20100719PAC 1-23 to Windland.pdf

LOVIGER I KAUF LL
825 NE Multnomah . Suite 925
Portand, OR 97232-2150
office [phone]
fax [phone]
Keet E. KaufKaufØ).co
July 16,2010 s..1"_::0-",m:i(10 -
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~..~æi-Via Electronic Mail
Peter J. Richardson
Richardson & O'Leary PLLC
PO Box 7218
Boise, ID 83707
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N.,(,-
Re: Case No. PAC-E-1O-05
WIND LAND, INC., Complainant, vs.
PACIFICORP, Defendant
Dear Mr. Richardson:
Attçhed regarding the above-captioned docket is an electronic version of Rocky Mountain
Power's FirstProduction Request to Wind/and, inc. A courtesy copy wil follow via U.S.
MaiL.
Than you in advance for your assistace.
cc: PAC-E-1O-05 Service List
Attachment
Mark C. Moench
Daniel E. Solander
Rocky Mountain Power
201 South Main Street, Suite 2300
Salt Lake City, Utah 84111
Telephone: [phone]
Fax: [phone]
mark.moench~pacificorp.com
danel.solander~pacificorp.com
RECcn!t'. .:dh~l'f
2818 JUl l 9 PM 2: 3'
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COM~4\SSION
Jeffrey S. Lovinger
Kenneth E. Kaufman
Lovinger Kaufman LLP
825 NE Multnomah, Suite 925
Portland, Oregon 97232
Telephone: [phone]
Fax: [phone]
lovinger~lklaw.com
kaufman~lklaw.com
Attorneys for Defendant PacifiCorp
BEFORE THE
IDAHO PUBLIC UTLITIES COMMSSION
WIND LAND, INC.,
Complainant,
)
) Case No. PAC-E-I0-05
)
) ROCKY MOUNTAIN POWER'S
) FIRST PRODUCTION REQUEST TO
) WINDLAND, INC.
)
)
vs.
PACIFICORP,
Defendant.
Pursuant to Rule 225 of the Rules of Procedure of the Idaho Public Utilities Commission
(the "Commission"), PacifiCorp, dba Rocky Mountain Power ("Rocky Mountain Power")
hereby requests that Windland, Inc. ("Windland") provide responses to the following with
supporting documents, where applicable, as soon as possible, but no later than August 6, 2010.
Rocky Mountain Power's First Production Request to Windland, Inc.1
This production request is to be considered as continuing, and Windland is requested to
provide by way of supplementar responses additional documents that it or any person acting on
its behalf may later obtain that will augment the responses or documents produced.
Please provide one physical copy of your responses to each of the two addresses above,
and electronic copies, if available, to Mr. Moench, Mr. Solander, Mr. Lovinger, and
Mr. Kaufman at the addresses noted above. Please begin each response on a separate page and
provide page numbers on responses longer than one page.
For each item, please indicate the name of the person(s) preparng the answers, along
with the job title of such person(s) and the witness at hearng who can sponsor the answer.
Some of the following requests may include disclosures deemed to be confidential.
Counsel for Rocky Mountain Power is willing to sign any reasonable protective agreement pnor
to the due date of these requests, and any confdentiality concerns should not delay the
responses.
For the puroses of these requests, the following words have the following meanngs:
1. "Documents" refers to all wntings and records of every type in your possession,
control, or custody, whether or not claimed to be privileged or otherwse excludable from
discovery, including but not limited to: testimony and exhibits, memoranda, papers,
correspondence, letters, reports (including drafs, preliminar, intermediate, and final reports),
sureys, analyses, studies (including economic and market studies), sumares, comparsons,
tabulations, bils, invoices, statements of services rendered, chars, books, pamphlets,
photographs, maps, bulletins, corporate or other minutes, notes, diares, log sheets, ledgers,
transcnpts, microfilm, microfiche, computer data (including E-mail), computer files, computer
tapes, computer inputs, computer outputs and pnntouts, vouchers, accounting statements,
Rocky Mountain Power's First Production Request to Windland, Inc.2
budgets, workpapers, engineering diagrams (including "one-line" diagrams), mechanical and
electncal recordings, telephone and telegraphic communications, speeches, and all other records,
wntten, electrical, mechancal, or otherwise, and drafts of any of the above. "Docu.ments"
includes copies of documents, where the onginals are not in your possession, custody or control.
"Documents" includes every copy of a document which contains handwntten or other notations
or which otherwse does not duplicate the onginal or any other copy. "Documents" also
includes any attachments or appendices to any document.
2. "Identication" and "identi" mean:
When used with respect to a document, stating the nature of the document (e.g., letter,
memorandum, minutes); the date, if any, appearing thereon; the date, if known, on which the
document was prepared; the title of the document; the general subject matter of the document;
the number of pages compnsing the document; the identity of each person who wrote, dictated,
or otherwse paricipated in the preparation of the document; the identity of each person who
signed or initiated the document; the identity of each person to whom the document was
addressed; the identity of each person who received the document or reviewed it; the location of
the document; and the identity of each person having possession, custody, or control of the
document.
When used with respect to a person, stating his or her full name; his or her most recently
known home and business addresses and telephone numbers; his or her present title and position;
and his or her present and pnor connections or associations with any participant or pary to this
proceeding.
Rocky Mountain Power's First Production Request to Windland, Inc.3
3. "Rocky Mountain Power" refers to PacifiCorp, any affiliated company, or any
offcer, director or employee of PacifiCorp, or any affiliated company, including Rocky
Mountain Power.
4. "PacifCorp Transmission" refers to the transmission fuction of Rocky
Mountain Power, with which a developer communicates and works with regard to
interconnecting to Rocky Mountain Power's electnc system.
5. "Person" refers to, without limiting the generality of its meaning, every natural
person, corporation, parnership, association (whether formally organized or ad hoc), joint
venture, unit operation, cooperative, municipality, commission, governental body or agency, or
any other group or organzation.
6. "Power County projects" means the Power County Wind Park North and Power
County Wind Park South projects, located in Power County, Idaho, not including any
predecessor project located at the same sight but not eligible for Idaho's published avoided cost
rates for qualifying facilties with average output less than 10 Megawatts.
7. "Studies" or "study" includes, without limitation, reports, reviews, analyses and
audits.
8. "Windland" means Windland Incorporated, any affiliated entities owned or
controlled by Windland Incorporated, including Power County Wind Park North, LLC, and
Power County Wind Park South, LLC, any predecessor of Windland Corp., and any affliated
entities owned or controlled by Windland Corp.'s predecessor(s).
Rocky Mountain Power's First Production Request to Windland, Inc.4
9. The terms "and" and "or" shall be construed either disjunctively or conjunctively
whenever appropnate in order to bnng within the scope of these discovery requests any
information or documents which might otherwse be considered to be beyond their scope.
10. The singular form of a word shall be interpreted as plural, and the plural form of a
word shall be interpreted as singular, whenever appropnate in order to bring within the scope of
these discovery requests any information or documents which might otherwse be considered to
be beyond their scope.
PRODUCTION REQUEST NO.1
Please identify all individuals that represented Windland in negotiations with Rocky Mountain
Power for the power purchase agreements (PP As) requested by Windland for the Power County
projects in 2010. Please descnbe the role played by each such representative.
PRODUCTION REQUEST NO.2
Refer to Exhibit A to this Production Request, containing all wntten correspondences between
Rocky Mountain Power and Windland between Februar 5 and Apnl 2, 2010 regarding
Windland's PPA request for the Power County projects. Does Windland acknowledge that it
either sent or received each of the correspondences contained therein? If not, please note any it
did not send or receive. Please provide a copy of any correspondence between Windland and
Rocky Mountain Power duóng that penod that is not already included in Exhibit A.
PRODUCTION REQUEST NO.3
Please provide copies of all internal communcations, and any other documents or information in
Windland's possession regarding Windland's requests for a PPA for the Power County Projects.
