailing all results and findings of each Performance Guarantee Test to Purchaser within
eight (8) Business Days following completion of such Performance Guarantee Test. During the
performance of each Performance Guarantee Test, the Project shall be functioning in a manner to
permit Purchaser to remotely monitor, observe and independently verify the performance of the
Project through the Project's remote monitoring and control systems.
For the purposes of the Performance Guarantee Tests, the following metering configuration is
assumed. If alternate auxiliary power arrangements are used, the Performance Guarantee Tests
below shall be changed accordingly.
Appendix 0-1 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 316 of 495

APPENDIX O
1. Capacity Guarantee
The"Guaranteed Rated Energy Capacity"shall mean the guaranteed energy capacity(MWhAC)
delivered over a full continuous discharge of the Project at the Guaranteed Power Capacity(MW)
as set forth in the applicable Subsequent Purchase Order.
The"Energy Capacity"shall be defined as:
Energy Capacity=MVD
Where the following terms are defined as:
MVD = Medium Voltage Main Meter reading during discharge cycle ("Gross
Metering" in the metering configuration)
AXD=Auxiliary Meter reading during the discharge cycle ("Aux Metering"in
the metering configuration)
MVc = Medium Voltage Main Meter reading during charge cycle ("Gross
Metering"in the metering configuration)
AXc=Auxiliary Meter reading during the charge cycle ("Aux Metering"in the
metering configuration)
AXM = Maximum auxiliary energy consumed based on nameplate rating of
the auxiliary power transformer(s)
The"Guaranteed Power Capacity" shall mean the guaranteed Power Capacity set forth
in the applicable Subsequent Purchase Order. The "Power Capacity" is defined as the
Energy Capacity divided by the measured time required for discharge of the Guaranteed
Rated Energy Capacity. The metered instantaneous power shall be within +/- 2% of the
guaranteed power for the duration of the guaranteed power capacity test,with infrequent
momentary excursions from this band being acceptable.
Energy Capacity and Power Capacity shall be calculated by the following testing
procedure:
i. Rest 2 hours with cell temperatures at 25-35 'C.
ii. Charge the batteries with 0.25 cp to its cut-off voltage, then charge via
constant current - constant voltage method to full charge. Record the AC
energy for both the Gross Metering(MVc) and the Aux Metering (AXc)
iii. Allow batteries to rest for up to 30 minutes
iv. Discharge the batteries with 0.25 cp to its cut-off voltage to starting SOC
using constant current method. Record the AC energy for both the Gross
Metering (MVD) and the Aux Metering (AXD)
v. Allow batteries to rest for up to 30 minutes
vi. Repeat steps (ii) through (iv) two (2) times in total
The"Energy Capacity"is calculated as
ED = max{MVD1 +AXD1 —AXM,,MVD2 +AXDZ —AXMZ,MVD3 +AXD3 —AXM3}
Appendix 0-2 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 317 of 495

APPENDIX O
2. Availability Guarantee
The Project availability shall be at least ninety-eight percent(98%)for a period of fifteen(15)
Days of operation (the'Reliability Run Period").
"Availability"shall be calculated based upon the following formula:
• PH =period hours
• PMH = period planned maintenance hours (zero for the Reliability Run
Period)
• GPC = Guaranteed Power Capacity
• PC =Available power capacity (MW) defined as battery power capability on-
line and available for operation in either charge or discharge
• GEC = Guaranteed Rated Energy Capacity
• AC = Available energy capacity (MWh) defined as the battery energy storage
capacity online and available for operation in either charge or discharge
• PAC = Period unavailable average capability, calculated as the normalized
average of the maximum either energy storage capacity or power available
during the period. A sample is not valid if during planned maintenance or a
no-fault outage. ll
AC
PC
PAC = I 1 —min{GEC'GPC
• PFO = Period at-fault outage hours, defined as hours during which all or a
portion of the available energy or power capacity is unavailable
• PNFO= Period of not at fault(excused) outage hours,defined as hours during
which all or a portion of the available energy or power capacity is unavailable
due to no fault of Developer provided equipment
Therefore,Availability is calculated as the following:
Availability = 100 * (PH — PMH — PNFO —Z[PFO * PAC])
(PH — PMH — PNFO)
"Guaranteed Availability Liquidated Damages"shall be calculated in accordance with the
following formula:
GA — TAl 24 ho u r 5100
ArailabilityLD = GPC - Ynax(0, 100 1 t NDT`� y Day, • alit' — hr
+GPC • max 0, r N
( DCA GA —CAl 24hour S100
J `
100 Day MIV— hr
Appendix 0-3 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 318 of 495

APPENDIX O
NDTA 15 Days
GA 98%
TA Tested Availability(%) = Maximum availability(%) in a 15 Day continuous period
within the 30 Day window for the Reliability Run
CA Corrective Period Availability(%) =Average availability(%) in the time period
from end of the contractually defined Reliability Run to Day when the GA was met
over a continuous 15 Day period
NDCA Number of Days from end of the Reliability Run to when the GA was met
GPC Guaranteed Power Capacity
3. Roundtrip Efficiency Guarantee
Roundtrip Efficiency Test shall be conducted in conjunction with the Capacity Test.
The guaranteed Roundtrip Efficiency is denoted Use Case 1 in Appendix A.
The'Roundtrip Efficiency" is calculated as
Zcl
D1+AXD1 MVD2+AXD2 MVD3+AXD3
RTE = max —AXC1'MVCZ —AXC2'MVC3 —AXC3�
Where the following terms are defined as:
MVD= Medium Voltage Main Meter reading during discharge cycle
MVc= Medium Voltage Main Meter reading during charge cycle
AXc =Auxiliary Meter reading during charge cycle
AXD=Auxiliary Meter reading during discharge cycle
4. Charge Rate Guarantee
The Project,not including auxiliary power,must be designed and capable of charging at 100% of
the proposed AC power and energy capacity at the POI.
The charge rate shall be determined as part of the Roundtrip Efficiency Test.
The charge rate shall be defined as the energy capacity divided by the time required to charge the
Guaranteed Rated Energy Capacity.
Charge Rate Guarantee = (MVC —AXC)/TCH
Where the following terms are defined as:
Appendix 0-4 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 319 of 495

APPENDIX O
MVC = Medium Voltage Main Meter ("Gross Metering") reading during
charge cycle
TCH = Total Time to Charge
AXC =Auxiliary Meter ("Aux Metering") reading during charge cycle
S. Ramp Rate Guarantee
The Project shall be capable of responding to input signals and reaching 98% of full power
charging and discharging within 200 ms. The testing shall correspond with the Response Time
Guarantee.The Response Time Test is conducted concurrent with the Ramp Rate Test.
6. Response Time Guarantee
The Project shall be capable of responding to input signals and responding within 200 ms for the
duration of the Developer Warranty Period.
The response shall be defined as the time required for the Project output to transition from no
discharge to full rated discharge and from no charge to full rated charge when the breakers are
closed and the system is on-line.
The start time shall be when the signal is received at the Project boundary,and the end time shall
be when the measured discharge power reaches 100% ±2% of the rated power when the
breakers are closed and the system is on-line.
7. Auxiliary Load Guarantee
The maximum instantaneous auxiliary power consumption of the Project will be lower than the
rating of the auxiliary power transformer. Developer shall guarantee the maximum amount of
auxiliary load to be consumed by the Project, expressed in kW, measured at the auxiliary load
meter.
The auxiliary load test condition, including but not limited to ambient temperature, duty cycle
will be agreed upon by Purchaser and Developer. Correction curves will be allowed with the
concurrence of both Parties.
Auxiliary Load Guarantee= (Max{AXC,AXD,AXS))
Where the following terms are defined:
AXC =Auxiliary Meter maximum power reading during charge cycle
AXD =Auxiliary Meter maximum power reading during discharge cycle
AXS =Auxiliary Meter maximum power reading during standby
8. Power Factor Guarantee
In accordance with Appendix A,the power factor during charge and discharge operation shall be
Appendix 0-5 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 320 of 495

APPENDIX O
controlled to ± 0.95 at the POI, except as may be provided in a Subsequent Purchase Order. The
sizing and design requirements to meet Purchaser power factor requirements and any
modifications to BESS sizing shall be defined in Appendix A.
Details of the testing will depend on Project reactive power constraints and will be determined
as a part of Project design.Testing shall meet MRO MOD-025-02 including:
• At the real power rating equal to the real power rating of the Project(i.e.±0.95
PF at 25 MW for a 25 MW rated site)
• Testing of active power under charge and discharge conditions
Testing shall be done with approval of and in coordination with WECC and Buyer.
9. Noise Guarantee
The noise shall be less than 85 decibels on the A weighted scale at a distance of 1 meter along the
perimeter of the Project. Sound shall be measured at 1.5 meters above the grade elevation.
Appendix 0-6 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 321 of 495

APPENDIX P
COMPLETION CRITERIA
[See separate attachment]
Appendix P-1 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 322 of 495

APPENDIX Q
LIST OF INDEPENDENT ENGINEERS
[TBD]
Appendix Q-1 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 323 of 495

EXHIBITS
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 324 of 495

EXHIBIT A
FACILITIES DESCRIPTION
Battery Energy Storage Project to be located in [ ], Idaho
Planned Storage Capacity: [_]
Site location: [_]
Interconnection: [_]
Exhibit A— I Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 325 of 495

EXHIBIT B
[Reserved]
Exhibit B— 1 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 326 of 495

EXHIBIT C
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTEREST (this "Assignment"),
dated as of[_] (the"Transfer Date"),is by and between [_],a [_] ("Assignor"), and Idaho Power
Company., an Idaho public utility company, d ("Assignee"). Assignor and Assignee are sometimes
referred to herein collectively as the"Parties"and each individually as a"Party." Capitalized terms
used but not defined in this Assignment have the meanings given to them in the BTA (as defined
below).
Recitals
A. Assignor owns all of the interests of[_], a Delaware limited liability company (the
"Company'), including (without limitation) all economic, membership and ownership rights, title
and interests in the Company (collectively, the "Membership Interests"), including, but not limited
to, the right to a share of the profits and losses and capital of the Company, the right to receive
distributions from the Company,the right to inspect the Company's books and records,and the right
to vote and manage the Company.
B. Assignor has agreed to sell to Assignee, and Assignee has agreed to purchase from
Assignor, all of Assignor's Membership Interests in the Company, pursuant to that certain Build
Transfer Agreement,dated as of[ ] (the"BTA").
NOW,THEREFORE,in consideration of the mutual covenants and agreements and other good
and valuable consideration,the receipt and sufficiency of which are hereby acknowledged,Assignor
and Assignee do hereby agree as follows:
AGREEMENT
1. Assignment. Assignor hereby sells, conveys, assigns, transfers and delivers to
Assignee, and Assignee hereby purchases, assumes and acquires from Assignor, all of Assignor's
rights,title and interest in,to and under all of the Membership Interests free and clear of Liens.
2. Effective Time. This Assignment shall be deemed effective for all purposes at
12:01 A.M. Eastern Time on the Transfer Date.
3. Further Assurances. At any time,or from time to time after the date hereof,Assignor
and Assignee shall,at the other's reasonable request, and at the requesting Party's expense, execute
and deliver such instruments of transfer,conveyance,assignment and assumption,in addition to this
Assignment, and execute and deliver such other documents and take such other action as either of
them may reasonably request in order to evidence the transfer effected hereby.
4. Amendments. No amendment to the terms and conditions of this Assignment shall
be valid and binding on the Parties unless made in writing and signed by an authorized
representative of each of the Parties.
5. Waiver. No waiver of any provision of this Assignment, or breach hereof, shall be
effective unless it is in writing,signed by the Party waiving such provision.
6. Binding Effect; No Third-Party Beneficiaries. This Assignment shall be binding upon
and inure to the benefit of the Parties and their respective successors and permitted assigns. Nothing
contained herein, express or implied, is intended to confer on any person or entity other than the
Parties or their successors and permitted assigns, any rights, remedies, obligations or liabilities
under or by reason of this Assignment.
Exhibit C 4 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 327 of 495

EXHIBIT C
7. Governing Law. This Assignment shall be governed by and construed in accordance
with the laws of the State of New York without regard to principles of conflicts of law.
8. Entire Agreement. This Assignment constitutes the entire agreement and
understanding of the Parties with respect to the subject matter of this Assignment, and supersedes
all prior understandings and agreements, whether oral or written, between or among the Parties
hereto with respect to the specific subject matter hereof.
9. Conflict of Terms. This Assignment is delivered pursuant to and is subject to the
terms of the BTA. In the event of any conflict or ambiguity between the terms of the BTA and the
terms of this Assignment,the terms of the BTA shall control.
10. Severability. Each provision of this Assignment is intended to be severable. If any
term or provision is illegal or invalid for any reason whatsoever,such illegality or invalidity shall not
affect the legality or validity of the remainder of this Assignment.
11. Headings.The headings used in this Assignment are for purposes of convenience only
and shall not be used in construing the provisions hereof.
12. Counterparts. This Assignment may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument. Delivery of a copy of this Assignment bearing an original signature by electronic mail in
"portable document format" or by any other electronic means intended to preserve the original
graphic appearance of a document, will have the same effect as physical delivery of the paper
document bearing the original signature.
13. Recitals. The Recitals in this Assignment are hereby incorporated into this
Assignment by reference.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the Parties have caused
this Assignment to be executed as of the Transfer Date.
ASSIGNOR: [ ]
By:
Name:
Title:
ASSIGNEE: IDAHO POWER COMPANY
By:
Name:
Title:
Exhibit C— 5 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 328 of 495

EXHIBIT D
FORM OF BEGINNING OF CONSTRUCTION CERTIFICATE
[See separate attachment]
Exhibit D - 1 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 329 of 495

EXHIBIT E
FORM OF LETTER OF CREDIT
[Letterhead of Creditworthy Bank]
[Date]
Irrevocable Standby Letter of Credit No. [_]
Beneficiary:
Idaho Power Company.
[ ]
[ ]
Attn: [Name]
[Title]
[Phone]
Applicant:
[ ]
[ ]
[ ]
[ ]
Attn: Credit Department
Dear Madam or Sir:
As the issuing bank,we, [Name of Issuing Bank] ("Issuer"),hereby establish for the account
of[ ] ("Applicant"), Issuer's Irrevocable Standby Letter of Credit No. [ ] (this
"Letter of Credit") in favor of the above-named beneficiary ("Beneficiarv") for an amount of
[ J United States Dollars (US$[ ]) (the "Available Amount"). Applicant
has advised us that this Letter of Credit is issued in connection with the Build Transfer Agreement,
dated as of[_],between Applicant and Beneficiary (as amended and as may be further amended,
supplemented or otherwise modified). This Letter of Credit shall (i) become effective immediately
for the term of one (1) year and shall expire on [_] (the "Expiration Date"),and (ii) is subject to the
following:
1. Funds under this Letter of Credit shall be made available to Beneficiary against its
draft drawn on Issuer in the form of Annex 1 hereto("Draw Certificate"),accompanied by the original
of this Letter of Credit and all amendments (if any), or photocopy of the original Letter of Credit for
partial drawings,and presented at Issuer's office located at[_],attention[_] (or at any other office
which may be designated by Issuer by written notice delivered to Beneficiary). All Draw Certificates
must be signed on behalf of Beneficiary and the signatory must indicate his or her title or other official
capacity. No other documents will be required to be presented. A presentation under this Letter of
Credit may be made only on a day, and during hours, in which such office is open for business (a
"Business Day"). If Issuer receives Beneficiary's presentation at such office on any Business Day,all
in conformity with the terms and conditions of this Letter of Credit,Issuer will unconditionally honor
the same by making payment in accordance with Beneficiary's payment instructions on or before the
third (3ra) succeeding Business Day after such presentation. Payment shall be made in U.S. Dollars
with Issuer's own funds in immediately available funds. Partial and multiple drawing of funds shall
be permitted under this Letter of Credit,and this Letter of Credit shall remain in full force and effect
with respect to any continuing balance; provided that the Available Amount shall be reduced by the
Exhibit E- 1 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 330 of 495

EXHIBIT E
amount of each such drawing. Following any partial draw, Issuer will endorse this Letter of Credit
and return the original to Beneficiary.
2. This Letter of Credit shall terminate upon the earliest to occur of(i) Issuer's receipt
of a notice in the form of Annex 2 hereto purportedly signed by an authorized officer of Beneficiary,
accompanied by this Letter of Credit and all amendment,if any,for cancellation, (ii) Issuer's close of
business at Issuer's aforesaid office on the Expiration Date,or if the Expiration Date is not a Business
Day, then on the preceding Business Day. This Letter of Credit shall be surrendered to Issuer by
Beneficiary upon the earlier of presentation or expiration.
3. It is a condition of this Letter of Credit that it shall be deemed to be automatically
extended without amendment for additional one (1)-year periods, unless at least sixty (60) days
prior to the Expiration Date Issuer sends Beneficiary notice by registered mail, return receipt
requested or courier service or hand delivery at the above address that Issuer hereby elects not to
consider this Letter of Credit extended for such additional period. However, in no even shall this
Letter of Credit be automatically extended beyond [ ] (the "Final Expiration Date"). In
the event of an act of God, riot, civil commotion, insurrection, war or any other cause beyond our
control that interrupts our business and causes the place for presentation of this Letter of Credit to
be closed for business on the last day for presentation, the Final Expiration Date of this Letter of
Credit will be automatically extended without amendment to a date thirty (30) days after the place
for presentation reopens for business.
4. This Letter of Credit shall be governed by, and construed in accordance with, the
terms of the International Standby Practices,ISP 98,International Chamber of Commerce Publication
No.590 (the"ISP"),to the extent that such terms are not inconsistent with this Letter of Credit. As to
matters not governed by the ISP, this Letter of Credit shall be governed by, and construed in
accordance with, the laws of the State of New York, including, without limitation, the Uniform
Commercial Code as in effect in the State of New York.
5. This Letter of Credit sets forth in full our undertaking,and such undertaking shall not
in any way be modified,amended,amplified or limited by reference to any document,instrument or
agreement referred to herein, except for Annexes 1 and 2 hereto and the notices referred to herein;
and any such reference shall not be deemed to incorporate herein by reference any document,
instrument or agreement except as otherwise provided in this paragraph S.
6. This Letter of Credit is non-transferable by Beneficiary. Issuer waives any rights it
may have,at law or otherwise,to subrogate to any claims Beneficiary may have against Applicant or
Applicant may have against Beneficiary.
7. Communications with respect to this Letter of Credit shall be in writing and shall be
addressed to Issuer at the address referred to in paragraph 1 above, and shall specifically refer to
this Letter of Credit No. [ ].
Very truly yours,
[LOC Issuer]
Authorized Signatory
Exhibit E - 2 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 331 of 495

EXHIBIT E
ANNEX 1
TO LETTER OF CREDIT
FORM OF DRAW CERTIFICATE
The undersigned ("Beneficiary") hereby certifies to [ISSUING BANK] ("Issuer"), with reference to
Irrevocable Standby Letter of Credit No. [ ] (the "Letter of Credit") issued by Issuer in
favor of the Beneficiary,as follows:
(1) The undersigned is the [ ] of Beneficiary and is duly authorized by Beneficiary to
execute and deliver this Draw Certificate on behalf of Beneficiary.
(2) Beneficiary hereby makes demand against the Letter of Credit by Beneficiary's presentation
of the draft accompanying this Draw Certificate,for payment of[ ] United
States Dollars (US$[ ]),which amount,when aggregated together with any additional
amount that has not been drawn under the Letter of Credit, is not in excess of the Available
Amount (as in effect of the date hereof).
(3) The conditions for a drawing by Beneficiary are pursuant to:
a) The pending expiration of this Letter of Credit in twenty(20) or fewer New York banking
days,Beneficiary has not received an extension of said Letter of Credit or other acceptable
replacement Credit Support as required under the Build Transfer Agreement,dated as of
[ ],between Account Party and Beneficiary,as the same may have been amended;
b) An "Event of Default" (as defined in the Build Transfer Agreement dated as of [ ],
between Account Party and Beneficiary)that has occurred and is continuing with respect
to Account Party, and Account Party's payment to Beneficiary of$[amount] is due and
owing; or
c) The early termination of the Build Transfer Agreement, dated as of [ ], between
Account Party and Beneficiary, pursuant to Section 2.11(a) thereof, and Account Party's
payment to Beneficiary of $[amount] is due and owing pursuant to Section 2.11(g)
thereof.
Wherefore, Beneficiary hereby demands payment of the above referenced amount under
Letter of Credit No. [_]."
(4) Issuer is hereby directed to make payment to: [insert wire instructions]
Beneficiary Name and Address:
By:
Title:
Date:
(5) Capitalized terms used herein and not otherwise defined herein shall have the respective
meanings set forth in the Letter of Credit.
(Signature page follows)
Exhibit E - 3 Exhibit No. 1
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EXHIBIT E
[BENEFICIARY]
By:
Title:
Date:
Exhibit E -4 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 333 of 495

EXHIBIT E
ANNEX 2
TO LETTER OF CREDIT
FORM OF NOTICE OF EARLY EXPIRATION
[Date]
[Beneficiary name and address]
Dear Madam or Sir:
Reference is made to that Irrevocable Standby Letter of Credit No. [ ] (the"Letter of Credit")dated
[ ] issued by [insert Issuing Bank] in favor of [ ] (the "Beneficiarv'"). Any
capitalized term used herein and not defined herein shall have its respective meaning as set forth in
the Letter of Credit.
This constitutes our notice to you pursuant to the Letter of Credit that the Letter of Credit shall
terminate on [_] [insert a date which is sixty (60) or more days after the date of this notice of early
expiration] (the"Early Expiration Date").
Pursuant to the terms of the Letter of Credit,the Beneficiary is authorized to draw(pursuant to one
or more drawings),prior to the Early Expiration Date,on the Letter of Credit in an aggregate amount
that does not exceed the then Available Amount(as defined in the Letter of Credit).
IN WITNESS WHEREOF, the undersigned has executed and delivered this request on this [_] day
of[ ].
[ISSUING BANK]
By:
Name:
Title:
cc:
[Applicant name and address]
Exhibit E - 5 Exhibit No. 1
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EXHIBIT F
EPCCONTRACT
[TBD]
Exhibit F- 1 Exhibit No. 1
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Page 335 of 495

FORMS OF MAJOR SUPPLY AGREEMENT
[TBD]
Exhibit No. 1
Case No. IPC-E-26-03
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EXHIBIT H
FORM OF CONSENT
[TBD]
Exhibit No. 1
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Idaho Power 2032 All Source RFP
Exhibit F.3—Draft Form Agreements for Resource Based Bids
Respondent shall review and redline the following draft agreement into the submitted proposal for the
specific product type and ownership structure as defined in this RFP.
This draft Exhibit F is not comprehensive and does not constitute a binding offer, shall not form the bases
for an agreement by estoppel nor otherwise, and is not conditions upon each party's receipt of all
requirement management approvals (including final credit and legal approval) and all regulatory
approvals. Any actions taken by a party in reliance on the terms set forth in this working draft or on
statements made during negotiations pursuant to this working draft shall beat that party's own risk. Until
this agreement is negotiated, approved by management, executed, delivered, and approved by all required
regulatory bodies, no party shall have any other legal obligations, expressed or implied, or arising in any
other manner under this working draft or in the course of negotiations.
BATTERY STORAGE AGREEMENT
BETWEEN
AND
IDAHO POWER COMPANY
f00310207.DOCX;1} Exhibit No. 1
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Exhibit No. 1
Case No. IPC-E-26-03
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TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS, RULES OF INTERPRETATION.................................................. 1
SECTION 2 REPRESENTATIONS AND WARRANTIES....................................................... 16
2.1 Mutual Representations and Warranties.............................................................. 16
2.2 Seller's Further Representations and Warranties................................................. 17
2.3 No Other Representations or Warranties............................................................. 19
2.4 Continuing Nature of Representations and Warranties; Notice........................... 19
SECTION 3 CONDITIONS PRECEDENT TO TERM.............................................................. 19
3.1 Conditions to be granted First Operation Date.................................................... 19
3.2 Idaho Power's Right to Monitor..........................................................................20
SECTION 4 TERM AND COMMERCIAL OPERATION DATE ............................................21
4.1 Term.....................................................................................................................21
4.2 Commercial Operation Date................................................................................21
4.3 Condition Precedents to Commercial Operation .................................................23
4.4 Continuing Obligations........................................................................................24
4.5 Commercial Operation Date Delay, Delay Damages, Storage Capacity
Damages, Storage Availability Damages. ...........................................................24
4.6 Damages Calculation...........................................................................................25
4.7 Damages Invoicing..............................................................................................25
SECTION 5 DELIVERIES OF STORAGE PRODUCT ............................................................25
5.1 Purchase and Sale ................................................................................................25
5.2 No Sales to Third Parties.....................................................................................25
5.3 Title and Risk of Loss of Storage Product...........................................................25
5.4 Idaho Power as Merchant.....................................................................................26
5.5 Purchase and Sale of Capacity Rights .................................................................26
5.6 Representation Regarding Ownership of Capacity Rights ..................................26
5.7 Authority to Make Sales ......................................................................................26
5.8 Further Assurances...............................................................................................26
SECTION 6 CONTRACT PRICE; COSTS................................................................................26
6.1 Contract Price.......................................................................................................26
6.2 Costs and Charges................................................................................................26
6.3 Station Service.....................................................................................................27
6.4 Taxes....................................................................................................................27
f00310207.DOCX;1} -1- Exhibit No. 1
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TABLE OF CONTENTS
(continued)
Page
6.5 Costs of Ownership and Operation......................................................................27
6.6 Rates Not Subject to Review...............................................................................27
SECTION 7 OPERATION AND CONTROL ............................................................................28
7.1 As-Built Supplement............................................................................................28
7.2 Standard of Facility Operation.............................................................................28
7.3 Interconnection ....................................................................................................29
7.4 Coordination with System....................................................................................29
7.5 Outages ................................................................................................................29
7.6 Scheduling............................................................................................................30
7.7 Charging Energy Management. ...........................................................................31
7.8 Performance Tests; Guarantees............................................................................32
7.9 Electronic Communications.................................................................................32
7.10 Reports and Records............................................................................................33
7.11 Financial and Accounting Information................................................................36
7.12 Access Rights.......................................................................................................37
7.13 Facility Images.....................................................................................................37
SECTION 8 RIGHT OF FIRST OFFER AND OWNERSHIP OR PURCHASE OPTION....... 37
8.1 Buyer's Affiliates.................................................................................................37
8.2 Right of First Offer..............................................................................................37
8.3 Termination of Duty to Buy.................................................................................38
8.4 Right of First Offer on Ownership.......................................................................38
8.5 Negotiation of Facility Purchase.......................... Error! Bookmark not defined.
8.6 Efforts Required to Transfer Facility and Offered Interests................................39
8.7 Due Diligence; Cooperation; Governmental Approvals;Notice of Rights.........40
8.8 Termination of Agreement...................................................................................40
SECTION 9 SECURITY AND CREDIT SUPPORT .................................................................40
9.1 Project Development Security.............................................................................40
9.2 Default Security...................................................................................................41
9.3 Senior Lenders.....................................................................................................41
9.4 Change of Control................................................................................................41
9.5 Security is Not a Limit on Seller's Liability........................................................42
f00310207.DOCX;1)ii Exhibit No. 1
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TABLE OF CONTENTS
(continued)
Page
SECTION 10 METERING, METERING COMMUNICATIONS AND SCADA
TELEMETRY..............................................................................................................................42
10.1 Metering...............................................................................................................42
10.2 Metering Communications...................................................................................42
10.3 Supervisory Control and Data Acquisition(SCADA) Telemetry.......................42
10.4 Metering Costs.....................................................................................................43
10.5 Losses...................................................................................................................43
SECTION 11 BILLINGS, COMPUTATIONS AND PAYMENTS...........................................43
11.1 Monthly Invoices.................................................................................................43
11.2 Offsets..................................................................................................................43
11.3 Interest on Late Payments....................................................................................44
11.4 Disputed Amounts ...............................................................................................44
11.5 Audit Rights.........................................................................................................44
SECTION 12 DEFAULTS AND REMEDIES............................................................................44
12.1 Defaults................................................................................................................44
12.2 Remedies for Failure to Deliver/Receive.............................................................47
12.3 Termination and Remedies..................................................................................48
12.4 Termination Damages..........................................................................................49
12.5 Duty/Right to Mitigate.........................................................................................49
12.6 Security................................................................................................................49
12.7 Cumulative Remedies..........................................................................................49
SECTION 13 INDEMNIFICATION AND LIABILITY............................................................49
13.1 Indemnities...........................................................................................................49
SECTION 14 INSURANCE........................................................................................................ 51
14.1 Required Policies and Coverages.........................................................................51
14.2 Certificates of insurance ......................................................................................51
SECTION 15 FORCE MAJEURE.............................................................................................. 51
15.1 Definition of Force Majeure ................................................................................51
15.2 Suspension of Performance.................................................................................. 52
15.3 Force Majeure Does Not Affect Other Obligations............................................. 52
15.4 Strikes .................................................................................................................. 52
15.5 Right to Terminate............................................................................................... 52
100310207.DOCX;1}- lll - Exhibit No. 1
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TABLE OF CONTENTS
(continued)
Page
SECTION 16 SEVERAL OBLIGATIONS; THIRD PARTY BENEFICIARIES...................... 53
SECTION 17 CHOICE OF LAW ............................................................................................... 53
SECTION 18 PARTIAL INVALIDITY ..................................................................................... 53
SECTION 19 NON-WAIVER..................................................................................................... 53
SECTION 20 GOVERNMENTAL JURISDICTION AND AUTHORIZATIONS ................... 54
SECTION 21 [INTENTIONALLY OMITTED]......................................................................... 54
SECTION 22 SUCCESSORS AND ASSIGNS .......................................................................... 54
22.1 Restriction on Assignments ................................................................................. 54
22.2 Permitted Assignments ........................................................................................ 54
SECTION 23 ENTIRE AGREEMENT....................................................................................... 54
SECTION24 NOTICES.............................................................................................................. 54
24.1 Addresses and Delivery Methods ........................................................................ 54
24.2 Changes of Address............................................................................................. 55
SECTION 25 CONFIDENTIALITY........................................................................................... 55
25.1 Confidential Business Information...................................................................... 55
25.2 Duty to Maintain Confidentiality......................................................................... 56
25.3 Idaho Power Regulatory Compliance.................................................................. 56
25.4 Irreparable Injury; Remedies............................................................................... 56
25.5 News Releases and Publicity............................................................................... 57
SECTION 26 DISAGREEMENTS ............................................................................................. 57
26.1 Negotiations......................................................................................................... 57
26.2 Choice of Forum.................................................................................................. 57
26.3 Settlement Discussions........................................................................................57
26.4 Waiver of Jury Trial.............................................................................................58
SECTION 27 COMPLIANCE..................................................................................................... 58
27.1 Nondiscrimination................................................................................................58
27.2 Anti-Corruption....................................................................................................58
f00310207.DOCX;1}1V Exhibit No. 1
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EXHIBITS
Exhibit 1 Generation Scheduling and Reporting
Exhibit 2 Description of Facility
Exhibit 3 Point of Delivery/Interconnection Facilities
Exhibit 4 Storage Operating Restrictions
Exhibit 5 Contract Prices
Exhibit 6 NERC Event Types
Exhibit 7 Start-Up Testing
Exhibit 8 Form of Security—Credit Support Obligation
Exhibit 9 Required Facility Documents
Exhibit 10 Leases
Exhibit 11 Engineer's Certification of O&M Policy, Engineer's Certification
of Ongoing O&M, Engineer's Certification of Design and
Construction Adequacy.
Exhibit 12 [Reserved]
Exhibit 13 Required Insurance
Exhibit 14 Seller Authorization to Release Generation Data to Idaho Power
Exhibit 15 Attachments
Exhibit 16 As-Built Supplement
Exhibit 17 Marketing Communications Agreement
Exhibit 18 Form of Construction Progress Report
Exhibit 19 Form of Operations Report
Exhibit 20 Idaho Power form of Qualified Reporting Entity Agreement
Exhibit 21 Form of Lender Consent
Exhibit 22 Form of Estoppel Certificate
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Exhibit No. 1
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THIS WORKING DRAFT DOES NOT CONSTITUTE A BINDING OFFER, SHALL NOT
FORM THE BASIS FOR AN AGREEMENT BY ESTOPPEL OR OTHERWISE, AND IS
CONDITIONED UPON EACH PARTY'S RECEIPT OF ALL REQUIRED
MANAGEMENT APPROVALS (INCLUDING FINAL CREDIT AND LEGAL
APPROVAL) AND ALL REGULATORY APPROVALS. ANY ACTIONS TAKEN BY A
PARTY IN RELIANCE ON THE TERMS SET FORTH IN THIS WORKING DRAFT OR
ON STATEMENTS MADE DURING NEGOTIATIONS PURSUANT TO THIS
WORKING DRAFT SHALL BE AT THAT PARTY'S OWN RISK. UNTIL THIS
AGREEMENT IS NEGOTIATED, APPROVED BY MANAGEMENT, EXECUTED,
DELIVERED AND APPROVED BY ALL REQUIRED REGULATORY BODIES, NO
PARTY SHALL HAVE ANY OTHER LEGAL OBLIGATIONS, EXPRESSED OR
IMPLIED, OR ARISING IN ANY OTHER MANNER UNDER THIS WORKING DRAFT
OR IN THE COURSE OF NEGOTIATIONS.
BATTERY STORAGE AGREEMENT
THIS BATTERY STORAGE AGREEMENT (this "Agreement"), dated as of
,202_,(the"Effective Date"),is entered into between (the"Seller")
and Idaho Power Company, an Idaho corporation ("Idaho Power" or "Buyer"). Seller and Idaho
Power are sometimes hereinafter referred to collectively as the "Parties" and individually as a
Party.
WHEREAS, Seller intends to construct,own,operate and maintain a battery energy
storage system (`BESS") for the storage and discharge of electric energy located in [
], [Idaho] with a Storage Capacity (as defined below) of MWh (the "Facility").
WHEREAS, Seller desires to sell,and Idaho Power desires to purchase,the Storage
Product (as defined below) delivered by the Facility in accordance with the terms and conditions
hereof.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
set forth below and for other good and valuable consideration,the receipt and sufficiency of which
are hereby acknowledged, the Parties mutually agree as follows:
SECTION 1
DEFINITIONS, RULES OF INTERPRETATION
Defined Terms. Unless otherwise required by the context in which any term appears, initially
capitalized terms used herein shall have the following meanings:
1.1 "Abandonment"means (a) the relinquishment of all possession and control of the Facility
by Seller, other than pursuant to a transfer permitted under this Agreement, or (b) if after
commencement of the construction, testing, and inspection of the Facility, and prior to the
Commercial Operation Date,there is a complete cessation of the construction,testing, and
inspection of the Facility for ninety (90) consecutive days by Seller and Seller's
contractors, but only if such relinquishment or cessation is not caused by or attributable to
f00310207.DOCX;1} -1- Exhibit No. 1
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an Event of Default by Idaho Power, a request by Idaho Power, or an event of Force
Maj eure.
1.2 "AC"means alternating current.
1.3 "Affiliate"means,with respect to any entity,each entity that directly or indirectly controls,
is controlled by, or is under common control with, such designated entity, with "control"
meaning the possession, directly or indirectly, of the power to direct management and
policies, whether through the ownership of voting securities or by contract or otherwise.
1.4 "Agreement"is defined in the opening paragraph hereto.
1.5 "Ancillary Services" has the meaning set forth in Idaho Power's Open Access
Transmission Tariff as approved by FERC.
1.6 "Anything of Value" includes, but is not limited to, cash or a cash equivalent (including
"grease", "expediting" or facilitation payments), discounts, rebates, gifts, meals,
entertainment,hospitality,use of materials,facilities or equipment,transportation,lodging,
or promise of future employment.
1.7 "As-built Supplement"is a supplement to be added to Exhibit 16 that describes the Facility
as actually built,pursuant to Section 7.1 and includes an American Land Title Association
survey of the Premises.
1.8 "Auxiliary Load Test"has the meaning set forth in Exhibit 23.
1.9 "Book Value" means cost minus accumulated depreciation, and not deducting for debt or
other encumbrances, calculated in accordance with generally accepted accounting
principles consistently applied.
1.10 "Business Day" means any Monday through Friday except NERC recognized holidays
beginning at 6:00 a.m. and ending at 5:00 p.m. local time in Boise, Idaho.
1.11 "Calendar Quarter" means any of four quarters in a standard calendar year, specifically
Quarter 1 is January 1 — March 31, Quarter 2 is April 1 — June 30, Quarter 3 is July 1 —
September 30, and Quarter 4 is October 1 —December 31.
1.12 "Capacity Rights"means any current or future defined characteristic,certificate,tag,credit,
reactive power, Ancillary Service or attribute thereof, or accounting construct, including
any of the same counted towards any current or future resource adequacy or reserve
requirements, associated with the energy storage and discharge of the Facility or the
Facility's capability and ability to store and discharge energy. Capacity Rights are
measured in MW and do not include any Tax Credits, or any other tax incentives existing
now or in the future associated with the construction, ownership or operation of the
Facility.
1.13 "Change of Control"means,with respect to Seller, any transaction or series of transactions
following which Seller's Parent Entity no longer directly or indirectly(i)remains the owner
f00310207.DOCX;112 Exhibit No. 1
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of more than fifty percent(50%) of the direct or indirect equity or voting interests of Seller
which are not otherwise held by Seller's Lenders (excluding any Tax Equity Investors), or
(ii)retains the power to control the management and policies of Seller;provided,however,
that a Seller Permitted Transfer shall not be a Change of Control.
1.14 "Charge Rate Test"has the meaning set forth in Exhibit 23.
1.15 "Charging Energy" means the Energy provided to charge the Facility, which shall be
charged solely from energy provided by Buyer from the System.
1.16 "Charging Notice"means the operating instruction, and any subsequent updates, given by
Idaho Power to Seller, directing the Facility to charge at a specific MW rate to a specified
Stored Energy Level, including in connection with a Guaranteed Storage Capacity Test,
provided that any such operating instruction shall be in accordance with the Storage
Operating Restrictions.
1.17 "Commercial Operation" means that not less than the Storage Capacity of the Facility is
fully operational and reliable, the Guaranteed Roundtrip Efficiency has been met, all
Performance Tests have otherwise been completed with results submitted to Idaho Power
and the Facility is fully interconnected, fully integrated,and synchronized with the System,
all of which shall be Seller's responsibility to receive or obtain, and without limiting
Seller's other obligations under this Agreement, which occurs when all of the enumerated
events listed in Section 4.2 (a) have occurred, and (b) remain simultaneously true and
accurate as of the date and moment on which Seller gives Idaho Power written notice that
Commercial Operation has occurred.
1.18 "Commercial Operation Date"means the day commencing at 00:01 hours,Mountain Time,
following the day that all requirements of Section 4 have been completed and after the
Seller requested Operation Date.
1.19 "Confidential Business Information" is defined in Section 25.1.
1.20 "Construction Progress Report" is defined in Section 3.2.1.
1.21 "Contract Interest Rate" means the lesser of (a) the highest rate permitted under
Requirements of Law or (b) 200 basis points per annum plus the rate per annum equal to
the publicly announced prime rate or reference rate for commercial loans to large
businesses in effect from time to time quoted by Citibank, N.A. as its "prime rate." If a
Citibank,N.A.prime rate is not available,the applicable prime rate shall be the announced
prime rate or reference rate for commercial loans in effect from time to time quoted by a
bank with $10 billion or more in assets in New York City, N.Y., selected by the Party to
whom interest is being paid.
1.22 "Contract Price" means the applicable price, expressed in dollars per kW-month for the
Storage Product, as set forth in Exhibit 5.
{00310207.DOCX;q- 3 - Exhibit No. 1
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1.23 "Contract Year"means any consecutive 12-month period during the Term, commencing at
00:00 hours on the Commercial Operation Date or any of its anniversaries and ending at
24:00 hours on the last day of such 12-month period.
1.24 "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.
1.25 "CPCN"means Certificate of Public Convenience and Necessity.
1.26 "Credit Requirements"means (a)three (3)years of audited financial statements, a view of
the financial position and financial performance, financial statement analysis and financial
trend analysis; (b) Debt Agency Ratings - a senior, unsecured long term debt rating (or
corporate rating if such debt rating is unavailable) of BBB+ or greater from S&P, or Baal
or greater from Moody's, and if such ratings are split,the lower of the two ratings must be
at least `BBB+' or `Baal' from S&P or Moody's, respectively. Idaho Power performs a
credit analysis, which considers both qualitative and quantitative factors, to determine
whether potential Counterparties have satisfied the Credit Requirements.
1.27 "Default" is defined in Section 12.1.
1.28 "Default Security"is defined in Section 9.2.1.
1.29 "Delay Damages" means for each day in which Commercial Operation is not achieved
after the Scheduled Commercial Operation Date, the amount equal to [$XX] for each
MWh, prorated for fractional amounts thereof, of Storage Capacity below the Guaranteed
Storage Capacity.
1.30 "Discharging Energy" means MWh in the first, full Contract Year, reduced by
an annual degradation factor of percent per Contract Year, measured at the Point of
Delivery. If at Final Completion the Facility's Storage Capacity is less than the Guaranteed
Storage Capacity, Discharging Energy shall be reduced proportionally per year for each
MWh of Storage Capacity below the Guaranteed Storage Capacity. Seller acknowledges
that Idaho Power will include Discharging Energy in Idaho Power's resource planning.
1.31 "Effective Date" is the date stated in the opening paragraph hereto which represents the
date upon which this Agreement was fully executed by both Parties.
1.32 "Electric System Authority"means each of NERC, WECC, WREGIS, an RTO, a regional
or sub-regional reliability council or authority, and any other similar council, corporation,
organization or body of recognized standing with respect to the operations of the electric
system in the WECC region, as such are applicable to the Seller or Idaho Power.
f00310207.DOCX;114 Exhibit No. 1
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1.33 "Emissions Reduction Credit"means any credit,allowance or instrument issued or issuable
by a Governmental Authority under regulations of the Environmental Protection Agency
under the Clean Air Act.
1.34 "Energy" means [single][three]'-phase, sixty (60)-hertz alternating current electrical
energy(measured in MWh).
1.35 "Energy Imbalance Market"means the California Independent System Operator's Western
Energy Imbalance Market.
1.36 "Environmental Contamination" means the introduction or presence of Hazardous
Materials at such levels, quantities or location, or of such form or character, as to constitute
a violation of federal, state or local laws or regulations, and present a material risk under
federal, state or local laws and regulations that the Premises will not be available or usable
for the purposes contemplated by this Agreement.
1.37 "Event of Default"is defined in Section 12.1.
1.38 "Facility" is defined in the Recitals and is more fully described in attached Exhibit 2 and
includes an AC-connected battery energy storage system, inverters, transformers, and
performance monitoring instruments, associated electrical components, and civil
infrastructure associated with the aforementioned components owned,controlled,operated
and managed by Seller in connection with, or to facilitate, the storage, discharge,
transmission, delivery, or furnishing of the Storage Product by Seller to Idaho Power and
required to interconnect with the System, as well as Seller's interests in the Premises,
including Leases and any fee owned real property.
1.39 "FERC"means the Federal Energy Regulatory Commission.
1.40 "Final Completion" means the Facility is fully operational and reliable, at the Guaranteed
Storage Capacity, and fully interconnected, fully integrated, and synchronized with the
Transmission Provider's System,modified if necessary to reflect the Storage Capacity and,
if applicable, through completion of all the items set forth on the Final Completion
Schedule.
1.41 "Final Completion Schedule" means the full list of all items to be completed in order to
achieve Final Completion in accordance with Section 4.2 (Commercial Operation Date).
1.42 "First Operation Date" means the day commencing at 00:01 hours, Mountain Time,
following the day that Seller has satisfied the requirements of Section 3 and after the Seller
requested First Operation Date.
1.43 "Force Majeure" and"event of Force Majeure" are defined in Section 15.1.
1 Note to Draft: Include as applicable based on the design of the Project.
{00310207.DOCX;q- 5 - Exhibit No. 1
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1.44 "Forced Outage"means NERC Event Types U1,U2 and U3,as set forth in attached Exhibit
6, and specifically excludes any Maintenance Outage or Planned Outage.
1.45 "Forward Settlement Amount" means, with respect to the non-defaulting Party, the net
Losses and Gains, and Costs, expressed in U.S. Dollars,which such Party incurs as a result
of the termination of this Agreement plus all amounts then owed to the non-defaulting Party
by the defaulting Party. If the non-defaulting Parry's aggregate Gains exceed its aggregate
Losses and Costs, if any, resulting from the termination of this Agreement, the Forward
Settlement Amount shall be zero.
1.46 "Full Cycle"means the Facility is charged,then discharged at a MWh quantity equal to the
energy capacity in MWh. For example, state of charge starts at one percent (1%), the
Facility is charged to one hundred percent(100%)and then discharged to one percent(1%).
1.47 "Full Cycle Equivalent" means Partial Cycles that aggregate to one Full Cycle. For
example, two fifty percent (50%) Partial Cycles or four twenty-five percent (25%) Partial
Cycles is one (1) Full Cycle Equivalent.
1.48 "Gains" means, with respect to any Party, an amount equal to the present value of the
economic benefit to it, if any (exclusive of Costs), resulting from the early termination of
this Agreement for the remainder of the Term that would have occurred but for the
occurrence of the Event of Default and early termination, determined in a commercially
reasonable manner.
1.49 "Generator Interconnection Agreement" or "GIA" means the large generator
interconnection agreement entered into separately between Seller and Interconnection
Provider concerning the Interconnection Facilities.
1.50 "Government Official" means any official or employee of any multinational, national,
regional, or local government in any country, including any official or employee of any
government department, agency, commission, or division; any official or employee of any
government-owned or -controlled enterprise; any official or employee of any public
educational, scientific, or research institution; any political party or official or employee of
a political party; any candidate for public office; any official or employee of a public
international organization; and any person acting on behalf of or any relatives, family, or
household members of any of those listed above.
1.51 "Governmental Authority" means any supranational, federal, state or other political
subdivision thereof, having jurisdiction over Seller, Idaho Power or this Agreement,
including any municipality, township or county, and any entity or body exercising
executive, legislative, judicial, regulatory or administrative functions of or pertaining to
government, including any corporation or other entity owned or controlled by any of the
foregoing.
1.52 "Guaranteed Commercial Operation Date"means the date that is ninety(90) days after the
Scheduled Commercial Operation Date.
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1.53 "Guaranteed Roundtrip Efficiency" means a Roundtrip Efficiency during the Term of no
less than [XX]2 %.
1.54 "Guaranteed Roundtrip Efficiency Test" has the meaning set forth in Exhibit 23.
1.55 "Guaranteed Storage Availability" means, in each Contract Year, Storage Availability
equal to 98 % or greater.
1.56 "Guaranteed Storage Availability Test"has the meaning set forth in Exhibit 23.
1.57 "Guaranteed Storage Capacity"means the energy capacity of the Facility of L.�MWh
measured over [four] hours by AC monitoring equipment, as more particularly described
in Exhibit 2 and determined in accordance with the Guaranteed Storage Capacity Test.
1.58 "Guaranteed Storage Capacity Test"has the meaning set forth in Exhibit 23.
1.59 "Hazardous Materials" means any waste or other substance that is listed, defined,
designated or classified as or determined to be hazardous under or pursuant to any
environmental law or regulation.
1.60 "Idaho Power" and"Buyer" are defined in the opening paragraph, and explicitly excludes
Idaho Power Transmission.
1.61 "Idaho Power's Cost to Cover"means the positive difference, if any,between (a)the time
weighted average of the Market Price Index for each day for which the determination is
being made, and(b)the Contract Price specified in Exhibit 5 in effect on such days, stated
as an amount of dollars per kW-month. If on a given day the difference between (a)minus
(b) referenced above is zero or negative, then Idaho Power's Cost to Cover shall be zero
dollars ($0), and Seller shall have no obligation to pay any amount to Idaho Power on
account of Section 7.12.3 or Section 12.2.1 with respect to such day.
1.62 "Idaho Power Indemnitees"is defined in Section 13.1.1.
1.63 "Idaho Power Representatives" is defined in Section 7.13.
1.64 "Idaho Power Transmission" means Idaho Power Company, an Idaho corporation, acting
in its interconnection or transmission function capacity.
1.65 "Indemnified Party" is defined in Section 7.2.3.2.
1.66 "Indemnifying Party"is defined in Section 7.2.3.2.
1.67 "Interconnection Facilities" means all the facilities installed, or to be installed, for the
purpose of interconnecting the Facility to the System, including electrical transmission
2 Note to Parties: To be discussed.
{00310207.DOCX;q- 7 - Exhibit No. 1
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lines, upgrades, transformers and associated equipment, substations, relay and switching
equipment, and safety equipment.
1.68 "Interconnection Provider"means Idaho Power Transmission.
1.69 "Inverter"means the equipment installed at the Facility to convert direct current to AC, as
described in Exhibit 2.
1.70 "IPUC"means the Idaho Public Utilities Commission.
1.71 "IRP"means Idaho Power's Integrated Resource Plan.
1.72 "ITC" means the investment tax credit established pursuant to Section 48 of the Internal
Revenue Code, as such law may be amended or superseded.
1.73 "kW-month"means kilowatts per month.
1.74 "Leases" means the memoranda of lease and redacted leases recorded in connection with
the development of the Facility, as the same may be supplemented, amended, extended,
restated, or replaced from time to time.
1.75 "Lender" means an entity lending money or extending credit (including any financing
lease, monetization of tax benefits, transaction with a tax equity investor, backleverage
financing or credit derivative arrangement) to Seller or Seller's Affiliates (a) for the
construction, term or permanent financing or refinancing of the Facility; (b) for working
capital or other ordinary business requirements for the Facility (including for the
maintenance,repair,replacement or improvement of the Facility); (c)for any development
financing, bridge financing, credit support, and related credit enhancement in connection
with the development, construction or operation of the Facility; or (d) for the purchase of
the Facility and related rights from Seller.
1.76 "Letter of Credit" means an irrevocable standby letter of credit in a form reasonably
acceptable to Idaho Power, naming Idaho Power as the party entitled to demand payment
and present draw requests thereunder that:
1.76.1 is issued by a Qualifying Institution;
1.76.2 by its terms, permits Idaho Power to draw up to the face amount thereof for the
purpose of paying any and all amounts owing by Seller hereunder;
1.76.3 permits Idaho Power to draw the entire amount available thereunder if such letter
of credit is not renewed or replaced at least thirty (30) days prior to its stated
expiration date;
1.76.4 permits Idaho Power to draw the entire amount available thereunder if such letter
of credit is not increased or replaced as and when provided in Section 9;
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1.76.5 is transferable by Idaho Power to any party to which Idaho Power may assign this
Agreement; and
1.76.6 shall remain in effect for at least ninety (90) days after the end of the Term.
1.77 "Liabilities"is defined in Section 13.1.1.
1.78 "Licensed Professional Engineer" means a person proposed by Seller and acceptable to
Idaho Power in its reasonable judgment who (a) to the extent mandated by Requirements
of Law is licensed to practice engineering in the appropriate engineering discipline for the
required certification being made, in the state of Idaho, (b) has training and experience in
the engineering disciplines relevant to the matters with respect to which such person is
called upon to provide a certification, evaluation or opinion, (c) has no economic
relationship, association, or nexus with Seller and is not an employee of its members or
Affiliates, other than with the prior written consent of Idaho Power, for services previously
or currently being rendered to Seller or its members or Affiliates, and (d) is not a
representative of a consulting engineer, contractor, designer or other individual involved
in the development of the Facility, or a representative of a manufacturer or supplier of any
equipment installed in the Facility.
1.79 "Losses" means, with respect to any Party, an amount equal to the present value of the
economic loss to it, if any (exclusive of Costs), resulting from the termination of this
Agreement for the remainder of the Term that would have occurred but for the occurrence
of the Event of Default and early termination of this Agreement, determined in a
commercially reasonable manner. If Seller is the non-defaulting Party, "Losses" will
exclude the loss, repayment or recapture of any Tax Credits. If Idaho Power is the non-
defaulting Party, "Losses" will include Idaho Power's cost of replacing this Agreement
with an agreement for new renewable capacity from a facility with similar technology that
has not yet been constructed.
1.80 "Maintenance Outage" means NERC Event Type MO, as set forth in attached Exhibit 6,
and includes any outage involving ten percent(10%)of the Facility's Storage Capacity that
is not a Forced Outage or a Planned Outage.
1.81 "Market Operator" means the California Independent System Operator or any other entity
performing the market operator function for the Energy Imbalance Market.
1.82 "Market Price Index" means 82.4% of the monthly arithmetic average of each day's
Intercontinental Exchange ("ICE") daily firm Mid-C Peak Avg and Mid-C Off-Peak Avg
index prices in the month as follows:
The actual calculation being:
n
.824 * (Y_ {(ICE Mid-C Peak Avg,, * HLH hours for day) +
X=1
(ICE Mid-C Off-Peak Avg, * LLH hours for day)} /(n*24))
{00310207.DOCX;1}- 9 - Exhibit No. 1
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where n=number of days in the month
If the ICE Mid-C Index prices are not reported for a particular day or days, prices derived
from the respective averages of HLH and LLH prices for the immediately preceding and
following reporting periods or days shall be substituted into the formula stated in this
definition and shall therefore be multiplied by the appropriate respective numbers of HLH
and LLH Hours for such particular day or days with the result that each hour in such month
shall have a related price in such formula. If the day for which prices are not reported has in
it only LLH Hours (for example a Sunday), the respective averages shall use only prices
reported for LLH hours in the immediately preceding and following reporting periods or
days. If the day for which prices are not reported is a Saturday or Monday or is adjacent on
the calendar to a holiday,the prices used for HLH Hours shall be those for HLH hours in the
nearest(forward or backward)reporting periods or days for which HLH prices are reported.
1.83 "Maximum Delivery Rate" means the maximum hourly rate of delivery of Discharging
Energy in MWh from the Facility to the Point of Delivery, calculated on the basis of the
Discharging Energy delivered in an hour accruing at an average rate equivalent to the actual
Storage Capacity.
1.84 "Moody's"means Moody's Investor Services, Inc.
1.85 "Mountain Prevailing Time" or "MPT" means Mountain Standard Time or Mountain
Daylight Time, as applicable in Idaho on the day in question.
1.86 "MW"means megawatt.
1.87 "MWh"means megawatt hour.
1.88 "NERC"means the North American Electric Reliability Corporation.
1.89 "Network Resource" is defined in the Tariff.
1.90 "Network Service Provider" means Idaho Power Transmission, as a provider of network
service to Idaho Power under the Tariff.
1.91 "Noise Test"has the meaning set forth in Exhibit 23.
1.92 "Offer Notice" is defined in Section 8.2.
1.93 "Offered Interests" is defined in Section 8.4.1.
1.94 "Off-Peak Hours" or"LLH" 3means the daily hours from hour ending 2300—0600 MPT,
(8 hours), plus all other hours on all Sundays and NERC designated holidays.
3Note to Parties: 1.93"Off-Peak Hours"or"LLH"to be discussed.
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1.95 "On-Peak Hours" or "HLH" 4means the daily hours from hour ending 0700 - 2200 MPT,
(16 hours), Monday through Saturday, excluding all hours on all Sundays and NERC
designated holidays.
1.96 "Operations Report"is defined in Section 3.2.2.
1.97 "OPUC"means the Public Utility Commission of Oregon.
1.98 "Partial Cycle" means the Facility is charged and discharged at a MWh quantity less than
one hundred percent(100%) of the Facility energy capacity. For example, State of Charge
starts at fifty percent (50%), the Storage Facility is discharged to zero percent (0%) and
then charged back to fifty percent (50%).
1.99 "Party" and"Parties" are defined in the opening paragraph hereto.
1.100 "Performance Tests" means the Guaranteed Storage Availability Test, the Guaranteed
Storage Capacity Test, the Guaranteed Roundtrip Efficiency Test, the Charge Rate Test,
the Ramp Rate Test, the Response Time Test, the Auxiliary Load Test, the Power Factor
Test, and the Noise Test.
1.101 "Permits" means the permits, licenses, approvals, certificates, entitlements and other
authorizations issued by Governmental Authorities required for the construction,
ownership or operation of the Facility or occupancy of the Premises, and all amendments,
modifications, supplements, general conditions and addenda thereto.
1.102 "Planned Outage" means NERC Event Type PO, as set forth in attached Exhibit 6, and
specifically excludes any Maintenance Outage or Forced Outage.
1.103 "Point of Delivery" means the point of interconnection between the Facility and the
System, as specified in the Generator Interconnection Agreement and as further described
in Exhibit 3.
1.104 "Power Factor Test"has the meaning set forth in Exhibit 23.
1.105 "Pre-COD Damages Payment" means liquidated damages in an amount equal to the
amount of Project Development Security required to be provided hereunder,plus the Delay
Damages Seller has paid to Buyer.
1.106 "Premises" means the real property on which the Facility is or will be located, as more
fully described on Exhibits 9, 10 and 15.
1.107 "Project Development Security" is defined in Section 9.1.1.
1.108 "Prudent Electrical Practices"means any of the practices, methods and acts engaged in or
approved by a significant portion of the independent electric power generation industry in
the United States for BESS facilities of similar size and characteristics or any of the
4 Note to Parties: 1.94"On-Peak Hours"or"HLH"to be discussed.
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practices,methods or acts,which, in the exercise of reasonable judgment in the light of the
facts known at the time a decision is made, could have been expected to accomplish the
desired result at the lowest reasonable cost consistent with reliability, safety and
expedition.
1.109 "Qualified Operator" is (a) a partnership, corporation or limited liability company that
demonstrates acceptable experience with operating a BESS facility,or(b)any other Person
reasonably acceptable to Buyer.
1.110 "Qualifying Institution" means a United States commercial bank or trust company
organized under the laws of the United States of America or a political subdivision thereof
having assets of at least $10,000,000,000 (net of reserves) and a credit rating on its long-
term senior unsecured debt of at least"A" from S&P and"A2" from Moody's.
1.111 "Ramp Rate Test"has the meaning set forth in Exhibit 23.
1.112 "Reporting Month" is defined in Section 7.10.1.
1.113 "Required Facility Documents" means the Permits and other authorizations, rights and
agreements now or hereafter necessary for construction, ownership, operation, and
maintenance of the Facility, and to deliver the Storage Product to Idaho Power in
accordance with this Agreement and Requirements of Law, including those set forth in
Exhibit 9.
1.114 "Requirements of Law" means any applicable and mandatory (but not merely advisory)
federal, state and local law, statute, regulation, rule, action, order, code or ordinance
enacted, adopted, issued or promulgated by any federal, state, local or other Governmental
Authority or regulatory body (including those pertaining to electrical, building, zoning,
environmental and wildlife protection and occupational safety and health).
1.115 "Response Time Test"has the meaning set forth in Exhibit 23.
1.116 "Restricted Period" is defined in Section 8.2.
1.117 "Restricted Transaction" is defined in Section 8.4.1.
1.118 "ROFO" is defined in Section 8.2.
1.119 "ROFO Period" is defined in Section 8.4.1.
1.120 "ROFO Seller" is defined in Section 8.4.1.
1.121 "Roundtrip Efficiency"means the round trip DC-to-storage-to-DC energy efficiency of the
battery, or the fraction of energy put into the storage that can be retrieved, calculated in
accordance with Exhibit 23.
1.122 "RTO" means any entity (including an independent system operator) that becomes
responsible as system operator for, or directs the operation of, the System.
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1.123 "S&P"means Standard& Poor's Rating Group (a division of S&P Global, Inc.).
1.124 "Sanctioned Person" means any person (i) that is the target of Sanctions or owned or
controlled by any such person(s), or (ii) located, organized or resident in, or directly or
indirectly owned or controlled by the government of any Sanctioned Territory.
1.125 "Sanctioned Territory" means any country or territory now or hereafter subject to
comprehensive Sanctions.
1.126 "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
Facility.
1.127 "SCADA"means supervisory control and data acquisition.
1.128 "Scheduled Commercial Operation Date"means
1.129 "Seller" is defined in the opening paragraph hereto.
1.130 "Seller Indemnitees" is defined in Section 13.1.2.
1.131 "Seller ROFO Notice" is defined in Section 8.4.1.
1.132 "Seller Uncontrollable Minutes"means, for the Facility in any month, the total number of
minutes during such month during which the Facility was unable to deliver Discharging
Energy to Idaho Power (or during which Idaho Power failed to accept such delivery) due
to one or more of the following events, each as recorded by SCADA and indicated by
electronic fault logs: (a) an emergency or Force Majeure event; (b) [reserved]; (c) the
System operating outside the voltage or frequency limits defined in the applicable
operating manual for the Inverters installed at the Facility; (d) Planned Outages, but in no
event exceeding thirty six (36) hours per Contract Year consistent with such operating
manual; (e) [reserved]; (f) a default by Idaho Power; provided, however, that if any of the
events described above in items (a) through (e) occur simultaneously, then the relevant
period of time shall only be counted once in order to prevent double counting. Seller
Uncontrollable Minutes shall not include minutes when (i) the Facility or any portion
thereof was unavailable solely due to Seller's non-conformance with the Generation
Interconnection Agreement or (ii) the Facility or any portion thereof was paused or
withdrawn from use by Seller for reasons other than those covered in this definition.
1.133 "Seller's Cost to Cover" means the positive difference, if any, between (a) the Contract
Price specified in Exhibit 5, and (b) the time weighted average of the Market Price Index
of Discharging Energy not purchased by Idaho Power as required hereunder. If on any
given day the difference between (a) minus (b) referenced above is zero or negative, then
Seller's Cost to Cover shall be zero dollars with respect to such day, and Idaho Power shall
have no obligation to pay any amount to Seller on account of Section 12.2.2. For any days
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prior to the Commercial Operation Date,the Contract Price applicable in the first Contract
Year shall be utilized for purposes of clause (a).
1.134 "Seller's Parent Entity"means [ ].
1.135 "Senior Lenders" means Lenders being granted senior security interests on the Facility or
its assets, or Seller or its equity, other than Affiliates of Seller.
1.136 "Storage Availability" shall be at least percent( %), calculated in accordance
with the Guaranteed Storage Availability Test.
1.137 "Storage Availability Damages" means a payment equal to the difference between (i)
Storage Availability, calculated in accordance with Exhibit 23 and (ii) the Guaranteed
Storage Availability, multiplied by [$150,000].
1.138 "Storage Availability Damages Cap"means per year.
1.139 "Storage Capacity" means the maximum energy capacity of the completed Facility,
measured in MWh over a [four] hour period, when operated in compliance with the
Generator Interconnection Agreement and consistent with the recommended power factor
and operating parameters provided by the manufacturer of the BESS, as set forth in a
written notice from Seller to Idaho Power delivered prior to the Commercial Operation
Date and, if applicable, updated in a subsequent written notice from Seller to Idaho Power
as required for Final Completion.
1.140 "Storage Capacity Damages" means a payment equal to the difference between (i) the
Storage Capacity measured in accordance with Exhibit 23 and(ii)the Guaranteed Storage
Capacity, multiplied by [$100/MWh].
1.141 "Storage Capacity Damages Cap"means
1.142 "Storage Operating Restrictions" means those operating parameters and restrictions set
forth in Exhibit 4.
1.143 "Storage Product"means the Discharging Energy, Capacity Rights, Storage Capacity, and
Ancillary Services.
1.144 "Stored Energy Level" means, at a particular time, the amount of electric energy in the
Facility available to be discharged as Discharging Energy, expressed in MWh.
1.145 "System" means the electric transmission substation and transmission or distribution
facilities owned, operated or maintained by Transmission Provider, which shall include,
after construction and installation of the Facility, the circuit reinforcements, extensions,
and associated terminal facility reinforcements or additions required to interconnect the
Facility, all as set forth in the Generation Interconnection Agreement.
1.146 "Tariff' means the Idaho Power FERC Electric Tariff Volume No. 11 Open Access
Transmission Tariff, as revised from time to time.
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1.147 "Tax Credits" means any state, local and/or federal production tax credit, tax deduction,
and/or investment tax credit (including the ITC) specific to the production of renewable
energy and/or investments in renewable energy facilities.
1.148 "Term" is defined in Section 4.1.
1.149 "Transmission Provider"means Idaho Power Transmission.
1.150 "WECC"means the Western Electricity Coordinating Council.
1.151 "WREGIS"means the Western Renewable Energy Generation Information System.
1.152 Rules of Interpretation.
1.152.1 General. Unless otherwise required by the context in which any term appears, (a)
the singular includes the plural and vice versa; (b) references to "Articles,"
"Sections," "Schedules," "Appendices" or "Exhibits" are to articles, sections,
schedules, appendices or exhibits hereof, (c) all references to a particular entity
or an electricity market price index include a reference to such entity's or index's
successors; (d) "herein," "hereof' and "hereunder" refer to this Agreement as a
whole; (e) all accounting terms not specifically defined herein shall be construed
in accordance with generally accepted accounting principles, consistently
applied; (f) the masculine includes the feminine and neuter and vice versa; (g)
"including"means "including, without limitation" or"including, but not limited
to"; (h) all references to a particular law or statute mean that law or statute as
amended from time to time; (i) all references to electric energy or capacity are to
be interpreted as utilizing alternating current, unless expressly stated otherwise;
and 0) the word "or" is not necessarily exclusive. Reference to "days" shall be
calendar days, unless expressly stated otherwise herein.
1.152.2Terms Not to be Construed For or Against Either Party. Each term hereof shall be
construed according to its fair meaning and not strictly for or against either Party.
The Parties have jointly prepared this Agreement, and no term hereof shall be
construed against a Party on the ground that the Party is the author of that
provision.
1.152.3Headings. The headings used for the sections and articles hereof are for
convenience and reference purposes only and shall in no way affect the meaning
or interpretation of the provisions hereof.
1.152.4Examples. Example calculations and other examples set forth herein are for
purposes of illustration only and are not intended to constitute a representation,
warranty or covenant concerning the example itself or the matters assumed for
purposes of such example. If there is a conflict between an example and the text
hereof, the text shall control.
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1.152.5Interpretation with FERC Orders. Each Party conducts and shall conduct its
operations in a manner intended to comply with FERC Order No. 717, Standards
of Conduct for Transmission Providers, and its companion orders, requiring the
separation of its transmission and merchant functions. Moreover, the Parties
acknowledge that Interconnection Provider's transmission function offers
transmission service on its system in a manner intended to comply with FERC
policies and requirements relating to the provision of open-access transmission
service. The Parties recognize that Seller will enter into the Generation
Interconnection Agreement with the Interconnection Provider. Nothing herein is
intended to make any statement about FERC jurisdiction in relation to the Seller.
1.153 Other Terms. The Parties acknowledge and agree that the Generator Interconnection
Agreement shall be a separate and free standing contract and that the terms hereof are not
binding upon the Interconnection Provider.
Notwithstanding any other provision in this Agreement,nothing in the Generation Interconnection
Agreement, nor any other agreement between Seller on the one hand and Transmission Provider
or Interconnection Provider on the other hand, nor any alleged event of default thereunder, shall
alter or modify the Parties' rights, duties, and obligation hereunder. This Agreement shall not be
construed to create any rights between Seller and the Interconnection Provider or between Seller
and the Transmission Provider.
Seller expressly recognizes that, for purposes hereof, the Interconnection Provider and
Transmission Provider each shall be deemed to be a separate entity and separate contracting party
from Idaho Power whether or not the Generation Interconnection Agreement is entered into with
Interconnection Provider or an Affiliate thereof. Seller acknowledges that Idaho Power, acting in
its capacity as purchaser hereunder, has no responsibility for or control over Interconnection
Provider or Transmission Provider, and is not liable for any breach of agreement or duty by
Interconnection Provider or Transmission Provider.
SECTION 2
REPRESENTATIONS AND WARRANTIES
2.1 Mutual Representations and Warranties. Each Party represents, covenants, and warrants to
the other that:
2.1.1 Organization. It is duly organized and validly existing under the laws of the State
of its organization.
2.1.2 Authori . It has the requisite power and authority to enter this Agreement and to
perform according to the terms hereof.
2.1.3 Corporate Actions. It has taken all corporate or entity actions required to be taken
by it to authorize the execution, delivery and performance hereof and the
consummation of the transactions contemplated hereby.
2.1.4 No Contravention. The execution and delivery hereof does not contravene any
provision of, or constitute a default under, any indenture, mortgage, security
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instrument or undertaking, or other material agreement to which it is a party or
by which it is bound, or any valid order of any court, or any regulatory agency or
other Governmental Authority having authority to which it is subject.
2.1.5 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.
2.1.6 Liti ag tion. No litigation, arbitration, investigation or other proceeding is pending
or, to the best of either Party's knowledge, threatened in writing against either
Parry or its members, with respect hereto and the transactions contemplated
hereunder. No other investigation or proceeding is pending or threatened in
writing against a Party, its members, or any Affiliate, the effect of which would
materially and adversely affect the Party's performance of its obligations
hereunder.
2.1.7 Eligible Contract Participant. It, and any guarantor of its obligations under this
Agreement, is an "eligible contract participant" as that term is defined in the
United States Commodity Exchange Act.
2.1.8 Not a Sanctioned Person. It is not a Sanctioned Person.
2.2 Seller's Further Representations and Warranties. Seller further represents, covenants, and
warrants to Idaho Power that:
2.2.1 Authori1y. Seller(a) has (or will have prior to the Commercial Operation Date) all
required regulatory authority to make wholesale sales from and purchases of
Charging Energy for the Facility; (b) has the power and authority to own and
operate the Facility and be present upon the Premises for the Term; and (c) is
duly qualified and in good standing under the laws of the state of Idaho and each
other jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification.
2.2.2 No Contravention. The execution, delivery,performance and observance by Seller
of its obligations hereunder do not and will not:
2.2.2.1 contravene, conflict with or violate any provision of any material
Requirements of Law presently in effect having applicability to
either Seller or any of Seller's members;
2.2.2.2 require the consent or approval of or material filing or registration with
any Governmental Authority or other person other than such
consents and approvals which are (i) set forth in Exhibit 9 or (ii)
required in connection with the construction, operation, or
maintenance of the Facility and expected to be obtained in due
course;
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2.2.2.3 result in a breach of or constitute a default under any provision of any
security issued by any of Seller's members or managers, the effect
of which would materially and adversely affect Seller's performance
of, or ability to perform, its obligations hereunder, or any material
agreement, instrument or undertaking to which either Seller's
members or any Affiliates of Seller's members is a party or by which
the property of any of Seller's members or any Affiliates of Seller's
members is bound, the effect of which would materially and
adversely affect Seller's performance of, or ability to perform, its
obligations hereunder.
2.2.3 Required Facility Documents. All Required Facility Documents are listed on
Exhibit 9. Pursuant to the Required Facility Documents, Seller holds as of the
Effective Date, or will hold by the Commercial Operation Date (or such other
later date as may be specified under Requirements of Law), and will maintain for
the Term all Required Facility Documents. The anticipated use of the Facility
complies with all applicable restrictive covenants affecting the Premises.
Following the Commercial Operation Date, Seller shall promptly notify Idaho
Power of any additional Required Facility Documents.
2.2.4 Delivery of Storage Product. On or before the Commercial Operation Date, Seller
shall hold rights sufficient to enable Seller to deliver the Storage Product from
the Facility to the Point of Delivery pursuant to this Agreement throughout the
Term.
2.2.5 Control of Premises. Seller has all legal rights necessary for the Seller to enter upon
and occupy the Premises for the purpose of constructing, operating and
maintaining the Facility for the Term. All leases of real property required for the
operation of the Facility or the performance of any obligations of Seller
hereunder are set forth and accurately described in Exhibits 9 and 10. Seller shall
maintain all leases or other land grants necessary for the construction, operation
and maintenance of the Facility as valid for the Term. Upon request by Idaho
Power, Seller shall provide copies of the memoranda of lease recorded in
connection with the development of the Facility.
2.2.6 Undertaking of Agreement; Professionals and Experts. Seller has engaged those
professional or other experts it believes necessary to understand its rights and
obligations pursuant to this Agreement. All professionals or experts including
engineers, attorneys or accountants, that Seller may have consulted or relied on
in undertaking the transactions contemplated by this Agreement have been solely
those of Seller. In entering into this Agreement and the undertaking by Seller of
the obligations set forth herein, Seller has investigated and determined that it is
capable of performing hereunder and has not relied upon the advice, experience
or expertise of Idaho Power in connection with the transactions contemplated by
this Agreement.
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2.2.7 Verification. All information relating to the Facility, its operation and output and
the Premises provided to Idaho Power and contained in this Agreement has been
verified by Seller and is true and accurate.
2.3 No Other Representations or Warranties. Each Party acknowledges that it has entered into
this Agreement in reliance upon only the representations and warranties set forth in this
Agreement, and that no other representations or warranties have been made by the other
Party with respect to the subject matter hereof.
2.4 Continuing Nature of Representations and Warranties; Notice. The representations and
warranties set forth in this Section are made as of the Effective Date and deemed repeated
as of the Commercial Operation Date. If at any time during the Term,a Party obtains actual
knowledge of any event or information that would have caused any of the representations
and warranties in this Section 2 to be materially untrue or misleading at the time given,
such Party shall provide the other Party with written notice of the event or information,the
representations and warranties affected, and the action, if any, which such Party intends to
take to make the representations and warranties true and correct. If at any time a Party
obtains actual knowledge that the representations and warranties in this Section 2 are not
true, said Party shall provide written notice to the other Party. The notice required pursuant
to this section shall be given as soon as practicable after the occurrence of each such event.
SECTION 3
CONDITIONS PRECEDENT TO TERM
3.1 Conditions to be granted First Operation Date.As a condition of the Buyer's acceptance of
deliveries of the Storage Product from the Seller,the following conditions shall be satisfied.
3.1.1 Commission/Re ul�atory Approval. This Agreement is subject to, and the
obligations of Buyer and Seller to purchase, sell and deliver Net Output, Green
Tags and Capacity Rights hereunder shall only become fully effective upon the
IPUC's approval of all terms and provisions hereof without change or condition,
declaration that all payments to be made to Seller hereunder shall be allowed as
prudently incurred expenses for ratemaking purposes, and approval of the
accounting and regulatory treatment requested by Idaho Power in its application
to the IPUC, all to the satisfaction of Buyer (the "IPUC Approval"); provided
that, notwithstanding anything to the contrary herein, if the IPUC Approval has
not been obtained on or prior to the date that is six(6) months after the date that
the filings have been made with the IPUC for the IPUC Approval, the Parties
agree to consult with each other in good faith for a period of thirty (30) days in
the event of any such delay to evaluate whether, notwithstanding such delay, the
Facility will achieve Commercial Operation by the Scheduled Commercial
Operation Date; provided, further, that if notwithstanding the good faith efforts
of the Parties they are not able to so agree, or if the Parties agree that the Facility
will not timely achieve Scheduled Commercial Operation Date, then the
Agreement may be terminated by Buyer. If IPUC Approval does not occur by the
date that is twelve (12) months after the filing of this Agreement for IPUC
Approval, then either Party will have a right to terminate this Agreement and
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upon any such termination neither Party shall have any obligation to the other
under this Agreement, except with respect to the terms and provisions hereof that
expressly survive the termination of this Agreement.
3.1.2 Idaho Power will promptly(but in no event later than sixty(60) days following the
Effective Date) submit applications with the IPUC for IPUC Approval and pay
all costs associated with such filings. Following Idaho Power's filing of such
applications for IPUC Approval, Idaho Power shall promptly apprise Seller of
any material updates with respect thereto. As promptly as possible, but in any
event no later than thirty (30) days, after the IPUC issues an order or other final
determination with respect to an application for IPUC Approval, Idaho Power
shall notify Seller thereof(providing a copy of such order or determination).
3.2 Idaho Power's Right to Monitor. After the Effective Date, Seller shall, and shall permit
Idaho Power and its advisors and consultants to:
3.2.1 On and after the Execution Date through the Commercial Operation Date, by the
tenth (loth) Business Day of each month, Seller will provide Buyer a monthly
report for the prior month regarding development, financing and construction
updates in the form attached hereto as Exhibit 18, the form of which may be
reasonably revised by Buyer from time to time (the "Construction Progress
Report").
3.2.2 Thirty (30) days prior to the expected Commercial Operation Date and thereafter
from the Commercial Operation Date and throughout the Settlement Term of this
Agreement, no later than the end of the month immediately following the month
for which information is being reported, Seller shall provide Buyer with a
monthly report for the prior month regarding material data pertaining to the
operation of the Facility in the form of Exhibit 19, the form of which may be
reasonably revised by Buyer from time to time (the "Operations Report"). Each
Operations Report shall include, at a minimum,the following information for the
Facility in such month: (i) A description of any Outages or other performance
issues in the prior month; (ii) the Storage Availability calculated in accordance
with Exhibit 23; and(iii) a description of any issues that could materially impact
(ii).
3.2.3 Review and discuss with Seller and its advisors and consultants monthly status
reports on the progress of the acquisition, design, financing, engineering,
construction and installation of the Facility.
3.2.4 Monitor the status of the acquisition, Premises, land leasing, design, financing,
engineering, construction and installation of the Facility and the performance of
the contractors constructing the Facility.
3.2.5 Witness initial performance tests and other tests and review the results thereof,with
Seller to make best efforts to provide Idaho Power five (5) Business Days'
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advance written notice of each such major test. Seller shall provide Idaho Power
with at least two (2)Business Days prior written notice of each such test.
3.2.6 Perform such examinations, inspections, and quality surveillance as, in Idaho
Power's reasonable judgment,are appropriate and advisable to determine that the
Facility has been properly commissioned and Commercial Operation and Final
Completion have been achieved.
With respect to Idaho Power's right to monitor under this Section 3.2, (i)Idaho Power is under no
obligation to exercise any of these monitoring rights, (ii) such monitoring shall occur subject to
reasonable rules developed by Seller regarding Facility construction, access, health, safety, and
environmental requirements, and (iii) Idaho Power shall have no liability to Seller for failing to
advise it of any condition, damages, circumstances, infraction, fact, act, omission or disclosure
discovered or not discovered by Idaho Power with respect to the Facility or any contractor. Any
review or monitoring of the Facility conducted by Idaho Power hereunder shall be performed in a
manner that does not impede, hinder, postpone, or delay Seller or its contractors in their
performance of the engineering, construction, design or testing of the Facility. Idaho Power shall
maintain one or more designated representatives for purposes of the monitoring activities
contemplated in this Section 3.2,which representatives shall have authority to act for Idaho Power
in all technical matters under this Section 3.2 as authorized by Idaho Power but not to amend or
modify any provision hereof. A Construction Progress Report and Operations Report delivered
pursuant to this Section 3.2 shall not constitute notice for any purpose under this Agreement,
including with respect to any fact, circumstance, request, issue, dispute or matter included in such
report. Seller does not herein grant Idaho Power the right to review, comment on or approve of
the terms or conditions of any contract or negotiation between Seller and a third parry, the terms
and conditions of each such contract or negotiation being confidential and to be determined by
Seller in its sole discretion. Conversely, nothing in this Agreement shall be construed to require
Idaho Power to review, comment on, or approve of any contract between Seller and a third party
and any such review, comment or approval by Idaho Power shall not constitute a waiver by Idaho
Power or any of Seller's obligations under this Agreement or create any obligation or liability for
Idaho Power.
SECTION 4
TERM AND COMMERCIAL OPERATION DATE
4.1 Term. This Agreement shall become effective on the Effective Date and, subject to earlier
termination as provided in this Agreement, shall continue in full force and effect for a
period of Contract Years from the Commercial Operation Date (the"Term").
4.2 Commercial Operation Date. Seller will in good faith using commercially reasonable
efforts seek to achieve the Commercial Operation Date by the Scheduled Commercial
Operation Date. The Commercial Operation Date shall occur after all the following
conditions have been satisfied.
4.2.1 Idaho Power has received the Default Security, as applicable.
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4.2.2 Seller shall notify Buyer of the Seller's proposed Commercial Operation Date, in
written form no later than five (5) Business Days prior to the proposed
Commercial Operation Date.
4.2.3 Seller shall provide to Idaho Power a certificate from a Licensed Professional
Engineer licensed in the state of Idaho addressed to Idaho Power stating that
Seller has (a) the Required Facility Documents including the material permits,
consents and agreements necessary to operate and maintain the Facility and (b)
obtained or entered into all Permits and Required Facility Documents. Seller
must provide copies of any or all Required Facility Documents requested by
Idaho Power.
4.2.4 Seller shall provide Idaho Power with documentation showing that Seller has
obtained retail electric service for the Facility.
4.2.5 Idaho Power has received a certificate addressed to Idaho Power from a Licensed
Professional Engineer stating that, in conformance with the requirements of the
Generation Interconnection Agreement: (1) all required Interconnection
Facilities have been constructed; (2) all required interconnection tests have been
completed; and (3) the Facility is physically interconnected with the System in
conformance with the Generation Interconnection Agreement and able to deliver
electric energy consistent with the terms of this Agreement.
4.2.6 Idaho Power has received, addressed to Idaho Power from a Licensed Professional
Engineer, an executed Engineer's Certification of Design & Construction
Adequacy and an Engineer's Certification of Operations and Maintenance
(O&M) Policy. These certificates will be in the form specified in Exhibit I I but
may be modified to the extent necessary to recognize the different engineering
disciplines providing the certificates.
4.2.7 Idaho Power has received an opinion from a law firm or attorney licensed in the
State of Idaho stating, after all appropriate and reasonable inquiry (1) Seller has
obtained or entered into all Required Facility Documents; and (2) neither Seller
nor the Facility are in violation of or subject to any liability under any
Requirements of Law.
4.2.8 Idaho Power has received a certificate addressed to Idaho Power from an authorized
officer of Seller (1) stating that Seller has completed all of its obligations under
the Generation Interconnection Agreement.
4.2.9 Seller has satisfied its obligation to pay for any required Network Upgrades as a
Network Resource pursuant to the Generation Interconnection Agreement (as
those terms are defined in the Generation Interconnection Agreement).
4.2.10 Seller shall submit written proof to the Buyer of all insurance required in Section
14.
4.2.11 Seller has completed all Start-Up Testing in accordance with Exhibit 7.
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4.2.12 Seller has completed all Performance Tests, submitted the results thereof to Idaho
Power, and has achieved (i) the Guaranteed Storage Availability or paid all
Storage Availability Damages in accordance with Section 4.5.5, (ii) the
Guaranteed Storage Capacity or paid all Storage Capacity Damages in
accordance with Section 4.5.5, and(iii) Guaranteed Roundtrip Efficiency.
4.2.13 Commercial Operation Date Notice. Seller shall provide written notice to Idaho
Power stating when Seller believes that the Facility has achieved Commercial
Operation accompanied by the certificates and opinions described above. Seller
shall ensure that the Facility does not achieve Commercial Operation in any
Calendar Quarter prior to the Calendar Quarter in which the Scheduled
Commercial Operation Date falls.
4.2.14 Idaho Power shall have ten (10) Business Days after receipt of such written notice
from Seller either to confirm to Seller that all of the conditions to Commercial
Operation have been satisfied or have occurred, or to state with specificity what
Idaho Power reasonably believes has not been satisfied. If, within such ten (10)
Business Day period,Idaho Power does not respond or notifies Seller confirming
that the Facility has achieved Commercial Operation, the original date of receipt
of Seller's written notice shall be the Commercial Operation Date.If Idaho Power
notifies Seller within such ten (10) Business Day period that Idaho Power
reasonably believes the Facility has not achieved Commercial Operation, Seller
must address the concerns stated in Idaho Power's notice to the satisfaction of
Idaho Power.In the event Idaho Power provides notice of deficiency with regards
to the information submitted to establish the Commercial Operation Date, then
the Commercial Operation Date will be the date upon which Seller has addressed
the concerns stated in Idaho Power's notice to Idaho Power's reasonable
satisfaction.
With respect to Sections 4.2.3 through 4.2.6 above, the certificate or opinion provided to Idaho
Power must come from a Licensed Professional Engineer or, in the case of Section 4.2.7 above,
an attorney that is not an employee of Seller(or any Affiliate) and has no financial interest in the
Facility.
Notwithstanding the foregoing in this Section 4.2, the date for achieving each of the foregoing
items shall be extended on a day for day basis for any delay due solely to Idaho Power's delay in
taking, or failure to take, any action required of it hereunder in breach of this Agreement. These
Commercial Operation Date requirements are to be used solely for purposes of determining when
the Facility has achieved its Commercial Operation Date.
4.3 Condition Precedents to Commercial Operation. Seller covenants and agrees that before it
achieves the Commercial Operation Date, it shall ensure that it has done all of the
following, and Seller shall hold Idaho Power harmless from and against any failure of
Seller to have done so:
4.3.1 All Facility systems necessary for the stable, safe, reliable and consistent operation
of the installed Facility are substantially complete,
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4.3.2 Any testing of the installed Facility required pursuant to the Interconnection
Agreement(s) and Interconnection Provider documents and equipment supplier
requirements have been successfully completed;
4.3.3 Seller has completed all of the Performance Tests and has achieved (i) the
Guaranteed Storage Availability or paid all Storage Availability Damages in
accordance with Section 4.5.5, (ii) the Guaranteed Storage Capacity or paid all
Storage Capacity Damages in accordance with Section 4.5.5, and (iii) the
Guaranteed Roundtrip Efficiency; and
4.3.4 the Facility is available for operation in all material respects in accordance with the
Requirements of Law.
4.4 Continuing Obligations. Seller shall provide Buyer with the following during the Term of
this Agreement:
4.4.1 At Buyer's request, Seller shall provide evidence that it is in compliance with the
insurance requirements set forth in Section 14.
4.4.2 Seller shall maintain compliance and remain in good standing in all requirements
of Sections 3 and 4 of this Agreement.
4.5 Commercial Operation Date Delay, Delay Damages, Storage Capaci . Damages, Storage
Availability Damages.
4.5.1 If Commercial Operation is not achieved on or before the Scheduled Commercial
Operation Date, Seller shall pay to Idaho Power Delay Damages from and after
the Scheduled Commercial Operation Date up to, but not including, the date that
the Facility achieves Commercial Operation. Delay Damages cease to accrue in
the event of termination of this Agreement.
4.5.2 If the Facility does not achieve Commercial Operation by the Guaranteed
Commercial Operation Date, Idaho Power may terminate this Agreement
pursuant to Section 12.
4.5.3 If the Facility does not achieve the Guaranteed Roundtrip Efficiency, Idaho Power
may terminate this Agreement pursuant to Section 12.
4.5.4 If the Facility achieves Commercial Operation based on less than the Guaranteed
Storage Capacity, Seller shall pay to Idaho Power the Storage Capacity Damages,
provided, Seller shall not be required to pay Storage Capacity Damages in excess
of the Storage Capacity Damages Cap.
4.5.5 If the Facility achieves Commercial Operation based on less than the Guaranteed
Storage Availability, Seller shall pay to Idaho Power the Storage Availability
Damages, provided, Seller shall not be required to pay Storage Availability
Damages in excess of the Storage Availability Damages Cap.
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4.6 Damages Calculation.Each Party agrees and acknowledges that(a)the damages that Idaho
Power would incur due to Seller's delay in achieving Commercial Operation or failure to
achieve the Guaranteed Storage Capacity or Guaranteed Storage Availability would be
difficult or impossible to predict with certainty, and (b) it is impractical and difficult to
assess actual damages in the circumstances stated, and therefore the Delay Damages,
Storage Capacity Damages, and Storage Availability Damages as agreed to by the Parties
and set forth herein are a fair and reasonable calculation of such damages. The Parties agree
that Delay Damages, Storage Capacity Damages, and Storage Availability Damages shall
be Idaho Power's exclusive remedy for a delay in achieving Commercial Operation or
failure to achieve the Guaranteed Storage Availability and Guaranteed Storage Capacity
and believe that Delay Damages, Storage Capacity Damages, and Storage Availability
Damages fairly represent actual damages. Subject to the foregoing sentence, this Section
4.6 shall not limit Seller's termination rights or the amount of damages payable to Idaho
Power if this Agreement is terminated as a result of Seller's failure to achieve Commercial
Operation by the Guaranteed Commercial Operation Date. Any such termination damages
shall be determined in accordance with Section 12.4.
4.7 Damages Invoicing. By the tenth (loth) day following the end of the calendar month in
which Delay Damages begin to accrue or Storage Capacity Damages or Storage
Availability Damages are incurred, as applicable, and continuing on the tenth(loth) day of
each calendar month during the period in which Delay Damages accrue (and the following
months, if applicable), Idaho Power shall deliver to Seller an invoice showing Idaho
Power's computation of such damages and any amount due Idaho Power in respect thereof
for the preceding calendar month. No later than ten (10) days after receiving such an
invoice and subject to Sections 11.2 and 11.3, Seller shall pay to Idaho Power, by wire
transfer of immediately available funds to an account specified in writing by Idaho Power
or by any other means agreed to by the Parties in writing from time to time,the amount set
forth as due in such invoice.
SECTION 5
DELIVERIES OF STORAGE PRODUCT
5.1 Purchase and Sale. Except as otherwise expressly provided herein, commencing on the
Commercial Operation Date and continuing through the Term, Seller shall sell and make
available to Idaho Power, and Idaho Power shall purchase and receive the Storage Product.
Idaho Power shall be under no obligation to make any purchase hereunder other than the
Storage Product, as described above. Idaho Power shall not be obligated to purchase,
receive or pay for Storage Product that is not delivered to Idaho Power at the Point of
Delivery or otherwise.
5.2 No Sales to Third Parties. During the Term, Seller shall not sell any Storage Product from
the Facility to any party other than Idaho Power; provided, however, that this restriction
shall not apply during periods when Idaho Power is in default hereof because it has failed
to accept the Storage Product delivered by Seller to Idaho Power as required hereunder.
5.3 Title and Risk of Loss of Storage Product. Seller shall deliver the Storage Product to Idaho
Power free and clear of all liens, claims and encumbrances. Title to and risk of loss of all
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Storage Product shall transfer from Seller to Idaho Power upon its delivery to Idaho Power
at the Point of Delivery. Seller shall be deemed to be in exclusive control of, and
responsible for, any damage or injury caused by, all delivery of the Storage Product up to
and at the Point of Delivery, or failure to deliver the Storage Product to the Point of
Delivery. Idaho Power shall be deemed to be in exclusive control of Storage Product after
the Point of Delivery.
5.4 Idaho Power as Purchaser. Seller acknowledges that Idaho Power, acting in its capacity as
purchaser under this Agreement, has no responsibility for or control over Idaho Power
Transmission or any successor Transmission Provider.
5.5 Purchase and Sale of Capacity Rights. For and in consideration of Idaho Power's
agreement to purchase from Seller the Storage Product on the terms and conditions set forth
herein, Seller transfers to Idaho Power, and Idaho Power accepts from Seller, all right,title,
and interest that Seller may have in and to Capacity Rights, if any, existing during the
Term.
5.6 Representation Regarding Ownership of Capacity Rights. Seller represents that it has not
sold, and covenants that during the Term it will not sell or attempt to sell to any other
person or entity the Capacity Rights, if any. During the Term, Seller shall not report to any
person or entity that the Capacity Rights, if any,belong to anyone other than Idaho Power.
Idaho Power may at its own risk and expense report to any person or entity that Capacity
Rights exclusively belong to it.
5.7 Authority to Make Sales. Seller covenants that during the Term it will maintain all required
regulatory authority to make wholesale sales from the Facility to Idaho Power.
5.8 Further Assurances. At Idaho Power's request, the Parties shall execute such documents
and instruments as may be reasonably required to effect recognition and transfer of the
Storage Product to Idaho Power.
SECTION 6
CONTRACT PRICE; COSTS
6.1 Contract Price. Idaho Power shall pay Seller the Contract Price for the Storage Product.
Seller shall not be entitled to any compensation over and above the Contract Price for the
Storage Product.
6.2 Costs and Charges. Seller shall be responsible for paying or satisfying when due all costs
or charges imposed in connection with the scheduling and delivery of Storage Product up
to and at the Point of Delivery, including transmission costs, Transmission Service, and
transmission line losses, and any operation and maintenance charges imposed by
Interconnection Provider and Transmission Provider for the Interconnection Facilities.
Idaho Power shall be responsible for all costs or charges, if any, imposed in connection
with the delivery of Storage Product at and from the Point of Delivery, including
transmission costs and transmission line losses and imbalance charges or penalties.
Without limiting the generality of the foregoing, Seller, in accordance with the Generation
Interconnection Agreement, shall bear all costs associated with the modifications to
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Interconnection Facilities or the System (including system upgrades) caused by or related
to(a)the interconnection of the Facility with the System and(b)any increase in generating
capacity of the Facility.
6.3 Station Service. Seller shall be responsible for arranging and obtaining, at its sole risk and
expense, any station service required by the Facility that is not provided by the Facility
itself.
6.4 Taxes. Seller shall pay or cause to be paid when due, or reimburse Idaho Power for, all
existing and any new sales,use, excise, severance, ad valorem, and any other similar taxes,
imposed or levied by any Governmental Authority on the Storage Product up to and
including, but not beyond, the Point of Delivery, regardless of whether such taxes are
imposed on Idaho Power or Seller under Requirements of Law. Idaho Power shall pay or
cause to be paid when due all such taxes imposed or levied by any Governmental Authority
on the Storage Product beyond the Point of Delivery, regardless of whether such taxes are
imposed on Idaho Power or Seller under Requirements of Law. The Contract Price shall
not be adjusted on the basis of any action of any Governmental Authority with respect to
changes to or revocations of sales and use tax benefits,rebates, exception or give back. In
the event any taxes are imposed on a Party for which the other Party is responsible
hereunder,the Parry on which the taxes are imposed shall promptly provide the other Party
written notice thereof and such other information as such Party may reasonably request
with respect to any such taxes. Seller shall be responsible for any and all sun and light
severance taxes.
6.5 Costs of Ownership and Operation. Without limiting the generality of any other provision
hereof and subject to Section 6.4, Seller shall be solely responsible for paying when due
(a) all costs of owning and operating the Facility in compliance with existing and future
Requirements of Law and the terms and conditions hereof, and (b) all taxes and charges
(however characterized) now existing or hereinafter imposed on or with respect to the
Facility, its operation, or on or with respect to emissions or other environmental impacts
of the Facility.
6.6 Rates Not Subject to Review. The rates for service specified herein shall remain in effect
until expiration of the Term and shall not be subject to change for any reason, including
regulatory review, absent agreement of the Parties. Neither Party shall petition FERC
pursuant to the provisions of Sections 205 or 206 of the Federal Power Act (16 U.S.C. §
792 et seq.) to amend such prices or terms or support a petition by any other person or
entity seeking to amend such prices or terms, absent the agreement in writing of the other
Party. Further, absent the agreement in writing by both Parties, the standard of review for
changes hereto proposed by a Party, a non-parry or the FERC acting sua sponte shall be
the "public interest" application of the "just and reasonable" standard of review set forth
in United Gas Pipe Line Co.v.Mobile Gas Service Cor., 350 U.S. 332(1956)and Federal
Power Commission v. Sierra Pacific Power Co., 350 U.S. 348 (1956) and clarified by
Morgan Stanley Capital Group. Inc. v. Public Util. Dist. No. 1 of Snohomish, 554 U.S.
527, 128 S. Ct. 2733 (2008).
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SECTION 7
OPERATION AND CONTROL
7.1 As-Built Supplement. Within thirty(30)days of completion of construction of the Facility,
Seller shall provide Idaho Power the As-built Supplement. The As-built Supplement shall
be deemed effective and shall be added to Exhibit 16 when it has been reviewed and
approved by Idaho Power, which approval shall not be unreasonably withheld or delayed.
If the proposed As-built Supplement does not accurately describe the Facility as actually
built or is otherwise defective as to form in any material respect, Idaho Power may within
fifteen (15) days after receiving the proposed As-built Supplement give Seller a notice
describing what Idaho Power wishes to correct. If Idaho Power does not give Seller such a
notice within the fifteen (15) day period, the As-built Supplement shall be deemed
approved. If Idaho Power provides a timely notice requiring corrections, Seller shall in
good faith cooperate with Idaho Power to revise the As-built Supplement to address Idaho
Power's concerns. Notwithstanding the foregoing, Idaho Power shall have no right to
require Seller to relocate, modify or otherwise change in any respect any aspect of the
Facility as actually built.
7.2 Standard of Facility Operation.
7.2.1 General. At Seller's sole cost and expense, Seller shall build, operate,maintain and
repair the Facility and the Interconnection Facilities in accordance with (a) the
applicable and mandatory standards, criteria and formal guidelines of FERC,
NERC, any RTO, and any other Electric System Authority and any successors to
the functions thereof; (b) the Permits and Required Facility Documents; (c) the
Generation Interconnection Agreement; (d) all Requirements of Law; (e) the
requirements hereof;and(f)Prudent Electrical Practice. Seller acknowledges that
it shall have no claims hereunder against Idaho Power with respect to any
requirements imposed by or damages caused by (or allegedly caused by) the
Transmission Provider. Seller will have no claims against Idaho Power under this
Agreement with respect to the provision of station service.
7.2.2 Qualified Operator. From and after the Commercial Operation Date, Seller will
cause the Project to be operated and maintained by a Qualified Operator. Seller
shall provide Idaho Power thirty (30) days prior written notice of any proposed
change in the Qualified Operator of the Facility.
7.2.3 Fines and Penalties.
7.2.3.1 Without limiting a Party's rights under Section 7.2.3.2, each Party shall
pay all fines and penalties incurred by such Party on account of
noncompliance by such Party with Requirements of Law in respect
to this Agreement, except where such fines and penalties are being
contested in good faith through appropriate proceedings.
7.2.3.2 If fines,penalties, or legal costs are assessed against or incurred by either
Parry (the "Indemnified Party") on account of any action by any
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Governmental Authority due to noncompliance by the other Party
(the "Indemnifying Party") with any Requirements of Law or the
provisions hereof, or if the performance of the Indemnifying Party
is delayed or stopped by order of any Governmental Authority due
to the Indemnifying Party's noncompliance with any Requirements
of Law, the Indemnifying Party shall indemnify and hold harmless
the Indemnified Party against any and all losses,liabilities,damages,
and claims suffered or incurred by the Indemnified Party as a result
thereof. Without limiting the generality of the foregoing, the
Indemnifying Party shall reimburse the Indemnified Party for all
fees,damages,or penalties imposed on the Indemnified Party by any
Governmental Authority, other person or entity or to other utilities
for violations to the extent caused by a default by the Indemnifying
Party or a failure of performance by the Indemnifying Party
hereunder.
7.3 Interconnection. Seller shall be responsible for the costs and expenses associated with
obtaining from the Transmission Provider Network Resource interconnection service for
the Facility at its Nameplate Capacity Rating at the Point of Delivery. Seller shall have no
claims hereunder against Idaho Power, acting in its merchant function capacity, with
respect to any requirements imposed by or damages caused by (or allegedly caused by)
acts or omissions of the Transmission Provider or Interconnection Provider, in connection
with the Generation Interconnection Agreement or otherwise.
7.4 Coordination with System. Seller shall be responsible for the coordination and
synchronization of the Facility and the Interconnection Facilities with the System.
7.5 Outages.
7.5.1 Planned Outages. Except as otherwise provided herein, Seller shall not schedule a
Planned Outage during daylight hours (sun up to sunset) during any portion of
the months of November, December, January, February, June, July, and August,
except to the extent a Planned Outage is reasonably required to enable a vendor
to satisfy a guarantee requirement. Seller shall provide Idaho Power with an
annual forecast of Planned Outages for each Contract Year at least one(1)month,
but no more than three(3)months,before the first day of that Contract Year, and
shall promptly update such schedule, or otherwise change it, only to the extent
that Seller is reasonably required to change it in order to comply with Prudent
Electrical Practices. Seller shall not schedule any maintenance of Interconnection
Facilities during such months,without the prior written approval of Idaho Power,
which approval shall not be unreasonably withheld or delayed.
7.5.2 Maintenance Outages. If Seller reasonably determines that it is necessary to
schedule a Maintenance Outage, Seller shall notify Idaho Power in writing of the
proposed Maintenance Outage as soon as practicable but in any event at least five
(5) days before the outage begins. Upon such notice, the Parties shall plan the
Maintenance Outage to mutually accommodate the reasonable requirements of
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Seller and the service obligations of Idaho Power;provided, however,that Seller
shall take all reasonable measures consistent with Prudent Electrical Practices to
not schedule any Maintenance Outage during the daylight hours of the following
periods:November,December,January,February,June 15 through June 30,July,
August, and September I through September 15. Notice of a proposed
Maintenance Outage shall include the expected start date and time of the outage,
the amount of generation capacity of the Facility that will not be available, and
the expected completion date and time of the outage. Seller shall give Idaho
Power notice of the Maintenance Outage as soon as practicable after Seller
determines that the Maintenance Outage is necessary. Idaho Power shall
promptly respond to such notice and may request reasonable modifications in the
schedule for the outage. Seller shall use all reasonable efforts to comply with any
request to modify the schedule for a Maintenance Outage provided that such
change has no substantial impact on Seller. Seller shall notify Idaho Power of
any subsequent changes in generation capacity available to Idaho Power as a
result of such Maintenance Outage or any changes in the Maintenance Outage
completion date and time. As soon as practicable, any notifications given orally
shall be confirmed in writing. Seller shall take all reasonable measures consistent
with Prudent Electrical Practices to minimize the frequency and duration of
Maintenance Outages.
7.5.3 Forced Outages. Seller shall promptly provide to Idaho Power an oral report, via
telephone to a number specified by Idaho Power (or other method approved by
Idaho Power), of any Forced Outage resulting in more than ten percent(10%) of
the Storage Capacity of the Facility being unavailable. This report shall include
the amount of the generation capacity of the Facility that will not be available
because of the Forced Outage and the expected return date of such generation
capacity. Seller shall promptly update the report as necessary to advise Idaho
Power of changed circumstances. As soon as practicable, the oral report shall be
confirmed in writing by notice to Idaho Power. Seller shall take all reasonable
measures consistent with Prudent Electrical Practices to avoid Forced Outages
and to minimize their duration.
7.5.4 Notice of Deratings and Outages.Without limiting the foregoing, Seller will inform
Idaho Power, via telephone to a number specified by Idaho Power (or other
method approved by Idaho Power), of any major limitations, restrictions,
deratings or outages known to Seller affecting the Facility for the following day
and will promptly update Seller's notice to the extent of any material changes in
this information, with "major" defined as affecting more than five percent (5%)
of the Storage Capacity.
7.6 Scheduling.
7.6.1 Cooperation and Standards. With respect to any and all scheduling requirements
hereunder, (a) Seller shall cooperate with Idaho Power with respect to scheduling
Discharging Energy and Ancillary Services, and (b) each Party shall designate
authorized representatives to communicate with regard to scheduling and related
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matters arising hereunder. Each Party shall comply with the applicable variable
resource standards and criteria of any applicable Electric System Authority.
Idaho Power shall have all right, title, and interest in and to any gross revenues
received by Seller for any Ancillary Services provided by the Facility. Seller
shall operate the Facility in accordance with the Storage Operating Restrictions.
7.6.2 Schedule Coordination. If, as a result hereof, Idaho Power is deemed by an RTO to
be financially responsible for Seller's performance under the Generation
Interconnection Agreement, due to Seller's lack of standing as a "scheduling
coordinator" or other RTO recognized designation, qualification or otherwise,
then Seller shall acquire such RTO recognized standing (or shall contract with a
third party who has such RTO recognized standing) such that Idaho Power is no
longer responsible for Seller's performance under the Generation Interconnection
Agreement or RTO requirement.
7.7 Charging Energy Management.
7.7.1 Upon receipt of a valid Charging Notice, but subject to Section 7.7.2, Seller shall
take any and all action necessary to accept the Charging Energy from the Idaho
Power generating facilities to the Facility in order to deliver the Storage Product
in accordance with the terms and conditions of this Agreement. Idaho Power shall
have the right to direct Seller to charge the Facility seven (7) days per week and
twenty-four (24) hours per day (including holidays), by providing Charging
Notices to Seller electronically; provided, that Idaho Power's right to issue
Charging Notices is subject to the requirements and limitations set forth in this
Agreement, including the Storage Operating Restrictions set forth in Exhibit 4.
Each Charging Notice issued in accordance with this Agreement will be effective
unless and until Idaho Power modifies such Charging Notice by providing Seller
with an updated Charging Notice. Seller shall not charge the Facility other than
pursuant to a valid Charging Notice or in connection with a Guaranteed Storage
Capacity Test. If Seller(a) charges the Facility to a Stored Energy Level greater
than the Stored Energy Level provided for in the Charging Notice or(b) charges
the Facility in violation of the first sentence of this Section 7.7.1, then (x) Seller
shall be responsible for all Energy costs associated with such charging of the
Facility, (y) Idaho Power shall not be required to pay for the charging of such
Energy(i.e.,Charging Energy),and(z)Idaho Power shall be entitled to discharge
such Energy and entitled to all of the benefits (including Storage Product)
associated with such discharge. Idaho Power shall have the right to direct Seller
to discharge the Facility seven(7) days per week and twenty-four(24) hours per
day (including holidays), by providing Discharging Notices to Seller
electronically, and subject to the requirements and limitations set forth in this
Agreement, including the Storage Operating Restrictions. Each Discharging
Notice issued in accordance with this Agreement will be effective unless and
until Idaho Power modifies such Discharging Notice by providing Seller with an
updated Discharging Notice.
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7.7.2 Notwithstanding anything in this Agreement to the contrary, any curtailment order
issued by the RTO or any other Governmental Authority,as applicable,regarding
the reduced or increased generation of the Facility, whether in response to an
Emergency or otherwise, shall have priority over any Charging Notices and
Discharging Notices for the applicable period, and Seller shall have no liability
for violation of this Section 7.1 or any Charging Notice or Discharging Notice if
and to the extent such violation is caused by Seller's compliance with any such
notice of curtailment.
7.8 Performance Tests; Guarantees.
7.8.1 Guaranteed Storage Capacity. Seller shall perform the Storage Capacity Test as
provided in Exhibit 23, provided in the event that Seller fails to demonstrate
compliance with the Guaranteed Storage Capacity. Seller shall pay as liquidated
damages for such failure and not as a penalty, the Storage Capacity Damages in
the event that Seller fails to demonstrate compliance with the Guaranteed Storage
Capacity.
7.8.2 Guaranteed Storage Availability. Seller shall perform the Storage Availability Test
as provided in Exhibit 23; provided, if Seller does not achieve the Guaranteed
Storage Availability for the previous Contract Year as determined in accordance
with the terms of Exhibit 23,then, Seller shall pay as liquidated damages for such
failure and not as a penalty, the Storage Availability Damages for each Day
during the previous Contract Year in which Seller fails to demonstrate
compliance with the Guaranteed Storage Availability.
7.8.3 Guaranteed Roundtrip Efficiency. Seller shall perform the Roundtrip Efficiency
Test as provided in Exhibit 23.
7.8.4 Ramp Rate Test. Seller shall perform the Ramp Rate Test as provided in Exhibit
23.
7.8.5 Response Time Test. Seller shall perform the Response Time Test as provided in
Exhibit 23.
7.8.6 Auxiliary Load Test. Seller shall perform the Auxiliary Load Test as provided in
Exhibit 23.
7.8.7 Power Factor Test. Seller shall perform the Power Factor Test as provided in
Exhibit 23.
7.8.8 Noise Test. Seller shall perform the Noise Test as provided in Exhibit 23.
7.9 Electronic Communications.
7.9.1 GOLC. Beginning on the Commercial Operation Date, Idaho Power will dispatch
Facility through its GOLC system installed by Seller. The GOLC Set-Point is
calculated by the Transmission Provider and communicated electronically
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through the SCADA system. Seller shall ensure that, throughout the Term, the
SCADA signal is capable of functioning on all GOLC Set-Points within the
margin of error specified in the Facility control system manufacturer's set point
margin of error. Unless otherwise directed by Idaho Power, Seller shall ensure
that the Facility GOLC is in "Remote" set-point control during normal
operations.
7.9.2 Telemetering. Seller shall during the Term provide telemetering equipment and
facilities capable of transmitting the following information concerning the
Facility pursuant to the Generation Interconnection Agreement and to Idaho
Power on a real-time basis, and will operate such equipment when requested by
Idaho Power to indicate instantaneous MW output at the Point of Delivery.
Commencing on the Commercial Operation Date, Seller shall also transmit or
cause to be transmitted to or make accessible to Idaho Power any other data from
the Facility that Seller receives on a real time basis, including meteorological
data, Charging Energy, Discharging Energy, Storage Capacity, Storage
Availability and any Ancillary Services provided by the Facility. Such real time
data shall be provided to or be made accessible to Idaho Power on the same basis
on which Seller receives the data (e.g., if Seller receives the data in four second
intervals, Idaho Power shall also receive the data in four second intervals). Seller
must provide Idaho Power access to Seller's web-based performance monitoring
system.
7.9.3 Transmission Provider Consent. Seller shall execute a consent,in the form required
by Transmission Provider, to provide that Idaho Power can read the meter and
receive any and all data from the Transmission Provider relating to the Charging
Energy or Storage Product, or other matters relating to the Facility without the
need for further consent from Seller.
7.9.4 Dedicated Communication Circuit. Seller shall install a dedicated direct
communication circuit (which may be by common carrier telephone) between
Idaho Power and the control center in the Facility's control room or such other
communication equipment as the Parties may agree.
7.10 Reports and Records.
7.10.1 Monthly Reports. Commencing on the Commercial Operation Date, within thirty
(30) days after the end of each calendar month during the Term (each, a
"Reporting Month"), Seller shall provide to Idaho Power a report in electronic
format, which report shall include (a) summaries of the Facility's Charging
Energy, Discharge Energy, and Ancillary Services provided, including
information from the Facility's computer monitoring system; (b) summaries of
any other significant events related to the construction or operation of the Facility
for the Reporting Month; and (c) any supporting information that Idaho Power
may from time to time reasonably request.
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7.10.2 Electronic Fault Loz. Seller shall maintain an electronic fault log of operations of
the Facility during each hour of the Term commencing on the Commercial
Operation Date. Seller shall provide Idaho Power with a copy of the electronic
fault log within thirty (30) days after the end of the calendar month to which the
fault log applies.
7.10.3 Other Information to be Provided to Idaho Power. Seller shall provide to Idaho
Power the following information concerning the Facility:
7.10.3.1 Upon the request of Idaho Power,the manufacturers' guidelines and
recommendations for maintenance of the Facility equipment;
7.10.3.2 A report summarizing the results of maintenance performed during
each Maintenance Outage,Planned Outage, and any Forced Outage,
and upon request of Idaho Power any of the technical data obtained
in connection with such maintenance;
7.10.3.3 Before Final Completion, a monthly progress report stating the
percentage completion of the Facility and a brief summary of
construction activity during the prior month;
7.10.3.4 Before Final Completion, a monthly report containing a brief
summary of construction activity contemplated for the next calendar
month;
7.10.3.5 From and after the Commercial Operation Date, a monthly report
detailing the availability of the Facility; and
7.10.3.6 At any time from the Effective Date, one year's advance notice of
the termination or expiration of any material agreement, including
Leases, pursuant to which the Facility or any material equipment
relating thereto is upon the Premises; provided that the foregoing
does not authorize any early termination of any land lease. In the
event Seller has less than one year's advance notice of such
termination or expiration, Seller shall provide the notice
contemplated by this Section to Idaho Power within fifteen (15)
Business Days of Seller obtaining knowledge of the termination or
expiration.
7.10.4 Information to Governmental Authorities. Seller shall, promptly upon written
request from Idaho Power,provide Idaho Power with all data collected by Seller
related to the construction, operation or maintenance of the Facility reasonably
required by Idaho Power or an Affiliate thereof for reports to, and information
requests from, any Governmental Authority or Electric System Authority.Along
with this information, Seller shall provide to Idaho Power copies of all submittals
to Governmental Authorities or Electric System Authorities directed by Idaho
Power and related to the operation of the Facility with a certificate that the
contents of the submittals are true and accurate to the best of Seller's knowledge.
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Seller shall use best efforts to provide this information to Idaho Power with
sufficient advance written notice to enable Idaho Power to review such
information and meet any submission deadlines imposed by the requesting
organization or entity.
7.10.5 Data Request. Seller shall, promptly upon written request from Idaho Power,
provide Idaho Power with data collected by Seller related to the construction,
operation or maintenance of the Facility reasonably required for information
requests from any Governmental Authorities, state or federal agency intervener
or any other party achieving intervenor status in any Idaho Power rate proceeding
or other proceeding before any Governmental Authority. Seller shall use best
efforts to provide this information to Idaho Power sufficiently in advance to
enable Idaho Power to review it and meet any submission deadlines. Idaho Power
shall reimburse Seller for all of Seller's reasonable actual costs and expenses in
excess of$10,000 per year, if any, incurred in connection with Idaho Power's
requests for information under this Section 7.10.5.
7.10.6 Documents to Governmental Authorities. After sending or filing any statement,
application, and report or any document with any Governmental Authority or
Electric System Authority relating to operation and maintenance of the Facility,
Seller shall, within five (5) Business Days of such submission or filing, provide
to Idaho Power a copy of the same.
7.10.7 Environmental Information. Seller shall,promptly upon written request from Idaho
Power, provide Idaho Power with all data reasonably requested by Idaho Power
relating to environmental information under the Required Facility Documents.
Seller shall further provide Idaho Power with information relating to
environmental impact mitigation measures it is taking in connection with the
Facility's construction or operation that are required by any Governmental
Authority. As soon as it is known to Seller, Seller shall disclose to Idaho Power,
the extent of any material violation of any environmental laws or regulations
arising out of the construction, operation, or maintenance of the Facility, or the
presence of Environmental Contamination at the Facility or on the Premises,
alleged to exist by any Governmental Authority having jurisdiction over the
Premises,or the present existence of,or the occurrence during Seller's occupancy
of the Premises of, any enforcement, legal, or regulatory action or proceeding
relating to such alleged violation or alleged presence of Environmental
Contamination presently occurring or having occurred during the period of time
that Seller has occupied the Premises.
7.10.8 Operational Reports. Seller shall provide Idaho Power monthly operational reports
in a form and substance reasonably acceptable to Idaho Power, and Seller shall,
promptly upon written request from Idaho Power, provide Idaho Power with all
operational data requested by Idaho Power with respect to the performance of the
Facility and delivery of the Storage Product.
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7.10.9 Notice of Material Adverse Events. Seller shall promptly notify Idaho Power of
receipt of written notice or actual knowledge by Seller or its Affiliates of the
occurrence of any event of default under any material agreement to which Seller
is a party and of any other development, financial or otherwise, which would
have a material adverse effect on Seller,the Facility or Seller's ability to develop,
construct, operate, maintain or own the Facility as provided herein. Seller shall
promptly disclose to Buyer(but in no case later than two (2)Business Days after
Seller obtains actual knowledge) any violation of any Applicable Laws arising
out of the construction or operation of the Facility by Seller, its Affiliates or any
contractor of any of them, including any Qualified Operator, or the existence of
any past or present enforcement,legal,or regulatory action or proceeding relating
to the Facility, if such violation, action or proceeding adversely affects or could
reasonably be expected to adversely affect the construction or operation of the
Facility or the commercial reputation of Buyer or its Affiliates.
7.10.1 ONotice of Litigation._ Following its receipt of written notice or actual knowledge of
the commencement of any action, suit, or proceeding before any court or
Governmental Authority against Seller or its members with respect to this
Agreement or the transactions contemplated hereunder, Seller shall, within ten
(10) days of such notice or knowledge, give written notice to Idaho Power of the
same. Following its receipt of written notice or actual knowledge of the
commencement of any action, suit or proceeding before any court or
Governmental Authority against Seller, its members or any Affiliate, the effect
of which would materially and adversely affect Seller's performance of its
obligations hereunder, Seller shall, within ten (10) days of such notice or
knowledge, give notice to Idaho Power of the same.
7.10.11Additional Information. Seller shall provide to Idaho Power such other information
respecting the condition or operations of Seller, as such pertains to Seller's
performance of its obligations hereunder, or the Facility as Idaho Power may,
from time to time, reasonably request.
7.10.12Confidential Treatment. The monthly reports and other information provided to
Idaho Power under this Section 7.10 shall be treated as Confidential Business
Information if such treatment is requested in writing by Seller at the time the
information is provided to Idaho Power, subject to Idaho Power's rights to
disclose such information pursuant to Sections 7.10.4, 7.10.5, 7.10.7, 11.5, 25.2
and 25.3, and pursuant to any applicable Requirements of Law. Seller shall have
the right to seek confidential treatment of any such information from the
Governmental Authority entitled to receive such information.
7.11 Financial and Accounting Information. If Idaho Power or one of its Affiliates determines
that, under (i) the Accounting Standards Codification (ASC) 810, Consolidation of
Variable Interest Entities, and(ii)Requirements of Law that it may hold a variable interest
in Seller, but it lacks the information necessary to make a definitive conclusion, Seller
hereby agrees to provide, upon Idaho Power's written request, sufficient financial and
ownership information so that Idaho Power or its Affiliate may confirm whether a variable
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interest does exist under ASC 810 and Requirements of Law. If Idaho Power or its Affiliate
determines that, under ASC 810, it holds a variable interest in Seller, Seller hereby agrees
to provide, upon Idaho Power's written request, sufficient financial and other information
to Idaho Power or its Affiliate so that Idaho Power may properly consolidate the entity in
which it holds the variable interest or present the disclosures required by ASC 810 and
Requirements of Law. Idaho Power shall reimburse Seller for Seller's reasonable costs and
expenses,if any, incurred in connection with Idaho Power's requests for information under
this Section 7.11.
7.12 Access Rights.Upon reasonable prior notice and subject to the prudent safety requirements
of Seller, and Requirements of Law relating to workplace health and safety, Seller shall
provide Idaho Power and its authorized agents, employees and inspectors ("Idaho Power
Representatives") with reasonable access to the Facility: (a) for the purpose of reading or
testing metering equipment, (b)as necessary to witness any acceptance tests, (c)to provide
tours of the Facility to customers and other guests of Idaho Power (not more than twelve
(12) times per year), (d) for purposes of implementing Sections 2.7 or 10.5, and (e) for
other reasonable purposes at the reasonable request of Idaho Power. Idaho Power shall
release Seller from any and all Liabilities resulting from actions or omissions by any of the
Idaho Power Representatives in connection with their access to the Facility, except to the
extent that such Liabilities are caused-by the intentional or negligent act or omission of
Seller or its agents or Affiliates.
7.13 Facili . Images. Idaho Power shall be free to use any and all images from or of the Facility
for promotional purposes, subject to Seller's consent (not to be unreasonably withheld or
delayed, and which consent may consider Requirements of Law relating to Premises
security,obligations to outside vendors(including any confidentiality obligations), and the
corporate policies of Seller's Affiliates).Upon Idaho Power's request and at Idaho Power's
expense, Seller shall install imaging equipment at the Facility as Idaho Power may request,
including video and or web-based imaging equipment subject to the prudent safety
requirements of Seller, and Requirements of Law relating to workplace health and safety.
Idaho Power shall retain full discretion on how such images are presented including
associating images of the Facility with a Idaho Power-designated corporate logo.
SECTION 8
RIGHT OF FIRST OFFER AND OWNERSHIP OR PURCHASE OPTION
8.1 Buyer's Affiliates. For purposes of this Section 8, any reference to "Buyer" or "Idaho
Power" shall also mean Buyer's or Idaho Power's "Affiliate"as that term is defined in this
Agreement.
8.2 Right of First Offer. If this Agreement is terminated for any reason prior to the Commercial
Operation Date, then during the Restricted Period, neither Seller nor any of Seller's
Affiliates may enter into any agreement to sell, or hedge the quantity of, Storage Product
to any party other than Buyer, without first offering the same material price and terms of
such agreement to Buyer by written notice ("Offer Notice"). "Restricted Period" means a
period that ends eighteen (18) months after the effective date of a termination. If Buyer
rejects or fails to respond to the Offer Notice within thirty(30)Business Days,or the Parties
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negotiate to enter into an agreement but are unable to execute a definitive agreement within
sixty (60) days after Buyer accepts such offer from Seller, then Seller shall have the right
to enter into an agreement with a third party on terms and conditions in the aggregate not
more favorable than the terms and conditions contained in the Offer Notice. If either Seller
or any of its Affiliates wish to enter into an agreement with a third party on terms in the
aggregate more favorable to such third party than those offered to Buyer in the Offer
Notice,or if Seller or such Affiliate fails to close the transaction(which gave rise to Seller's
obligation to provide an Offer Notice)within nine(9)months following the issuance of the
Offer Notice, then any subsequent agreement during the Restricted Period shall again be
subject to this Section 8.2. This Section 8.2 shall be specifically enforceable by Buyer
without bond and without the need to prove irreparable harm. Neither Seller nor Seller's
Affiliates may sell or transfer the Facility, or any part thereof, or land rights or interests in
the Site(including the Interconnection Agreement) during the Restricted Period, except by
a transfer permitted by Section 8.2. Upon termination of this Agreement prior to the
Commercial Operation Date, Seller shall deliver a notice of Buyer's rights in respect of the
Site, in an executed, recordable form reasonably acceptable to Buyer, that Buyer may
record in the real estate records giving notice of Buyer's rights under this Section 8.2.
Seller enters into this Section 8.2 as authorized agent for all of its present and future
Affiliates. This Section 8.2 shall apply until the earlier of the expiration of the Restricted
Period and the consummation of the first bona fide transfer in accordance with its terms.
8.3 Termination of Duty to BuX. If this Agreement is terminated because of a default by Seller,
neither Seller,nor any successor to Seller with respect to the ownership of the Facility(for
whom Seller acts herein as agent), may thereafter require or seek to require Buyer to
purchase Output from the Facility under Public Utility Regulatory policy Act on account
of its status as a Qualifying Facility, or any other Requirements of Law, for any periods
that would have been within the Term had this Agreement remained in effect. Seller, on
behalf of itself and on behalf of any other entity on whose behalf it may act,hereby waives
its rights to require Buyer to do so.
8.4 Right of First Offer on Ownership.
8.4.1 At any time subsequent to the Effective Date of this Agreement, except in
accordance with this Section 8.4.1, Seller: (a) shall not sell, transfer or offer to
sell or transfer, the Facility; and (b) shall cause its immediately upstream
owner(s)(together with Seller,each a"ROFO Seller")not to sell,transfer or offer
to sell or transfer, any ownership interest in Seller (the Facility and ownership
interests in Seller, as applicable, each the "Offered Interests") other than to an
Affiliate in accordance with the provisions of Section 22.2 (each a "Restricted
Transaction"). If a ROFO Seller intends to enter into a Restricted Transaction,
Seller shall provide Buyer with written notice of same(a"Seller ROFO Notice"),
and Buyer shall have a right of first offer with respect to the purchase of such
Offered Interests.Within thirty(30)days after receipt of the Seller ROFO Notice,
Buyer shall notify Seller in writing of its decision whether or not to negotiate
with ROFO Seller for the purchase of the Offered Interests (the "Buyer ROFO
Notice"). If Buyer elects to negotiate with ROFO Seller for the purchase of the
Offered Interests, Seller shall cause ROFO Seller to negotiate in good faith and
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exclusively with Buyer, for a period of not less than ninety (90) days following
ROFO Seller's receipt of the Buyer ROFO Notice. ("ROFO Period").
8.4.2 In the event that Buyer does not elect to negotiate with ROFO Seller for the
purchase of the Offered Interests pursuant to Section 8.4.1,ROFO Seller shall be
free to sell, transfer or offer or negotiate to sell or transfer the Offered Interests
in ROFO Seller's sole discretion. In the event that Buyer elects to negotiate with
ROFO Seller for the purchase of the Offered Interests pursuant to Section 8.4.1,
and if definitive transaction documents between ROFO Seller and Buyer or its
designee have not been executed with respect to the Offered Interests within the
ROFO Period, ROFO Seller may negotiate a Restricted Transaction with any
other Person, subject, in all cases,to the terms and conditions of this Agreement,
including Section 8.4.1 and the provisions of Section 22. In no event may ROFO
Seller enter into a Restricted Transaction with any other Person on economic
terms (such as purchase price, payment terms and overall revenue streams
associated with such transaction)or other material terms less favorable to ROFO
Seller than such economic terms, if any, as were negotiated by Buyer and ROFO
Seller. As used in this Section 8.4.2, "other material terms" means any terms
identified by the Parties acting in good faith within five (5) Business Days
following expiration of the ROFO Period that the Parties have not agreed to
during their negotiation.
8.4.3 If ROFO Seller and such other Person do not agree upon the terms, conditions and
pricing for the Offered Interests within one hundred eighty(180) days following
the expiration of the ROFO Period, ROFO Seller and any Offered Interests shall
again be subject to this Section 8.2 with respect to any Restricted Transaction.
8.5 rReservedl
8.6 Efforts Required to Transfer Facility and Offered Interests. If Buyer exercises any right to
purchase or agrees to purchase the Facility (or Offered Interests) pursuant to any of the
means specified in this Section 8, then such purchase shall occur pursuant to a form of
purchase and sale agreement prepared by Buyer which shall contain customary
representations, warranties and covenants and otherwise be in form reasonably acceptable
to Buyer. It shall be a condition of any such purchase that Buyer obtains all necessary
Governmental Approvals, and notwithstanding any language to the contrary in this
Agreement, Buyer shall be given sufficient time to obtain such approvals in accordance
with applicable statutes and regulations. Pursuant to the purchase and sale agreement,
Seller will take all actions necessary to transfer by deed, bill of sale, or both, the Facility
or Offered Interests to Buyer, as well as all other improvements placed on the Premises by
Seller that are required for the continued and uninterrupted use,maintenance and operation
of the Facility, free and clear from any lien or monetary encumbrance created by or on
behalf of Seller or its Affiliates. In addition, Seller will assign to Buyer all transferrable
Governmental Approvals applicable to the Facility and Required Facility Documents, and
all transferrable warranties for the Facility. Seller shall cooperate with Buyer to assign and
enforce any and all warranties that apply to the Facility or any of its component parts,
which obligation shall survive the termination of this Agreement.
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E. Hackett, IPC
Page 384 of 495