PRODUCTION REQUEST NO.4
For each energy project that Windland has developed (in Idaho or elsewhere), please list the
following:
a. Size (MW)
b. Motive force (e.g. wind)
c. Location
d. Legal status (e.g. QF, Exempt wholesale generator, etc.)
e. Pary(ies) purchasing electric energy from the facility
f. Term ofPPA or other agreement to sell the output of the project
g. Type of agreement (i.e., PPA (standard or non-stadard), asset purchase & sale
agreement (APSA), etc.)
h. Transmission provider
1. Name and title of person executing on behalf of Windland
Rocky Mountain Power's First Production Request to Windland, Inc.5
PRODUCTION REQUEST NO.5
For each of the projects listed in the question above, please list the following (indicate date range
if dates are approximate):
a. Date of QF certification or self-certification
b. Date of interconnection application
c. Date of first contact with pary purchasing the project output
d.. Date Windland first requested an agreement to sell the output from the project
e. Dates of negotiation of the sales agreement
J. Date of execution of the sales agreement
k. Date of execution of the interconnection agreement
i. Date of initial operation
m. Date of commercial operation
PRODUCTION REQUEST NO.6
For Windland Inc., Power County Wind Park North, LLC, and Power County Wind Park South,
LLC, please provide a copy of each entity's Aricles of Incorporation (or Aricles of
Organzation), bylaws, quality control policies, delegations of signng authonty, credit control
policies, and any other document defining or describing the signing authonty of Michael Heckler
and Roald Doskeland, and any limitations thereto.
PRODUCTION REQUEST NO.7
Citing the relevant document (and page number) in question 6, where possible, please descnbe
the internal approval process Windland undertes before taing each of the following:
a. Declarng that the Power County projects are "ready, willng, and able" to enter
into a power purchase agreement with Rocky Mountain Power;
b. Sending a letter to Rocky Mountain Power binding each Power County project to
sell its output for twenty-years, if no Delay Secunty deposit is required;
c. Sending a letter to Rocky Mountain Power: (1) binding each Power County
project to sell its output for twenty-years, (2) agreeing to contemporaneously post
a Letter of Credit of $432,000 ($20/kW) for each project; and (3) agreeing to pay
at least $4,800/day (per project) each day the project online date is delayed;
d. Sending a letter to Rocky Mountain Power: (1) binding each Power County
project to sell its output for twenty-years, (2) agreeing to contemporaneously post
a Letter of Credit of $972,000 ($45/kW) for each project; and (3) agreeing to pay
at least $1O,800/day (per project) each day the project online date is delayed;
e. Executing PP As with Rocky Mountain Power that bind each Power County
project to sell its output for twenty-years, if no Delay Secunty deposit is required;
f. Executing PP As with Rocky Mountain Power that: (1) bind each Power County
project to sell its output for twenty years, (2) require a contemporaneous Letter of
Credit of $432,000 ($20/kW), and (3) require Windland to pay at least $4,800/day
(per project) each day the project online date is delayed;
g. Executing PP As with Rocky Mountain Power that: (1) bind each Power County
project to sell its output for twenty years, (2) require a contemporaneous Letter of
Credit of $972,000 ($45/kW), and (3) require Windland to pay at least
$1O,800/day (per project) each day the project online date is delayed;
Rocky Mountain Power's First Production Request to Windland, Inc.6
PRODUCTION REQUEST NO.8
Please explain whether and how Mr. Heckler had authonty to take each of the actions (a)-(g),
above, pnor to March 15,2010. Please provide any documentation of such authonzation.
PRODUCTION REQUEST NO.9
Refer to ~20 of Windland's Complaint. Please identify the specific language Windland relies
upon when it asserts that it committed itself to sell energy and capacity from the Power County
projects to Rocky Mountain Power prior to March 12,2010.
PRODUCTION REQUEST NO. 10
Refer to ~20 of Windland's Complaint. Please identify the specific language Windland relies
upon when it asserts that it committed itself to sell energy and capacity from the Power County
projects to Rocky Mountain Power on March 12,2010.
PRODUCTION REQUEST NO. 11
Given that there was no written contract to sell energy and capacity from the Power County
projects pnor to March 12, 2010, what conditions, if any, apply to the obligation Windland
asserts it made on or before March 12, 201 O? Was Windland's March 12, 2010 expression of
obligation contingent on any of the following?
a. PacifiCorp Transmission confirming that it has available capacity to accept all
output from the Power County projects without major system upgrades;
b. Windland's ability to execute its interconnection agreement in time to achieve the
Scheduled Commercial Operation Date;
c. Windland's ability to procure tubines and substation equipment in time to
achieve the Scheduled Commercial Operation Date;
d. the cost of any system upgrades PacifiCorp Transmission determines are
necessar to interconnect the Power County projects and payable by Windland;
e. the amount of Delay Security required upon execution of the PP A;
f. the amount of daily Delay Liquidated Damages in the PP A;
g. the cure penod for any delay-related default;
h. Power County projects' eligibilty for United States Deparent of Energy Grants
under H.R. 1; Div. B, §§. 1104, 1603 (The Amencan Recovery and Reinvestment
Act of 2009).
PRODUCTION REQUEST NO. 12
Attached as Exhibit A-8 are the draft PPAs prepared by Windland, executed by Windland, Inc.
President, Roald Doskeland, and forwarded to Rocky Mountain Power on March 29 (the
"March 29 Draft PP As"). If Mr. Heckler had authonty pnor to March 15 to obligate Windland
to a 20-year contract, why did Mr. Doskeland, not Mr. Heckler, execute the March 29 Draft
PP As? Please provide any records of internal discussions at Windland regarding who should
sign the March 29 Draft PP As.
PRODUCTION REQUEST NO. 13
The attached Exhbit B excerpts terms of the March 29 Draf PPAs and.contrasts such terms with
the corresponding terms in the draft PP As submitted to Windland by Rocky Mountan Power on
Apnl2 (the "Apri 2 Draft PPAs", attached as Exhibit A-I0). For each row of the table, please
Rocky Mountain Power's First Production Request to Windland, Inc.7
indicate what Windland asserts is the correct term of the legally enforceable obligation it alleges
it created pnor to March 15, 2010. For each row, please also indicate the first date such term
was communicated by Windland to Rocky Mountain Power. For each row, please also indicate
the first date such term was accepted by Rocky Mountain Power.
PRODUCTION REQUEST NO. 14
If Windland and Rocky Mountàin Power never had a meeting of the minds on the terms, above,
pnor to March 15,2010, how should the terms, above, be established for a pre-March 15,2010
legally enforceable obligation?
PRODUCTION REQUEST NO. 15
Please indicate the specific language in any communication by Windland to Rocky Mountain
Power pnor to March 15,2010, wherein Windland agreed to post Delay Default Secunty and/or
agreed to be liable for Delay Liquidated Damages. Quantify the amount of Delay Default
Secunty and Delay Liquidated Damages Windland agreed to.
PRODUCTION REQUEST NO. 16
On May 7, 2010, Windland sent comments to Rocky Mountain Power regarding the Apnl 2
Draft PP As. In response to those comments, Rocky Mountain Power sent Windland revised
draft PPAs, most recently on June 25, 2010 (the "June 25 Draft PPA"). Is Windland ready to
execute the June 25 Draft PP A? If not, please identify Windland's remaining objections.
PRODUCTION REQUEST NO. 17
What interconnection nghts for the Power County projects, if any, did Windland have
immediately prior to PacifiCorp Transmission's acknowledgement, on March 4, 2010, of
Windland's March 1, 2010 interconnection application? For each of the following
interconnection documents prepared by PacifiCorp Transmission, please provide: (1) the date
and exact title of the document; (2) identified modifications and upgrades necessar to complete
interconnection of the Power County Projects; (3) the estimated cost to Windland to accomplish
the necessar modifications and upgrades; and (4) the scheduled date that the Power Count
projects will first be permitted to interconnect to Rocky Mountain Power's system at their full
capacity:
a. Feasibility Study;
b. System Impact Study;
c. Facility Study;
d. Large Generation Interconnection Agreement
PRODUCTION REQUEST NO. 18
What is the curent status of Wind land's March 4,2010 interconnection request? Please provide
Windland's most curent assumed timeline for completing interconnection.
PRODUCTION REQUEST NO. 19
Windland's project development timeline for the Power County projects submitted to Rocky
Mountan Power on March 12, 2010 shows procurement of substation components by Windland
pnor to execution of a PP A or an LGIA. How does Windland know what substation components
Rocky Mountain Power's First Production Request to Windland, Inc.8
wil be required in the final LGIA? On what does Windland base the estimated procurement
times set forth on page 7 of its March 12,2010 submittal to Rocky Mountain Power (Exhbit A-
6)?