8.7 Due Diligence; Cooperation; Governmental Approvals; Notice of Rights. Seller will
provide,in a timely manner,information regarding the Facility and Offered Interests which
is reasonably requested by Buyer to allow Buyer to perform due diligence for the purchase
of the Facility and Offered Interests pursuant to this Section 8. Seller shall further provide
commercially reasonable cooperation and assistance to Buyer, without further
compensation,throughout Buyer's efforts to properly account for and obtain any necessary
Governmental Approvals with respect to the purchase of the Facility and Offered Interests
pursuant to this Section 8. Notwithstanding anything in this Agreement or any definitive
transaction documentation, Buyer shall not be obligated to proceed with the purchase of
the Facility or any Offered Interests pursuant to this Section 8 if Buyer does not receive all
necessary Governmental Approvals in connection with such transaction. Seller shall put
any Person with which it enters into discussions or negotiations regarding a Restricted
Transaction on notice of the rights of Buyer set forth in this Section 8. Buyer shall be
permitted to file a notice of the rights contained in this Section 8 with respect to the
Premises.
8.8 Termination of Agreement. Upon the acquisition of the Facility or Offered Interests by
Buyer pursuant to this Section 8, this Agreement shall terminate and neither Parry shall
have any obligation to the other under this Agreement, except with respect to the terms and
provisions hereof that expressly survive the termination of this Agreement.
SECTION 9
SECURITY AND CREDIT SUPPORT
9.1 Project Development Security. Seller shall provide within five (5) Business Days from
receipt of a written request from Idaho Power all reasonable financial records necessary
for Idaho Power to confirm Seller satisfies the Credit Requirements.
9.1.1 Form and Amount of Project Development Security. On or before thirty (30) days
of the date of the Effective Date, Seller shall post and maintain in favor of Idaho
Power (a) a guaranty from a party that satisfies the Credit Requirements, in
substantially the form attached hereto as Exhibit 8, (b) a Letter of Credit in favor
of Idaho Power, in a form acceptable to Idaho Power in its reasonable discretion,
or (c) cash collateral equal in each case to [$40,000] per MWh of Guaranteed
Storage Capacity(the"Project Development Security"). Seller and any person or
entity providing a guaranty shall provide within five (5) Business Days from
receipt of a written request from Idaho Power all reasonable financial records
necessary for Idaho Power to confirm the guarantor satisfies the Credit
Requirements.
9.1.2 Use of Project Development Security to Pay Delay Damages. If the Commercial
Operation Date occurs after the Scheduled Commercial Operation Date and
Seller has failed to pay any Delay Damages when due under Section 4.5, Idaho
Power shall be entitled to and shall draw upon the Project Development Security
an amount equal to the Delay Damages. Idaho Power shall also be entitled to
draw upon the Project Development Security for other damages if this Agreement
is terminated under Section 12 because of Seller's default.
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9.1.3 Termination of Project Development Security. Seller shall no longer be required to
maintain the Project Development Security after the Commercial Operation Date,
if at such time no damages are owed to Idaho Power under this Agreement.
However, as of the Commercial Operation Date, Seller may elect to apply the
Project Development Security toward the Default Security required by Section
9.2, including by the automatic continuation (as opposed to the replacement)
thereof.
9.2 Default Security.
9.2.1 Duty to Post Default Security. On the date specified in Section 4.2.1, Seller shall
post and maintain in favor of Idaho Power (a) a guaranty from an entity that
satisfies the Credit Requirements, in substantially the form attached hereto as
Exhibit 8, or(b) a Letter of Credit, each in the amount specified in Section 9.2.2
(the"Default Security"), as provided in this Section 9.2. Seller and any person or
entity providing a guaranty shall provide within five (5) Business Days from
receipt of a written request from Idaho Power all reasonable financial records
necessary for Idaho Power to confirm the guarantor satisfies the Credit
Requirements.
9.2.2 Amount of Default Security. The amount of the Default Security required by
Section 9.2.1 shall be [$20,0000] per MWh of Guaranteed Storage Capacity and
will be held until this Agreement expires.
9.2.3 Use of Default Securit to o Pay Deficit Damages. If the Seller has failed to pay any
Storage Capacity Damages or Storage Availability Damages when due under
Section 4.5, Idaho Power shall be entitled to and shall draw upon the Default
Security an amount equal to the amount of such damages owed until such time
as the Default Security is exhausted. Idaho Power shall also be entitled to draw
upon the Default Security for other damages if this Agreement is terminated
under Section 12 because of Seller's default.
9.3 Senior Lenders. If Seller collaterally assigns this Agreement to Seller's Lenders in a
manner permitted under this Agreement, Buyer, at Seller's sole cost and expense, if
requested shall enter into a Lender Consent with Seller's Lenders substantially in the form
of Exhibit 21. If Seller enters into a Tax Equity Financing, Buyer, at Seller's sole cost and
expense, if requested shall provide an Estoppel Certificate to Seller's Tax Equity Investors
substantially in the form of Exhibit 22. Seller will within five(5)Business Days of written
demand reimburse Buyer all Buyer's costs and expenses, including legal fees and costs of
due diligence, incurred in connection with any action or exercise of rights or remedies by
any of Seller's Lenders against Seller, including any proceeding or foreclosure against
Seller or this Agreement.
9.4 Change of Control. Seller may not suffer any Change of Control,whether voluntary or by
operation of law, without Buyer's prior written consent, granted or withheld in Buyer's
reasonable discretion. Seller may not suffer a Change of Control or any other change of
ownership or control,whether direct or indirect,voluntary or by operation of law, such that
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Seller becomes a Sanctioned Person. Seller shall give Buyer notice of any Change of
Control within ten (10) Business Days following the effectiveness thereof
9.5 Security is Not a Limit on Seller's Liability. The security contemplated by this Section 9
(a) constitutes security for,but is not a limitation of, Seller's obligations hereunder and(b)
shall not be Idaho Power's exclusive remedy for Seller's failure to perform in accordance
with this Agreement. Seller shall maintain security as required by Sections 9.1 and 9.2, as
applicable per this Agreement. To the extent that Idaho Power draws on any security, Seller
shall,within five(5)Business Days following such draw,replenish or reinstate the security
to the full amount then required under this Section 9. If at any time the Seller or Seller's
credit support provider(s) fails to meet the Credit Requirements, then Seller shall provide
replacement security meeting the requirements set forth in Section 9 within ten (10)
Business Days after the earlier of(x) Seller's receipt of notice from any source that Seller
or the credit support provider(s), as applicable, no longer meets the Credit Requirements
or(y)Seller's receipt of written notice from Idaho Power requesting the posting of alternate
security.
SECTION 10
METERING,METERING COMMUNICATIONS AND SCADA TELEMETRY
10.1 Metering. Idaho Power shall,provide, install, and maintain metering equipment needed for
metering the electrical energy storage and discharge from the Facility. The metering
equipment will be capable of measuring, recording, retrieving and reporting the Facility's
hourly gross electrical energy storage,production, station use,maximum energy deliveries
(MW)and any other energy measurements at the Point of Delivery that Idaho Power needs
to administer this Agreement and integrate this Facility's energy production into the Idaho
Power electrical system. Specific equipment, installation details and requirements for this
metering equipment will be established in the GIA process and documented in the
GIA. Seller shall be responsible for all initial and ongoing costs of this equipment as
specified in Schedule 72 of the Tariff and the GIA. Seller shall cause the Facility to
implement all necessary generation information communications in WREGIS, and report
generation information to WREGIS pursuant to a WREGIS-approved meter that is
dedicated to the Facility and only the Facility.
10.2 Metering Communications. Seller shall, at the Seller's sole initial and ongoing expense,
arrange for, provide, install, and maintain dedicated metering communications equipment
capable of transmitting the metering data specified in Section10.1 to Idaho Power in a
frequency, manner and form acceptable to Idaho Power. Seller shall grant Idaho Power
sole control and use of this dedicated metering communications equipment. Specific details
and requirements for this metering communications equipment will be established in the
GIA process and documented in the GIA.
10.3 Supervisory Control and Data Acquisition (SCADA) Telemetry. If the Facility's
Nameplate Capacity exceeds 3 MW, in addition to the requirements of Section 10.1 and
10.2, Idaho Power may require telemetry equipment and telecommunications which will
be capable of providing Idaho Power with continuous instantaneous SCADA telemetry of
the Seller's Charging Energy and Discharging Energy in a form acceptable to Idaho
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E. Hackett, IPC
Page 387 of 495

Power. Seller shall grant Idaho Power sole control and use of this dedicated SCADA and
telecommunications equipment. Specific details and requirements for this SCADA
Telemetry and telecommunications equipment will be established in the GIA process and
documented in the GIA. Seller shall be responsible for all initial and ongoing costs of this
equipment as specified in Schedule 72 of the Tariff and the GIA.
10.4 Metering Costs. To the extent not otherwise provided in the Generation Interconnection
Agreement, Seller shall bear all costs (including Idaho Power's costs) relating to all
metering equipment installed to accommodate the Facility.
10.5 Losses. If the Idaho Power Metering equipment is capable of measuring the exact energy
deliveries by the Seller to the Idaho Power electrical system at the Point of Delivery, no
Losses will be calculated for this Facility. If the Idaho Power Metering Equipment is unable
to measure the exact electric energy deliveries by the Seller to the Idaho Power electrical
system at the Point of Delivery, a Losses calculation will be established to measure the
energy losses (MWh) between the Seller's Facility and the Idaho Power Point of
Delivery. This loss calculation will be initially set at two percent(2%)of the MWh energy
discharge recorded on the Facility generation metering equipment. At such time as Seller
provides Idaho Power with the electrical equipment specifications (transformer loss
specifications, conductor sizes, etc.) of all of the electrical equipment between the Facility
and the Idaho Power electrical system, Idaho Power will configure a revised loss
calculation formula to be agreed to by both parties and used to calculate the MWh Losses
for the remaining term of the Agreement. If at any time during the term of this Agreement,
Idaho Power determines that the loss calculation does not correctly reflect the actual MWh
losses attributed to the electrical equipment between the Facility and the Idaho Power
electrical system, Idaho Power may adjust the calculation and retroactively adjust the
previous month's MWh loss calculations.
SECTION 11
BILLINGS, COMPUTATIONS AND PAYMENTS
11.1 Monthly Invoices. On or before the tenth (I01h) day following the end of each calendar
month, Seller shall deliver to Idaho Power a proper invoice showing Seller's computation
of Discharging Energy delivered to the Point of Delivery during such month in the form of
Exhibit 1. When calculating the invoice, Seller shall provide computations showing the
portion of Discharging Energy that was delivered during On-Peak Hours and the portion
of Discharging Energy that was delivered during Off-Peak Hours. If such invoice is
delivered by Seller to Idaho Power,then Idaho Power shall make payment to Seller within
thirty (30) days of receipt of an accurate and undisputed invoice; provided, however, that
IPC's payment is not due unless Seller is in compliance with all provisions of this
Agreement.
11.2 Offsets. Either Party may offset any payment due hereunder against amounts owed by the
other Party pursuant to the terms of this Agreement. Either Party's exercise of recoupment
and set off rights shall not limit the other remedies available to such Party hereunder.
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11.3 Interest on Late Pam. Any amounts that are not paid when due hereunder shall bear
interest at the Contract Interest Rate from the date due until paid.
11.4 Disputed Amounts. If either Parry, in good faith, disputes any amount due pursuant to an
invoice rendered hereunder, such Party shall notify the other Party of the specific basis for
the dispute and, if the invoice shows an amount due, shall pay that portion of the statement
that is undisputed,on or before the due date.Except with respect to invoices provided under
Section 11.1, any such notice shall be provided within two (2) years of the date of the
invoice in which the error first occurred. If any amount disputed by such Party is
determined to be due the other Party, or if the Parties resolve the payment dispute, the
amount due shall be paid within thirty (30) Business Days after such determination or
resolution, along with interest at the Contract Interest Rate from the date due until the date
paid.
11.5 Audit Rights. Each Parry, through its authorized representatives, shall have the right, at its
sole expense upon reasonable written notice and during normal business hours,to examine
and copy the records of the other Party to the extent reasonably necessary to verify the
accuracy of any statement, charge or computation made hereunder or to verify the other
Parry's performance of its obligations hereunder. Upon request, each Party shall provide
to the other Party statements evidencing the quantities of Discharging Energy delivered at
the Point of Delivery or Ancillary Services, if any,provided under this Agreement. If any
statement is found to be inaccurate, a corrected statement shall be issued and any amount
due thereunder will be promptly paid and shall bear interest at the Contract Interest Rate
from the date of the overpayment or underpayment to the date of receipt of the reconciling
payment. Notwithstanding the foregoing, no adjustment shall be made with respect to any
statement or payment hereunder unless a Party questions the accuracy of such payment or
statement within two (2)years after the date of such statement or payment.
SECTION 12
DEFAULTS AND REMEDIES
12.1 Defaults. The following events are defaults (each a "default" before the passing of
applicable notice and cure periods, and an"Event of Default"thereafter) hereunder:
12.1.1 Defaults by Either Party:
12.1.1.1 A Parry fails to make a payment when due hereunder if the failure
is not cured within ten (10) Business Days after the non-defaulting
Party gives the defaulting Parry a notice of the default.
12.1.1.2 A Party (i) makes a general assignment for the benefit of its
creditors; (ii) files a petition or otherwise commences, authorizes or
acquiesces in the commencement of a proceeding or cause of action
under any bankruptcy or similar law for the protection of creditors,
or has such a petition filed against it and such petition is not
withdrawn or dismissed within sixty(60)days after such filing; (iii)
becomes insolvent; or(iv) is unable to pay its debts when due.
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12.1.1.3 A Parry breaches a representation or warranty made by it herein if
the breach is not cured within thirty (30) days after the non-
defaulting Party gives the defaulting Party a written notice of the
default; provided that if such default is not reasonably capable of
being cured within the thirty (30) day cure period but is reasonably
capable of being cured within a ninety (90) day cure period, the
defaulting Parry will have such additional time (not exceeding an
additional sixty (60) days) as is reasonably necessary to cure, if,
prior to the end of the thirty(30)day cure period the defaulting Party
provides the non-defaulting Party a remediation plan, the non-
defaulting Party approves such remediation plan, and the defaulting
Party promptly commences and diligently pursues the remediation
plan.
12.1.1.4 A Party otherwise fails to perform any material obligation hereunder
for which an exclusive remedy is not provided hereunder and which
is not addressed in any other default described in Section 12.1, if the
failure is not cured within thirty (30) days after the non-defaulting
Party gives the defaulting Party written notice of the default;
provided that if such default is not reasonably capable of being cured
within the thirty (30) day cure period but is reasonably capable of
being cured within a ninety (90) day cure period, the defaulting
Party will have such additional time (not exceeding an additional
sixty (60) days) as is reasonably necessary to cure, if, prior to the
end of the thirty (30) day cure period the defaulting Party provides
the non-defaulting Parry a remediation plan, the non-defaulting
Party approves such remediation plan, and the defaulting Party
promptly commences and diligently pursues the remediation plan.
12.1.2 Defaults by Seller.
12.1.2.1 Seller fails to post, increase, or maintain the Project Development
Security or Default Security as required under, and by the applicable
dates set forth in, Section 9.1 and Section 9.2 and such failure is not
cured within ten (10) Business Days after Idaho Power gives Seller
notice of default.
12.1.2.2 Seller fails to(i)cause the Facility to achieve Commercial Operation
on or before the Guaranteed Commercial Operation Date, or (ii)
complete all items included on the Final Completion Schedule
within ninety(90) days after the Commercial Operation Date.
12.1.2.3 Seller sells Storage Product from the Facility to a party other than
Idaho Power in breach of Section 5.2.
12.1.2.4 Idaho Power receives notice of foreclosure of the Facility or any part
thereof by a Lender, mechanic or materialman, or any other holder,
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of an unpaid lien or other charge or encumbrance, if the same has
not been stayed, paid, or bonded around within ten (10) days of the
date of the notice received by Idaho Power.
12.1.2.5 After the Commercial Operation Date, Seller fails to maintain any
Required Facility Documents or Permits necessary to own, operate,
or maintain the Facility and such failure continues for thirty (30)
days after Seller's receipt of written notice thereof from Idaho
Power;provided,however,that,upon written notice from Seller,the
thirty (30) day period shall be extended by an additional sixty (60)
days if(i) the failure cannot reasonably be cured within the thirty
(30) day period despite diligent efforts, (ii) the default is capable of
being cured within the additional sixty (60) day period, and (iii)
Seller commences the cure within the original thirty(30) day period
and is at all times thereafter diligently and continuously proceeding
to cure the failure.
12.1.2.6 Seller's Abandonment of construction or operation of the Facility
and such failure continues for thirty (30) days after Seller's receipt
of written notice thereof from Idaho Power.
12.1.2.7 Seller fails to maintain insurance as required by the Agreement and
such failure continues for fifteen (15) days after Seller's receipt of
written notice thereof from Idaho Power.
12.1.2.8 Seller fails to meet the Guaranteed Storage Availability for two (2)
consecutive Contract Years.
12.1.2.9 Seller accrues Storage Availability Damages in excess of the
Storage Availability Damages Cap in any Contract Year.
12.1.2.10 Seller accrues Storage Capacity Damages in excess of the Storage
Capacity Damages Cap.
12.1.2.11 Every three (3) years after the Commercial Operation Date, Seller
will supply Idaho Power with a Certification of Ongoing Operations
and Maintenance (O&M) from a Registered Professional Engineer
licensed in the State of Idaho,which Certification of Ongoing O&M
shall be in the form specified in Exhibit 11. Seller's failure to supply
the required certificate will be an event of default. Such a default
may only be cured by Seller providing the required certificate; and
12.1.2.12 During the full Term of this Agreement, Seller shall maintain
compliance with all Required Facility Documents and
determinations described in Exhibit 9 of this Agreement. In
addition, Seller will supply Idaho Power with copies of any new or
additional Required Facility Documents or determinations. At least
every fifth(51h) Contract Year, Seller will update the documentation
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described in Exhibit 9. If at any time Seller fails to maintain
compliance with the Required Facility Documents and
determinations described in Section 2.2.3 or to provide the
documentation required by this paragraph, such failure will be a
default of Seller and may only be cured by Seller submitting to Idaho
Power evidence of compliance from the permitting agency.
12.1.2.13 Seller is or becomes a Sanctioned Person.
12.1.2.14 Seller breaches any obligation in Section 27.2, or any representation
or warranty made by Seller in Section 27.2 is or becomes false or
misleading in any material respect (provided that if the falsity or
misleading nature of the representation or breach of the obligation
is capable of being cured, an Event of Default will be deemed to
occur only if the falsity or misleading nature of the representation or
breach of obligation is not remedied within five (5) days after
notice);
12.2 Remedies for Failure to Deliver/Receive.
12.2.1 Remedy for Seller's Failure to Deliver. Upon the occurrence and during the
continuation of a default of Seller under Section 12.1.2, Seller shall pay Idaho
Power within five(5)Business Days after invoice receipt,an amount equal to the
sum of(a) Idaho Power's Cost to Cover multiplied by the Discharging Energy
delivered to a parry other than Idaho Power, (b) additional transmission charges,
if any, reasonably incurred by Idaho Power in moving replacement energy to the
Point of Delivery or if not there, to such points in Idaho Power's control area as
are determined by Idaho Power, and (c) any additional cost or expense incurred
as a result of Seller's default under Section 12.1.3, as determined by Idaho Power
in a commercially reasonable manner, including the loss of value of Ancillary
Services. The invoice for such amount shall include a written statement
explaining in reasonable detail the calculation of such amount.
12.2.2 Remedy for Idaho Power's Failure to Purchase. If Idaho Power fails to receive or
purchase all or part of the Storage Product required to be purchased pursuant
hereto and such failure is not excused under the terms hereof or by Seller's failure
to perform, then Seller shall first satisfy its obligations under Section 12.7 and
then Idaho Power shall pay Seller, on the earlier of the date payment would
otherwise be due in respect of the month in which the failure occurred or within
five (5) Business Days after invoice receipt, an amount equal to Seller's Cost to
Cover multiplied by the amount of Storage Product so not purchased, less
amounts received by Seller pursuant to Section 12.7.The invoice for such amount
shall include a written statement explaining in reasonable detail the calculation
thereof.
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12.2.3 Remedy for Seller's Failure to Sell/Deliver Capacity Rights. Seller shall be liable
for Idaho Power's actual damages in the event Seller fails to sell or deliver all or
any portion of the Capacity Rights of the Facility to Idaho Power.
12.3 Termination and Remedies. From and during the continuance of an Event of Default, the
non-defaulting Party shall be entitled to all remedies available at law or in equity, and may
terminate this Agreement by written notice to the other Parry designating the date of
termination and delivered to the defaulting Parry no less than one (1) Business Day before
such termination date. The notice required by this Section 12.3 may be provided in the
notice of default(and does not have to be a separate notice) so long as it complies with all
other terms of this Section 12.3. As a precondition to Seller's exercise of this termination
right, Seller must also provide copies of such notice to the notice addresses of the then-
current President and General Counsel of Idaho Power. Such copies shall be sent by
registered overnight delivery service or by certified or registered mail, return receipt
requested. In addition, Seller's termination notice shall state prominently therein in type
font no smaller than 14-point all-capital letters that"THIS IS A TERMINATION NOTICE
UNDER A BSA. YOU MUST CURE A DEFAULT, OR THE BSA WILL BE
TERMINATED," and shall state therein any amount purported to be owed and wiring
instructions.Notwithstanding any other provision of this Agreement to the contrary, Seller
will not have any right to terminate this Agreement if the default that gave rise to the
termination right is cured within fifteen (15) Business Days of Idaho Power's receipt of
such notice. Further, from and after the date upon which Seller fails to remedy a default
within the time periods provided in Section 12.1, and until Idaho Power has recovered all
damages incurred on account of such default by Seller, without exercising its termination
right, Idaho Power may offset its damages against any payment due Seller. Except in
circumstances in which a remedy provided for in this Agreement is described as a Party's
sole or exclusive remedy, upon termination, the non-defaulting Parry may pursue any and
all legal or equitable remedies provided by law, equity or this Agreement. The rights
contemplated by this Section 12 are cumulative such that the exercise of one or more rights
shall not constitute a waiver of any other rights. In the event of a termination hereof:
12.3.1 Each Party shall pay to the other all amounts due the other hereunder for all periods
prior to termination,subject to offset by the non-defaulting Party against damages
incurred by such Party.
12.3.2 The amounts due pursuant to Section 12.3.1 shall be calculated and paid within
thirty (30) days after the billing date for such charges and shall bear interest
thereon at the Contract Interest Rate from the date of termination until the date
paid.The foregoing does not extend the due date of,or provide an interest holiday
for any payments otherwise due hereunder.
12.3.3 Before and after the effective date of termination, the non-defaulting Party may
pursue, to the extent permitted by this Agreement, any and all legal or equitable
remedies provided by law, equity or this Agreement.
12.3.4 Without limiting the generality of the foregoing,the provisions of Sections 6.4, 6.5,
7.10.4, 7.10.5, 7.10.7, 11.3, 11.4, 11.5, and Section 12, Section 13, Section 14.1,
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Section 17, Section 23, Section 24, Section 25, and Section 26 shall survive the
termination hereof.
12.4 Termination Damages. If this Agreement is terminated as a result of an Event of Default
by one of the Parties,termination damages shall be determined. The amount of termination
damages shall be calculated by the non-defaulting Parry within a reasonable period after
termination of the Agreement. In the event of a default by Seller before the Commercial
Operation Date, the termination payment shall be the Pre-COD Damages Payment. In the
event of default by Seller on or after the Commercial Operation Date, or any default by
Buyer, the termination payment shall be the Forward Settlement Amount. Amounts owed
pursuant to this section shall be due within five (5)Business Days after the non-defaulting
Parry gives the defaulting Party written notice of the amount due. The non-defaulting Parry
shall under no circumstances be required to account for or otherwise credit or pay the
defaulting Party for economic benefits accruing to the non-defaulting Parry as a result of
the defaulting Party's default.
12.5 Duty/Right 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, provided,
however, that this duty to mitigate shall not limit the amounts payable by the defaulting
Party to the non-defaulting Party pursuant to Section 12.4. "Commercially reasonable
efforts" (a) by Seller shall include requiring Seller to use commercially reasonable efforts
to maximize the price for Storage Product received by Seller from third parties, including
entering into an enabling agreement with, or being affiliated with, one or more power
marketers of nationally recognized standing to market such Storage Product not purchased
or accepted by Idaho Power(only during a period Idaho Power is in default), in each case
only to the extent any of the foregoing actions are permitted under Requirements of Law
and the Interconnection Agreement; and (b)by Idaho Power shall include requiring Idaho
Power to use commercially reasonable efforts to minimize the price paid to third parties
for Storage Product purchased to replace Storage Product not delivered by Seller as
required hereunder.
12.6 Security. If this Agreement is terminated because of Seller's default, Idaho Power may, in
addition to pursuing any and all other remedies available at law or in equity, proceed
against any Seller security held by Idaho Power in whatever form to reduce any amounts
that Seller owes Idaho Power arising from such default.
12.7 Cumulative Remedies. Except in circumstances in which a remedy provided for in this
Agreement is described as a sole or exclusive remedy,the rights and remedies provided to
Idaho Power hereunder are cumulative and not exclusive of any rights or remedies of Idaho
Power.
INDEMNIFICATION AND LIABILITY
13.1 Indemnities.
13.1.1 Indemnity b. Ste. To the extent permitted by Requirements of Law and subject
to Section 13.1.5, Seller shall release, indemnify and hold harmless Idaho Power,
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its Affiliates, and each of its and their respective directors, officers, employees,
agents,and representatives(collectively,the"Idaho Power Indemnitees")against
and from any and all losses, fines, penalties, claims, demands, damages,
liabilities, actions or suits of any nature whatsoever (including legal costs and
attorneys' fees, both at trial and on appeal, whether or not suit is brought)
(collectively, "Liabilities")actually or allegedly resulting from, or arising out of,
or in any way connected with, the performance by Seller of its obligations
hereunder, or relating to the Facility or Premises, for or on account of injury,
bodily or otherwise, to, or death of, or damage to or destruction of property of,
any person or entity, or for or on account of violation of environmental or
criminal law, excepting only to the extent such Liabilities as may be caused by
the gross negligence or willful misconduct of any person or entity within the
Idaho Power Indemnitees. Seller shall be solely responsible for(and shall defend
and hold Idaho Power harmless against) any damage that may occur as a direct
result of Seller's breach of the Generation Interconnection Agreement.
13.1.2 Indemnity by Idaho Power. To the extent permitted by Requirements of Law and
subject to Section 13.1.5,Idaho Power shall release,indemnify and hold harmless
Seller, its Affiliates, and each of its and their respective directors, officers,
employees, agents, and representatives (collectively, the "Seller Indemnitees")
against and from any and all Liabilities actually or allegedly resulting from, or
arising out of, or in any way connected with,the performance by Idaho Power of
its obligations hereunder for or on account of(a) injury, bodily or otherwise, to,
or death of, or (b) for damage to, or destruction of property of, any person or
entity within the Seller Indemnitees, excepting only to the extent such Liabilities
as may be caused by the negligence or willful misconduct of any person or entity
within the Seller Indemnitees.
13.1.3 Additional Cross Indemnity. Without limiting Sections 13.1.1 and 13.1.2, Seller
shall release, indemnify and hold harmless the Idaho Power Indemnitees from
and against all Liabilities related to Storage Product prior to its delivery by Seller
at the Point of Delivery, and Idaho Power shall release, indemnify and hold
harmless the Seller Indemnitees from and against all Liabilities related to Storage
Product once delivered to Idaho Power at the Point of Delivery as provided
herein, except in each case to the extent such Liabilities are attributable to the
gross negligence or willful misconduct or a breach of this Agreement by any
member of the Idaho Power Indemnitees or the Seller Indemnitees, respectively,
seeking indemnification hereunder.
13.1.4 No Dedication. Nothing herein shall be construed to create any duty to, any
standard of care with reference to, or any liability to any person not a Party. No
undertaking by one Party to the other under any provision hereof shall constitute
the dedication of Idaho Power's facilities or any portion thereof to Seller or to
the public, nor affect the status of Idaho Power as an independent public utility
corporation or Seller as an independent individual or entity.
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13.1.5 Consequential Damages. NEITHER PARTY SHALL BE LIABLE TO THE
OTHER PARTY FOR SPECIAL, PUNITIVE, INDIRECT,EXEMPLARY
OR CONSEQUENTIAL DAMAGES,WHETHER SUCH DAMAGES ARE
ALLOWED OR PROVIDED BY CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY, STATUTE OR OTHERWISE.
THE PARTIES AGREE THAT ANY LIQUIDATED DAMAGES,
SECURITY, INDEMNIFIED CLAIMS OR DAMAGES, DELAY
DAMAGES, IDAHO POWER AND SELLER COST TO COVER
DAMAGES, SECTION 12.2.3 CAPACITY RIGHTS LOSS DAMAGES,
OR OTHER SPECIFIED MEASURE OF DAMAGES EXPRESSLY
PROVIDED FOR HEREIN, ARE NOT INTENDED BY THEM TO
REPRESENT AND WILL NOT BE DEEMED SPECIAL, PUNITIVE,
INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES AND
SHALL NOT BE LIMITED IN AMOUNT BY THIS SECTION 13.1.5.
SECTION 14
INSURANCE
14.1 Required Policies and Coverages. Without limiting any liabilities or any other obligations
of Seller hereunder, Seller shall secure and continuously carry the insurance coverage
specified on Exhibit 13 during the Term or longer period if specified in Exhibit 13.
14.2 Certificates of insurance. Seller shall provide Idaho Power with certificates of insurance
within ten (10) days after the date by which such policies are required to be obtained (as
set forth in Exhibit 13). Seller shall provide a certificate of insurance(in ACORD or similar
industry form) to Idaho Power within ten (10) days of the effective date of any insurance
policy required under this Agreement.
SECTION 15
FORCE MAJEURE
15.1 Definition of Force Majeure. "Force Majeure" or "an event of Force Majeure" means an
event that(a) is not reasonably anticipated as of the Effective Date hereof, (b) is not within
the reasonable control of the Party affected by the event,(c)is not the result of such Party's
negligence or failure to act, and (d) could not be overcome by the affected Party's use of
due diligence in the circumstances. Force Majeure includes, but is not restricted to, events
of the following types (but only to the extent that such an event, in consideration of the
circumstances, satisfies the tests set forth in the preceding sentence): acts of God; civil
disturbance; sabotage; strikes; lock-outs; work stoppages; and action or restraint by court
order or public or Governmental Authority (as long as the affected Party has not applied
for or assisted in the application for, and has opposed to the extent reasonable, such court
or government action). Notwithstanding the foregoing, none of the following constitute
Force Majeure: (i) Seller's ability to sell, or Idaho Power's ability to purchase the Storage
Product at a more advantageous price than is provided hereunder; (ii) the cost or
availability of Charging Energy for the Facility; (iii) economic hardship, including lack of
money; (iv) any breakdown or malfunction of the Facility's equipment (including any
serial equipment defect) that is not caused by an independent event of Force Majeure, (v)
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the imposition upon a Party of costs or taxes allocated to such Parry under Section 6.4, (vi)
delay or failure of Seller to obtain or perform any Required Facility Document unless due
to a Force Majeure event, (vii) any delay, alleged breach of contract, or failure by the
Transmission Provider, Network Service Provider or Interconnection Provider unless due
to a Force Majeure event, (viii) maintenance upgrade or repair of any facilities or right of
way corridors constituting part of or involving the Interconnection Facilities, whether
performed by or for Seller, or other third parties (except for repairs made necessary as a
result of an event of Force Majeure); (ix) Seller's failure to obtain, or perform under, the
Generation Interconnection Agreement, or its other contracts and obligations to
transmission owner, Transmission Provider or Interconnection Provider, unless due to a
Force Majeure event; (x) Seller's inability to obtain any supply of any good or service,
unless due to an independent event of Force Majeure; or (xi) any event attributable to the
use of Interconnection Facilities for deliveries of Storage Product to any parry other than
Idaho Power. Notwithstanding anything to the contrary herein, in no event will the
increased cost of electricity, steel, labor, or transportation constitute an event of Force
Majeure.
15.2 Suspension of Performance. Neither Party shall be liable for any delay or failure in its
performance under this Agreement, nor shall any delay, failure, or other occurrence or
event become a default, to the extent such delay, failure, occurrence or event is
substantially caused by conditions or events of Force Majeure during the continuation of
the event of Force Majeure, for the same number of days that the event of Force Majeure
has prevailed, provided that:
15.2.1 the Party affected by the Force Majeure, shall, within five (5) days after the
occurrence of the event of Force Majeure, give the other Party written notice
describing the particulars of the event; and
15.2.2 the suspension of performance shall be of no greater scope and of no longer
duration than is required to remedy the effect of the Force Majeure; and
15.2.3 the affected Parry shall use diligent efforts to remedy its inability to perform and
shall provide prompt notice to the other Party of the cessation of the event or
condition giving rise to its excuse from performance.
15.3 Force Majeure Does Not Affect Other Obligations.No obligations of either Party that arose
before the Force Majeure causing the suspension of performance or that arise after the
cessation of the Force Majeure shall be excused by the Force Majeure. No obligation of
Seller arising before the Commercial Operation Date may be excused by Force Majeure.
15.4 Strikes.Notwithstanding any other provision hereof,neither Party shall be required to settle
any strike,walkout, lockout or other labor dispute on terms which, in the sole judgment of
the Party involved in the dispute, are contrary to the Parry's best interests.
15.5 Right to Terminate. If a Force Majeure event prevents a Party from substantially
performing its obligations hereunder for a period exceeding one hundred and eighty (180)
consecutive days (despite the affected Parry's effort to take all reasonable steps to remedy
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the effects of the Force Majeure with all reasonable dispatch), then the Party not affected
by the Force Majeure event, with respect to its obligations hereunder, may terminate this
Agreement by giving ten (10) days prior written notice to the other Party. Upon such
termination, neither Party will have any liability to the other with respect to the period
following the effective date of such termination; provided, however, that this Agreement
will remain in effect to the extent necessary to facilitate the settlement of all liabilities and
obligations arising hereunder before the effective date of such termination.
SECTION 16
SEVERAL OBLIGATIONS; THIRD PARTY BENEFICIARIES
Nothing contained herein shall be construed to create an association, trust, partnership or joint
venture or to impose a trust,partnership or fiduciary duty, obligation or liability on or between the
Parties. Nothing in this Agreement shall be construed to create any duty, obligation or liability of
Seller or Buyer to any Person not a Party to this Agreement.
SECTION 17
CHOICE OF LAW
This Agreement shall be interpreted and enforced in accordance with the laws of the State of Idaho
notwithstanding its choice of law provisions.
SECTION 18
PARTIAL INVALIDITY
The Parties do not intend to violate any laws governing the subject matter hereof. If any of the
terms hereof are finally held or determined to be invalid, illegal or void as being contrary to any
Requirements of Law or public policy, all other terms hereof shall remain in effect. The Parties
shall use best efforts to amend this Agreement to reform or replace any terms determined to be
invalid, illegal or void, such that the amended terms (a) comply with and are enforceable under
Requirements of Law, (b) give effect to the intent of the Parties under this Agreement, and (c)
preserve the balance of the economics and equities contemplated by this Agreement in all material
respects.
SECTION 19
NON-WAIVER
No waiver of any provision hereof shall be effective unless the waiver is set forth in a writing that
(a) expressly identifies the provision being waived, and (b) is executed by the Party waiving the
provision. A Party's waiver of one or more failures by the other Party in the performance of any
of the provisions hereof shall not be construed as a waiver of any other failure or failures,whether
of a like kind or different nature.
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SECTION 20
GOVERNMENTAL JURISDICTION
AND AUTHORIZATIONS
This Agreement is subject to the jurisdiction of those Governmental Authorities having control
over either Party,the Facility,or this Agreement.During the Term,Seller shall maintain all Permits
required, as applicable, for the construction, operation, or ownership of the Facility.
SECTION 21
[INTENTIONALLY OMITTED]
SECTION 22
SUCCESSORS AND ASSIGNS
22.1 Restriction on Assignments. Except as expressly provided in this Section 20, neither Party
may assign this Agreement or any of its rights or obligations hereunder without the prior
written consent of the other Parry, which consent shall not be unreasonably withheld.
22.2 Permitted Assignments. Notwithstanding Section 22.1, either Party may, without the need
for consent from the other Party (but with written notice to the other Party, including the
names of the assignees): (a) transfer, sell, pledge, encumber or assign this Agreement or
the accounts, revenues or proceeds therefrom in connection with project financing for the
Facility; or (b) transfer or assign this Agreement to an Affiliate meeting the requirements
of this Agreement; provided, however, that Seller shall not transfer, sell, encumber or
assign this Agreement or any interest herein to any Affiliate of Idaho Power without the
prior written consent of Idaho Power. Except with respect to collateral assignments for
financing purposes in every assignment permitted under this Section 22.2, the assignee
must not be a Sanctioned Person, must agree in writing to be bound by the terms and
conditions hereof and must possess the same or similar experience, and possess the same
or better creditworthiness, as the assignor. Idaho Power may assign this Agreement in
whole or in part without the consent of Seller to any person or entity in the event that Idaho
Power ceases to be a load-serving entity, in which event Idaho Power shall be released
from liability hereunder upon approval of Idaho Power ceasing to be a load-serving entity
by the IPUC and OPUC. The Party seeking to assign or transfer this Agreement shall be
solely responsible for paying all costs of assignment.
SECTION 23
ENTIRE AGREEMENT
This Agreement supersedes all prior agreements, proposals, representations, negotiations,
discussions or letters, whether oral or in writing, regarding the subject matter hereof. No
modification hereof shall be effective unless it is in writing and executed by both Parties.
SECTION 24
NOTICES
24.1 Addresses and Delivery Methods. All notices, requests, statements or payments shall be
made to the addresses set out below. In addition, copies of a notice of termination of this
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Agreement under Section 12.3 shall contain the information required by Section 12.3 and
shall be sent to the then-current President and General Counsel of Idaho Power. Notices
required to be in writing shall be delivered by letter, facsimile or other tangible
documentary form.Notice by overnight mail or courier shall be deemed to have been given
on the date and time evidenced by the delivery receipt. Notice by hand delivery shall be
deemed to have been given when received or hand delivered. Notice by facsimile is
effective as of transmission to each and all of the telefacsimile numbers provided below
for a Party,but must be followed up by notice by registered mail or overnight carrier to be
effective. Notice by overnight mail shall be deemed to have been given the Business Day
after it is sent, if sent for next day delivery to a domestic address by a recognized overnight
delivery service (e.g., Federal Express or UPS). Notice by certified or registered mail,
return receipt requested, shall be deemed to have been given upon receipt.
To Seller:
To Idaho Power: Idaho Power
1221 W Idaho St
Boise, ID 83702
Attn: Vice President, Power Supply
Email: [e-mail]
with a copy to: Idaho Power
1221 W Idaho St
Boise, ID 83702
Attn: Energy Contracts
Email: [e-mail]
and termination notices copied to: Idaho Power
1221 W Idaho St
Boise, ID 83702
Attn: Vice President and General Counsel
Email: [e-mail]
24.2 Changes of Address. The Parties may change any of the persons to whom notices are
addressed, or their addresses, by providing written notice in accordance with this section.
SECTION 25
CONFIDENTIALITY
25.1 Confidential Business Information. The following constitutes "Confidential Business
Information," whether oral or written: (a) the Parties' proposals and negotiations
concerning this Agreement, made or conducted prior to the Effective Date, (b) the actual
charges billed to Idaho Power hereunder,and(c)any information delivered by Idaho Power
to Seller prior to the Effective Date relating to the market prices of Storage Product and
methodologies for their determination or estimation. Seller and Idaho Power each agree to
hold such Confidential Business Information wholly confidential, except as otherwise
expressly provided in this Agreement. "Confidential Business Information" shall not
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include information that (x) is in or enters the public domain through no fault of the Party
receiving such information, or (y) was in the possession of a Party prior to the Effective
Date, other than through delivery thereof as specified in subsections (a) and (c) above. A
Party providing any written Confidential Business Information under this Agreement shall
clearly mark all pages of all documents and materials to be treated as Confidential Business
information with the term"Confidential" on the front of each page, document or material.
If the Confidential Business Information is transmitted by electronic means the title or
subject line shall indicate the information is Confidential Business Information. All
Confidential Business Information shall be maintained as confidential, pursuant to the
terms of this Section 25.1, for a period of two (2) years from the date it is received by the
receiving Party unless otherwise agreed to in writing by the Parties.
25.2 Duty to Maintain Confidentiality. Each Party agrees not to disclose Confidential Business
Information to any other person (other than its Affiliates, accountants, auditors, counsel,
consultants, lenders, prospective lenders, employees, officers and directors), without the
prior written consent of the other Party, provided that: (a) either Party may disclose
Confidential Business Information, if and to the extent such disclosure is required (i) by
Requirements of Law, (ii) in order for Idaho Power to receive regulatory approval and
recovery of expenses related to this Agreement, (iii) pursuant to an order of a court or
regulatory agency, or (iv) in order to enforce this Agreement or to seek approval hereof,
and(b)notwithstanding any other provision hereof, Idaho Power may in its sole discretion
disclose or otherwise use for any purpose in its sole discretion the Confidential Business
Information described in Sections 25.1(b) or 25.1(c). In the event a Party is required by
Requirements of Law to disclose Confidential Business Information, such Party shall to
the extent possible promptly notify the other Party of the obligation to disclose such
information.
25.3 Idaho Power Regulatory Compliance. The Parties acknowledge that Idaho Power is
required by Requirements of Law to report certain information that is or could otherwise
embody Confidential Business Information from time to time. Such reports include
models, filings, reports of Idaho Power's net power costs, general rate case filings, power
cost adjustment mechanisms,FERC-required reporting such as those made on FERC Form
I or Form 714, market power and market monitoring reports, annual state reports that
include resources and loads, integrated resource planning reports, reports to entities such
as NERC,WECC,Pacific Northwest Utility Coordinating Committee,WREGIS,or similar
or successor organizations,forms, filings,or reports,the specific names of which may vary
by jurisdiction, along with supporting documentation. Additionally, in regulatory
proceedings in all state and federal jurisdictions in which it does business, Idaho Power
will from time to time be required to produce Confidential Business Information. Idaho
Power may use its business judgment in its compliance with all of the foregoing and the
appropriate level of confidentiality it seeks for such disclosures. Idaho Power may submit
Confidential Business Information in regulatory proceedings without notice to Seller.
25.4 Irreparable Injury; Remedies. Each Party agrees that violation of the terms of this Section
25 constitutes irreparable harm to the other, and that the harmed Party may seek any and
all remedies available to it at law or in equity, including injunctive relief.
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25.5 News Releases and Publicity. Except as otherwise provided in Section 7.14, before either
Party issues any news release or publicly distributed promotional material regarding the
Facility that mentions the Facility, such Party shall first provide a copy thereof to the other
Party for its review and approval. Any use of either Party's name in such news release or
promotional material must adhere to such Party's publicity guidelines then in effect; any
use of Idaho Power's name requires Idaho Power's prior written consent.
SECTION 26
DISAGREEMENTS
26.1 Negotiations. Prior to proceeding with formal dispute resolution procedures as provided
below in this Section 26, the Parties must first attempt in good faith to resolve all disputes
arising out of, related to or in connection with this Agreement promptly by negotiation, as
follows. Any Party may give the other Party written notice of any dispute not resolved in
the normal course of business. Executives of both Parties at levels one level above those
employees who have previously been involved in the dispute must meet at a mutually
acceptable time and place within ten(10) days after delivery of such notice, and thereafter
as often as they reasonably deem necessary, to exchange relevant information and to
attempt to resolve the dispute. If the matter has not been resolved within thirty (30) days
after the referral of the dispute to such senior executives, or if no meeting of such senior
executives has taken place within fifteen (15) days after such referral, either Party may
initiate any legal remedies available to the Party. All negotiations pursuant to this clause
are confidential.
26.2 Choice of Forum. Each Party irrevocably consents and agrees that any legal action or
proceeding arising out of this Agreement or the actions of the Parties leading up to this
Agreement shall be brought exclusively in the United States District Court for the District
of Idaho in Boise, Idaho, or if such court does not have jurisdiction, in the 41h Judicial
District(Ada County) Court of the State of Idaho. By execution and delivery hereof, each
Party (a) accepts the exclusive jurisdiction of such court and waives any objection that it
may now or hereafter have to the exercise of personal jurisdiction by such court over each
Party for the purpose of any proceeding related to this Agreement, (b) irrevocably agrees
to be bound by any final judgment(after any and all appeals) of any such court arising out
of such documents or actions, (c)irrevocably waives,to the fullest extent permitted by law,
any objection that it may now or hereafter have to the laying of venue of any suit, action
or proceedings arising out of such documents brought in such court (including any claim
that any such suit, action or proceeding has been brought in an inconvenient forum) in
connection herewith, (d) agrees that service of process in any such action may be effected
by mailing a copy thereof by registered or certified mail, postage prepaid, to such Party at
its address as set forth herein, and (e) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law.
26.3 Settlement Discussions. No statements of position or offers of settlement made in the
course of the dispute process described in this Section 26 will be offered into evidence for
any purpose in any litigation between the Parties, nor will any such statements or offers of
settlement be used in any manner against either Party in any such litigation. Further, no
such statements or offers of settlement shall constitute an admission or waiver of rights by
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either Parry in connection with any such litigation. At the request of either Parry, any such
statements and offers of settlement, and all copies thereof, shall be promptly returned to
the Party providing the same.
26.4 Waiver of Jury Trial. EACH PARTY KNOWINGLY, VOLUNTARILY,
INTENTIONALLY AND IRREVOCABLY WAIVES THE RIGHT TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED ON THIS AGREEMENT, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT AND
ANY AGREEMENT EXECUTED OR CONTEMPLATED TO BE EXECUTED IN
CONJUNCTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A MATERIAL
INDUCEMENT TO EACH OF THE PARTIES FOR ENTERING HEREINTO. EACH
PARTY HEREBY WAIVES ANY RIGHT TO CONSOLIDATE ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OTHER AGREEMENT EXECUTED OR
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION WITH THIS
AGREEMENT, OR ANY MATTER ARISING HEREUNDER OR THEREUNDER,
WITH ANY PROCEEDING IN WHICH A JURY TRIAL HAS NOT OR CANNOT BE
WAIVED. THIS SECTION WILL SURVIVE THE EXPIRATION OR TERMINATION
OF THIS AGREEMENT.
SECTION 27
COMPLIANCE
27.1 Nondiscrimination. Buyer is a federal contractor and maintains an equal
opportunity/affirmative action program in accordance with Applicable Law. As a result,
Seller must, to the extent required by Applicable Law, afford equal employment
opportunity to all of its applicants and employees, regardless of their race, color, national
origin, sex, age, religion, marital status, sexual orientation, gender identity and gender
expression, protected veteran status, disability, or other basis protected by law. Also as a
result,but only if required by Applicable Law, Seller shall abide by the requirements of 41
CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination
against qualified individuals based on their status as protected veterans or individuals with
disabilities and prohibit discrimination against all individuals based on their race, color,
religion, sex, sexual orientation, gender identity, or national origin. Moreover, these
regulations require that covered prime contractors and subcontractors take affirmative
action to employ and advance in employment individuals without regard to race, color,
religion, sex, sexual orientation, gender identity, national origin, disability, or veteran
status. In connection with this Agreement and the Facility, Seller will comply with, and
cause all of its direct and indirect contractors and subcontractors to expressly agree to
comply with, all laws and regulations relating to forced, bonded(including debt bondage)
or indentured labor, involuntary or exploitative prison labor, slavery or trafficking of
persons.
27.2 Anti-Corruption. In connection with the negotiation and performance of this Agreement
and the development, construction, and operation of the Facility or the Premises, Seller, on
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behalf of itself, Seller's Parent Entity and any other direct or indirect upstream equity
owners that, notwithstanding percentage of equity ownership interest, have the voting
power or otherwise have the power to control the day-to-day management, operations and
policies of Seller, and such Affiliates that Seller contractually or otherwise controls or
directs in the management or operation of the Facility, and in each case, including the
officers, directors, employees and agents of such entities, represents and warrants that it
has not engaged in, and that it shall refrain from, offering, promising, paying, giving,
authorizing the paying or giving of, soliciting, or accepting money or Anything of Value,
directly or indirectly, to or from (a) any Government Official to (i) influence any act or
decision of a Government Official in his or her official capacity, (ii) induce a Government
Official to act in violation of his or her lawful duty, (iii) induce a Government Official to
use his or her influence with a government or instrumentality thereof, or (iv) otherwise
secure any improper advantage, in each case to the extent prohibited by applicable anti-
corruption laws; or(b)any person in any manner that would constitute bribery or an illegal
kickback, or would otherwise violate applicable anti-corruption laws. If Seller fails to
comply with this Section 27.2 then Buyer may terminate this Agreement in accordance
with Section 12.1.2.12. In connection with the performance of this Agreement and all fees
charged Buyer, Seller shall maintain books and records practices and internal controls to
ensure(a)that receipts and expenses are accurately recorded with reasonable detail and are
based on accurate and sufficient supporting documentation and(b)that no "off the books"
accounts are created or maintained. Unless otherwise required by law, such books and
records will be maintained for five (5) years after termination or expiration of this
Agreement. Seller will immediately report to Buyer any breach of this Section 27.2 by
Seller or its representatives. Seller will ensure that the contractors and subcontractors it
retains in connection with this Agreement expressly agree to anti-corruption undertakings,
representations, and warranties substantially similar to the provisions herein. If Buyer has
reason to believe that a breach of this Section 27.2 has occurred or will occur, Buyer shall
have the right to audit Seller's books and records insofar as they relate to performance of
this Agreement and to withhold further payments without any liability to Seller until
reasonably satisfied that no breach has occurred. If the Agreement is terminated pursuant
to an Event of Default under Section 12.1.2.12, Buyer shall have no obligation to make
further payments hereunder. Buyer's rights and Seller's obligations under this Section 27.2
shall survive the termination or expiration of the Agreement.
27.3 Prohibited Technology. Pursuant to Section 889 of the John S. McCain National Defense
Authorization Act for Fiscal Year 2019 and Federal Acquisition Regulation(FAR)52.204-
25 (Aug. 2020), Seller agrees, represents, and warrants that Seller shall not supply or
deliver to IPC any"covered telecommunications equipment or services"as a substantial or
essential component of any system or critical technology of any system. As defined in
FAR 52.204-25(a), "covered telecommunications equipment or services" includes
equipment, systems,products, or services made by any of the following companies, or any
subsidiary or affiliate thereof(including companies with the same principal word in the
name, e.g., "Huawei" or "Hytera"): Huawei Technologies Company; ZTE Corporation;
Hytera Communications Corporation; Hangzhou Hikvision Digital Technology Company;
or Dahua Technology Company. "Covered telecommunications equipment or services"
may include, but are not limited to, video/monitoring surveillance equipment/services,
public switching and transmission equipment,private switches,cables,local area networks,
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modems, mobile phones, wireless devices, landline telephones, laptops, desktop
computers, answering machines, teleprinters, fax machines, and routers. "Covered
telecommunications equipment or services"do not include telecommunications equipment
that cannot route or redirect user data traffic or permit visibility into any user data or
packets that the equipment transmits or handles.
To the extent that the systems, products, or services to be provided by Seller under this
Agreement may be procured by IPC in support of or to satisfy IPC's obligations under
agreements with a federal governmental entity, Seller further agrees that FAR 52.204-25
(Aug. 2020), except for paragraph (b)(2) thereof, shall be incorporated by reference into
this Agreement and is binding on Seller, and that Seller does not use any equipment,
system, or service that uses covered telecommunications equipment or services and will
not supply any covered telecommunications equipment or services to IPC. Seller further
agrees that, if it identifies covered telecommunications equipment or services used as a
substantial or essential component of any system or as critical technology as part of any
system during contract performance, or Seller is notified of such by a subcontractor at any
tier or any other source, Seller shall immediately notify IPC and reasonably cooperate with
IPC's requests for information.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
in their respective names as of the date last written below.
By: By:
Name: Name:
Title: Title:
Date: Date:
100310207.DOCX; i}60 Exhibit No. 1
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E. Hackett, IPC
Page 405 of 495