PRODUCTION REQUEST NO. 20
In its March 12 submittl to Rocky Mountain Power, page 6 (Exhibit A-6), Windland's schedule
assumes that interconnection will be completed in 10 months. How would Windland descnbe
this schedule (e.g. "most likely", "best case", "conservative", etc.).
PRODUCTION REQUEST NO. 21
Has Windland proposed generation project(s) at the site of the Power County projects to Rocky
Mountain Power pnor to 2010 in response to a Rocky Mountain Power request for proposal
(RFP) or on an unsolicited basis? For each such project that Windland has proposed, please list
the following:
a. Date of submitt
b. Basis for submittal (e.g. request for proposal, unsolicited, etc.)
c. Name of the RFP
d. Size (MW)
e. Motive force (e.g. wind)
f. Location
g. Legal status (e.g. QF, Exempt wholesale generator, etc.)
h. Term of PP A or other agreement for the sale of project output
1. Type of agreement (i.e., PPA (stadard or non-standard), asset purchase & sale
agreement (APSA), etc.)
J. Transmission provider
k. Name and title of person executing on behalf of Wind land
PRODUCTION REQUEST NO. 22
For the projects listed above, were any projects shortlisted for purchase by Rocky Mountain
Power in their RFP? If so identify and descnbe the project in detaiL. Were the two Power County
projects par of the shortlisted project? What type of purchase strctue was proposed (e.g, PPA,
APSA, etc.)? Did final negotiations occur? Was the project purchased by Rocky Mountain
Power? If not, why not? Was delay secunty and default secunty par of any final negotiations?
If so, what were the amounts of each?
PRODUCTION REQUEST NO. 23
On March 15,2010, did Windland control all of the property nghts necessar to constrct and
operate the Power County projects for twenty years, including property rights to construct and
operate all required interconnection facilities, constrction access nghts, and ongoing wind
leases? Please provide documentation of any additional propert nghts not already provided in
Windland's March 12,2010 submittal to Rocky Mountain Power (Exhbit A-6).
Rocky Mountain Power's First Production Request to Windland, Inc.9
Than you for your prompt attention to this First Request for Production.
Sincerely yours,
~~
Danel E. Solander
Rocky Mountain Power
Jeffrey S. Lovinger
Kenneth E. Kaufan
Lovinger Kaufmann LLP
Attorneys for Rocky Mountain Power
Rocky Mountai Power's First Production Request to Windland, Inc.10
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that, on the 16th day of July, 2010, I served a tre and correct
copy of the foregoing Rocky Mountain Power's First Production Request to Windland,
Inc. in Case No. PAC-E-I0-05 on the following named persons/entities by electronic
mail:
Jean Jewell
Commission Secretar
Idaho Public Utilities Commission
472 W Washington
Boise, ID 83702
j ean.j ewellCßuc.idaho. gov
Gregory M. Adams
Richardson & O'Lear PLLC
PO Box 7218
Boise, ID 83707
greg(fnchardsonandolear. com
Mark C. Moench
Rocky Mountain Power
201 South Main Street, Suite 2300
Salt Lake City, UT 84111
markmoench(fpacificorp.com
Peter J. Richardson
Richardson & O'Lear PLLC
PO Box 7218
Boise, ID 83707
peter(fnchardsonandolear.com
Daniel E. Solander
Rocky Mountain Power
201 South Matn Street, Suite 2300
Salt Lake City, UT 84111
daniel.solander(ßpacificorp.com
DATED this ~day of July, 2010.
LOVINGER KAUFMANN LLP
~~=
Attorney for PacifiCorp
2ßIOJUll9 PM It: 18
) IDAHO PUBUC ,_,
) Case No. PAC-E-I0-&5TU..lTIES COMMISSiON
)
) EXHIBIT A TO ROCKY MOUNTAIN
) POWER'S FIRST PRODUCTION
) REQUEST TO WINLAND, INC.
)
)
WINLAND, INC.,
Complainant,
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PACIFICORP,
Defendant.
Written correspondence from on or before April 2, 2010 between Windland, Inc.
and PacifiCorp Commercial & Trading ("PacifiCorp C&T") regarding the Power
County wind projects.
Exhibit A-I Februar 22,2010 email from Mike Heckler Director, Marketing &
Development, Windland, Inc.
Exhibit A-2 February 26, 2010 letters (2) from Roald Doskeland, President, Windland,
Inc.
Exhibit A-3
ExhibitA-4
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Exhibit A-5
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ExhibitA-7
Exhibit A-8
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Exhibit A-9
Exhibit A-I0
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March 5, 2010 email with attached letter from Mike Heckler
March 8, 2010 email exchange between Ken Kaufmann, attorney for
Rocky Mountain Power, and Greg Adams, attorney for Windland, Inc.
March 10, 2010 emails from Bruce Grswold, Director of Short-Term
Origination and QF Contracts, PacifiCorp C&T and Ken Kaufmann with
attached letter from Mr. Kaufmann
March 12,2010 email with attached letter from Mike Heckler
March 15,2010 email from Bruce Griswold
March 29, 2010 letter from Mike Heckler with two parially executed
power purchase agreements
April 1, 2010 email with attched letter from Ken Kaufman
April 2, 2010 email from Ken Kaufmann with two attached draft power
purchase agreements
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Case: PAC-E-10-05
Exhibit A to Rocky Mountain
Power's First Production
Request to Windland, Inc.
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EXHIBIT A-I
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February 22, 2010 email from Mike Heckler Director, Marketing & Development,
Windland, Inc.
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From: "Michael Heckler" c:mhecklerêwindland.com::
Subject: Request for draft contract
Date: February 22,201010:59:48 AM PST
To: "Griswold, Bruce tMkt Functiont c:Bruce.GriswoldêPacifiCorp.com::
Cc: 'Wind' c:Windêwindland.com::
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Bruce,
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As we were just discussing by phone, Windland expects to submit two wind powered PURPA qualifying
facilities, each of approximately 20MW nameplate and interconnecting to PacifiCorp's Brady-
Treasureton 230kv line approximately 7 miles southeast of the Brady substation, for contract with
PacifiCorp. We expect the facilities to be online in 2H20il.
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Will you please send me a draft power purchase agreement via reply emaiL.
Thanks for your attention to this matter,
Mike Heckler
Director, Marketing & Development
Windland, Inc
(2080377-7777
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EXHIBIT Á-2
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Case: PAC-E-l0-0S
Exhibit A to Rocky Mountain
Power's First Production
Request to Windland, Inc.
February 26, 2010 letters (2) from Roald Doskeland, President, Wind land, Inc.
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PacifiCorp
Manager, QF Contracts
825 NE Multnomah Street, Suite 600
Portland, OR 97232
Attn: Bruce Griswold
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Subject:Application for Power Purchase Agreement for Qualifying Facility
Dear Mr. Griswold,
Power County Wind Park North LLC, a Delaware LLC, wishes to execute a contract with
PacifiCorp for the sale of electric energy from a wind powered PURPA qualifying faciltiy.
1
The facilty has the following characteristics:
. As a wind powered facilty it wil be self-certified with FERC.
. The facility wil have a design capacity of 2L.6MWs, station service requirements wil
be de minim us, and the net power delivered to PacifiCorp's system wil be 21.6MWs
. The facility wil use Vestas wind turbines
. The site is located in Power County, Idaho in T8S, R31E section 13 and in T8S, R31E
sections 6, 7, 8,17 & 18.
. Average monthly power delivéries (in monthly average MWs listed below each
month)
Jan Feb Mar Apr
9 10 9 8
May,Jun Jul Aug
7 7 5 5
Sep Oct Nov Dec
6 7 9 10
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. Maximum and minimum arinual deliveries are 9aMW and 6 aMWs
. Motive force is wind, verified pursuant to a confidential wind study
. First Energy date will be May 31, 2bH, Commercial production date November 30,
2011
. Proposed contract is for a 20 year term, noh."léVelized, non-fuel prices
. Interconnection is pending¡ preliminary engina.eríng shows no problems
. Point of interconnection is TSS, R:2E section 18 to Btady"'Treasureton 230kV line
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WIND LAND INCORPORATED 208-377-7777 7669 W. RIVERSIDE DR SUITE 102 BOISE, IDAHO 83714 FAX [phone]
Mr. Griswold Page Two (2)February 26, 2010
Wil you please send me an executable power purchase agreement via email to
m h ecklerß!windland .com.
Thank you for your attention to this matter,
oald Doskeland
For: Power County Wind Park North LLC
(208) 377~7777
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clean energy from wind
February 26, 2010
PacifiCorp
Manager, QF Contracts
825 NE Multnomah Street, Suite 600
Portland, OR 97232, l
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Attn:
Subject:
Bruce Griswold
Application for Power Purchase Agreement for Qualifying Facility
Dear Mr. Griswold,
Power County Wind Park South LLC, a Delaware LLC, wishes to execute a contract with
PacifiCorp for the sale of electric energy from a wind powered PURPA qualifying facilitiy.
The facility has the following characteristics:
. As a wind powered facility it wil be self-certified with FERC.
. The facilty wil have a design capacity of 21.6MWs, station service requirements will
be de minimus, and the net power delivered to PacifiCorp's system wil be 21.6MWs
. The facility will use Vestas VI00 LOS or similar wind turpines
. The site is located in Power County, Idaho in T8S, R31E section 24 and in TSS, R31E
sections 19, 20, 29 & 30.
. Average monthly power deliveries (in monthly average MWs listed below each
month)
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Jan Feb Mar Apr
8 9 8 7
May Jun Jul Au~
6 6 5 5
SeP..Oct Nov Dec
6 6 8 9
Maximum and minimum annual deliveries are 9aMW and 6 aMWs
Motive force is Wind, verified purslJ~nt to ä confidential wind study
First Energy date wil be May 31, 2011¡ Commercial production date November 3D,
2011
Proposed contract is for a 20 year'tetril, non-Iéveliied, non-fuel prices
Interconnection. is pending, prelirninary engineering shoWS' nO problems
Point of interconnection is T8S, R32E section 18 to Brady"T'teäsüretön 2.S0kV line
WINDLAND INCORPORATED 208-377-7777 7669 W. RIVERSIDE DR SUITE 102 BOISE, IDAHO 83714 FAX [phone]
Mr.Griswold Page two (2)February 26, 2010
Wil you please send me an executable power purchase agreement via email to
m heckleraæwi nd land .com.i
Thank you for your attention to this matter,
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EXHIBIT A-3
March 5, 2010 email with attached letter from Mike Heckler
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Case: PAC-E-10-OS
Exhibit A to Rocky Mountain
Power's First Production
Request to Wind land, Inc.
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From: "Michael Heckler" c:mhecklerêwindland.com~
Subject: Request for Power Purchase Agreements
Date: March 5,20102:09:41 PM PST
To: "Griswold, Bruce tMkt Functiont c:Bruce.GriswoldêPacifiCorp.com~
Cc: "windêwindland.com" c:windêwindland.com~
· 1 Attachment, 24.4 KB
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Bruce,
Original of attached scan wil be forwarded to you via USPS.
Mike Heckler
Mar 5 10 l;et..Qdf (24.4 KB)
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March 5, 2010
Bruce Griswold
PacifiCorp
825 NE Multnomah Street, Suite 600
Portland, OR 97232
Subject:Requests for Power Purchase Agreements for Qualifying Facilities
Dear Bruce:
As you may recall, on Thursday February 18, 2010 I called your number and left a volcemail requesting
you email my firm a Power Purchase Agreement for an Idaho wind QF.
Having not received a response i called again on Monday morning February 22nd. This time you
answered the call. You told me that you had received my voicemail message, and the PPA that I had
requested would be forwarded after "Legal" and "Transmission" completed their work on It. You said
that I should expect to receive the PPA by Wednesday February 24th. You further asked that I document
the request by sending you an email which I did immediately after we completed that conversation.
Late on the afternoon of the 24th, having not received the PPA, I called you again. You answered and
explained that "Legal" was taking longer than you had expected, that you would follow up with both
"legal" and 'iTransmission" and that I should expect a PPA on Thursday February 251h.
Having not received any communication from PacifiCorp on the 25th, on Friday February 26th Windland
overnighted two letters to you, each describing the Power County Wind Park North and Power County
Wind Park South qualifying facilities and requesting PacifiCorp to email executable power purchase
agreements to my account. Those letters were delivered to PacifiCorp at 9:02am on March 1st.
Yesterday, Windlands counsel spoke with John Younie who acknowledged that he had received the
letters.
It's been fifteen days since that first phone call and I am getting frustrated. Power County Wind Park
North LlC and Power County Wind Park South LlC both are ready, willng and able to sign PPAs today,
but can't because PacifiCorp has not provided those documents. Please forward executable power
purchase agreements to mheckler(åwlndland.com immediately.
Jj~-M c ael Heckler
Di ector, Marketing & Development
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From:
Subject:
Date:
To:
Cc:
Ken Kaufmann oikaufmanntflklaw.com~
RE: Wind land LLC
March 8,20101 :42:04 PM PST
IIGreg Adamsll oiGregtfrichardsonandoleary.corr
"Peter Richardsonll oipetertfrichardsonandoleary.com~
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Thanks Greg. Yes I wil include Peter. Thanks for reminding me.
..J Ken
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On Mar 8,2010, at 1 :36 PM, Greg Adams wrote:
Ken, Our firm is representing Windland, and you can respond to us. It
would work best with Windland if you include Pete and i on
communications if possible.
Thanks.
Greg
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-----Original Message-----
From: Ken Kaufmann (mailto:kaufmanntflklaw.com)
Sent: Monday, March 08, 2010 2:34 PM
To: Greg Adams
Subject: Windland LLC
Greg,
Can you please confirm that your firm is representing Wind land LLC
regarding one or more Idaho PURPA matters? I would like to respond to
Windlands attorney on behalf of PacifiCorp.
Thanks for your help.
Ken
!S IG :4b956d3c1 09491725312205!
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Case: PAC-E-10-0S
Exhibit A to Rocky Mountain
Power's First Production
Request to Windland, Inc.
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...j EXHIBIT Á-5
March 10,2010 emails from Bruce Griswold, Director of Short-Term Origination and QF
Contracts, PacifiCorp C&T and Ken Kaufmann with attached letter from Mr. Kaufmann
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"Griswold, Bruce ~Mkt Function)" c:Bruce.Griswold(gPacifiCorp.com~
FW: Windland Inc.--Power County Wind Park North and South PPA
request
March 10, 2010 12:44:17 PM PST
'"Michael Hecklerll c:mheckler(gwindland.com::'liKen Kaufmannll c:kaufmann(glklaw.com::
2 Attachments, 1.5 MB
From:
Subject:
Mike
Please see the attached. As you wil note from the letter and the attached matrix, there
are some outstanding pieces of information relating to your two proposed projects; Power
County Wind Park South and North, that we will need in order to complete our
preparation of a draft OF PPA for your review. One of the items requested is your hourly
wind / power profile to validate your motive force plan. If you require a confidentiality
agreement from us to forward the information, please let me know and I wil forward our
standard CA for your review.
Please also note that the Idaho Commission staff has issued a letter to the Idaho utilties
'j. indicating that they have updated the Idaho avoided costs based on the March 2, 2010
,. approval by the Northwest Power Planning Council of the sixth power plan gas forecast.
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i also received in the mail on March 8, 2010, your notice of a third wind project you are
seeking a standard Idaho OF PPA. We are completing our review of your information
and will send you a response in writing with any outstanding information requests.We wil
provide that response by March 18, 2010.
Regards,
Bruce
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Bruce Griswold
iJ =~~~f~~~~~~~ TOffice
503-702-1445 Cell
503-813-6260 Fax
From: Ken Kaufmann fmailto:Kaufmann(alklaw.com)
Sent: Wednesday, March 10, 2010 11:15 AM
To: Peter Richardson
Cc: Greg Adams; Griswold, Bruce -(Mkt Functionì
Subjec: Windland Inc. --Power County Wind Park Nort and South PPA request
Hello Peter,
Attached is a copy of a letter to you going out in today's maiL. Bruce Griswold wil forward
a copy to Michael Heckler.
I'm in the office if you have any questions.