EXHIBIT 1
MONTHLY POWER PRODUCTION AND SWITCHING REPORT
Month Year
Project Project
Address Phone
City State Zip State
Facility Station Metered
Out ut Usage Maximum
Meter Number:
End of Month MWh Meter
Reading: MW
Beginning of Month MWh
Difference:
Times Meter Constant: Net Generation
MWh for the Month:
Metered Demand:
Breaker Opening Record Breaker Closing Record
Date Time Meter Reason Date Time Meter
* Breaker Opening Reason Codes
1 Lack of Adequate Prime Mover I hereby certify that the above meter
2 Forced Outage of Facility readings are true and correct as of Midnight
3 Disturbance of IPCo System on the last day of the above month and that the
4 Scheduled Maintenance switching record is accurate and complete as
5 Testing of Protection Systems required by the Energv Sales Agreement to
6 Cause Unknown
7 Other (Explain)
Signature Date
Exhibit No. 1 {00310207.DOCX;I
Case No. IPC-E-26-03
E. Hackett, IPC
Page 406 of 495

A-2 AUTOMATED METER READING COLLECTION PROCESS
Monthly, Idaho Power will use the provided Metering and Telemetry equipment and processes to
collect the meter reading information from the Idaho Power provided Metering Equipment that
measures the Net Energy and energy delivered to supply Station Use for the Facility recorded at
12:00 AM (Midnight) of the last day of the month.
The meter information collected will include but not be limited to energy production, Station Use,
the maximum generated power(MW) and any other required energy measurements to adequately
administer this Agreement.
A-3 SELLER CONTACT INFORMATION
Seller's Contact Information
Name:
Telephone Number:
Cell Phone:
E-Mail:
24-Hour Project Operational Contact
Name:
Telephone Number:
Cell Phone:
E-Mail:
Project On-site Contact information
Name:
Telephone Number:
Cell Phone:
E-Mail:
100310207.DOCX;1}62 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 407 of 495

Exhibit No. 1 f00310207.DOCX;1}
Case No. IPC-E-26-03
E. Hackett, IPC
Page 408 of 495

EXHIBIT 2
DESCRIPTION OF FACILITY
Project Name:
Project Number:
B-1 DESCRIPTION OF FACILITY
(Must include the Nameplate Capacity rating and VAR capability (both leading and
lagging) of all Generation Units to be included in the Facility)
Var Capability (Both leading and lagging)Leading is Lagging is
B-2 LOCATION OF FACILITY
Near:
Actual or nearest physical street address:
GPS Coordinates: Latitude Decimal Degrees:
Longitude Decimal Degrees:
State: County:
100310207.DOCX; i}64 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 409 of 495

EXHIBIT 3
POINT OF DELIVERYANTERCONNECTION FACILITIES
Instructions to Seller:
1. Include description of point of metering, and Point of Interconnection
2. Include description of Point of Delivery
3. Provide interconnection single line drawing of Facility including any transmission
facilities on Seller's side of the Point of Interconnection.
4. Describe Seller's arrangements for station service to the Facility and show on one-
line diagram how station service will be provided and metered.
5. Specify the maximum hourly rate (MW) at which Seller is permitted to deliver energy
to the Point of Delivery and in compliance with Seller's transmission rights between the Point of
Interconnection and the Point of Delivery("Maximum Transmission Rate"):
MW.
Seller to provide to Buyer with a copy of the final Generator Interconnection Agreement
Exhibit No. 1 {00310207.D0CX;1}
Case No. IPC-E-26-03
E. Hackett, IPC
Page 410 of 495

EXHIBIT 4
STORAGE OPERATING RESTRICTIONS
Maximum Storage Level: [ ] MWh
Minimum Storage Level: [ ] MWh
Maximum Charging Capacity: [ ] MW
Minimum Charging Capacity: [ ] MW
Maximum Discharging Capacity: [ ] MWh
Minimum Discharging Capacity: [ ] MWh
Maximum State of Charge during [ ]%
Charging:
Minimum State of Charge during [ ]%
Discharging:
Ramp Rate: [ ] MW/minute
Annual Cycles: Maximum of[ ] Full Cycle Equivalents per
Contract Year with no monthly cap.
Daily Dispatch Limits: Charging: [ ] per day
Discharging: ] per day
Partial Charging/Discharging: [ ]
100310207.DOCX;1}66 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 411 of 495

Maximum Time at Minimum Storage N/A
Level:
Other Operating Limits: 1. Storage Facility to be charged only from
the Generating Facility.
2. All manual dispatch commands by Idaho
Power must use the supplied energy
management system.
3. The average resting State of Charge per
Contract Year must be below [ ]%.
4. Up to [ ] hours of idle time is required
following a continuous discharge of
greater than [ ]% of the Storage
Capacity(as measured in MWh).
Exhibit No. 1 {00310207.D0CX;1}
Case No. IPC-E-26-03
E. Hackett, IPC
Page 412 of 495

EXHIBIT 5
CONTRACT PRICE
Contract Price
Contract Year $/kW-Month
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
100310207.DOCX;1}68 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 413 of 495

EXHIBIT 6
NERC EVENT TYPES
Event Description of Outages
Type
Unplanned(Forced) Outage—Immediate—An outage that requires immediate
U1 removal of a unit from service, another outage state or a Reserve Shutdown state.
This type of outage results from immediate mechanical/electrical/hydraulic
controls stems trips and operator-initiated trips in response to unit alarms.
Unplanned(Forced) OutageDelayed—An outage that does not require
U2 immediate removal of a unit from the in-service state but requires removal within
six 6 hours. This type of outage can only occur while the unit is in service.
Unplanned(Forced) Outage—Postponed—An outage that can be postponed
U3 beyond six hours but requires that a unit be removed from the in-service state
before the end of the next weekend. This type of outage can only occur while the
unit is in service.
Startup Failure—An outage that results from the inability to synchronize a unit
SF within a specified startup time period following an outage or Reserve Shutdown.
A startup period begins with the command to start and ends when the unit is
synchronized. An SF begins when the problem preventing the unit from
synchronizing occurs. The SF ends when the unit is synchronized or another SF
occurs.
Maintenance Outage—An outage that can be deferred beyond the end of the next
MO weekend,but requires that the unit be removed from service before the next
planned outage. (Characteristically, a MO can occur any time during the year, has
a flexible start date, may or may not have a predetermined duration and is usually
much shorter than a PO.
Maintenance Outage Extension—An extension of a maintenance outage (MO)
ME beyond its estimated completion date. This is typically used where the original
scope of work requires more time to complete than originally scheduled. Do not
use this where unexpected problems or delays render the unit out of service
be and the estimated end date of the MO.
Planned Outage—An outage that is scheduled well in advance and is of a
PO predetermined duration, lasts for several weeks and occurs only once or twice a
year. (Boiler overhauls, turbine replacement or inspections are typical planned
outages.)
Planned Outage Extension—An extension of a planned outage (PO)beyond its
PE estimated completion date. This is typically used where the original scope of work
requires more time to complete than originally scheduled. Do not use this where
unexpected problems or delays render the unit out of service beyond the estimated
end date of the PO.
100310207.DOCX; 1}69
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 414 of 495

EXHIBIT 7
START-UP TESTING
(Seller to provide to Buyer before the First Operation Date)
100310207.DOCX; 1}70
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 415 of 495

EXHIBIT 8
FORM OF GUARANTY—CREDIT SUPPORT OBLIGATION
FORMS OF LIQUID SECURITY
The Seller shall provide Idaho Power with commercially reasonable security instruments
such as Cash, Cash Escrow Security, Guarantee or Letter of Credit as those terms are
defined below or other forms of liquid financial security that would provide readily
available cash to Idaho Power to satisfy the security requirements within this Agreement.
For the purpose of this Appendix D,the term"Credit Requirements"shall mean acceptable
financial creditworthiness of the entity providing the security instrument in relation to the
term of the obligation in the reasonable judgment of Idaho Power, provided that any
guarantee and/or Letter of Credit issued by any other entity with a short-term or long-term
investment grade credit rating by Standard & Poor's Corporation or Moody's Investor
Services, Inc. or any successors shall be deemed to have acceptable financial
creditworthiness.
l. Cash—Seller shall deposit cash in the amount of the required security with Idaho
Power. Idaho Power will not be responsible to calculate or pay any interest on these funds
deposited with Idaho Power.
2. Cash Escrow Security— Seller shall deposit funds in an escrow account established
by the Seller in a banking institution acceptable to both Parties equal to the required security.
The Seller shall be responsible for all costs, and receive any interest earned associated with
establishing and maintaining the escrow account(s).
3. Guarantee or Letter of Credit Security—Seller shall post and maintain in an amount
equal to the required security: (a) a guaranty from a party that satisfies the Credit Requirements,
in a form acceptable to Idaho Power at its discretion, or(b) an irrevocable Letter of Credit in a
form acceptable to Idaho Power, in favor of Idaho Power. The Letter of Credit will be issued by
a financial institution acceptable to both parties. The Seller shall be responsible for all costs
associated with establishing and maintaining the Guarantee(s) or Letter(s) of Credit.
Exhibit No. 1 {00310207.D0CX;1}
Case No. IPC-E-26-03
E. Hackett, IPC
Page 416 of 495

EXHIBIT 9
REQUIRED FACILITY DOCUMENTS
1. Obtained Required Facility Documents:
Permits:
Conditional Use Permits from Twin Falls County for the construction and
operation of the Facility
Land Rights:
Lease Agreement for the land, access, and interconnection of the Facility.
2. To Be Obtained (Prior to Commercial Operation) Required Facility Documents:
Licenses, Permits and Authorizations:
Evidence of market-based rate authority under Section 205 of the Federal Power Act or evidence
of qualifying facility certification under the Public Utility Regulatory Policies Act
Access road easement
Electrical Permit
Building Permit
Interconnection approval
Utility easement
Crossing Agreement
Construction and Operations and Maintenance:
Contract for the Sale of Power Generation Equipment and Related Services between vendors and
engineering, procurement, and construction contractor and Seller
Generator Interconnection Agreement
Retail Electric Service Agreement
Proof of Insurance
Construction Agreements:
Balance of Plant/Construction Services Agreement
Operations and Maintenance Agreements:
Warranty, Service and Maintenance Agreement
Exhibit No. 1 {00310207.D0CX;1}
Case No. IPC-E-26-03
E. Hackett, IPC
Page 417 of 495

SUCH LIST MAY BE UPDATED PURSUANT TO SECTION 2.2.3
Exhibit No. 1 {00310207.D0CX;1}
Case No. IPC-E-26-03
E. Hackett, IPC
Page 418 of 495

EXHIBIT 10
LEASES
(Seller to provide to Buyer before the Commercial Operation Date)
Memorandum of Lease Agreement 1
Memorandum of Lease Agreement 2
f00310207.DOCX;1} Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 419 of 495

EXHIBIT 11
ENGINEER'S CERTIFICATIONS
ENGINEER'S CERTIFICATION
OF
OPERATIONS & MAINTENANCE POLICY
The undersigned , on behalf of himself/herself and
,hereinafter collectively referred to as "Engineer,"hereby states and certifies to the
Seller as follows:
1. That Engineer is a Licensed Professional Engineer in good standing in the State of
Idaho.
2. That Engineer has reviewed the Energy Sales Agreement, hereinafter referred to as
the"Agreement,"between Idaho Power as Buyer, and as Seller, dated
3. That the cogeneration or small power production project which is the subject of the
Agreement and this Statement is identified as Idaho Power Company Facility
No. and is hereinafter referred to as the "Project."
4. That the Project, which is commonly known as the Project,
is located in Section Township Range , Boise Meridian,
County, Idaho.
5. That Engineer recognizes that the Agreement provides for the Project to furnish
electrical energy to Idaho Power for a year period.
6. That Engineer has substantial experience in the design, construction and operation of
electric power plants of the same type as this Project.
7. That Engineer has no economic relationship to the Design Engineer of this Project.
8. That Engineer has reviewed and/or supervised the review of the Policy for Operation
and Maintenance ("O&M") for this Project and it is his professional opinion that, said Project
has been designed and built to appropriate standards, and adherence to said O&M Policy will
result in the Project's producing at or near the design electrical output, efficiency and plant factor
for the full Contact Term of years.
9. That Engineer recognizes that Idaho Power, in accordance with paragraph 5.2 of the
Agreement, is relying on Engineer's representations and opinions contained in this Statement.
10. That Engineer certifies that the above statements are complete, true and accurate to
the best of his/her knowledge and therefore sets his/her hand and seal below.
100310207.DOCX; 1}75
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 420 of 495

By
(P.E. Stamp)
Date
100310207.DOCX;1}76 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 421 of 495

ENGINEER'S CERTIFICATION
OF
ONGOING OPERATIONS AND MAINTENANCE
The undersigned on behalf of
himself/herself and hereinafter collectively referred to as"Engineer,"
hereby states and certifies to the Seller as follows:
1. That Engineer is a Licensed Professional Engineer in good standing in the State of
Idaho.
2. That Engineer has reviewed the Energy Sales Agreement, hereinafter referred to as
the"Agreement,"between Idaho Power as Buyer, and as Seller, dated
3. That the cogeneration or small power production project which is the subject of the
Agreement and this Statement is identified as Idaho Power Company Facility No.
and hereinafter referred to as the "Project".
4. That the Project, which is commonly known as the Project,
is located in Section Township Range , Boise Meridian,
County, Idaho.
5. That Engineer recognizes that the Agreement provides for the Project to furnish
electrical energy to Idaho Power for a year period.
6. That Engineer has substantial experience in the design, construction and operation of
electric power plants of the same type as this Project.
7. That Engineer has no economic relationship to the Design Engineer of this Project.
8. That Engineer has made a physical inspection of said Project, its operations and
maintenance records since the last previous certified inspection. The Engineer certifies, based on
the Project's appearance and the information provided by the Project, that the Project's ongoing
O&M has been completed in accordance with said O&M Policy; that it is in reasonably good
operating condition; and it is in the Engineer's professional opinion that if adherence to said
O&M Policy continues, the Project will continue producing at or near its design electrical output,
efficiency and plant factor for the remaining years of the Agreement.
9. That Engineer recognizes that Idaho Power, in accordance with paragraph 5.2 of the
Agreement, is relying on Engineer's representations and opinions contained in this Statement.
10. That Engineer certifies that the above statements are complete, true and accurate to
the best of his/her knowledge and therefore sets his/her hand and seal below.
100310207.DOCX; 1}77
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 422 of 495

By
(P.E. Stamp)
Date
100310207.DOCX;1}7 8 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 423 of 495

ENGINEER'S CERTIFICATION
OF
DESIGN& CONSTRUCTION ADEQUACY
The undersigned , on behalf of himself/herself and
hereinafter collectively referred to as "Engineer", hereby states
and certifies to Idaho Power as follows:
1. That Engineer is a Licensed Professional Engineer in good standing in the State of
Idaho.
2. That Engineer has reviewed the Energy Sales Agreement, hereinafter referred to as
the "Agreement", between Idaho Power as Buyer, and as
Seller, dated
3. That the cogeneration or small power production project, which is the subject of the
Agreement and this Statement, is identified as Idaho Power Company Facility
No and is hereinafter referred to as the "Project".
4. That the Project, which is commonly known as the Project is
located in Section Township Range , Boise Meridian,
County, Idaho.
5. That Engineer recognizes that the Agreement provides for the Project to furnish
electrical energy to Idaho Power for a year period.
6. That Engineer has substantial experience in the design, construction and operation of
electric power plants of the same type as this Project.
7. That Engineer has no economic relationship to the Design Engineer of this Project
and has made the analysis of the plans and specifications independently.
8. That Engineer has reviewed the engineering design and construction of the Project,
including the civil work, electrical work, generating equipment,prime mover conveyance
system, Seller furnished Interconnection Facilities and other Project facilities and equipment.
9. That the Project has been constructed in accordance with said plans and
specifications, all applicable codes and consistent with Prudent Electrical Practices as that term is
described in the Agreement.
10. That the design and construction of the Project is such that with reasonable and
prudent operation and maintenance practices by Seller, the Project is capable of performing in
accordance with the terms of the Agreement and with Prudent Electrical Practices for a
year period.
11. That Engineer recognizes that Idaho Power, in accordance with paragraph 5.2 of the
Agreement, in interconnecting the Project with its system, is relying on Engineer's
representations and opinions contained in this Statement.
12. That Engineer certifies that the above statements are complete, true and accurate to
the best of his/her knowledge and therefore sets his/her hand and seal below.
100310207.DOCX; 1}79
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 424 of 495

By
(P.E. Stamp)
Date
100310207.DOCX; I}8 0 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 425 of 495

EXHIBIT 12
[RESERVED]
100310207.DOCX; 1}81
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 426 of 495

EXHIBIT 13
REQUIRED INSURANCE
The Seller shall secure and continuously carry insurance as specified within this Appendix for the
term of the Agreement.
Insurance Requirements:
1. All insurance required by this Agreement shall be placed with an insurance company
with an A.M. Best Company rating of A- or better.
2. If the insurance coverage required in this Appendix is cancelled, materially changed
or lapses for any reason, the Seller will immediately notify Idaho Power in writing. This notice
will advise Idaho Power of the specific reason for cancellation, material change or lapse and the
steps being taken to comply with these Insurance Requirements. Failure to provide this notice
and to comply with these Insurance Requirements within 5 days of the cancellation, material
change or lapse will constitute a material breach and Idaho Power may terminate this Agreement.
3. Prior to the First Energy date and subsequently within 10 days of the annual
anniversary of the Operation Date, the Seller shall provide a Certificate of Insurance in the name
of Idaho Power Company and list Idaho Power Company as an Additional Insured Endorsement
and Waiver of Subrogation Endorsement.
4. The Certificate of Insurance shall evidence the appropriate insurance coverage of
Comprehensive General Liability Insurance for both bodily injury and property damage with
limits equal to [$1,000,000], each occurrence, combined single limit. The deductible for such
insurance shall be consistent with current Insurance Industry Utility practices for similar
property.
Seller shall be entitled to self-insure these coverages with approval of Idaho Power, which shall
not be unreasonable withheld, delayed or conditioned.
4.1 Periodic Review. Idaho Power may review this schedule of insurance as often as once every
two (2) years. Idaho Power may in its discretion require Seller to make reasonable changes to
the policies and coverages described in this Exhibit to the extent reasonably necessary to cause
such policies and coverages to conform to the insurance policies and coverages typically
obtained or required for power generation facilities comparable to the Facility at the time Idaho
Power's review takes place.
100310207.DOCX; i}82 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 427 of 495