Sincerely,
Ken Kaufmann
lOMar2010 1....l2df (l.5 MB) ATTOOOOl.htm (1.3 KB)
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'.1 LOVINGER I KAUF LLP
825 NE :'"Iultnomah . Suite 925
Portland, OR 97232.2150
office [phone]
fax [phone]
Ken Kaufmann
kaufmann($lklaw.com
March 10,2010
J 1 Via U.S. Mail and electronic mail
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Mr. Peter Richardson
P.O. Box 7218
Boise, ID 83707
Peter~richardsonandolear. com
Re: Windlands Inquiry Regarding Power Purchase Agreements
Dear Mr. Richardson:
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On behalf of PacifiCorp Energy's merchant business unit (PacifiCorp Merchant, or
PacifiCorp), I am writing you-PURPA legal counsel for Windland Inc. (Windland)-
concerning its recent request for two standard Idaho qualifying facility (QF) power purchase
agreements. On February 26, 2010, PacifiCorp Energy's Director of QF Contracts, Bruce
Griswold received two requests from Windland for "executable power purchase agreements."
I understand the two planned facilties-Power County Wind Park North LLC and Power
County Wind Park South LLC ("north" and "south" project, respectively) each wil have a
design capacity of 21.6 MWs. I further understad the facilities are adjacent, and will share
the sae point of interconnection; that both are scheduled to come online November 30, 2011;
and that both seek 20-year power purchase agreements with PacifiCorp's non-Ievelized, non-
fuel prices for Idaho qualifying facilties (QFs) under 10 average megawatts. On March 5, Mr.
Griswold received another letter from Windland, stating that both projects are "ready, wiling,
and able" to execute power purchase agreements, but that PacifiCorp has not provided it
agreements to execute.
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First, I want to clarify an apparent misconception of Windlands--that it may obligate
PacifiCorp to purchase its output merely by signing and sending PacifiCorp a parially
executed power purchase agreement (PPA). As you are aware, under Idaho case law,
PacifiCorp may insist on knowing specific infonnation about a project which a prudent buyer
should know prior to entering into any obligation to purchase power, and the essential
elements of a PP A must be negotiated before a QF can perfect its entitlement to a PURP A
PP A. See, e.g. Island Power Co. v. Utah Power & Light Co., 1994 Ida. PUC LEXIS 59
(Order No. 25528). PacifiCorp has prepared an initial list of such information, which I have
attached to this letter. PacifiCorp requests that your client send PacifiCorp all the information
in a single submittal that is organized and labeled in accordance with PacifiCorp's table. If
your client feels it would be unduly burdened by providing the requested information or has
any diffculty understanding what PacifiCorp is requesting, your client is encouraged to
contact PacifiCorp to discuss its concerns.
Mr. Peter Richardson
March 10,2010
Page 2
Based on the information Windland has provided to date, at least four items need to be
addressed further before PacifiCorp can determine whether Windland is entitled to two PPAs:1
1. QF certifcation. To date, Windland has not demonstrated to PacifiCorp that its
proposed projects are certified as QFs under PURP A.
2. Motive force plan. Under Idaho case law and IPUC orders, Windland must provide
facts supporting the estimated power delivenes provided in the Februar 26 letters. See
Empire Lumber Co. v. Wash. Water Power Co, 114 Idaho 191 (1987). Windland must also
demonstrate that its projects will not, on an average monthly basis, exceed 10 average
megawatts in output. See ¡PUC Order No. 29632. PacifiCorp's estblished practice is to
require the QF to provide hourly generation profies for the proposed facilty, either by month
or by hour ("12x24", or "8760", respectively). PacifiCorp is willng to enter into a
confidentiality agreement to protect Windlands proprietary data and can provide a
confidentiality, agreement upon request.
3. Interconnection. As you are aware, many South-east Idaho transmission paths are
congested. In order to confirm that the projects' can be deemed a Network Resource,
PacifiCorp wil conduct its own due diligence regarding the feasibility of delivering
Windland's net output from the point of delivery to its network load. PacifiCorp is not privy
'to information exchanged between Windland and PacifiCorp's transmission function
(PacifiCorp Transmission). Therefore, Windland can assist with PacifiCorp Merchant's due
diligence by providing any studies, constrction schedules, reports or other information
shedding light on availabilty of transmission, and on what interconnection facilities and other
modifications to PacifiCorp's system must be constrcted deliver Windland's output to
PacifiCorp's load. Also, please indicate whether the proposed projects are nort or south of
"Path C cut-plane", ifknown.
4. Scheduled Commercial Online Date. Windland specified, in its Februar 26 letters, a
scheduled commercial online date of November 30,2011. PacifiCorp requests a schedule for
each project showing how it intends to achieve the scheduled commercial operation date. The
schedule should include permits approvals, any required transmission upgrades and
interconnection related work and turbine acquisition.
Once Windland has substantially complied with the attached information request PacifiCorp
wil send Windland a draft PPA for negotiation; PacifiCorp wil confrm in writing when it has
received all information needed to prepare a final draft. The initial draft will clearly state on
the cover page that no terms of the PP A, including prices, are binding upon PacifiCorp until
the Idaho PUC approves an executed PP A. The PPA negotiation process for small qualifying
facilities like the Windland projects in Idaho typically takes 60 to 90 days from the date
I See, e.g., Island Power Company v. Utah Power & Light Co. (1994 Ida. PUC LEXIS 59, Order No.
25528) for a discussion of elements of a PPA that must be resolved prior to any agreement on a
PURPA power sale being established.
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Mr. Peter Richardson
March 10.2010
Page 3
PacitiCorpreceives ill! necessary seller provided information to the date thePPA is éxècuted.
Idaho PUC approval ofthc executed PPA typically takes an additional 30 to 40 days.
On March 9, 201Q~PacifiCorp lCGcivcd the enclosed leiterfi.om8cott Woodbury Qfthe fclåbo
Attorney General's offce. showing proposed new avoided cost rates computed by Idaho PUC
stafr using the Northwest Power and Conservation Council s most recent gas price forecRst.
As noted in theletter, PacifiCorp has been requested to validate the staff's computation. The
proposed new rates, which are significantly lower than the current rates, may be adopted by
the Idaho. PUC lor' use by PacifiCorp (d/b/u Rocky Mountain Power),Avista,amJ Idaho PQWef
Company in sumdard F 1'1'A5 sometime in the next 30 days. 1'acifiCorp v,ill eorttlnue to
process Windlands other QF~s requests for PPAs in accordance with its established
proc ,il foJJn\;vany guidance it may recei . from the Idaho PUC ring when acQF wit din . for a PPA bas quali' fòr the current avoicost. rat~s.
.pàc:fiCorp reserves the i to ask the Idaho PUC t.ne whether Windlal1d'
i:irójects'ha and are otherwise to.perfect their in
at the ci:i,ent
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tall wdtten comiminications from Wi
ve. If you, or 1llY other àttofney
matter, please schedule ' ppoin1ment
~n attorney jjresent '.
rtWiiidlands non~attoìney represen
. to 's request until Windland has responded to PaeifCorp's
r ad ¡anal iÌlformation.
p
formaticm requested (Tom north project
....ïition requested from south i)wject
HUetter froinSeott Woodbury to Avista,. Rocky Mountain Power. and Idaho
Powcr Coinpany
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Michael Heckler, Wiiidland, Director. Marketing & DevelopÌliel1t
Bruce Gnswold . .
Power County Wind Park North -Provided -Additional Information requested
Required Information February 26, 2010 by PacifiCorp:
(a) Demonstration abilty to obtain Windland states it Provide copy of fied FERC Form
QF status will self certify as QF 556
(b) Design capacity (MW), station 21.6 MW using Estimate station service for each
service requirements, and net amount Vestas tubines,tubine; will separate station service
of power delivered to the Company's station service is de be required?
electric system minimus
(c) Generation technology and other Vestas turbines Provide turbine specification
related technology applicable to the
site
(d) proposed site location Power County, iD Provide drawig(s) showing
T8S, R31 E, Section arangement of generators on
13 and T8S, R31E,topographic map; show location of
Sections 6,7,8,17,18 substtion and South Project
(e) Schedule of monthly power Provided monthy Require monthy average KWH
deliveries averaize MWs
(f) Calculation or determination of Max=9aMW Provide calculation of minimum,
minimum and maxmum anual Min=6aMW maximum, and average anua
deliveries generation
(g) Motive force or fuel plan MF is Wind, wind Provide 12x24 or 8760 hourly load
study is confdential profie; indicate method of
derivation; PacifiCorp can provide
confdentiality agreement
(h) proposed on-line date and other 151 Energy = 5/31/11 Provide schedule to achieve these
significant dates required to complete COD = 11/30/2011 dates including interconnection and
milestones consruction milestones
(i) proposed contract term and pncing 20 year, non-
provisions levelized, non-fuel
U) Status of interconnection or Interconnection is Provide sttus of Seller's
transmission arangement pending, no interconnection application with
preliminar PacifiCorp Transmission; provide
engineering problems date Seller's application was deemed
complete by PacifiCorp
Transmission; provide copy of SIS
and other studies, if available;
provide documentation of
availabilty of transmission for
Project, if available; provide
schedule of remaining
interconnection work. Identify
procurement lead-times for major
interconnection components and
indicate whether such
interconnection equipment has been
ordered
March 10,2010 Page 1 of2
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(k) point of delivery Brady- Treasureton Provide precise substation location;
230 kV line provide specifications. Indicate
status of substation design.