EXHIBIT 14
SELLER AUTHORIZATION TO RELEASE GENERATION DATA TO IDAHO
POWER
[DATE]
Idaho Power
1221 W Idaho St
Boise, ID 83702
Email: [e-mail]
To Whom it May Concern:
("Seller") hereby voluntarily authorizes Idaho Power's
Transmission business unit to share Seller's interconnection information with marketing function
employees of Idaho Power, including but not limited to those in Power Supply. Seller
acknowledges that Idaho Power did not provide it any preferences, either operational or rate-
related, in exchange for this voluntary consent.
{00310207.DOCX;11 -83-
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 428 of 495

EXHIBIT 15
ATTACHMENTS
(Seller to provide to Buyer before the First Generation Date)
1. Site Map
2. As-Builts
3. Manufacturer's performance warranties
4. [Other]
EXHIBIT 16
100310207.DOCX; i}84 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 429 of 495

AS-BUILT SUPPLEMENT
100310207.DOCX; 1}8 S
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 430 of 495

EXHIBIT 17
[NOT USED]
EXHIBIT 18
FORM OF CONSTRUCTION PROGRESS REPORT
Construction Progress Report
of
("Seller")
provided to
[BUYER ENTITY]
("Buyer")
[Date]
Instructions.
Any capitalized terms used in this report which are not defined herein are defined in the Power
Purchase Agreement by and between , ("Seller") and [BUYER ENTITY] dated
, (the "Agreement").
Seller shall review the status of each milestone of the construction schedule for the Facility and
Seller shall identify such matters referenced in clauses (i)-(v)below as known to Seller and
which in Seller's reasonable judgment are expected to adversely affect the schedule, and with
respect to any such matters, shall state the actions which Seller intends to take to ensure that the
milestones will be attained by their required dates. Such matters may include:
(i) Any material matter or issue arising in connection with a Permit, or compliance
therewith, with respect to which there is an actual or threatened dispute over the interpretation of
an Applicable Law, actual or threatened opposition to the granting of a necessary Permit, any
organized public opposition, any action or expenditure required for compliance or obtaining
approval that Seller is unwilling to take or make, or in each case which could reasonably be
expected to materially threaten or prevent financing of the Facility, attaining any milestone, or
obtaining any contemplated agreements with other parties which are necessary for attaining any
milestone or which otherwise reasonably could be expected to materially threaten Seller's ability
to attain any milestone.
(ii) Any development or event in the financial markets or the independent power industry,
any change in taxation or accounting standards or practices or in Seller's business or prospects
which reasonably could be expected to materially threaten financing of the Facility, attainment of
any milestone or materially threaten any contemplated agreements with other parties which are
necessary for attaining any Milestone or could otherwise reasonably be expected to materially
threaten Seller's ability to attain any milestone;
100310207.DOCX; i}8 6 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 431 of 495

(iii) A change in, or discovery by Seller of, any legal or regulatory requirement which would
reasonably be expected to materially threaten Seller's ability to attain any milestone;
(iv) Any material change in Seller's schedule for initiating or completing any material aspect
of Facility;
(v) The status of any matter or issue identified as outstanding in any prior Construction
Progress Report and any material change in Seller's proposed actions to remedy or overcome
such matter or issue.
For guidance, each"overview" subsection shall include a summary of the status and progress of
major activities associated with that section, whether planned, in progress, or completed,
including relevant dates. Each"recent activities" subsection shall include details of activities
during the previous month. Each "expected activities" subsection shall include a brief list of
major activities planned for the current month.
Seller shall complete, certify, and deliver this form of Construction Progress Report to
I ], together with all attachments and exhibits, with copies of this report delivered
to [ ].
1. Executive Summary
Please provide an overview of the Facility, including technology, size, location, and ownership.
Please provide a brief chronological cumulative summary of the major activities completed for
each of the following aspects of the Facility. Include the date each item was added to the
summary:
1.1 Milestones
1.2 Permits
1.3 Financing
1.4 Property Acquisition
1.5 Design and Engineering
1.6 Major Equipment procurement
1.7 Construction
1.8 Interconnection
1.9 Startup
100310207.DOCX; 1}87
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 432 of 495

2. Milestones
In this section,please include information on each significant milestone related to the Facility.
2.1 Milestone schedule
Please state the status and progress of each milestone. Provide the date of completion of
completed milestone(s) and the expected date of completion of uncompleted milestone(s). The
expected date is the current best estimate, and may change from time to time as better
information becomes available.
2.2 Remedial Action Plan(applicable if Seller fails to achieve a milestone by the anticipated
milestone date)
Please describe in detail any delays (actual or anticipated)beyond the scheduled milestone dates.
Describe the cause of the delay(e.g., governmental approvals, financing, property acquisition,
design activities, equipment procurement, Facility construction, interconnection, or any other
factor). Describe Seller's remedial action plan which shall include detailed plans to achieve the
missed milestone and subsequent milestones.
3. Permits
In this section, please include information on each of the Permits required for the construction of
the Facility and the status thereof. List the applicable government agency, the type of
application/approval requested, and the dates (expected or actual) of significant activity.
Significant activity includes application submission, notice of complete application, notice of
preparation, public hearing or comment period, draft documents or approvals, final documents or
approvals, notice of determination, or issuance of permit. If the government agency maintains a
website with information on the approval process for the Facility,please provide a link.
3.1 Environmental Impact Report/Statement(EIR/EIS) of Conditional Use Permit (CUP)
Please describe the environmental review process and each of the Permit(s) to be obtained for the
Facility. Provide the status and completion date (expected or actual) of each significant activity
in the process.
3.2 Other Permits
Please describe each of the other Permits to be obtained for the Facility. Provide the status and
completion date (expected or actual) of each significant activity.
3.3 Recent Permit activities
Please describe in detail the Permit activities that occurred during the previous calendar month.
3.4 Expected Permit activities
100310207.DOCX;1}88 Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 433 of 495

Please list all Permit activities that are expected to be performed during the current calendar
month.
4. Financing Activities
In this section, please include information on each separate phase of financing for the Facility.
Include information on debt, equity, or federal or state loans or grants.
4.1 Overview of financing activities
Please provide a summary of the status and progress of each major financing activity, including
the date of execution of significant documents, and information on the expected timing of future
significant activities.
4.2 Recent financing activities
Please describe in detail the financing activities that occurred during the previous calendar
month.
4.3 Expected financing activities
Please list the financing activities that are expected to be performed during the current calendar
month.
5. Property Acquisition Activities
In this section, please include information on property acquisition or site control activities for the
Facility.
5.1 Overview of property acquisition activities
Please provide a summary of the status and progress of each major property acquisition activity,
including the date of execution of significant documents, and information on the expected timing
of future significant activities.
5.2 Recent property acquisition activities
Please describe in detail the property acquisition activities that occurred during the previous
calendar month.
5.3 Expected property acquisition activities
Please list the property acquisition activities that are expected to be performed during the current
calendar month.
100310207.DOCX; 1}89
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 434 of 495

6. Design and Engineering Activities
In this section, please include information on the status of design and engineering for the
Facility.
6.1 Overview of design activities
Please provide a summary of the status and progress of each major design or engineering
activity, including dates of completion of significant activities and expected timing of future
activities.
6.2 Recent design activities
Please describe in detail the design activities that occurred during the previous calendar month.
6.3 Expected design activities
Please list the design activities that are expected to be performed during the current calendar
month.
7. Major Equipment Procurement
In this section, please include information on all major equipment to be procured for all portions
of the Facility to be completed by Seller, including switchyards, substations and any other
interconnection equipment, in addition to generating and auxiliary equipment.
7.1 Overview of major equipment procurement activities
For each type of equipment, list the number of each major item to be procured, the manufacturer,
model number(if applicable), and rating. List the delivery schedule (expected or actual as
applicable), breaking out the number of each item (to be)procured or delivered in each month.
7.2 Recent major equipment procurement activities
Please describe in detail the major equipment procurement activities that occurred during the
previous calendar month.
7.3 Expected major equipment procurement activities
Please list the major equipment procurement activities that are expected to be performed during
the current calendar month.
8. Construction Activities
In this section, please include information on the status of any construction-related factors that
may affect the ability of the Facility to deliver the Storage Product. Include information on the
Facility infrastructure, generating equipment, and major auxiliary equipment. Also include
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information on the substations, switchyards, gen-ties, telecommunications equipment or other
interconnection facilities that are the direct responsibility of the Facility.
8.1 Overview of major construction activities
Please provide a summary of the status and progress of each major construction activity for all
portions of the Facility, including a schedule showing expected or actual dates as applicable.
Provide the name of the EPC Contractor, the date of execution of the EPC Contract, and the date
of issuance of a Notice to Proceed (or equivalent). For each major type of equipment, break out
the number of each item (to be) installed or commissioned in each month.
8.2 Recent construction activities
Please describe in detail the construction activities that occurred during the previous calendar
month.
8.3 Expected construction activities
Please list the interconnection activities that are expected to be performed during the current
calendar month.
8.4 EPC Contractor Progress Report
Please attach a copy of the progress reports received during the previous calendar month from
the EPC Contractor pursuant to the construction contract between Seller and EPC Contractor,
certified by the EPC Contractor as being true and correct as of the date issued.
8.5 Look-ahead construction schedule
Please provide a look-ahead construction schedule covering at least three months.
8.6 OSHA Recordables
Please list all OSHA recordables from the previous calendar month.
8.7 Work stoppages
Please describe any work stoppage from the previous calendar month and its effect on the
construction schedule.
9. Interconnection Activities
In this section, please include information on interconnection-related factors that may affect the
ability of the Facility to deliver Facility Energy. Include information on the status of
interconnection studies, Interconnection Agreements, design and construction of interconnection
facilities (e.g., substations, switchyards, gen-ties, system protection schemes,
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telecommunications equipment to the extent not already covered in the Facility construction
information in Section 8), network upgrades, and grid outage or interconnection schedules.
9.1 Overview of interconnection activities
Please provide a summary of the status and progress of each major interconnection activity
including dates of completion of significant activities and expected timing of future activities.
9.2 Recent interconnection activities
Please describe in detail the interconnection activities that occurred during the previous calendar
month.
9.3 Expected interconnection activities
Please list the interconnection activities that are expected to be performed during the current
calendar month.
10. Startup
In this section, please include information on the status of activities related to preparation for
Commercial Operation, including equipment testing, commissioning, release to operations,
requirements of the grid operator, and any other activities that must be conducted before the
Facility may deliver Energy to the grid or declare Commercial Operation.
10.1 Overview of startup activities
Please provide a summary of the status and progress of each major startup activity including
dates of completion of significant activities and expected timing of future activities.
10.2 Recent startup activities
Please describe in detail the startup activities that occurred during the previous calendar month.
10.3 Expected startup activities
Please list the startup activities that are expected to be performed during the current calendar
month.
11. Other Information Reasonably Requested by Buyer
11.1 Litigation
Please list any communication received directly or indirectly from any third party that is in the
nature of a threat of litigation, a litigation hold notice, a summons and complaint, or a
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commencement of a judicial, regulatory, or arbitration proceeding or investigation against Seller
or concerning the Facility
11.2 [ ]
I, , on behalf of and as an authorized representative of ,
do hereby certify that any and all information contained in this Seller's Construction Progress
Report is true and accurate, and reflects, to the best of my knowledge, the current status of the
construction of the Facility as of the date specified below.
By:
Name:
Title:
Date:
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EXHIBIT 19
FORM OF OPERATIONS REPORT
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EXHBIT 20
[IDAHO POWER FORM OF WREGIS QRE AGREEMENT]
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EXHIBIT 21
FORM OF LENDER CONSENT
CONSENT AND AGREEMENT
This Consent and Agreement(this "Consent") is made and entered into as of 20 ,by and
between Idaho Power Corporation("Buyer"), and ("Lender").
RECITALS
A. ("Seller"), has entered into that certain Loan Agreement, dated as of
20 (as amended, restated, supplemented, or otherwise modified from time to time, the "Loan
Agreement"), with Lender in order to finance construction of a battery energy storage system
owned by Seller and located at (the "Project").
B. Seller and Buyer have entered into that certain Battery Storage Agreement, dated as of
(as amended, restated, supplemented or otherwise modified from time to time, the "BSA"),
relating to the energy stored and discharged by the Project to supply the needs of Buyer's
customers.
C. As part of the transactions contemplated by the Loan Agreement, Lender has received a
pledge of all the limited liability company interests in Seller(the "Pledged Equity"), and Seller
has collaterally assigned all of its rights, title and interests in,to and under the BSA(the
"Pledged SA", collectively with the Pledged Equity, the "Assigned Interest")to Lender.
AGREEMENTS
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt, adequacy and legal
sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the
parties hereby agree as follows:
1. Consent to Assigme . Buyer hereby consents to the collateral assignment by Seller
to Lender of the Pledged BSA and the pledge to Lender of the Pledged Equity and acknowledges
the right of Lender to exercise Lender's rights and remedies as a secured creditor with respect to
the Assigned Interest.
2. Pledged BSA Step-In. "Subsequent Seller Requirements"means an entity that(a) is
acceptable to Buyer; (b) is not involved, and has no Affiliate involved, in any state or federal
litigation or regulatory proceeding adverse to Buyer or any Affiliate of Buyer; (c)has, or has
retained, a reputable entity acceptable to Buyer that has, at least five (5)years' experience in the
operation and maintenance of battery energy storage facilities of comparable size to the Facility
and the ability perform all aspects of the BSA; (d) has agreed in writing to be bound by the BSA
and to assume all of Seller's obligations under the BSA; and(e) is not a Sanctioned Person.
Buyer agrees that, if Lender has elected to exercise its rights and remedies to proceed against the
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Pledged BSA, and has so notified Buyer, then, if and only if(i) the hereinafter-defined
Subsequent Seller meets all of the Subsequent Seller Requirements, (ii) Buyer is holding, and
will be holding as of and after the date of assignment, the Project Development Security or
Default Security, as applicable, and(iii) Buyer has not terminated this BSA pursuant to the terms
thereof and of this Consent, then Lender or any assignee or designee of Lender, including Lender
or any purchaser in a foreclosure sale or in lieu of foreclosure of the Pledged BSA (a
"Subsequent Seller"), may be substituted for Seller under the BSA and Buyer shall recognize
such Subsequent Seller as its counterparty under the BSA and, subject to all rights and remedies
of Buyer under the BSA, continue to perform its obligations under the BSA in favor of such
Subsequent Seller. Lender shall have no liability or obligation under the BSA as a result of this
Consent except if Lender becomes a Subsequent Seller. Any Subsequent Seller succeeds to the
interests and obligations of Seller and must comply with the BSA. The transfer of the BSA from
Seller to a Subsequent Seller does not relieve or discharge Seller of its obligations and liabilities
to Buyer which accrued prior to the date of such transfer.
3. Change of Control. Buyer hereby consents to both (i)the pledge of the Pledged
Equity to Lender as part of the transactions contemplated by the Loan Agreement, and(ii) the
transfer of such Pledged Equity, in connection with such an exercise of Lender's remedies
against the Pledged Equity, to a Subsequent Seller that meets the Subsequent Seller
Requirements, provided that Lender provides written notice to Buyer in advance of any such
transfer.
4. Notice of Default. If Seller defaults in the performance of any of its obligations under
the BSA, Lender may cure such default by the deadline provided therefor in the BSA. Buyer will
not terminate the BSA before providing notice to Lender and giving Lender the opportunity to
cure such default as follows: (a)with respect to payment defaults, or a default under Section
11.1(1) of the BSA,before the later of(i) ten (10)business days after Buyer's delivery of notice
to Lender of such default or(ii) five (5)business days plus the number of days in the applicable
cure period provided Seller in the BSA, and(b)with respect to other defaults (except those set
forth in Section 11.1(e)-O) of the BSA, for which no notice or extension is promised by Buyer
herein), within the greater of(i) ninety (90) days or(ii) thirty(30) days plus the number of days
in the applicable cure period provided Seller in the BSA following delivery of such notice from
Buyer to Lender; provided, however, that such cure period in clause (b)may be extended by a
reasonable period of time, not to exceed an additional ninety (90) days (or, with respect to an
Event of Default under Section 11.1(c) of the BSA, to a date that is no greater than ninety (90)
days after Buyer's delivery of notice to Lender of such default), if Lender has commenced and is
diligently pursuing appropriate action to cure such non-monetary default; provided further, that
to the extent that such default permits Lender to foreclose on its security interests in the Assigned
Interest and Lender needs to gain possession of the Project in order to perform such cure, Buyer
will allow an additional reasonable amount of time, not to exceed sixty(60) days, to permit
Lender to do so.
5. BSA Termination. Buyer agrees that it shall not, without Lender's prior written
consent, mutually agree with Seller to a voluntary termination of the BSA; provided that
notwithstanding the foregoing, Buyer may terminate the BSA without Lender consent due to an
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uncured Event of Default under the BSA after the expiration of Lender's rights to cure under
Section 4 hereof.
6. No Setoff. Notwithstanding any provision to the contrary set forth in this Consent,
Lender may not use the Consent or any other setoff or other right set forth in the BSA as a basis
for any action under, or nonperformance of, its obligations under any letter of credit naming
Buyer or any affiliate as beneficiary, with respect to which the terms of such letter of credit shall
control.
7. Certifications of Bue. Buyer hereby certifies to Lender, as of the date hereof, that
(i)the execution, delivery and performance by Buyer of this Consent and the BSA have been
duly authorized by all necessary corporate action on the part of Buyer, (ii) each of this Consent
and the BSA is in full force and effect and constitutes the legal, valid and binding obligation of
Buyer, enforceable against Buyer in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting
the enforcement of creditors' rights generally and general equitable principles, (iii)the BSA and
the Acknowledgment of Consent and Agreement(attached hereto)with respect to this Consent
are the only agreements between Seller and Buyer, (iv) a true and correct copy of the BSA is
attached hereto as Exhibit A and the BSA has not been further amended, (v)Buyer is not in
default of any of its obligations under the BSA, (vi) solely to the best of the actual knowledge of
its employees with responsibility for administering the BSA, Seller is not in default of any of its
obligations under the BSA, (vii) solely to the best of the actual knowledge of its employees with
responsibility for administering the BSA, there are no material disputes between Buyer and
Seller under the BSA, (viii) Buyer has not assigned any interest it has in the BSA, and Buyer has
no notice of, and has not consented to, any previous assignment by Seller of all or any part of its
rights under the BSA, (ix)there are no actions pending against Buyer as a debtor under any
federal or state bankruptcy or insolvency laws, (x) there are no proceedings pending or, to
Buyer's knowledge, threatened against or affecting Buyer before any court, governmental
authority, or arbitration board or tribunal which could reasonably be expected to have a material
adverse effect on the ability of Buyer to perform its obligations under the BSA, (xi) solely to the
best of the actual knowledge of its employees with responsibility for administering the BSA, no
event of Force Majeure has occurred, and(xii) subject to Seller's obligation to declare the
Commercial Operation Date on or before the Guaranteed Commercial Operation date, solely to
the best of the actual knowledge of Buyer's employees with responsibility for administering the
BSA, no event or condition exists that would either immediately or with the passage of any
applicable grace period or giving of notice, or both, enable either Buyer or Seller to terminate or
suspend its obligations under the BSA.
8. Replacement Agreement. If the BSA is rejected or terminated as a result of any
bankruptcy, insolvency, reorganization or similar proceeding affecting Seller, Buyer will, at the
option of Lender exercised by providing written notice thereof to Buyer within forty-five (45)
days after such rejection or termination, enter into a new agreement with Lender(or its designee
or assignee)having identical terms as the BSA (subject to any conforming changes (none of
which may include limitation of Buyer's remedies)necessitated by the substitution of the seller
entity); provided that the following conditions shall apply: (i) the seller under the new agreement
must meet the Subsequent Seller Requirements; (ii)the term under such new agreement shall be
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equal to the remaining balance of the term specified in the BSA and(iii) Lender(or its designee
or assignee) shall have cured any then-existing payment or performance defaults by Seller under
the BSA (other than the bankruptcy of Seller or a transfer of the Facility to Lender, or of Seller to
Lender, that was in connection with Lender's foreclosure thereupon and in compliance with this
Consent but that was not in compliance with Section 9.2 of the BSA).
9. Notices. All notices given under this Consent shall be in writing and shall be deemed
effectively given: (a)upon personal delivery to the party to be notified; (b) one business day
after deposit with a reputable overnight courier,prepaid for overnight delivery and addressed as
set forth below, with a copy of the notice simultaneously emailed to each applicable recipient at
the email address shown below; provided that the sending party receives a confirmation of
delivery from the overnight courier service; or (c) three (3)business days after deposit with the
U.S. Post Office, postage prepaid, certified with return receipt requested and addressed to the
party to be notified at the address indicated for such party below with a copy of the notice
simultaneously emailed to each applicable recipient at the email address shown below. The
parties may designate alternative notice addresses upon ten(10) days' advance written notice to
the other parties:
If to Seller:
With a copy to:
If to Buyer:
With copies to all of:
If to Lender:
With a copy to:
10. Successors and Assigns. This Consent shall be binding upon Buyer and Seller and
their permitted successors and assigns.
11. Termination. Upon the satisfaction in full of Seller's obligations under the Loan
Agreement (other than contingent indemnification and reimbursement obligations that survive
repayment of the loans and advances, interest fees and other amounts owed under the Loan
Documents): (a) Lender shall notify Buyer of such fact and(b) this Consent shall terminate
without further action of the parties hereto. Additionally, upon Lender's consummation of all of
its remedies available under this Consent, this Consent shall terminate without further action of
the parties hereto.
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12. Waiver of Right to Jury Trial. TO THE FULLEST EXTENT PERMITTED BY
LAW, EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS CONSENT. EACH PARTY
FURTHER WAIVES ANY RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY
TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL
CANNOT BE OR HAS NOT BEEN WAIVED.
13. Governing Law. This Consent will be governed by and construed in accordance with
the laws of the State of New York, without giving effect to principles of conflicts of law.
14. Severability. If any provision of this Consent or the application thereof is determined
by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to the parties hereto or circumstances
other than those as to which it has been held invalid or unenforceable, shall remain in full force
and effect and shall in no way be affected, impaired or invalidated thereby, so long as the
economic or legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party by the invalidity,unenforceability or nullification of the
offensive provisions.
15. Amendment. This Consent may not be amended, modified, or changed in any respect
except by an agreement in writing signed by Lender and Buyer. Nothing in this Consent amends
or modifies the BSA.
16. Counterparts; Rules of Construction; Definitions. This Consent may be executed in
one or more counterparts, each of which will be an original and all of which, when taken
together, will constitute one and the same original agreement. All references made (a) in the
neuter, masculine, or feminine gender are made in all such genders, and(b) in the singular or
plural includes the plural or singular number as well. Any capitalized term used but not defined
herein is defined in the BSA.
17. Third Part. Rights.ights. Nothing in this Consent, expressed or implied, is intended or
shall be construed to confer upon, or give to any Person, other than Buyer and Lender,
respectively, rights, remedies or claims, legal or equitable,under or by reason hereof, or any
covenant or condition hereof; and this Consent and the covenants and agreements, here contained
are and shall be held for the sole and exclusive benefit of Buyer and Lender.
18. Seller Acknowledgement of Consent and Agreement. Buyer's obligations under this
Consent are conditioned upon the execution and delivery by Seller to Buyer of the
Acknowledgment of Consent and Agreement attached hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Consent to be duly executed and
delivered by their duly authorized signatories as of the date first above written.
IDAHO POWER COPRPORATION
By:
Name:
Title:
[LENDER]
By
Its
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ACKNOWLEDGEMENT OF CONSENT AND AGREEMENT
Reference is made to the Consent and Agreement dated as of (the "Consent and
Agreement")between Idaho Power Corporation(as "Buyer"), and (as "Lender").
as "Seller"under the BSA (as defined in the Consent and Agreement)hereby directs Buyer to
pay any amounts payable by Buyer under the BSA, as and when required under the BSA,
pursuant to the payment instructions delivered and effective as of or proximate to the date hereof,
from Seller to Buyer, or as may otherwise be specified from time to time by Lender or Seller to
Buyer in writing. Any payment made to Seller or as Buyer in good faith believes to have been
directed by Seller or Lender shall discharge any obligation of Buyer to Seller with respect to the
making of such payment. Seller, by its execution of this Acknowledgment of Consent and
Agreement, acknowledges and agrees that, notwithstanding any term to the contrary in the BSA,
Buyer and Lender may perform all acts or obligations as set forth in the Consent and Agreement,
and Buyer may perform as set forth herein or as otherwise purportedly instructed by Lender,
including, without limitation, the manner and place of any payments to be made by Buyer that
would otherwise be required pursuant to the BSA, and further agrees and consents to the various
agreements made by Buyer in the Consent and Agreement, issues or confirms the instructions
contained in the Consent and Agreement or herein or as hereafter issued by Seller or Lender,
agrees to indemnify Buyer for any damages or liabilities suffered in the performance of the
Consent and Agreement or such instruction; and further agrees that none of the execution of the
Consent and Agreement, the performance by Buyer or Lender of any of their respective
obligations thereunder, the exercise of any of the rights of Buyer or Lender thereunder, or the
acceptance by Buyer of performance of the BSA by any party acting at the direction of Seller,
Lender, or a Subsequent Seller shall subject Buyer to liability to Seller or release Seller from any
obligation of Seller under the BSA. Seller acknowledges that Buyer need not enter into any
agreement in the nature of the Consent and Agreement with any of Seller's other lenders prior to
the termination of the Consent and Agreement. Nothing in this Acknowledgment of Consent and
Agreement or in the Consent and Agreement amends or modifies the BSA. Seller shall have no
rights against Buyer, under the BSA or otherwise, arising out of or on account of the Consent
and Agreement or Buyer's performance (or nonperformance) thereunder or of the instruction.
Agreed to and Accepted:
By:
Its:
Date:
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EXHIBIT 22
FORM OF ESTOPPEL CERTIFICATE
ESTOPPEL CERTIFICATE
This Estoppel Certificate ("Estoppel") is dated , 20 . Reference is made to that
certain Battery Storage Agreement, dated as of (the "BSA"), by and between Idaho
Power Corporation("Buyer"), and ("Seller") concerning the storage and discharge of
electrical energy and other services provided the battery energy storage system owned by Seller
and located in (the "Project"). This certificate is delivered by Buyer to
("Investor") and as Administrative Agent(as defined in the Consent defined below)
("Administrative Agent"). Capitalized terms used but not defined herein are defined in the
BSA.
Buyer certifies that, as of the date hereof, that(i)the execution, delivery and performance by
Buyer of this Estoppel and the BSA have been duly authorized by all necessary action on the part
of Buyer, (ii) each of this Estoppel and the BSA is in full force and effect and constitutes the
legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance with its
terms, except as the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors' rights generally and
general equitable principles, (iii)the BSA and the Acknowledgment of Consent and Agreement
dated are the only agreements between Seller and Buyer, (iv) a true and correct copy of
the BSA is attached hereto as Exhibit A and the BSA has not been further amended, (v) solely to
the best of the actual knowledge of its employees responsible for administering the BSA, Buyer
is not in default of any of its obligations under the BSA, (vi) solely to the best of the actual
knowledge of its employees with responsibility for administering the BSA, Seller is not in
default of any of its obligations under the BSA, (vii) solely to the best of the actual knowledge of
its employees with responsibility for administering the BSA, there are no material disputes
between Buyer and Seller under the BSA, (viii) Buyer has not assigned any interest it has in the
BSA, and Buyer has no notice of, and has not consented to, any previous assignment by Seller of
all or any part of its rights under the BSA, (ix) there are no actions pending against Buyer as a
debtor under any federal or state bankruptcy or any other similar laws, (x) there are no
proceedings pending or, to Buyer's knowledge, threatened against or affecting Buyer before any
court, governmental authority, or arbitration board or tribunal which could reasonably be
expected to have a material adverse effect on the ability of Buyer to perform its obligations under
the BSA, (xi) solely to the best of the actual knowledge of its employees with responsibility for
administering the BSA, no event of Force Majeure has occurred, and [(xii) subject to Seller's
obligation to declare the Commercial Operation Date on or before the Guaranteed Commercial
Operation Date, solely to the best of the actual knowledge of Buyer's employees with
responsibility for administering the BSA][omit if estoppel delivered after COD], no event or
condition exists that would either immediately or with the passage of any applicable grace period
or giving of notice, or both, enable either Buyer or Seller to terminate or suspend its obligations
under the BSA. Buyer disclaims any obligation to advise Investor or Administrative Agent of
any changes to the foregoing.
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IN WITNESS WHEREOF, the undersigned has caused this Estoppel to be signed by its
authorized signatory as of the date first set forth above.
IDAHO POWER CORPORATION
By:
Name:
Title:
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EXHIBIT 23
PERFORMANCE TESTS
Test Records: Seller shall record the results of each Performance Test,provide all raw data,records
and results associated with each Performance Test, and submit a testing report detailing all results
and findings of each Performance Test to Buyer within four (4) Business Days following
completion of such Performance Test. During the performance of each Performance Test, the
Facility shall be functioning in a manner to permit Buyer to remotely monitor, observe and
independently verify the performance of the Facility through the Facility's remote monitoring and
control systems.
Guaranteed Storage Availability Test
No later than forty-five (45) days prior to the Scheduled Commercial Operation Date, and no later
than thirty (30) days following the conclusion of each Contract Year thereafter for the Settlement
Term, the Storage Availability shall be at least percent ( %), calculated in
accordance with the following procedure ("Guaranteed Storage Availability Test"):5
"Storage Availability" shall be calculated based upon the following formula:
• PH=period hours
• PMH=period planned maintenance hours
• GPC = Guaranteed Power Capacity
• PC = Available power capacity (MW) defined as battery power capability
on-line and available for operation in either charge or discharge
• GEC =Guaranteed Rated Energy Capacity
• AC = Available energy capacity (MWh) defined as the battery energy
storage capacity online and available for operation in either charge or
discharge
• PAC =Period unavailable average capability, calculated as the normalized
average of the maximum either energy storage capacity or power available
during the period. A sample is not valid if during planned maintenance or a
no-fault outage.
AC
PAC = C1 — min{GEC' PC
GPCI
• PFO = Period at-fault outage hours, defined as hours during which all or a
portion of the available energy or power capacity is unavailable
5 Note: The Facility will need to be operational in order to conduct the Storage Availability Test,and thereafter
calculated annually in accordance with a procedure to be agreed upon by the Parties.
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• PNFO = Period of not at fault (excused) outage hours, defined as hours
during which all or a portion of the available energy or power capacity is
unavailable due to no fault of Seller provided equipment
Therefore, Availability is calculated as the following:
Availability — 100 * (PH — PMH — PNFO — X[PFO * PAC])
(PH — PMH — PNFO)
Guaranteed Storage Capacity Test
No later than thirty(30)days prior to the Scheduled Commercial Operation Date, and no later than
thirty(30)days following the conclusion of each Contract Year thereafter for the Settlement Term,
the Facility shall be capable of the Guaranteed Storage Capacity. The Storage Capacity shall be
calculated in accordance with the following procedure ("Guaranteed Storage Capacity Test"):
The "Guaranteed Storage Capacity" shall mean the guaranteed energy capacity (MWhAC)
delivered over a full continuous discharge of the Facility at the Guaranteed Power Capacity
(MW).
The "Energy Capacity" shall be defined as:
Energy Capacity= MVD
Where the following terms are defined as:
MVD = Medium Voltage Main Meter reading during discharge cycle
("Gross Metering" in the metering configuration)
AXD = Auxiliary Meter reading during the discharge cycle ("Aux
Metering" in the metering configuration)
MVc=Medium Voltage Main Meter reading during charge cycle ("Gross
Metering" in the metering configuration)
AXE =Auxiliary Meter reading during the charge cycle ("Aux Metering"
in the metering configuration)
AXM = Maximum auxiliary energy consumed based on nameplate rating
of the auxiliary power transformer(s)
The "Guaranteed Storage Capacity" shall mean the guaranteed Power Capacity set
forth in the Agreement. The "Power Capacity" is defined as the Energy Capacity
f 00310207.DOCX;11106 Exhibit No. 1
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divided by the measured time required for discharge of the Guaranteed Storage
Capacity. The metered instantaneous power shall be within +/- 2% of the guaranteed
power for the duration of the guaranteed power capacity test, with infrequent
momentary excursions from this band being acceptable.
Energy Capacity and Power Capacity shall be calculated by the following testing
procedure:
i. Rest 2 hours with cell temperatures at 25-35 'C.
ii. Charge the batteries with 0.25 cp to its cut-off voltage, then charge via
constant current— constant voltage method to full charge. Record the AC
energy for both the Gross Metering (MVc) and the Aux Metering (AXc)
iii. Allow batteries to rest for up to 30 minutes
iv. Discharge the batteries with 0.25 cp to its cut-off voltage to starting SOC
using constant current method. Record the AC energy for both the Gross
Metering (MVD) and the Aux Metering (AXD)
v. Allow batteries to rest for up to 30 minutes
vi. Repeat steps (ii) through (iv) two (2) times in total
The "Energy Capacity" is calculated as
ED = max{MVD, + AXD1 — AXM1,MVDZ + AXD2 — AXM2,MVD3 + AXD3 — AXM31
Guaranteed Roundtrip Efficiency Test
No later than thirty(30) days prior to the Scheduled Commercial Operation Date, and no later
than thirty (30) days following the conclusion of each Contract Year thereafter for the Settlement
Term, the Facility shall be capable of the Guaranteed Roundtrip Efficiency. The Roundtrip
Efficiency shall be conducted in accordance with the following procedure ("Guaranteed
Roundtrip Efficiency Test"):
Roundtrip Efficiency Test shall be conducted in conjunction with the Guaranteed Storage
Capacity Test.
The "Roundtrip Efficiency"is calculated as
MVD,+AXD1 MVDZ+AXDZ MVD3+AXD3
RTE = max{MVc, —AXc,'MVC2 —AXC2'MVC3 —AXC31
Where the following terms are defined as:
MVD=Medium Voltage Main Meter reading during discharge cycle
MVc= Medium Voltage Main Meter reading during charge cycle
AXc=Auxiliary Meter reading during charge cycle
1003 t0207.Docx;i}107
Exhibit No. 1
Case No. IPC-E-26-03
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Page 452 of 495

AXD=Auxiliary Meter reading during discharge cycle
Charge Rate Test
No later than thirty(30) days prior to the Scheduled Commercial Operation Date, the Charge
Rate Test shall be performed in accordance with the following procedure ("Charge Rate Test"):
The Facility,not including auxiliary power,must be designed and capable of charging at 100%
of the proposed AC power and energy capacity at the POI.
The charge rate shall be determined as part of the Roundtrip Efficiency Test.
The charge rate shall be defined as the energy capacity divided by the time required to charge
the Guaranteed Storage Capacity.
Charge Rate Guarantee= (MV C —AX C)/Tcx
Where the following terms are defined as:
MVC =Medium Voltage Main Meter ("Gross Metering") reading during
charge cycle
TCx=Total Time to Charge
AXC =Auxiliary Meter("Aux Metering") reading during charge cycle
Ramp Rate Test
No later than thirty(30) days prior to the Scheduled Commercial Operation Date, the Ramp Rate
Test shall be performed in accordance with the following procedure ("Ramp Rate Test"):
The Facility shall be capable of responding to input signals and reaching 98% of full power
charging and discharging within 200 ins. The Response Time Test is conducted concurrent
with the Ramp Rate Test.
Response Time Test
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No later than thirty(30) days prior to the Scheduled Commercial Operation Date, the Response
Time Test shall be performed in accordance with the following procedure ("Response Time
Test"):
The Facility shall be capable of responding to input signals and responding within 200 ms for
the Term.
The response shall be defined as the time required for the Facility output to transition from no
discharge to full rated discharge and from no charge to full rated charge when the breakers are
closed and the system is on-line.
The start time shall be when the signal is received at the Facility boundary, and the end time
shall be when the measured discharge power reaches 100% ±2% of the rated power when the
breakers are closed and the system is on-line.
Auxiliary Load Test
No later than thirty(30) days prior to the Scheduled Commercial Operation Date, the Auxiliary
Load Test shall be performed in accordance with the following procedure ("Auxiliary Load
Test"):
The maximum instantaneous auxiliary power consumption of the Facility will be lower than
the rating of the auxiliary power transformer. Seller shall guarantee the maximum amount of
auxiliary load to be consumed by the Facility, expressed in kW,measured at the auxiliary load
meter.
The auxiliary load test condition,including but not limited to ambient temperature, duty cycle
will be agreed upon by Buyer and Seller. Correction curves will be allowed with the
concurrence of both Parties.
Auxiliary Load Guarantee= (Max{AXC,AXD,AXS})
Where the following terms are defined:
AXC =Auxiliary Meter maximum power reading during charge cycle
AXD =Auxiliary Meter maximum power reading during discharge cycle
AXS =Auxiliary Meter maximum power reading during standby
Power Factor Test
No later than thirty (30) days prior to the Scheduled Commercial Operation Date, the Power
Factor Test shall be performed in accordance with the following procedure ("Power Factor
Test"):
100310207.DOCX;1}109
Exhibit No. 1
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In accordance with Exhibit A, the power factor during charge and discharge operation shall be
controlled to f 0.95 at the POI, except as may be provided in a Subsequent Purchase Order.
The sizing and design requirements to meet Buyer power factor requirements.
Details of the testing will depend on Facility Site reactive power constraints and will be
determined as a part of Facility Site design. Testing shall meet MRO MOD-025-02 including:
• At the real power rating equal to the real power rating of the Facility Site
(i.e. ±0.95 PF at 25 MW for a 25 MW rated site)
• Testing of active power under charge and discharge conditions
Testing shall be done with approval of and in coordination with WECC and Buyer.
Noise Test
No later than thirty(30) days prior to the Scheduled Commercial Operation Date, the Noise Test
shall be performed in accordance with the following procedure ("Noise Test"):
The noise shall be less than 85 decibels on the A weighted scale at a distance of 1 meter along
the perimeter of the Facility. Sound shall be measured at 1.5 meters above the grade elevation.
f 00310207.DOCX;1 1110 Exhibit No. 1
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Idaho Power 2032 All Source RFP
Exhibit F.4—Draft Form Agreements for Resources Based Bids
Respondent shall review and redline the following draft agreement into the submitted proposal for the
specific product type and ownership structure as defined in this RFP.
This draft Exhibit F is not comprehensive and does not constitute a binding offer, shall not form the bases
for an agreement by estoppel nor otherwise, and is not conditions upon each party's receipt of all
requirement management approvals (including final credit and legal approval) and all regulatory
approvals. Any actions taken by a party in reliance on the terms set forth in this working draft or on
statements made during negotiations pursuant to this working draft shall beat that party's own risk. Until
this agreement is negotiated,approved by management,executed,delivered, and approved by all required
regulatory bodies, no party shall have any other legal obligations, expressed or implied, or arising in any
other manner under this working draft or in the course of negotiations.
ADDITIONAL TERMS FOR A GAS-FIRED RESOURCE
Exhibit No. 1
Case No. IPC-E-26-03
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Page 456 of 495