(l)Wind Rights Provide documentation that Seller
has obtained rights to wind at project
site.
(m) Form of Securty to be provided Specify preferred form of securty to
be provided (letter of credit, cash
escrovv, or guarantee)
(n) Required Facility Documents Please list all permits, licenses, and
land rights and contracts (e.g.
interconnection agreement) required
to operate project; provide status of
each such required facilty document
(0) Creditwortiness Please provide legal name and 2
years of audited financials for the
QF developer or the entity providing
credit support to the QF developer.
March 10,2010 Page 2 of2
Power County Wind Park South -Provided -Additional Information requested
Required Information Februarv 26, 2010 bv PacifiCorD:
(a) Demonstration ability to obtain Windland states it Provide copy of fied FERC Form
QF statu wil self certify as OF 556
(b) Design capacity (MW), station 21.6 MW using Estimate station service for each
service requirements, and net amount Vestas tubines,turbine; will separate station service
of power delivered to the Compay's station service is de be required?
electric system minimus
(c) Generation technology and other Vestas turbines Provide turbine specification
related technology applicable to the
site
(d) proposed site location Power County, 10 Provide drawing(s) showing
T8S, R31 E, Section arrangement of generators on
13 and T8S, R31E,topographic map; show location of
Sections 6.7,8,17,18 substation and Nort Project
(e) Schedule of monthy power Provided monthly Require monthly average KWH
deliveries average MWs
(f) Calculation or determination of Max=9aMW Provide calculation of minimum,
minimum and maximum anua Min = 6aMW maxmum, and average anual
deliveries generation
(g) Motive force or fuel plan MF is Wind, wind Provide 12x24 or 8760 hourly load
study is confidential profie; indicate method of
derivation; PacifiCorp can provide
confidentiality ae:reement
(h) proposed on-line date and other 151 Energy = 5/31/1 1 Provide schedule to achieve these
significant dates required to complete COD = 11/301201 i dates including interconnection and
milestones constrction milestones
(i) proposed contract term and pricing 20 year, non-
provisions levelized, non-fuel
G) Status of interconnection or Interconnection is Provide status of Seller's
transmission arangement pending, no interconnection application with
preliminary PacifiCorp Transmission; provide
engineering problems date Seller's application was deemed
complete by PacifiCorp
Transmission; provide copy of SiS
and other studies, if available;
provide documentation of
availabilty of transmission for
Project, if available; provide
schedule of remaining
interconnection work. Identify
procurement lead-times for major
interconnection components and
indicate whether such
interconnection equipment has been
ordered
March 10,2010 Page 1 of2
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(k) point of delivery Brady- Treasureton Provide precise substation location;
230 kV line provide specifications. Indicate
status of substation design.
(l)Wind Rights Provide documentation tht Seller
has obtaned nghts to wind at project
site.
(m) Form of Security to be provided Specify preferred form of securty to
be provided (letter of credit, cash
escrow. or guarantee)
(n) Required Facilty Documents Pleae list all permits, licenses, and
land rights and contracts (e.g.
interconnection agreement) required
to operate project; provide statu of
each such required facilty document
(0) Creditworthiness Please provide legal name and 2
years of audited financials for the
QF developer or the entity providing
credit support to the QF developer.
March 10,2010 Page 2 of2
STATE OF IDAHO
OFFICE OF THE ATTNE GENERA
LAWRENCE G. WASDEN
Marh 9. 2010
Avista Corporation
Blair Strng
Paine, Hamblen. ct at
717 W. Sprague Avenue, Suite 1200
Spokane. WA 99201-3505
Clint Kalich
A vista Utilities
1411 E. Mission
PO Box 3727
Spokae, W A 99220-3727
Michael Andrea
A vista Utilities
1411 E. Mission
PO Box 3727
Spokae. WA 99220-3727
Rocky Mountain Power
Mark Moech
Daniel So lander
Ted Weston
PacifiCorp dba Rocky Mountain Power
One Uta Center
201 S. Main Street, Suite 2300
Salt Lake City, UT 84111
Greg Duvall
Hui Shu
Lan Hale
PacifiCorp dba Rocky Mountan Power
825 NE Multomah S1rt
Portland. OR 97232
Idaho Power Company
Barton L. Kline
Idaho Power Company
POBox 70
Boise. ID 83707-007
Randy. Allphin
Idaho .Power Company
POBox 70
Boise, ID 83707-0070
RE: Case No. GNR-E-io-i
Puuat to the Public Utilty Regulatory Policies Act of 1978 (PURA) and the implementig
regulations of the Federa Energy Reguatory Commssion (FERC), the Idao Public Utiities
Commission (Commssion) has approved a Surogate A voided Resour (SAR) methodology for
calculation of the avoided cost rates paid to PUR A quaifying cogeneration and small power
Conct & Adrnststve La DIion, Idah Pulic Utities Commisio
P.O.Bo)( 8320, Boise. Idah 837274. Telene: (28) 33, FAX: [phone], E-mail IpOpu.s1leJd.us
Locled at 472 Wes Waslngon SI., Bois. Idah 83702
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March 9t 2010
Page 2
production facilties (QFs) by Idao Powe CompaYt Ãvista and PacifiCorp. Avoided cost rates
are the purchae price paid to QFs for purchases of QF capaity and energy.
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One of the key input vaables in the computaon of avoided cost rate is a long-tenn natu gas
price fore In acordce with the metodology approved in Orer No. 29124t the medum
na gas price fore of the Nortwest Power and Conservation Council (NCC; Council) is
to be used as the bais for computig avoided cost rates. In Order No. 29124t the Commission
also found tht the releas of a new fuel price forecat by the Counil or the Council's gener
advisory commttee automaticaly trggers a recalculation of the published avoided cost rates.
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A new Council natual gas price foreca was approved on March 2t 2010, in conjuncton with
the CouncWs approval and release of its Six Powe Plan (plan). The forec wa posted on
the Council's website on Marh 8, 2010. The forecat is Appendi A to the Plan. A copy of the
medium nat gas price forect contained in Appendix A to the Plan is atche. In
accordace with the approved methodologyt eas-side delivered prices ar to be us for avoided
cost computations.
Commission Sta has recomputed avoided cost rates using the Council's most rent gas prce
forecat. Accmpanyig ths letter are sheets showig the results frm remputtion of the
avoided cost rates using the new Council natal gas price foreca that was post on Mah 8t
2010. If afer reviewing the resed rates, you accept them as accurate please indica your
approval by letr (or other filing) dicted to the Commssion in the reserved cae docket
numbers identified abve. The case heading for the adjustent, Case NOt GN.E-I0-Olt will
read as follows:
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IN TH MAITER OF TI ADJUSTM OF AVOIDED COST RATES FOR
NEW PURA CONTRACTS FOR AVISTA CORPORATION DBA AVISTA
UTITIES, IDAHO POWER COMPAN, AN PACIFICORP DBA ROCKY
MOUNAIN POWER.
Please file your respetive responses with the Commission on or pror to March i 2, 2010.