The following terms and conditions (this "Term Sheet") describes certain terms and conditions of
a potential agreement between Idaho Power Company ("Buyer") and the seller proposed by the
applicable bidder ("Bidder") within the applicable Bid submitted within the RFP ("Seller" and,
together with Buyer, the "Parties") related to the proposed gas-based resource ("the Facility").
This Term Sheet supplements the terms of Exhibit F within the RFP. The terms set forth in this
Term Sheet and the applicable agreement within Exhibit F, will establish the basis for the
negotiation and execution of a definitive agreement between Buyer and Seller ("Definitive
Agreement").
If Bidder is unable or unwilling to accept one or more of the terms and conditions set forth in this
Term Sheet or wishes to propose any alternative or additional terms or conditions, Bidder should
indicate in its Bid (i) the terms and conditions to which Bidder takes exception, describing with
specificity any terms and conditions that Bidder proposes in substitution, and/or (ii) the additional
terms and conditions that Bidder proposes as a supplement to the terms and conditions in this
Term Sheet. Consistent with the requests within Exhibit N—Bid Format and Requirements, Bidder
shall provide a description of the proposed edits or additional conditions or provide redlines to this
Term Sheet and applicable agreement within Exhibit F.
The Term Sheet laid out below has three (3) sections. The first section is applicable to all gas-
fired facilities. The second section is specific to Bids for BTAs, and the third section is specific to
Bids for PPAs.
Exhibit No. 1
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Terms for All Gas-Fired Resources
Term Description of Term
1 Facility Capacity: Facility provides for flexible generation with [ MW] of net capacity
(measured at the Electric Interconnection Point (as defined in item 2 below))
under Summer Conditions ("Summer Rated Capacity").
2 Electric The "Electric Interconnection Point" will be a point where the Facility will be
Interconnection interconnected to the host utility, as specified by Bidder in the applicable Bid.
and The Electric Interconnection Point must be consistent with Bidder's generator
Transmission interconnection application.
Bidder will be responsible for (and will bear the full costs and risks of) the
arrangement, procurement, and receipt of the interconnection, deliverability,
and transmission facilities and service required for the Facility and for Full
Deliverability (as defined below) of the Facility to Buyer's load. This includes,
but is not limited to, the arrangement, procurement, payment for construction,
installation, and readiness for energization, operation, and maintenance of
any required electric interconnection facilities and any system interconnection
and transmission upgrades.
The Buyer will be required to pursue and procure network resource
interconnection service ("NRIS") that equals or exceeds the Guaranteed
Capacity, and full deliverability of at least the Guaranteed Capacity from the
Facility to Buyer's load on a firm network resource basis for the life of the
Facility, (collectively, "Full Deliverability"), where applicable.
Terms Specific to Build-Transfer Agreements
Term Description of Term
1 Buyer's Closing Seller has in place (i) the full capability to transport fuel to, and receive delivery
Conditions of fuel at, the fuel interconnection point(s), and (ii) all agreements and all
approvals and other authorizations necessary for transport of fuel to, and
receipt of delivery of fuel at, the fuel interconnection point(s), and available for
immediate use by the Facility from and after Closing
2 Facility The Definitive Agreement will provide for tests of the performance of the
Performance Facility, including the individual generating units, to be conducted, at Seller's
Testing: expense, prior to Closing. The tests will cover (i) Guaranteed Base Capacity
and Guaranteed Duct-Firing Capacity (if included as part of the Facility), (ii)
Guaranteed Base Heat Rate and Guaranteed Duct-Fired Heat Rate (if duct
Exhibit No. 1
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firing is included as part of the Facility), (iii) reliability, (iv) specified pollutant
and noise emissions, (v) operating range, and (vi) other plant performance
metrics and criteria set forth in the Definitive Agreement, including
compliance with heat rate curves, load-following capabilities, start-up
capabilities (including start times and start fuel), ramp times/modes, minimum
operating times, generation unit islanding capabilities, vibration levels, and
diligence-related items. The results of the tests will be compared against the
corresponding values specified in the Definitive Agreement.
Final test results may give rise to liquidated damages, a reduction in the
Purchase Price, and/or termination of the Definitive Agreement, as described
below. Seller will not be entitled to any increase in the Purchase Price or any
other compensation from Buyer if the test results indicate that performance
for a particular metric or criteria is better than required by the Definitive
Agreement. Testing will include the following:
• The "Guaranteed Capacity" will be the sum of the Guaranteed Base
Capacity and the Guaranteed Duct-Firing Capacity (if duct-firing is
included as part of the Facility). The "Guaranteed Base Capacity"
will be 100% of the Summer Rated Capacity of the Facility, in MW,
without duct-firing (if duct-firing is included as part of the Facility),
as specified by Bidder in the applicable Bid. The "Guaranteed Duct-
Firing Capacity" will be applicable only if duct-firing is included as
part of the Facility and will be 100% of the Summer Rated Capacity
of the Facility, in MW, with duct-firing, as specified by Bidder in the
applicable Bid, less the Guaranteed Base Capacity. A"Minimum
Base Capacity" and "Minimum Duct-Firing Capacity" (if duct-firing is
included as part of the Facility) will equal to 95% of the Guaranteed
Base Capacity and Guaranteed Duct-Firing Capacity, respectively.
• The "Guaranteed Base Heat Rate" will be the net heat rate of the
Facility (at full load, without duct-firing if included as part of the
Facility) adjusted to Summer Conditions, as specified by Bidder in
the applicable Bid. The "Guaranteed Duct-Fired Heat Rate" will be
the net heat rate of the duct-firing capacity of the Facility (if
included as part of the Facility) at full load adjusted to Summer
Conditions, as specified by Bidder in the applicable Bid. The
"Maximum Duct-Fired Heat Rate" will be equal to 105% of the
Guaranteed Duct-Fired Heat Rate (if duct-firing is included as part
of the Facility).
• The minimum overall reliability factor during the reliability test will
be 94.5% and will be calculated according to a formula set forth in
the Definitive Agreement. The reliability test will be a seven (7)-day
test that cycles through all operating configurations and includes
various start-ups and shutdowns.
• The minimum operating range of the Facility is expected to be as
specified by Seller in the applicable Bid.
• The guaranteed emission rates for NOx, CO, SO2, PM, PM10,
ammonia, greenhouse gases, and any other emission or pollutant
Exhibit No. 1
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specified in the Definitive Agreement for the Facility will be required
to be within the limits specified in the applicable permits for the
Facility and not to restrict ordinary operation of the Facility.
The minimum performance characteristics specified above already include an
allowance for measurement uncertainties, so Seller will not be entitled to any
relief therefrom for measurement uncertainties. If the Facility does not
achieve all of the minimum performance characteristics required by the
Definitive Agreement, Seller will be required to retest and will not reach
Closing until the Facility has achieved all such minimum performance
characteristics. If the Facility does not achieve such minimum performance
characteristics by the guaranteed dates defined by the Definitive Agreement,
then the applicable remedies will apply.
If the Facility achieves all of the minimum performance characteristics
required by the Definitive Agreement but does not achieve 100% of the
Guaranteed Base Capacity, Guaranteed Duct-Firing Capacity (if duct-firing is
included as part of the Facility), Guaranteed Base Heat Rate, and
Guaranteed Duct-Fired Heat Rate (if duct-firing is included as part of the
Facility), Seller may elect to (i) retest (subject to Buyer's approval in its sole
and absolute discretion, or (ii) pay to Buyer liquidated damages.
Terms Specific to Power Purchase Agreements (PPAs)
Term Description of Term
1 Pricing Pricing for PPAs will be composed of:
(i) a Capacity Rate expressed in $/kW-mo;
(ii) an Energy Price expressed in $/MWh;
(iii) a Variable O&M Rate expressed in $/MWh;
(iv) a Start-up Charge, expressed in $ per Completed Start; and
(v) a Start Fuel Charge, express in $ per Completed Start.
Except to the extent otherwise expressly provided in this Term Sheet or
under Exhibit F, Buyer will not be required to pay any amounts to Seller
other than the amounts derived from the payment structure outlined
above.
2 Contract The Contract Capacity means the net dependable capacity (MW) that
Capacity the Facility is capable of delivering reliably to Buyer at the point of
delivery, accounting for transmission losses under summer ambient
conditions.
The Contract Capacity will be established and adjusted consistent with
performance testing required by the Definitive Agreement, including
testing that will take place shortly before the start of the Delivery Term
Exhibit No. 1
Case No. IPC-E-26-03
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and at the request of the Buyer from time to time.
It is expected that the Bidder provide the Contract Capacity in the
applicable Bid.
3 Capacity Rate The Capacity Rate (expressed in $/kW-month)for the Contract Capacity
in each year of the Delivery Term will be based upon the rate specified
by Bidder in the applicable Bid. The Capacity Rate can be fixed for the
Delivery Term or can be escalated annually via a proposed escalation
rate.
4 Monthly Monthly Availability Requirement will be 98% for Summer (including the
Availability months of June through August) and Winter (including the months of
Requirement December through February) and 96% for all other months of the
Delivery Term.
The Facility's Monthly Availability shall be developed and negotiated in
connection with the Definitive Agreement and will account for the
following:
• Will be based on Contract Capacity and calculated on a MWh
basis accounting for derations and/or unavailability of the Facility
during the applicable month.
• Will be measured at the Energy Delivery Point and shall include
any unavailability or deration resulting from the Facility, Force
Majeure, fuel delivery, or due to transmission constraints.
• Will include an allowance for Planned Maintenance hours. There
will be a maximum number of Planned Maintenance hours for
each year, informed by industry best practices and guidance from
the Original Equipment Manufacturer (OEM).
• Will include the potential for Seller to offer replacement capacity
to offset impacts to the Facility's Monthly Availability, with the
acceptance of the replacement capacity being in Buyer's sole
discretion.
5 Capacity Capacity Payment will equal the Capacity Rate multiplied by the Contract
Payment and Capacity, subject to the Capacity Payment Discount described below.
Capacity
Payment Capacity Payment Discount - If the Facility's Monthly Availability for a
Discount month is below the applicable Monthly Availability Requirement, a
discount will apply to the Capacity Payment. The Capacity Payment
Discount will be two percent (2%) of the Capacity Payment for the
applicable month for each one percent (1%) shortfall to the Monthly
Availability Requirement. However, to the extent the unavailability is due
solely to Force Majeure, the Capacity Payment Discount will be one
percent (1%) of the Capacity Payment for the applicable month for each
one percent(1%) shortfall to the Monthly Availability Requirement. In no
event will the Capacity Payment Discount exceed one hundred percent
(100%) of the Capacity Payment for the applicable month.
6 Energy Price For each MWh of energy dispatched by Buyer, injected by the Facility at
Exhibit No. 1
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E. Hackett, IPC
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and Energy the point of delivery, Buyer will pay the "Energy Price" for the applicable
Payment period of the Delivery Term (expressed in $/MWh). The Energy Price is
expected to equal the Guaranteed Heat Rate (expressed in MMBtu
(HHV)/MWh) multiplied by the applicable fuel price (expressed in
$/MMBtu (HHV)).
The "Guaranteed Heat Rate" (which is expected to be based on the
information specified by Bidder in the applicable Bid) means the heat
rate corresponding to Buyer's dispatch level during such hour; provided,
however, that if, as a result of a unit contingency or other limitation,
Buyer's dispatch level was limited during such hour and such limitation
resulted in a higher applicable heat rate, the Guaranteed Heat Rate will
be the heat rate corresponding to Buyer's dispatch that would have
occurred during such hour absent such limitation.
The applicable fuel price (expressed in $/MMBtu)will be, with respect to
any hour of energy delivery,
(1) Based on a predetermined index (expressed in $/MMBtu), to be
identified within the applicable proposal, and based on a publicly
available source on the gas day in which such hour occurs, or
(2) For deliveries of"Intra-Day Energy" , the applicable fuel price will be
the lower of(i)Seller's average purchase price for the gas (excluding
any sales and use taxes and the cost of transportation and delivery)
purchased by Seller and (ii)the estimated price quoted by Seller and
accepted by Buyer for the gas purchased by Seller,
plus the agreed upon fuel adder. The fuel adder is expected to be as
specified by Bidder in the applicable Bid.
For the purposes of establishing the Energy Price, "Intra-Day Energy"
means, for the applicable gas day, any amount of the total energy
dispatched by Buyer for delivery during such gas day after the day-
ahead dispatch deadline, but excluding any increases after the day-
ahead dispatch deadline resulting from increased availability of the
Facility notified to Buyer after the day-ahead availability notice deadline.
7 Variable O&M For each MWh of energy dispatched by Buyer and delivered to Buyer
(VOM) Rate from the Facility, Buyer will pay the "Variable O&M Rate." The Variable
O&M Rate (expressed in $/MWh) can be fixed for the Delivery Term or
can be escalated annually via a proposed escalation rate.
8 Start-Up For each Completed Start, Buyer will pay the "Start-up Charge." The
Charge Start-up Charge (expressed in $ per Completed Start) for each year of
the Delivery Term will be based upon the amount specified by Bidder in
the applicable Bid. The Start-Up Charge can be fixed for the Delivery
Term or can be escalated annually via a proposed escalation rate.
"Completed Start" means a start-up of a combustion turbine at the
Facility (i) required to be undertaken solely as a result of an increase in
dispatch by Buyer either from 0 MW to positive MW or from less than the
Minimum Dispatch Level for a multiple combustion turbine operating
Exhibit No. 1
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configuration to greater than or equal to the Minimum Dispatch Level for
such multiple combustion turbine operating configuration and (ii) during
which (a) an output level equal to the Minimum Dispatch Level for the
dispatched operating configuration is achieved for at least thirty (30)
consecutive minutes and (b) the Facility is released unconditionally for
ramping to, and the attainment of, any higher output level dispatched by
Buyer, but excluding any such start-up that follows any shutdown that is
not scheduled by Buyer (such as a shutdown resulting from the
occurrence of a unit contingency or other limitation on the availability of
the capacity of the Facility).
9 Start Fuel If Bidder's Bid includes a Start Fuel Charge, then for each Completed
Charge Start, Buyer will pay the "Start Fuel Charge" equal to the applicable fuel
price multiplied by the applicable start fuel amount (expressed in MMBtu
(HHV)).
10 Fuel Supply Without limiting Buyer's Energy Payment obligations provided in this
and Transport Term Sheet, Seller will have sole responsibility for and bear the full costs
(including any applicable fuel taxes) of the arrangement, procurement,
transportation, nomination, delivery, storage, use, loss, and disposition
of fuel for the Facility. Seller will be responsible and pay for all fuel
imbalance charges and penalties arising out of or in connection with the
Definitive Agreement. Seller will bear all risk associated with any
decision not to procure firm fuel supply and transportation.
11 Seller Default The Agreement shall include the following events of Seller Default:
• The average of the Facility's Monthly Availability during any Rolling
12 Month Period is less than the Rolling 12 Month Availability
Requirement of eighty-five percent(85%), where "Rolling 12 Month
Period" means, as of the end of any month during the Delivery
Term, the twelve (12)- month period that includes such month and
the preceding eleven (11) months that occurred during the Delivery
Term;
Other events of default are outlined in Exhibit F and may be included
in the Definitive Agreement as appropriate.
Exhibit No. 1
Case No. IPC-E-26-03
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Idaho Power 2032 All Source RFP /-q"10*0
Exhibit G—Mutual Non-Disclosure Agreement ft�..POMW,
An MCOW ConpwW
MUTUAL NONDISCLOSURE&CONFIDENTIALITY AGREEMENT
This MUTUAL NONDISCLOSURE&CONFIDENTIALITY AGREEMENT(the"Agreement") is entered into to be effective as
of the day of 20 ("Effective Date")between Idaho Power Company("IPC")and (" ").IPC and
may also be referred to individually as a"Party"and collectively as the"Parties."
BACKGROUND
The Parties desire to share certain confidential and proprietary information in order to discuss (the"Discussion").
Each Party may receive or review certain confidential and proprietary information of the other Party as part of that
Discussion.
Some or all of the confidential and proprietary information shared between the Parties may contain non-public
information about IPC's transmission or generation system that may be considered CEII(as defined below).IPC generally
does not make such information available,consistent with certain regulatory and security requirements.
IPC and have agreed to disclose such confidential and proprietary information to each other on the condition that
the information be retained in confidence according to the terms and subject to the conditions included in this Agreement.
AGREEMENT
In consideration of the mutual obligations and undertakings in this Agreement,the sufficiency of which is acknowledged,
the Parties agree as follows:
1. Definitions.In this Agreement these words and phrases shall have the following meanings:
1.1. Confidential Information.
(a) All non-public, confidential, or proprietary information disclosed by the Provider to Recipient or its
Representatives,whether disclosed orally or disclosed or accessed in written, electronic or other form or
media,and whether or not marked,designated or otherwise identified as"confidential"(in such cases where
not so marked or designated,where it would reasonably be expected in the industry that such information
would be deemed confidential), which may include (i) All information concerning Provider's and its
affiliates',and their customers',suppliers',and other third parties'past,present,and future business affairs,
including, without limitation, finances, customer information, supplier information, products, services,
organizational structure and internal practices, forecasts, sales and other financial results, records and
budgets, and business, marketing, development, sales and other commercial strategies; (ii) Provider's
unpatented inventions, ideas, methods and discoveries, trade secrets, know-how, unpublished patent
applications and other confidential intellectual property; (iii) All designs, specifications, documentation,
components, source code, object code, images, icons, audiovisual components and objects, schematics,
drawings,protocols,processes,and other visual depictions,in whole or in part,of any of the foregoing; (iv)
Any third-party confidential information included with, or incorporated in, any information provided by
Provider to Recipient or its Representatives; and (v)All notes, analyses, compilations, reports, forecasts,
studies, samples, data, statistics, summaries, interpretations and other materials prepared by or for
Recipient or its Representatives that contain,are based on,or otherwise reflect or are derived from,in whole
or in part,any of the foregoing;and
(b) All Critical Energy/Electric Infrastructure Information ("CEII"), as defined by the Code of Federal
Regulations,Title 18,Section 388.CEII includes both Critical Energy Infrastructure Information and Critical
Electric Infrastructure Information.As used in this Agreement, Critical Energy Infrastructure Information
means specific engineering,vulnerability,or detailed design information about proposed or existing critical
infrastructure that: (i) Contains detail about the production, generation, transportation, transmission, or
distribution of energy; (ii) Could be useful to a person planning an attack on critical infrastructure; (iii) Is
exempt from mandatory disclosure under the Freedom of Information Act,5 U.S.C.552; (iv)Does not simply
give the general location of the critical infrastructure.
As used in this Agreement,Critical Electric Infrastructure Information means information related to critical
electric infrastructure,or proposed critical electrical infrastructure,generated by or provided to the Federal
Energy Regulatory Commission ("FERC") or other Federal agency other than classified national security
information,that is designated as critical electric infrastructure information by FERC or the Secretary of the
Department of Energy pursuant to section 215A(d)of the Federal Power Act.
IPC NDA LGL 016 4/13/09 -1- Exhibit No. 1 DR
Case No. IPC-E-26-03
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CEII includes but is not limited to: transmission conductor details, transmission structure design details,
planned or expected transmission outages critical to the power system, substation design details, control
center locations or design details,power plant facility design details,geographic coordinates more specific
than line routes and natural gas line locations or design details.
(c) Confidential Information shall not include Non-proprietary Information.
1.2. Non-proprietary Information.The information with respect to which the Recipient is able to establish:
(a) At the time of disclosure was or thereafter became generally available to the public,other than as a result of
any act or omission by the Recipient or its Representatives or anyone to whom the Recipient or Recipient's
Representatives disclosed such information in violation of this Agreement;
(b) Was or became lawfully known to the Recipient or Recipient's Representatives on a non-confidential basis
and not in contravention of any applicable law from a source (other than the Provider or Provider's
Representative)that is entitled to disclose the information;
(c) Was already lawfully in the possession of the Recipient or Recipient's Representatives at the time of the
information's disclosure under this Agreement and that was not acquired, directly or indirectly, from the
Provider or Provider's Representative, provided that, the information is not subject to another
confidentiality agreement or other obligation of secrecy;
(d) Information that the Recipient can demonstrate is independently developed by the Recipient or the
Recipient's Representatives without the use or knowledge of any Confidential Information;and
(e) Information approved for disclosure or release by the Recipient by written authorization from the Provider;
and provided that,any combination of the information which comprises part of the Confidential Information
shall not be deemed to be Non-proprietary Information merely because individual parts of that information
were within the scope of the above clauses unless the combination itself was within the scope of any of the
above clauses.
1.3. Provider.The Party or its Representative who is providing information to the other Party or its Representatives
on behalf of the first-mentioned Party,being IPC or ,as the context requires;
1.4. Recipient. The Party or its Representative that is receiving information from the other Party or its
Representatives on behalf of the first-mentioned Party,being IPC or ,as the context requires;
1.5. Representatives. With respect to any Party or its affiliates, such Party's or its affiliates' directors, officers,
employees, shareholders, agents, subcontractors, attorneys, engineers, accountants, consultants, and financial
advisers of such Party;and
1.6. Review.The Recipient's review of any Confidential Information the Provider supplies,directly or indirectly,to
the Recipient or to Recipient's Representatives under this Agreement for the purposes of the Discussion.
2. Use and Non-Disclosure.
2.1. The Recipient shall:
(a) Keep the Confidential Information in strict confidence and not use the Confidential Information for any
purpose whatsoever,directly or indirectly,other than for the purpose of conducting the Review;
(b) Disclose only such portions of the Confidential Information to its Representatives as is required for the
purpose of conducting the Review and only to those Representatives who have a need to know;
(c) Be liable for any breach of this Agreement by it or any of its Representatives;and
(d) Shall in the case of disclosure of Confidential Information to any of its Representatives, inform the
Representatives at the time of disclosure of the confidential and proprietary nature of the Confidential
Information; and shall direct its Representatives not to disclose without the prior written consent of the
Provider (i)Any opinion or comment in respect of the Confidential Information; (ii) Any terms, conditions
or any facts with respect to the Discussion or the contents of this Agreement; or (iii) Any Confidential
Information to any person other than in accordance with the terms of this Agreement.
3. Required Government Disclosures. If Recipient or its Representatives becomes legally obligated to disclose
Confidential Information to any government entity with jurisdiction over it, such Recipient shall give the Provider
Exhibit No. 1 LGL 016(6/1/2020)
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E. Hackett, IPC
Page 465 of 495

prompt written notice sufficient to allow the Provider to seek a protective order or other appropriate remedy.The
Recipient shall disclose only such information as is required by the governmental entity and shall use its
commercially reasonable efforts to obtain confidential treatment for any Confidential Information that is disclosed.
4. Limited Relationship.Nothing in this Agreement constitutes or implies any partnership,joint venture or any other
formal or informal business relationship between the Parties or is to be construed as making one Party the agent or
fiduciary of the other with respect to the Discussion.
S. Acknowledgments by Recipient.
5.1. The Recipient acknowledges that:
(a) The Confidential Information is proprietary to the Provider, and provided to the Recipient solely for the
purpose of the Review,the unauthorized disclosure of which could result in financial loss to the Provider
and would reasonably be expected to harm the competitive position or negotiating position of the Provider;
(b) The provision by the Provider of any Confidential Information to any other third party does not render such
Confidential Information as Non-proprietary Information;
(c) Without prejudice to the terms and conditions of any eventual agreement or agreements relating to the
Discussion (if any), neither the Provider nor the Provider's Representatives make any representation or
warranty, express or implied, as to the accuracy or completeness of the Confidential Information; each
Provider represents and warrants to the respective Recipient that the Provider has the right and authority
to disclose the Confidential Information being disclosed by it hereunder;
(d) It will rely upon its own investigations,due diligence and analysis in evaluating and in satisfying itself as to
all matters relating to the Discussion;
(e) The Provider shall have no liability to the Recipient or any of Recipient's Representatives resulting from any
use of the Confidential Information by the Recipient or any of its Representatives, except as expressly
provided in this Agreement;and
(f) No commitment or contract relating to the Discussion shall exist unless and until definitive agreements have
been executed and delivered by or on behalf of the Parties.
6. Return of Confidential Information. At any time upon the written request of the Provider, and within five (5)
business days of the request,the Recipient shall either return all copies,whether in written,electronic or other form
or media,of the Confidential Information to the Provider or shall destroy and verify in writing its destruction of,any
and all copies or other reproductions or extracts thereof,together with such documents,memoranda,notes and other
writings whatsoever prepared by Recipient and its Representatives based on the Confidential Information provided
that failure to destroy or return electronic copies of materials or summaries containing or reflecting Confidential
Information that are automatically generated through data backup,archiving,and/or other similar systems shall not
be deemed to violate this Agreement,so long as the Confidential Information is not disclosed or used in violation of
the other terms of this Agreement.
For clarity, the Parties covenant and agree that neither Party acquires any intellectual property rights under this
Agreement.
7. Failure or Delay Not Waiver.It is understood and agreed by the Recipient that any failure or delay by the Provider
in exercising any right,power or privilege under this Agreement shall not operate as a waiver thereof,nor shall any
single or partial exercise thereof preclude any other or future exercise of any right(equitable or otherwise),power
or privilege hereunder.All waivers must be in writing and signed by the waiving Party.
B. Duration of Disclosure Period; Survival of Obligations. This Agreement governs disclosures of Confidential
Information by the Parties for a period of three years from the Effective Date("Disclosure Period").Notwithstanding,
and regardless that the Confidential Information may have been returned or copies destroyed prior to the expiration
of the Disclosure Period,the obligations of confidentiality and nondisclosure imposed by this Agreement shall survive
any termination or expiration of the Disclosure Period and shall be in effect in perpetuity.
9. Remedies; Indemnity. The Recipient acknowledges that monetary damages may not be a sufficient remedy for a
breach of this Agreement by the Recipient or any of its Representatives and agrees that in addition to any other
remedy to which Provider or its affiliates may be entitled under this Agreement,at law or in equity,Provider shall be
Exhibit No. 1 LGL 016 (6/1/2020)
Case No. IPC-E-26-03 Page 3 of 5
E. Hackett, IPC
Page 466 of 495

entitled to seek injunctive relief to prevent breaches of this Agreement and to specifically enforce the terms and
provisions hereof.
The Recipient agrees,to the extent allowed by law,to indemnify,defend,and hold harmless the Provider and its and
their successors and their respective officers, directors, agents, and employees, from, for, and against any and all
allegations,liabilities,suits,losses,damages,claims,actions,costs,and expenses of any nature,including court costs
and attorneys'fees,related to the receiving Party breaching any term or condition of this Agreement.
10. Notices.Notices,where required herein,shall be deemed to have been duly served when(i) delivered in person,or
(ii)sent by mail or courier,return receipt requested,at the address for each Party as follows:
Idaho Power Company
1221 W.Idaho St.
Boise,ID USA 83702
Attention:
(Insert Other Party's Name and Contact Info.Here)
(Address)
(Address)
Attention:
11. Severance. If any provision of this Agreement is determined by a court of competent jurisdiction to be wholly or
partially unenforceable for any reason,such unenforceability will not affect the enforceability of the balance of this
Agreement and all provisions of this Agreement shall,if alternative interpretations are applicable,be construed so as
to preserve the enforceability hereof.
12. Entire Agreement and Amendment. This Agreement expresses the entire agreement between the Parties with
respect to the disclosure, delivery and use of the Confidential Information and supersedes and cancels all prior
communications,understandings and agreements between the Parties,whether written or oral,express or implied,
with respect to such subject matter. This Agreement may not be modified except by a writing duly signed by both
Parties.
13. Governing Law,Etc.This Agreement shall be governed by and construed in accordance with the laws of the State of
Idaho without giving effect to the choice of law rules thereof, and may be executed in several counterparts. The
exclusive venue of any action shall be Ada County,Idaho.
14. No Waiver of Privilege. Unless agreed upon in writing by the Provider, neither Party intends to waive, nor cause
any of its Representatives to waive,the attorney-client,attorney work product, or other applicable privilege of the
Provider or any of its subsidiaries,affiliates,or joint ventures("Privilege")by providing any information subject to a
Privilege. Accordingly, each Party agrees that a production to any Recipient or any of its Representatives by the
Provider or any of its Representatives of Confidential Information protected by a Privilege shall not constitute a
waiver of any such Privilege by any person,and each Party hereto agrees that,upon request by the Provider or any
of its Representatives,Recipient will,and will cause its Representatives to,immediately return and/or destroy such
inadvertently produced information.
15. Assignment.Neither Party may assign all or any part of this Agreement,by operation of law or otherwise,without
the other Party's prior written consent,which consent shall not be unreasonably withheld or denied.This Agreement
shall be binding on and inure to the benefit of each Party's successors and assigns.
16. Attorneys'Fees.In the event that Provider institutes any legal suit,action or proceeding,against Recipient to enforce
the covenants contained in this Agreement, Provider shall be entitled to receive in addition to all other damages to
which it may be entitled, the costs incurred by Provider in conducting the suit, action or proceeding, including
reasonable and actual attorneys'fees and expenses and court costs.
(Signature page follows)
Exhibit No. 1 LGL 016 (6/1/2020)
Case No. IPC-E-26-03 Page 4 of 5
E. Hackett, IPC
Page 467 of 495

AGREED AND ACCEPTED to be effective as of the Effective Date.
(COUNTERPARTY NAME)
By:
Name:
Title:
IDAHO POWER COMPANY
By:
Name:
Title:
Exhibit No. 1 LGL 016(6/1/2020)
Case No. IPC-E-26-03 Page 5 of 5
E. Hackett, IPC
Page 468 of 495

Idaho Power 2032 All Source RFP
Exhibit H —Counterparty Financial Questionnaire
Please provide the following information with your proposal to enable Idaho Power (IPC) to
evaluate the financial viability of the Respondent and any entity(ies) providing credit assurances
on behalf of the Respondent, if applicable.
Respondent's Credit Information
1. Credit information for Respondent
a. Exact legal name and address of Respondent.
b. Attach copies of three years audited financial statements (including balance sheet, income
statement, notes and cash flow statement)for the three most recent fiscal years.
c. If Respondent is unable to provide audited financial statements or is relying upon another
entity(ies) to provide credit assurances on its behalf, Respondent must indicate so here and
complete the following section.
i. Is Respondent unable to provide audited financial statements?
ii. Is Respondent relying upon another entity(ies) to provide credit assurances on
Respondent's behalf?
d. If available,provide Debt Ratings from S&P and/or Moody's(please provide senior unsecured long-
term debt rating(or corporate rating if a debt rating is unavailable). Please indicate type of rating,
rating,and source.
e. Identify pending legal disputes(describe).Please provide contact name,phone number and e-mail
address that can assist with answering questions.
f. State whether Respondent is or has within the past five (5) years been the debtor in any
bankruptcy proceeding.
g. Respondent should demonstrate its ability and/or the ability of its credit support provider to
provide the required security equal to the value of the contract price set forth in the proposal,
including its plan for doing so including type of security, sources of security, and a description of
its credit support provider.
h. Respondent should provide a reasonable demonstration of its ability to finance the proposed
project based on past experience and a sound financial plan identifying the proposed sources for
debt and equity and evidence that the project is financeable.
2. Credit information for entity(ies) providing credit assurances on behalf of Respondent, if applicable (e.g.
parent company,or financial institution)
a. Exact legal name and address of entity(ies) providing credit assurances on behalf of Respondent.
b. Describe relationship to Respondent and describe type of credit assurances to be provided (e.g.,
parental guaranty,cash deposit,or a letter of credit from a qualified financial institution).Qualified
Institution shall mean the United States office of a commercial bank or trust company organized
under the laws of the United States of America or a political subdivision thereof or a foreign bank
with a branch office located in the United States and, in either case,whose rating with respect to
its long term unsecured,unsubordinated indebtedness, is rated at least"A-"by S&P or Fitch or A3
by Moody's. Respondent must provide to IPC from the entity(ies) providing the credit assurances
on behalf of the Respondent executed by an authorized signatory and indicating their form of
credit assurances it will provide. It should be noted that more than one commitment letter, or
more than one form of commitment letter, may be necessary.
c. Debt Ratings from S&P and/or Moody's (please provide senior unsecured long-term debt rating
(or corporate rating if a senior unsecured long-term debt rating is unavailable). Please indicate
type of rating, rating,and source:
d. Attach copies of audited financial statements (including balance sheet, income statement, and
cash flow statement)for the three most recent fiscal years for parent companies,as applicable.
e. Describe any pending or threatened legal disputes or claims for parent companies,as applicable.
f. State whether entity(ies) providing credit assurances on behalf of the Respondent is or has within
the past five(5)years been the debtor in any bankruptcy proceeding.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
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Idaho Power 2032 All Source RFP
Exhibit H —Counterparty Financial Questionnaire
Credit Requirements
The Respondent may be required to post credit assurances equal to the value of the contract price set forth in the
proposal which is expected to have a commercial operation date of no later[DATE]. IPC will require a letter from the
entity providing financial assurances at the proposal submittal stating that it will provide financial assurances on
behalf of the Respondent.
If necessary, the Respondent will be required to demonstrate the ability to post any required credit assurances in
the form of a commitment letter from a proposed guarantor or from a financial institution that would be issuing a
Letter of Credit. IPC will require each Respondent to provide an acceptable commitment letter(s), if applicable,
twenty (20) business days after the Respondent is notified that the Respondent has been selected for the Initial
Shortlist. Respondent will be required to provide any necessary guaranty commitment letter from the entity(ies)
providing guaranty credit assurances on behalf of the Respondent and/or any necessary letter of credit commitment
letter from the financial institution providing credit assurances in the form of a Letter of Credit. Forms of
commitment letters are part of this Exhibit H.The timing of when credit security must be posted is detailed in the
Credit Security Requirements Methodology section,which is also part of this Exhibit H.
IPC must approve the amount, substance and issuer of all provided credit assurance.
Amount of Credit Assurances to be Posted
The RFP selected resources have the potential to expose IPC and its ratepayers to credit risk in the event a selected
Respondent is unable to fulfill its obligations pursuant to the terms of an executed agreement.The credit risk profile
is a function of several factors:
1. Type of resource agreement.
2. Size of resource.
3. Expected energy delivery start date.
4. Term of underlying contract.
5. Creditworthiness of Respondent and Respondent's credit support provider, if applicable.
Should the financial institution providing credit assurances on behalf of the Respondent fail to meet these minimum
requirements of a qualified institution IPC will require credit assurances from a replacement financial institution that
does meet the requirements.
Build Transfer Agreement
For all resources that involve a physical asset with appropriate step-in rights, IPC views potential credit
exposure as the cost it would incur in the event the resource failed to reach commercial operation by[DATE
]or the Bidder failed to fulfill its obligations at any time during the life of the contract.If the failure occurred
near the expected commercial operation date, IPC would also potentially have to procure energy,capacity
and other environmental attributes associated with the energy in the open market at then-prevailing
market prices. IPC has determined the amount of credit assurances required for these types of transactions
to be up to 100% of the purchase price, based upon nameplate project size. The credit assurance
requirement will be terminated upon the project achieving commercial operation date with proven tax
credit eligibility of the appropriate resource technology.
The above descriptions of IPC's potential credit exposures are not in any way intended to limit Respondent's liability
with respect to obligations under any contract entered into with IPC, including without limitation,attorney's fees or
other damages incurred by IPC in the event of a breach of contract by Respondent.
IPC will also explore with a Respondent,if selected,other commercial avenues to reduce security requirements,such
as, but not limited to, reduction in security amounts as project development milestones are met, a stipulated
acceleration of commercial operation date(s) (i.e., prior to[DATE])or IPC's review of Respondent's underlying third-
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 470 of 495

Idaho Power 2032 All Source RFP
Exhibit H —Counterparty Financial Questionnaire
party contractual terms, provisions and/or incentives that further support Respondent achieving commercial
operations prior to [DATE].
Posting of Credit Security
Terms and conditions for the posting of security are set forth in the applicable Exhibit H - Draft Agreements for
Resource Based Bids which as noted above can be negotiated relative to milestones and amounts. If applicable,the
Respondent will be required to demonstrate the ability to post any required credit assurances in the form of a
commitment letter from a proposed guarantor or from a financial institution that would be issuing a Letter of Credit.
Forms of commitment letters are a part of this Exhibit H.
Idaho Power Company's Security
Please note that IPC will not post security to support its obligations under any definitive agreement. Respondents
who will require such security from IPC should not submit a proposal in response to this RFP.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 471 of 495

Idaho Power 2032 All Source RFP
Exhibit H —Counterparty Financial Questionnaire
FORM OF GUARANTY COMMITMENT LETTER
(Must be on letterhead of Respondent's guarantor)
Idaho Power(IPC)
1221 W. Idaho Street
Boise, ID 8370s
Attn:Credit Department
Email: [e-mail]
To Whom It May Concern:
[NAME OF GUARANTOR] ("Guarantor") is [INSERT RELATIONSHIP TO RESPONDENT] ("Respondent").
In connection with Respondent's submittal in Idaho Power (IPC)'s 2032 All Source Request for Proposals (RFP) for
Peak Capacity and Energy Resources, this commitment letter contains Guarantor's assurance to Idaho Power(IPC)
that, should Idaho Power (IPC) enter into a transaction with Respondent arising out of any proposal submitted by
Respondent in the RFP, with terms and conditions mutually acceptable to Idaho Power (IPC) and Respondent,
Guarantor will at that time issue an unconditional guaranty in form and substance reasonably satisfactory to Idaho
Power(IPC),and that Guarantor will guarantee all obligations of payment and performance of Respondent to Idaho
Power (IPC) as Guarantor's independent obligation (up to a maximum amount of $ , plus expenses of
enforcing the guaranty).
Guarantor understands that Idaho Power (IPC) will not enter into a transaction with Respondent without said
guaranty.Guarantor further understands that Idaho Power(IPC) is under no obligation to enter into any transaction
with Respondent, under the RFP or otherwise.
Yours truly,
(name of committing guarantor)
(name and title of authorized officer)
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 472 of 495

Idaho Power 2032 All Source RFP
Exhibit H —Counterparty Financial Questionnaire
FORM OF LETTER OF CREDIT COMMITMENT LETTER
(Must be on letterhead of entity(ies) providing the letter of credit on behalf of the Respondent)
Idaho Power(IPC)
1221 W. Idaho Street
Boise, ID 83702
Attn:Credit Department
Email: [e-mail]
To Whom It May Concern:
In connection with Respondent's submittal in Idaho Power (IPC)'s 2032 All Source Request for Proposals (RFP) for
Peak Capacity and Energy Resources,this commitment letter contains [ISSUING BANK]'s assurance to Idaho Power
(IPC)that,should Idaho Power(IPC)enter into a transaction with Respondent arising out of any proposal submitted
by Respondent in the RFP, with terms and conditions mutually acceptable to Idaho Power (IPC) and Respondent,
[ISSUING BANK] will at that time issue an irrevocable standby letter of credit in form and substance reasonably
satisfactory to Idaho Power(IPC), up to a maximum amount of$
[ISSUING BANK] understands that Idaho Power(IPC)will not enter into a transaction with Respondent without said
letter of credit. [ISSUING BANK]further understands that Idaho Power(IPC) is under no obligation to enter into any
transaction with Respondent, under the RFP or otherwise.
Yours truly,
(name of entity(ies) providing the letter of credit)
(name of authorized officer)
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 473 of 495