Than you for your cooperation. Pleae feel free to contact me or Rick Steling if you have any
questions.~
Scott Woodbur
Deputy Attorney Genera
Enclosurs
L:GNR-E-io-OIJWJs
PACIFCORP
AVOIDED COST RATES FO NON-FELED PROJECTS
SMAR THN TEN MEGAWATTSDra$I
lEVUZD NON-lEVEUD
CONl ON-UNEYE
LENTH CONTCT NON-EUZD
NEARS)2010 2011 2012 2013 2014 2015 YE RATES
1 58.85 60.24 63.97 67.51 71.32 75.40 2010 58.85
2 58.48 62.03 65.67 69.3 73.28 76.53 2011 60.24
3 60.17 63.71 67.40 71.20 74.66 77.62 2012 63.97
4 61.79 65.39 69.17 72.65 75.85 78.72 2013 67.51
5 63.40 67.09 70.63 73.91 76.99 79.79 2014 71.32
6 65.3 68.54 71.91 75.08 78.08 80.85 2015 75.40
7 66.44 69.82 73.09 76.19 79.14 81.94 2016 77.76
8 67.71 71.01 74.21 77.2 80.21 83.04 2017 80.07
9 68.89 72.12 75.7 78.31 81.2 84.15 2018 8258
10 69.99 73.17 76.32 79.37 8236 85.2019 8505
11 71.04 74.21 77.35 80.42 83.43 86.37 2020 67.61
12 72.05 75.2 78.7 81.45 84.50 87.44 2021 90.63
13 73.05 76.22 79.38 82.48 85.53 88.47 2022 93.78
14 74.02 .7720 80.38 83.8 86.52 89.48 2023 97.05
15 74.97 78.17 81.34 84.44 87.49 90.45 2024 100.44
16 75.91 79.10 8226 85.37 88.2 91.40 2025 103.98
17 76.80 79.99 83.16 86.27 89.33 92.36 206 106.98
18 77.67 80.88 84.03 87.14 90.25 9330 20ZT 110.07
19 78.51 81.0 84.87 88.2 91.15 94.23 208 113.26
20 79.31 82.51 85.71 88.8 92.03 95.13 202 116.5620119.95
2031 124.51
203 126.50
2033 132.64
203 136.9220141.35
1
No (1) The rates show In th tale ha ben copute usi th Nortt Pow an Coall Concrs Fuel Pri For
contaned In It SI Por Plan appro on Februry 10, 2010. se page 1\-19, East-Side Dered pri. (Referce Or No.
30480). (2) Th rates aho In th tale hav ben copute using th wehte avere co of càpiJ from PacitCorp's mot rent
general rate case. (se Orer No. 30482).
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Appndix AI: Medium Case Fuel Pric.: Forecast Sixth Power Plan
Table Al-l: Natual Gas Prices at Key Hubs and Nortwes Generators
i
2006SIMtu
..Medium Case
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2005 7.95 6.98 7.08 7.70 7.58
2006 6.72 5.84 5.95 6.56 6.42
2007 6.53 5.67 5.78 6.38 6.24
2008 8.12 7.08 7.72 8.41 7.68
).
2009 3.95 3.35 3.94 4.59 3.91
2010 4.62 3.95 4.54 5.28 4.56
2011 4.90 4.20 4.80 5.61 4.86
2012 5.20 4.47 5.07 5.90 5.19
2013 5.52 4.76 5.36 6.20 5.48
2014 5.86 5.06 5.67 6.52 5.79
2015 6.22 5.38 6.00 6.85 6.11
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2016 6.32 5.48 6.09 6.96 6.22
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2017 6.43 5.57 6.19 7.06 6.32
2018 6.54 5.67 6.29 7.16 6.44
2019 6.65 5.77 6.39 7.27 6.54
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2020 6.77 5.87 6.50 7.38 6.64
2021 6.93 6.02 6.64 7.53 6.79
2022 7.09 6.16 6.79 7.68 6.94
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2023 7.25 6.31 6.94 7.83 7.09
2024 7.42 6.46 7.09 7.99 7.25
2025 7.60 6.62 7.25 8.16 7.41
2026 7.70 6.71 7.35 8.26 7.51
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2027 7.81 6.81 7.45 8.36 7.61
2028 7.92 6.91 7.55 8.47 7.71
.J .2029 8.03 7.01 7.65 8.57 7.82
2030 8.15 7.11 7.75 8.68 7.92
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PACIFICORP
AVOIDED COST RATES FOR FUELED PROJECTS
SMAR TH TEN MEGAWATTS
Dra
$lMW
LEUZ NON-LEVLIZ
CONTRACl ON-NEYEA
LENGTH CONT NON-EVUZ
(YEARS)2010 2011 2012 2013 2014 2015 YE RATES
1 21.85 22.17 22.51 2285 23.19 23.54 2010 21.85
2 2200 2233 2267 23.01 23.36 23.71 2011 2217
3 22.16 22.49 22.83 23.17 23.52 23.88 2012 22.51
4 22.31 22.65 22.99 23.33 23.68 24.04 2013 2285
5 2246 22.80 23.14 23.49 23.84 24.20 2014 23.19
6 22.61 22.95 23.29 23.64 24.00 24.36 2015 23.54
7 2275 23.09 23.44 23.79 24.15 24.51 2016 23.69
8 22.89 23.23 23.58 23.94 24.30 24.66 2017 24.2
9 23.03 23.37 23.72 24.08 24.4 24.81 2018 24.62
10 23.16 23.51 23.86 24.2 24.59 24.96 2019 24.99
11 23.2 23.64 24.00 24.36 24.73 25.10 20 25.37
12 23.42 23.77 24.13 24.49 24.86 25.24 201 25.75
13 23.54 23.90 24.2 24.62 24.99 25.37 2022 26.14
14 23.66 24.02 24.38 24.75 25.12 25.50 2023 26.53
15 23.78 24.14 24.50 24.87 25.2 25.63 2024 26.93
16 23.90 24.26 24.62 24.99 25.37 25.75 2025 27.34
17 24.01 24.37 24.74 25.11 25.49 25.87 202 27.75
18 24.12 24.48 24.85 25.2 25.60 25.99 2027 28.17
19 24.2 24.59 24.96 25.33 25.72 26.10 208 28.60
20 24.32 24.69 25.06 25.44 25.82 26.21 2029 29.03
2030 29.47
2031 29.92
2032 30.37
2033 30.63
2034 31.30
2035 31.77
EFECTIVE DATE I ADJUSTABLE COMPONENT
Drft I 35.01
Th to avoided cot ra In each yer Is th sum of the adjuslable coponent an th fied copont fr eiUer of the tales abo '8
Exmple 1. A 2D-year leveUzed co with a 2010 on-Une date would reeiv th folowng rates:
Years Rate
1 24.32 + 35.01
2.20 24.32 + Adjustable compent In each year
Exmple 2. A o4-year no.levelizd cotrct wi a 2010 onUne date wold reiv the followg rate:
Years Rate
1 21.85 + 35.01
2 22 17 + Adjustable compnent in year 2011
3 22.51 + Adjutale comnt in year 2012
4 22.85 + Adjustable compent In yer 2013
Note: (1) 11e rate sh in this table have been computed using th Not Pow and Consivtlon Counc's Fuel Pr Forst
cotained in its Si Por Plan approved on Febry 10. 2010. See pag A1.19, Eat-Sde DeUvere prices. (Refere Order No.
30480). (2) The rates sho in this table hav been compute usJg th weIghted avrage cot of capItal fr Paclfirp's most rent
general rate ca. (Se Ord~ No. 304).
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EXHIBIT A-6
March 12, 2010 email with attached letter from Mike Heckler
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Case: PAC-E-10-0S
Exhibit A to Rocky Mountain
Power's First Production
Request to Windland, Inc.
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From: "Mike Heckler" -=mhecklerêwindland.com::
Reply to Kaufman letter and PacifiCorp information requests of March 10,
2010
March 12, 2010 1 :00:29 PM PST
To: "Griswold, Bruce tMkt Function~" -=Bruce.GriswoldêPacifiCorp.com::
"peterê richardsonandoleary .com" -=peterê richardsonandoleary .com::
· 1 Attachment, 6.3 MB
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Bruce,
In the attached letter Windland responds with the information Mr Kaufman forwarded as PacifiCorp
information requests Wednesday afternoon. A printed copy wil follow in the maiL.
Regards,
Mike Heckler
Director, Marketing & Development
Windland Inc.
12Mar2010 I..Rdf (6.3 MB)
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lb) Required InfrmatIon
Design capacity (MW), station service
requirements, and net amount of power
delivered to the Company's electric system
Additional Information requested
Estimate station service for each turbine; wil
separate station service be required?
The turbines In both Power County Wind Park North and Power County Wind Park South wil be supplied
all parasitic station power via each faciltys electrical collector system. Both facilties wil be connected
to a common substation. Station service wil not be measured for each turbine but each facilty wil
consume collectivly approximately 220kW of parasitic station power and a further 1,100kW of
electrical losses tó power lines and transformers. Total deductions from gross power production
capacity are estimated at 1,320kW for each qualifying facilty.