Idaho Power 2032 All Source RFP
Exhibit I—Draft Form Letter of Credit
IRREVOCABLE STANDBY LETTER OF CREDIT No.
Date:
BENEFICIARY:
Idaho Power Company
1221 W. Idaho Street
Boise,Idaho 83702
Attention: Corporate Treasurer
APPLICANT:
PROJECT NAME
Attention:
Ladies and Gentlemen:
[BANK], [ADDRESS] (the "Bank") her�y establishes this Irrevocable dby Letter of Credit (this
"Letter of Credit") in favor of Idair�-Power Company, an`Idaho corporation (the "Beneficiary"), for the
account of [APPLICANT], &JSTATE OF O GANIZATION AND FORM OF ENTITY] (the
"Applicant"), in the amount US$ .00 ( United States
Dollars and 00/100 only) (t "Available Amount, ective immediately and expiring at 5:00 p.m.New
York time on , 0 ,or,if such day iVot a Business Day(as hereinafter defined),on the next
preceding Business Day(the"Expiration Date").
For the purposes hereof,the term"Business Day"shall mean any day,other than a Saturday or Sunday, on
which commercial banks are I authorized or required to be closed in the City of New York,New York.
Subject to the and conditio herein,funds under this Letter of Credit are available to the Beneficiary
by presentatio f the following documents at [BANK], [ADDRESS], ATTENTION:
on or prior to 5:00 p.m. New York time on any Business Day, on or prior to the
Expiration Date:
1. The original of this Letter of Credit and all amendments thereto for endorsement thereto (or
photocopies of the originals for partial drawings or for facsimile transmittals); and
2. The Drawing Certificate duly dated and issued in substantially the form of Attachment A attached
hereto, duly completed and purportedly bearing the signature of an officer of the Beneficiary.
Notwithstanding the foregoing, any drawing hereunder may be requested by transmitting the requisite
documents as described above to the Bank by facsimile at(--) - to the attention of the [BANK
DEPARTMENT]. Any claims made by facsimile must be confirmed by such person as shall be specified
{00059905.DOC;1}
� Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 474 of 495

Idaho Power 2032 All Source RFP
Exhibit I—Draft Form Letter of Credit
from time-to-time by the Bank. The facsimile transmittal shall be deemed received when confirmed to
Bank by telephone at( ) - . Drawings made by facsimile transmittal are deemed to be the actual
presentation without the need of original signed documents.
In the event of any non-conforming presentation, we shall immediately notify Beneficiary in writing by
facsimile to (_)_- that the presentation has been rejected, which notice shall indicate the reason
for dishonoring such presentation and shall place at the disposal of beneficiary the documents presented by
Beneficiary in support of its demand for payment. Beneficiary may thereafter present documents and
receive payment hereunder in the event a conforming presentation is made in accordance with the terms
herein.
Partial drawing of funds shall be permitted under this Letter of edit,and th' ette Credit shall remain
in full force and effect with respect to any continuing balance, vided, t he A le Amount shall
be reduced by the amount of each such drawing.
This Letter of Credit is not transferable or assignable. Any purported fer ignrne all be null
and void and of no force or effect.
Banking charges and all other costs and fees associated with this Le X
o edit shall be the sole
responsibility of the Applicant.
This Letter of Credit sets forth in full our obligations and such ob%ations shall not in any way be modified,
amended, amplified, or limited by reference-e any documents, instruments, or agreements referred to
herein, except only the attachment referred to herein; and any such reference shall not be deemed to
incorporate by reference any document, instrument, reemen4vept for s�ch attachment.
The Bank engages with the Benefieiary that Beneficiary fts drawn under and in compliance with the
terms of this Letter of Credit will be duly honored resente o the Bank on or before the Expiration Date.
Except so far as otherwise stated herein this Letter of dit is subject to the International Standby Practices
ISP 98 (also known as ICC Publication No. 5901 or revision currently in effect (the "ISP"), and as to
matters not covered e ISP the laws of the StaTe of Idaho (without regard to the principles of conflicts
of lawlthereunder).
[BANK]
By:
Name:
Title:
{00059905.DOC;1}
� Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 475 of 495

Idaho Power 2032 All Source RFP
Exhibit I—Draft Form Letter of Credit
ATTACHMENT A
FORM OF DRAWING CERTIFICATE
To:
[BANK]
Attn:
Subject: Irrevocable Standby Letter of Credit No.
lkt
The undersigned , an authorized representative of Idaho Power Company, an Idaho
corporation (the `Beneficiary"), hereby certifies to [BANK] (the "Bank"), with reference to Irrevocable
Standby Letter of Credit No. ,dated ,20_(the` er of Credit"),issued by the
Bank in favor of the Beneficiary, as follows as of the a hereof% ett
1. The Beneficiary is entiti8tl to draw under Letter of Credit an amount equal to
$ , pursuant to the terms of that certain [NAME OF AGREEMENT] between
Ad Beneficiary, dated as of ,20_.
1W
2. Bas d upon the foregoing the Beneficia hereby makes demand under the Letter of Credit for
nt of4XX AND XX/100 Dollars( ),which amount does not exceed(i)the
Wunt set forth in paragraph I above, and(ii)the Available Amount under the Letter of Credit as
he date hereof.
3. Funds paidpursuant the provisions of the Letter of Credit shall be wire transferred to the
Benefici2,V in accordam with the following instructions:
AL
iw
Unless otherwise provided herein, capitalized terms which are used and not defined herein shall have the
meaning given each such term in the Letter of Credit.
IN WITNESS WHEREOF, this Certificate has been duly executed and delivered on behalf of the
Beneficiary by its authorized representative as of this_day of 920 .
IDAHO POWER COMPANY
By:
{00059905.DOC;1}
� Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 476 of 495

Idaho Power 2032 All Source RFP
Exhibit I—Draft Form Letter of Credit
Name:
Title:
{00059905.DOC;1}
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 477 of 495

r "IDIAHO
Idaho Power 2032 All Source RFP 016—POWR
Exhibit I—Draft Form Letter of Credit An IDAC ORP ComOMY
PARENT GUARANTY OF PAYMENT
THIS GUARANTY (the "Guaranty") is made as of the day of , 20 (the
"Effective Date")by , a formed under the laws of the State of
("Guarantor")to and in favor of Idaho Power Company, a corporation formed under the laws of
the State of Idaho (the "Beneficiary").
RECITALS:
A. , a formed under the laws of the State of ("Obligor"), a wholly-owned
subsidiary of Guarantor,and the Beneficiary entered into that certain[insert contract name,i.e.PPA]made
the day of 120 (which agreement, as amended fin time to time after the Effective Date,is
herein referred to as the"[insert contract name, i.e.PPA]")purlftto which,inter alia,Obligor agreed to
provide to the Beneficiary for a [insert project generation] project t0be constructed in (the
"Project").
B. Guarantor has agreed to guarantee to the Beneficiary the�rperfo ance,payment and discharge
of Obligor's Obligations (as defined in Section 1 hereof) *the
ntor
C. Unless otherwise defined herein, all words and phr herein which !rdefined in the [insert
contract name, i.e. PPA] shall, for the purposes here�hV
anings as are respectively given
thereto in the [insert contract name,i.e. PPA].
IN CONSIDERATION OF the Beneficiary entering into the [insert contract name, i.e. PPA]
and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by Guarantor, and-intending to be legally bound hereby, Guarantor covenants to,
and agrees with, the Beneficiary as follows: 14
1. Guaranty. Guarantor an
absolutely, unconditionally and irrevocably guarantees to the
Beneficiary and its successors an permitted assigns,the due,punctual and complete performance,payment
and discharge by Obligor of each and all of the performance, payment, indemnification and other
obligations and liabi4ities of any and every natufe and kind whatsoever, whether now in existence or
hereafter arising, on the part of Obligor arising under the [insert contract name, i.e. PPA] or otherwise in
relation to the transactions therein proved r(collectively,the"Obligor's Obligations").
2. AbsolGfe LAW ity 0f Gu tor. The The obligations of Guarantor hereunder are absolute, primary,
direct and independent obligationd are not subject to any right of set-off,recoupment or counterclaim
as against the Beneficiary. The Beneficiary is not required to exhaust its recourse against Obligor, or any
other Person, or any security it may hold, or to take any other action before being entitled to demand, by
written notice,payment or performance of Obligor's Obligations from Guarantor.
3. Payment; Currency. All sums payable by Guarantor hereunder shall be made in freely transferable
and immediately available funds and shall be made in the currency in which Obligor's Obligations were
due. If Obligor fails or refuses to pay any Obligor's Obligations when due and owing, Beneficiary may
make a demand upon Guarantor (hereinafter referred to as a "Payment Demand"). A Payment Demand
shall be in writing and shall specify in what manner and what amount Obligor has failed to pay and an
explanation of why such payment is due and owing, with a specific statement that Beneficiary is calling
upon Guarantor to pay under this Guarantee. A Payment Demand satisfying the foregoing requirements
shall be deemed sufficient notice to Guarantor that it must pay such amount and such payment shall be
made to Beneficiary by Guarantor within three business(3)days after receipt of such Payment Demand. A
single written Payment Demand shall be effective as to any specific default under the[insert contract name,
100059905.DOC;1}
� Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 478 of 495

Idaho Power 2032 All Source RFP
Exhibit I—Draft Form Letter of Credit
i.e. PPA] that is capable of being cured by the payment of money during the continuance of such default
and additional written demands concerning such default shall not be required until such default is cured.
Beneficiary shall promptly return to Guarantor any amount paid by Guarantor if and to the extent a court
of competent jurisdiction (upon final appear thereof, if any) shall have determined that such Obligor's
Obligation was not payable by Guarantor.
4. No Release of Guarantor. Guarantor has no right either to terminate this Guaranty or to be released
or discharged from its obligations hereunder, which obligations shall not be affected, released nor
diminished for any reason whatsoever including:
(a) any release or discharge, in whole or in part, of Obligor's Obligations or any amendment or
supplement to or any modification of, assignment or tN
ation, ii�whole in part, the [insert
contract name,i.e. PPA];
(b) any extension or renewals of Obligor's Obligations or any change in the time, mannAor place of
payment or performance of Obligor's Obligations or any course of dealing by the Beneficiary with
Obligor(including accepting any compromises from Obligor);
(c) the occurrence of any event of default by Obligor under the [insert contract name, i.e. PPA] or
otherwise in relation to Obligor's Obligations; 1W
(d) any taking (or any abstaining from taking) of any securi tee for the performance of
Obligor's Obligations, in whole orr_ �
r the perfecting e failing to perfect) any such
security; 14(e) any exchange, surrender, substitutir release of, or other dealing with, any security or
guarantee from time to time heldby the eneficiary fo6e performance of all or any part of Obligor's
Obligations;
an waiver, consent other ac n or inaction or an exercise or non-exercise of an right, remedy
(� Y � � Y Y g � Y
or with spec ON it's Obligations;
(g) any merger, amalga tion or consolidation of Obligor into or with any other Person or any change
in the corporate existence, financial condition, constitution, name, structure, business, control or
ownership of Obligor;
(h) any bankruptcy, winding-ut liquidation, dissolution, insolvency, reorganization or other similar
proceeding affecting Obligor or its assets or any release, stay or discharge of any Obligor's
Obligations resulting therefrom;
(i) any invalidity, illegality, irregularity or unenforceability for any reason of the [insert contract name,
i.e. PPA],Obligor's Obligations or any part thereof as regards Obligor;
(j) any provision of applicable Laws purporting to prohibit the payment by Obligor or Guarantor of any
amount payable by Obligor in connection with Obligor's Obligations;
(k) any force majeure(other than a force majeure which,pursuant to the[insert contract name,i.e.PPA],
relieves Obligor of liability for the performance of any Obligor's Obligations);
{00059905.DOC;1}
� Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 479 of 495

Idaho Power 2032 All Source RFP
Exhibit I—Draft Form Letter of Credit
(1) any lack or limitation of power,incapacity or disability on the part of Obligor to enter into the [insert
contract name, i.e. PPA] or of its directors, partners or agents or any other irregularity, defect or
informality on the part of Obligor in relation to Obligor's Obligations; and
(m) any other Laws or other circumstances or matters that might otherwise constitute a legal or equitable
discharge or release of a surety or guarantor.
5. Waiver of Notice&Defences. Guarantor hereby waives: (a)diligence,presentment,protest,demand
for payment, notice of dishonour or non-payment, notice of acceptance of this Guaranty and any other
notice not expressly granted to Guarantor by this Guaranty; and(b)all defences(legal or equitable)which,
if asserted,would diminish the liability of Guarantor under this Guaranty.
6. No Subrogation against Obligor. Until all obligatio Guarruarantor
this Guaranty are
discharged: (a) Guarantor shall not assert against Obligor any tha now has or may
hereafter have against Obligor in connection with this Guaranty or the performance by Guarantor of its
obligations hereunder(provided that, Guarantor may assert any such claim if required due to the imminent
expiry of an applicable limitation period or otherwise to preserve such claim but only to the extent required
to preserve such claim);(b)the Beneficiary shall not be subrogated to an of Guarantor's rights in Obligor's
Obligations; and (c) Guarantor agrees that it shall not exercise any rig, of subrwtion, reimbursement,
contribution or indemnity from Obligor with respect to this GVranty to th extent the exercise of such
rights would be reasonably likely to impair the ability of Obligor to,�erforbligor's Obligations.
7. Continuing Guaranty. This Guaranty is a continuing guarantee*nd the case of each of Obligor's
Obligations requiring the payment of monies,this Gu anty applies to ures any ultimate balance due
or remaining due to the Beneficiary; and if, at any all or a* part of any monies paid previously
applied by the Beneficiary to any Obligor Obligation is%fo
be rescinded or returned by the Beneficiary
for any reason whatsoever,such Obligor Obligation willpurposes hereof,to the extent such payment
is or must be rescinded or returned, be deemed to have continued in existence and this Guaranty shall
continue to be effective ore reinstated, as applicable, to such Obligor Obligation as if such application
had not been made.
8. Recov*Limitation under [insert contract name,i.e.PPA]. Notwithstanding any other provision
of this Guaranty all limitations of liability (including requirements to file notice of claims prior to certain
specified dates in gWer to permit the same to be proceeded with) in favour of Obligor contained in the
[insert contract name, i.e. PPA] shall apply equally to the liability of Guarantor under this Guaranty such
that the Beneficiary shall not be entitled to claim any liability against (or to receive any recovery from)
Guarantor in excess of that which the Beneficiary would have been entitled to recover from Obligor, in the
aggregate, under the [insert contract name, i.e. PPA]. For purposes of clarity, the guaranteed obligations
include to Obligor's Obligations as set forth in Section 1, together with all reasonable costs and expenses
(including attorney's fees), if any, incurred by Beneficiary in enforcing its rights under this Guaranty and
under the [insert contract name,i.e. PPA].
9. Entire Guaranty and No Representations. This Guaranty constitutes the entire agreement between
the Beneficiary and Guarantor with respect to the guarantee by Guarantor of Obligor's Obligations herein
provided for and cancels and supersedes any prior understandings and agreements with respect thereto.
There are no representations, warranties, terms, conditions, undertakings or collateral agreements,
expressed, implied or statutory, regarding the guarantee by Guarantor of Obligor's Obligations herein
provided for other than as expressly stated and set forth in this Guaranty.
{00059905.DOC;1}
� Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 480 of 495

Idaho Power 2032 All Source RFP
Exhibit I—Draft Form Letter of Credit
10. No Assignment. Neither Guarantor nor the Beneficiary may assign its interest in this Guaranty or any
of its rights and obligations hereunder without the prior written consent of the other, and, subject to the
foregoing, this Guaranty enures to the benefit of, and is binding upon, Guarantor and the Beneficiary and
their respective successors and permitted assigns; provided, however, that Beneficiary may assign its
interest in this Guaranty, or any of its rights and obligations hereunder,to any Person that Beneficiary has
the right to make an assignment to pursuant to the terms of the [insert contract name,i.e. PPA].
11. Governing Law. This Guaranty shall be governed by and construed in accordance with the laws of
the State of New York (without reference to conflict of laws rules). THE GUARANTOR AND
BENEFICIARY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THI UARANTY OR THE
TRANSACTIONS CONTEMPLATED BY THIS GUARAN
12. Notices. All notices sought or required to be given here r shall be in writing and shall be
effectively given or made if delivered personally, sent by repaid courier service, sent by
registered/certified mail(postage fully prepaid)or sent by facsimile(with transmission confirmed),in each
case to the applicable address and/or facsimile number set out below:
If to the Beneficiary:
Idaho Power Company
Attn: Legal Department
1221 W. Idaho Street
Boise,ID 83702
If to Guarantor:
or at such other address and/or facsimile number as iy be given by Guarantor or the Beneficiary to the
other by notice in writing from time to time and such notices shall be deemed to have been received, if
delivered personall34p'by prepaid courier service,upon delivery, if transmitted by facsimile on or prior to
5:00 p.m. (New York, New York local time) on a Business Day, upon the completion of its transmission
(and if not transmi d on a Business Day or transmitted after 5:00 p.m. (New York,New York local time)
on a Business DaWn on the first Business Day following the completion of the transmission)or, if sent
by registered/certitTed mail, four Business Days following the day of the mailing thereof; provided that if
any such notice shall have been mailed and if regular mail service shall be interrupted by strikes or other
irregularities, such notice shall be deemed to have been received four Business Days following the
resumption of normal maillpervice.
13. Payment of Legal Expenses. Guarantor shall reimburse the Beneficiary for all attorney's fees,
disbursements and other expenses reasonably incurred by the Beneficiary in enforcing the payment,
performance or discharge of Obligor's Obligations and the obligations of Guarantor hereunder.
14. Severability. If any provision of this Guaranty is determined to be invalid or unenforceable in whole
or in part, such invalidity or unenforceability will apply only to that provision and all other provisions of
this Guaranty shall continue in full force.
{00059905.DOC;1}
� Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 481 of 495

Idaho Power 2032 All Source RFP
Exhibit I—Draft Form Letter of Credit
15. No Waiver, Remedies. No failure on the part of the Beneficiary to exercise, and no delay in
exercising, any right under this Guaranty shall operate as a waiver of it, nor does any single or partial
exercise of any right under this Guaranty preclude the other or further exercise of it or any other right.
16. Termination. The liability of Guarantor under this Guaranty shall terminate and this Guaranty shall,
automatically and without the need for any further act or formality whatsoever, be of no further force or
effect immediately upon all of Obligor's Obligations arising at any time under the [insert contract name,
i.e. PPA] having been performed, paid and discharged in full or otherwise ceasing to exist in accordance
with the applicable provisions of the [insert contract name,i.e. PPA].
17. Counterparts. The Guaranty may be executed in counterparts, each of which when executed and
delivered shall constitute one and the same instrument. T Agreement may be-duly executed and
delivered by execution and facsimile or electronic format (i ing portable documnnt format (.pdf))
delivery of the signature page of a counterpart to the other Party, nd, if delivery is made by facsimile or
other electronic format, the executing Person shall promptly deliver, via overnight delivery, a complete
original counterpart that it has executed to the other executing Persons,but this Agreement shall be binding
on and enforceable against the executing Person whether or 1101delivers such original counterpart.
18. Further Assurances. Guarantor shall cause to\warran
r and duly taken, executed and
acknowledged and delivered,such further documents and iBeneficiarmay from time to time
reasonably request in order to carry out the intent anc�purpuaranty.
19. Authority of Guarantor. Guarantor represents ao Beneficiary that (a) it has the
corporate power and authority to execute, deliver an arry out the terms and provisions of this Guaranty;
(b) Guarantor has obtained any authorization, of onsent or order of,#registration or filing with,
any court or other governmental body having juns,dict ver Guarantor that is required on the part of
Guarantor for the execution and delivery of this Guaran d (c) this Guaranty constitutes a valid and
legally binding agreement of Givantor enforceable against Guarantor in accordance with its terms,except
as the enforceability of this ua ty may be limited by the effect of any applicable bankruptcy,insolvency,
reorganization, moratori r similar laws affecting creditors' rights generally and by general principles
of equity. 1 +
AGREED AN�tCEPTED as of the Effective Date.
(COMPANY NAME) 10
By: VIOL
Name:
Title:
IDAHO POWER COMPANY
By
{00059905.DOC;1}
� Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 482 of 495

Idaho Power 2032 All Source RFP
Exhibit I—Draft Form Letter of Credit
Name:
Title:
{00059905.DOC;1}
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 483 of 495

Idaho Power 2032 All Source RFP
Exhibit J-Levelized PVRR Scenarios
Exhibit J provides example annual revenue requirements for resources of varying time periods and how the annual revenue
requirement drives the Present Value of the Revenue Requirement,the levelized payment,and levelized cost of capacity or
energy as would be utilized in the evaluation process.
Idaho Power 2032 All Source RFP-Exhibit J-Levelized Present Value of the Revenue Requirement Scenarios
Scenario 1 Scenario 2 Scenario 3 Scenario 4 Scenario 5 Scenario 6 Scenario 7
Simple Cycle
PPA(w/2% BTA(20 year Self Build(20 PPA(w/2% BTA(35 year Self Build(35 Combustion
esc.) life) year life) esc.) life) year life Turbine
1 $8,279,809 $12,027,498 $12,027,498 $12,762,388 $16,189,525 $16,189,525 $19,336,483
2 $8,384,230 $10,935,086 $10,935,086 $12,943,172 $14,846,663 $14,846,663 $18,688,236
3 $8,487,284 $10,790,549 $10,790,549 $13,123,296 $14,544,453 $14,544,453 $18,280,308
4 $8,588,747 $10,600,542 $10,600,542 $13,302,504 $14,261,137 $14,261,137 $17,884,986
5 $8,688,382 $10,383,371 $10,383,371 $13,480,517 $13,832,147 $13,832,147 $17,501,489
6 $8,785,933 $9,868,615 $9,868,615 $13,657,036 $13,330,741 $13,330,741 $17,129,099
7 $8,881,129 $9,929,320 $9,929,320 $13,831,743 $12,829,826 $12,829,826 $16,767,155
8 $8,973,679 $9,671,873 $9,671,873 $14,004,294 $13,299,992 $13,299,992 $16,415,051
9 $9,063,274 $9,414,743 $9,414,743 $14,174,321 $12,967,063 $12,967,063 $16,072,231
10 $9,149,583 $9,157,938 $9,157,938 $14,341,431 $12,732,852 $12,732,852 $15,738,185
11 $9,232,253 $8,901,469 $8,901,469 $14,505,204 $12,499,195 $12,499,195 $15,412,447
12 $9,310,908 $8,645,344 $8,645,344 $14,665,189 $12,266,107 $12,266,107 $15,094,589
13 $9,385,147 $8,389,574 $8,389,574 $14,820,904 $12,033,606 $12,033,606 $14,784,222
14 $9,454,545 $8,134,171 $8,134,171 $14,971,837 $11,801,710 $11,801,710 $14,480,991
15 $9,518,646 $7,879,144 $7,879,144 $15,117,437 $11,570,435 $11,570,435 $14,184,573
16 $9,576,967 $7,624,505 $7,624,505 $15,257,119 $11,339,802 $11,339,802 $13,894,673
17 $9,628,994 $7,370,266 $7,370,266 $15,390,257 $11,109,827 $11,109,827 $13,611,027
18 $9,674,179 $7,116,438 $7,116,438 $15,516,185 $10,880,533 $10,880,533 $13,333,394
19 $9,711,940 $6,863,034 $6,863,034 $15,634,192 $10,651,938 $10,651,938 $13,061,557
20 $9,741,658 $6,610,066 $6,610,066 $15,743,520 $10,424,063 $10,424,063 $12,795,324
21 $15,843,362 $10,196,930 $10,196,930 $10,866,349
22 $15,932,858 $9,970,561 $9,970,561 $11,868,624
23 $16,011,094 $9,744,979 $9,744,979 $11,649,015
24 $16,077,093 $9,520,207 $9,520,207 $11,432,120
25 $16,129,820 $9,296,270 $9,296,270 $11,218,009
26 $9,073,191 $9,073,191 $11,006,754
27 $8,850,998 $8,850,998 $10,798,429
28 $8,629,716 $8,629,716 $10,593,111
29 $8,409,372 $8,409,372 $10,390,876
30 $8,189,994 $8,189,994 $10,191,806
31 $7,971,612 $7,971,612
32 $7,754,254 $7,754,254
33 $7,537,952 $7,537,952
34 $7,322,737 $7,322,737
35 $7,108,641 $7,108,641
Total $182,517,287 $180,313,545 $180,313,545 $367,236,774 $382,989,029 $382,989,029 $424,481,111
MW 50 50 50 75 75 75 100
M W hs 131,400 197,100 197,100 197,100 175,200
PV(with Discount Delay) $99,731,150 $106,460,684 $106,460,684 $174,502,058 $170,102,326 $170,102,326 $204,953,080
Levelized Payment $9,253,555 $9,877,955 $9,877,955 $14,678,553 $12,823,766 $12,823,766 $16,152,935
Levelized$/kw-month $15.42 $16.46 $16.46 $16.31 $14.25 $14.25 $13.46
Levelized$/MWh $70.42 $74.47 $65.06 $65.06
Number of Years 20 20 20 25 35 35 30
Product Type Solar BESS BESS Solar Solar Solar Gas
Escalation 2.00%
Discount Rate 6.780%
Discount Delay 0.50
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 484 of 495

�ia�o
WON R®
Hourly Renewable Output Template
Idaho Power 2032 All Source RFP- Exhibit K- Forecasted Hourly Renewable Output
Bidder:
[DATE]
Instructions:
On the Forecasted Output sheet,Bidders must provide the hourly P90 and P50 forecasted output for all proposed intermittent
resources(e.g.,solar,wind).The resources are included based on the information provided within the Bid Definition form.
Color Code.
Applicable Input:Respondent to Fill
Calculated Input:Autofill,Do not Edit
Non Applicable Input:Do not Edit
0 BLACK&VEATCH
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 485 of 495

Forecasted Hourly Renewable Output color code:
Idaho Power Company 2032 All Source RFP Bidderto fill
Autofill
Bidder:
Bid(Portfolio)ID
Resource ID
Facility Name
Resource Type
Contract Capacity(MWac)
Forecasted P90Output(MW) Forecasted P50Output(MW) Forecasted P90 Output(MW) Forecasted P50Output(MW)
Year Month Day Hour 'Capped at POI Limit` 'Capped at POI Limit' 'Capped at POI Limit' 'Capped at POI Limit'
1 1 1 1
1 1 1 2
1 1 1 3
1 1 1 4
1 1 1 5
1 1 1 6
1 1 1 7
1 1 1 8
1 1 1 9
1 1 1 10
1 1 1 11
1 1 1 12
1 1 1 13
1 1 1 14
1 1 1 15
1 1 1 16
1 1 1 17
1 1 1 18
1 1 1 19
1 1 1 20
1 1 1 21
1 1 1 22
1 1 1 23
1 1 1 24
1 1 2 1
1 1 2 2
1 1 2 3
1 1 2 4
1 1 2 5
1 1 2 6
1 1 2 7
1 1 2 8
1 1 2 9
1 1 2 10
1 1 2 11
1 1 2 12
1 1 2 13
1 1 2 14
1 1 2 15
1 1 2 16
1 1 2 17
1 1 2 18
1 1 2 19
1 1 2 20
1 1 2 21
1 1 2 22
1 1 2 23
1 1 2 24
1 1 3 1
1 1 3 2
1 1 3 3
1 1 3 4
1 1 3 5
1 1 3 6
1 1 3 7
1 1 3 8
1 1 3 9
1 1 3 10
1 1 3 11
1 1 3 12
1 1 3 13
1 1 3 14
1 1 3 15
1 1 3 16
1 1 3 17
1 1 3 18
1 1 3 19
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 486 of 495

1 1 3 20
1 1 3 21
1 1 3 22
1 1 3 23
1 1 3 24
1 1 4 1
1 1 4 2
1 1 4 3
1 1 4 4
1 1 4 5
1 1 4 6
1 1 4 7
1 1 4 8
1 1 4 9
1 1 4 10
1 1 4 11
1 1 4 12
1 1 4 13
1 1 4 14
1 1 4 15
1 1 4 16
1 1 4 17
1 1 4 18
1 1 4 19
1 1 4 20
1 1 4 21
1 1 4 22
1 1 4 23
1 1 4 24
1 1 5 1
1 1 5 2
1 1 5 3
1 1 5 4
1 1 5 5
1 1 5 6
1 1 5 7
1 1 5 8
1 1 5 9
1 1 5 10
1 1 5 11
1 1 5 12
1 1 5 13
1 1 5 14
1 1 5 15
1 1 5 16
1 1 5 17
1 1 5 18
1 1 5 19
1 1 5 20
1 1 5 21
1 1 5 22
1 1 5 23
1 1 5 24
1 1 6 1
1 1 6 2
1 1 6 3
1 1 6 4
1 1 6 5
1 1 6 6
1 1 6 7
1 1 6 8
1 1 6 9
1 1 6 10
1 1 6 11
1 1 6 12
1 1 6 13
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 487 of 495

Idaho Power 2032 All Source RFP
Exhibit L—Cyber Security Questionnaire
Please provide the following information with your proposal to enable Idaho Power (IPC) to
evaluate the Cyber Security framework and assumptions, if applicable.
Required response by all Bidders and contract structures:
1. Do you have a formal Information Security Program (InfoSec SP) in place? If yes, is it based on any specific
standard?(NIST, ISO/IEC, etc)
Response
2. Do you have any recent SOC2/ISO 27001 or similar third-party audits or certification reports? If yes, can
you share them with Idaho Power? If you have future plans for certifications, please describe.
Response
3. Do you have a Cyber Security Incident Response Plan. If yes:
a. Is it based on any specific standard (NIST, ISO/IEC,etc)?
b. Does it include prompt notifications of affected parties?
Response
Required response by Bidders proposing an asset purchase such as a Build-Transfer Agreement
4. Idaho Power can offer very restricted remote access to generation facilities in support of support activities
and telemetry. Will your solution require remote network access, and if yes, please describe the required
connectivity and the use cases utilizing that connectivity? Additionally, does your solution have any
constraints that may prevent your use of a restrictive remote access model? If yes, please describe.
Response
5. Will your solution have any cloud hosted control capabilities? (E.G., cloud based EMS.) If so, please
describe.
Response
6. Will your solution utilize any equipment manufactured by an entity incorporated in any ITAR restricted
country? If yes, please describe.
Response
7. Will your solution utilize any services for installation, support, and long-term maintenance provided by an
entity incorporated in any ITAR restricted country? If yes, please describe.
Response
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 488 of 495

Idaho Power 2032 All Source RFP
Exhibit M—Gas-Fired Resources—Fuel Questionnaire
A. Natural Gas Transportation and Interconnection
What interstate pipelines or utility lines have been identified for the site's gas supply and transportation interconnection?
If an interstate pipeline is anticipated to be tapped for transportation and/or delivery, please respond to the following questions.
Interstate Gas Pipeline Answers
1. What is the name of the interstate pipeline being utilized?
2. What quantity of gas will the gas-fired power plant require?What is the
required pressure of the fuel supply?
3. Do you possess firm transportation capacity on the interstate pipeline
from a liquid pricing hub to the power plant? Please specify the receipt
and delivery points of the firm transportation capacity(firm, counter flow,
flex, interruptible).
If yes or tentative,please provide the following:
• Type of Capacity(Firm,Counter Flow, Flex,or Interruptible)
• Maximum Daily Quantity(MDQ)
• Capacity Expiration Date
• Receipt Point
• Delivery Point
If no,please explain the plan.
4. Does the pipeline currently have any unsubscribed firm transportation
capacity to fulfill the gas requirements? If not for the full amount,what
capacity is accessible to meet the power plant's online date?
If yes or tentative,please provide the following:
• Accessible Capacity for the Projected Online Date
• Receipt Point
• Delivery Point
• Type of Contract Capacity
If no,please explain the plan.
5. Have you reached out to any shippers with available firm transportation
capacity that could be released for the plant's requirements?
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 489 of 495

Idaho Power 2032 All Source RFP
Exhibit M—Gas-Fired Resources—Fuel Questionnaire
If yes or tentative,please provide the following:
• Shippers' Name(s)
• Capacity Release Quantity
If no,please explain the plan.
6. Are there plans to participate in a future capacity expansion project?
If yes or tentative,please provide the following:
• Project Title
• Timing of the Binding Open Season
Projected Online Date of the Project
7. What is the present status of the proposed project?
8. Has the interstate pipeline company conducted an engineering study
regarding the lateral construction? If so, please provide the details of the
engineering study.
9. Has the interstate pipeline company confirmed if FERC approval is
required for the lateral construction? If so, please elaborate on how that
will impact the construction timeline.
10.
11. Has the pipeline company completed an engineering study for the
interconnection lateral?
If yes,please provide the details of the engineering study:
• Interconnection location
• Capacity
• Facilities included
• Timeline
If no,please describe the progress on the interconnection.
12. Has the pipeline company furnished a cost estimate for the lateral
construction? If so, please provide the cost estimate.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 490 of 495

Idaho Power 2032 All Source RFP
Exhibit M—Gas-Fired Resources—Fuel Questionnaire
If a gas utility distribution line is anticipated to be tapped for transportation and/or delivery, please respond to the following questions.
Gas Utility Distribution Line Answers
1. What is the name of the gas distribution company/utility being
considered?
2. Is the utility solely providing transportation service or also delivering gas
service?(Please address questions regarding upstream transportation
capacity as well.)
If it is transportation service only,please elaborate on the gas supply plan
from the upstream.
If it is bundled transportation and delivery service,please provide the
details of the upstream arrangement with the utility.
• Type of Capacity Held by the Utility for Deliveries(Firm,Counterflow,
Flex, Interruptible)
• Maximum Daily Quantity(MDQ)
• Capacity Expiration Date
• Receipt Point
• Delivery Point
If the utility is planning to be part of an expansion project,please describe
the details of the expansion.
• Project Title
• Timing of the Binding Open Season
• Projected Online Date of the Project
• Current Status of the Expansion Project
• Utility's Planned Capacity Subscription
3. Has the utility company conducted an engineering study regarding the
lateral construction?
If so,please provide the details of the engineering study.
• Interconnection location
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
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Idaho Power 2032 All Source RFP
Exhibit M—Gas-Fired Resources—Fuel Questionnaire
• Capacity
• Facilities included
• Timeline
4. Does the utility possess ample capacity on its system to fulfill the
project's requirements?
If yes, please provide the available capacity amount:
If no, please explain the plan.
5. Has the utility company presented a cost estimate for the lateral
construction? If so, please provide the cost estimate.
6. What is the projected timeline for the lateral construction?
B. Natural Gas Supply
SuppliersNatural Gas
1. Have third parties or multiple parties been identified to provide natural
gas supplies to the plant?
If yes or tentative,please provide the following:
• Supplier(s) Name(s)
• Gas Supply Amount(s)
• Contract Duration
• Gas Supply Hub
• Gas Flow Path
If no,please explain the plan.
2. Does the third party have adequate firm transportation on the upstream
pipeline to transport the gas from the trading hub to the project location?
If yes,please list the third-party firm contracts on the upstream pipeline.
• Type of Capacity(Self-owned Firm Transportation or Storage
Contracts or Asset Management Agreement)
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 492 of 495

Idaho Power 2032 All Source RFP
Exhibit M—Gas-Fired Resources—Fuel Questionnaire
• Maximum Daily Quantity(MDQ)
• Capacity Expiration Date
• Receipt Point
• Delivery Point
If no,please explain the plan.
3. Have the potential terms of the gas supplies been discussed?
If yes,please list the details of the discussion terms.
• Pricing Point
• Price Index(Fixed, Monthly or Daily)
• Premium or Discount
• Any Other Fees
• Any Other Notable Terms
If no,please explain the plan.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 493 of 495

Idaho Power 2032 All Source RFP
Exhibit N - Bid Format and Requirements
This Exhibit N—Bid Format and Requirements,further outlines the content and format requirements for all
proposals submitted into IPC's 2032 AS RFP. Bids that do not include the information requested as described in this
exhibit may be deemed ineligible for further evaluation.
All sections must be complete and in compliance with the RFP for the bid to be considered further.
GENERAL ORGANIZATION OF THE BID SUBMITTAL
All proposals must contain the following information and be organized as indicated below to facilitate timely
evaluations. Each bid proposal must be as follows:
A. Section 1: Executive Summary of Proposal
Bidder shall submit a full narrative of the proposal, including but not limited to:
• Cover letter including general introduction and information about your company,company
organization chart,and business classification;
• Summary of project(s)contained in the proposal identifying key dates and construction
milestones;detailed description of contingent technologies and project types within a selectable
portfolio(for example solar+BESS);and any time based considerations that impact the viability
of the proposal, including whether the COD could be delayed and whether the project is still
viable(for example if the proposed COD is March 31, 2031 but a COD of September 1, 2031
would remain viable)
• Project team identification describing how your project team is organized along with a
description of the key personnel,their prior relevant experience,and how each will contribute to
the project;
• Supplemental Information including any requirement to successfully complete the project(s)
consistent with the proposal,or assumptions made in developing the proposal.
B. Section 2: Bid Eligibility
• Descriptive narrative applicable to each of the bid eligibility criteria and any specific details that
should be considered as it relates to Bidder submittal relative to the Exhibit B—Bid Entry Form.
C. Section 3: Resource Based Product Non-Price Factor Narrative
• Descriptive narrative applicable to each of the non-price factors and any specific details that
should be considered as it relates to the Bidder's proposal relative to the Exhibit B—Bid Entry
Form.
• Particular interest is requested related to:
o Environmental and Siting—Further describe what stage of development the project is
in, including site control parameters, easements, permits,jurisdictional requirements,
and environment mitigation.
o Interconnection and Transmission Service—Further identify specific steps taken and
what state the project development is currently in as it relates to Interconnection and
Transmission Service requirements.
o Development Schedule—Further identify a timeline and schedule including contract
execution,full notice to proceed,and major engineer, procure,and construct
milestones to ensure delivery at the proposed commercial operation date.
o Bidder experience related to the bid and discussion of the proposed technology
including operational success, industry adoption,whether the product is widely
accepted or if it's new,and supply chain constraints or advantages.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 494 of 495

Idaho Power 2032 All Source RFP
Exhibit N - Bid Format and Requirements
D. Section 4: Resource Based Product Pricing Narrative
• In narrative form, detail the selectable portfolio(s)as entered in the Exhibit B—Bid Entry Form.
Specifically,describe what resources are available for IPC to model in our long-term capacity
expansion tool. Bidder shall describe specific pricing inputs and assumptions of what is not
included related to the proposal(s) including:
o Asset Purchase Options with price
o Operations and Maintenance Package Pricing and Terms
o Power Purchase Agreement Pricing with specific terms identified
o Battery Storage Agreement Pricing with specific terms identified
E. Section 5: Market Purchase Product Narrative
• In narrative form, describe the products being offered as entered into the Exhibit B—Bid Entry
Form
o Term
o Product being offered (WSPP Schedule C or equivalent preferred; heavy load hour or
light load hour;slice;other attributes)
o Point of Delivery, including whether bid is contingent on transmission capacity listed in
Exhibit E,Table 4
o Volume
o Pricing
o Western Resource Adequacy Program eligibility
o Shaping optionality
o Description of form of agreement
F. Section 6: Project Financing strategy, including tax credit strategy
• Plan for financing the project
o Describe how the project will obtain sufficient funding to complete the project
1. Level of debt and equity to be raised
a. Describe existing relationships with large banks to help acquire the
necessary funding
2. Is a parent guarantee necessary to receive the funding?
3. Describe plan for monetizing the tax credits
• For the asset purchase option,describe the plan and assumptions to comply with applicable
requirements to match the bid pricing(for example,what assumptions exist related to tax credits
and tariffs). Describe plans to comply with prevailing wage and apprenticeship requirements if
applicable.
G. Section 7:Contract Terms
• Bidder shall provide a detailed issues list in narrative form pursuant to section 4.7 and 4.8 of the
RFP.
H. Section 8:Technical Specifications
• For asset purchases,describe the key operating parameters and key specifications of the technology
and assumptions utilized to prepare the bid. Ensure the description includes all major cost,
operational,and reliability drivers that support the proposal provided within the RFP. Information
included within a typical Technical Specification sheet is encouraged and preferred and should
include enough detail for the Evaluation Team to assess the validity and viability of the technology
and overall proposal.
Exhibit No. 1
Case No. IPC-E-26-03
E. Hackett, IPC
Page 495 of 495