(ç Required information
Generation technology and other related
technology appiicable to the site
Additional Information requestd
Provide turbine specifications
Both Power County Wind Park North and Power County Wind Park South have configurations consisting
of 12_ Vestas V100 turbines. The Vestas V100-1.8 MW wind turbine is a pitch regulated upwind turbine
with active yaw and a three-blade rotor. The Vestas ViDO1.8 MW turbine has a rotor diameter of 100 m
with a generator rated at 1.8 MW. The turbine utilzes a microprocessor pitch control system called
OptiTp. and the Variable Speed concepts (VCS: Vestas Converter System). With these features the wind
turbine is able to operate the rotor at variable speed (RPM), helping to maintain the output at or near
rated power.
ld) RequIred Information
Proposed site location
Additional Information requested
Provide drawlng(s) showing arrangement of
generators on topographIc map; show location
of substation and North Project
The map below displays both Power County Wind Park North and Power County Wind Park South on a
topographic background. Power County Wind Park North turbInes are indicated by solid orange circles.
Power County Wind Park South turbines are shown in green with open centered circles. Dotted lines
show access road alternatives reviewed and approved by a construction engineer. The red rectangle
shows the site ofthe Operations and Maintenance building. The black rectangle shows the location of
- the 3-ring bus for Interconnection to the Brady. Treasureton line adjacent to the wind farm substation.
21
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Data Zoom 12.7MN(13.0' E:
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(e) Required Informon
Schedule of monthly power deliveries
Jan
Feb
Mar
Apr
May
Jun
Jul
Aug
5ep
Oct
Nov
Dec
Additional Information requested
Require monthly average KWH
Power County Wind Park
North, Average Monthly
Production (KWH)
Power County Wind Park
South, Average Monthly
Production (KWH)
6,919,152 6,221,422
6,387,656 5,743,522
6,912,781 6,215,694
5,924,079 5,326,692
5,239,214 4,710,890
5,048,629 4,539,524
3,831,940 3,445,526
3,694,149 3,321,630
4,575,147 4,113,788
5,276,801 4,744,687
6,250,831 5,620,495
7,251,062 6,519,863
If) Required Informtion
Calculation or determination of minimum and
maximum annual deliveries
AddJtlonallnformatlon requested
Provide calculation of minimum, maximum and
average annual generation
As you know, annual energ production at any wind farm is effected both by interannual variabilty in
wind flow and variations in site availabilty caused by, among other things, equipment outages. As a
result, while it is impossible to predict exact production levels in any future year, it is possible to
estimate long term annual average production levels, often referred to as "P50" levels. One can also
estimate a level of production which is expected to be exceeded in all but one year in 20 ("P95") or a
level which wil be exceeded on average only once in 20 years ("P05").
In preparing their wind analysis for the two Power County Wind Parks, V-bar estimated the following:
Power County Wind Park North Power County WInd Park South
Expected annual production Expected annual production
(KWH)(KWH)
P9S ("Mlnlmumll)50,400,00 45,300,00
POS ("Maxlmum")84,100,00 60,500,00
PSO ("Average")67,300,00 75,600,000
41
(I) Required Information
Motive force or fuel plan
Additional Information requested
Provide 12x24 or 8760 hourly load profile;
indicate method of derviatlon
Wlndland has collected wind data at the sites of Power County Wind Park North and Power County
Wind Park South since 2002. Data have been collected on multiple met masts and site analyses have
been perfrmed by Garrad Hassan, Wind Logics, 3TIer, Ron Nierenberg and V-bar LLC. The 12x24 tables
displayed below were based on an analysis of wind data collected on site between January 2005 and
December 2009. The basic analytical method employed was Measure-Correlate-Predict (MCP). The on
site observations were correlated across met masts to develop produce an site wide distribution. They
were subsequently correlated with data collected at the Pocatello airport to provide long term wind
speed adjustments. Monthly averages, diurnal variations and long term averages were used to produce
site frequency distributions including the 12x24 arrays shown below.
(MST)
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2
3
4
5
6
7
8
9
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11
12
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14
15
16
17
18
19
20
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12x24 production (KWH) fo Power County Wind
Park North
Jan Feb Mar Apr May Jun Jul Aug 5ep Oct Nov Dec
9345 10349 9406 8587 7357 7521 5881 5718 7480 7931 9406 10328
9693 9591 9652 8689 7070 7603 5451 5287 7418 6988 9283 10267
9898 9652 9714 8464 7275 7111 5205 5574 7050 7213 8996 9673
10062 9324 9611 8136 7234 6865 4939 5431 6599 7275 8218 9099
9488 9140 9468 8156 6701 6660 4652 4693 6414 7152 7849 9160
9857 10021 9857 7828 6763 6742 3853 4406 6312 6886 7992 9119
9693 9755 9509 7418 6230 6168 4365 4160 6066 7111 8095 9652
9755 9755 9037 7111 5615 5677 3730 4099 5144 6455 7726 9632
9591 9980 8750 6947 5390 5595 3012 3443 4652 6332 7603 9488
9468 9898 8402 6742 5840 5677 3381 3299 4611 5861 7951 9673
9201 9427 9181 7705 6394 5820 3853 3299 4344 5595 7910 9878
9140 8996 10021 8095 6845 6476 3791 3771 4447 5779 8013 9242
8566 8976 10083 8382 7091 6681 4283 4836 5000 6066 8156 9058
8443 8709 9775 8648 7173 7132 4857 4734 5861 6927 8115 8443
8136 8607 9468 8320 7459 7623 5472 5799 6189 6988 8156 8976
8238 8095 9591 8361 7849 8197 6230 5963 6537 7132 7951 8750
8546 8095 9386 8074 7767 8566 5881 6291 6353 7582 8197 9488
9099 8443 8771 8464 7275 7808 6127 5615 6025 7521 9037 10349
8955 9242 8832 8648 7009 7377 6168 5267 7050 8054 9529 10390
8935 9529 8730 8648 7398 6640 6189 5718 7418 8361 9878 10226
9201 10042 8648 8791 7890 7459 6763 6312 7890 8033 9775 10451
9447 10656 8668 8709 8156 7521 6660 6865 7787 7992 10062 10759
9939 10554 9037 9140 7623 7562 6250 6312 7480 7357 10123 10328
9878 10656 8771 8853 7132 7336 6271 5902 7951 7152 9755 10820
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12x4 Production (KWH) for Power County Wind
Park South
(MST) Jan Feb Mar Apr
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
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May Jun Jul AUI 5ep Oct Nov Dec
8426 9331 8481 7742 6634 6781 5303 5155 6745 7151 8481 9313
8740 8648 8703 7835 6375 6855 4915 4767 6689 6301 8371 9258
8925 8703 8759 7631 6560 6412 4693 5026 6356 6504 8112 8722
9073 8408 8666 7336 6523 6190 4453 4897 5950 6560 7410 8204
8555 8241 8537 7354 6042 6005 4195 4231 5784 6449 7077 8260
8888 9036 8888 7059 6098 6079 3474 3973 5691 6209 7206 8223
8740 8796 8574 6689 5617 5562 3936 3751 5470 6412 7299 8703
8796 8796 8149 6412 5063 5118 3363 3696 4638 5821 6966 8685
8648 8999 7890 6264 4860 5045 2716 3104 4195 5710 6855 8555
8537 8925 7576 6079 5266 5118 3049 2975 4158 5285 7170 8722
8297 8500 8278 6948 5765 5248 3474 2975 3917 5045 7133 8906
8241 8112 9036 7299 6172 5839 3418 340 4010 5211 7225 8334
7724 8093 9091 7558 6393 6024 3862 4361 4509 5470 7354 8167
7613 7853 8814 7798 6467 6430 4379 4268 5285 6246 7317 7613
7336 7761 8537 7502 6726 6874 4934 5229 5580 6301 7354 8093
7428 7299 8648 7539 7077 7391 5617 5377 5895 6430 7170 7890
7705 7299 8463 7280 7003 7724 5303 5673 5728 6837 7391 8555
8204 7613 7909 7631 6560 7040 5525 5063 5433 6781 8149 9331
8075 8334 7964 7798 6320 6652 5562 4749 6356 7262 8592 9368
8056 8592 7872 7798 6671 5987 5580 5155 6689 7539 8906 9221
8297 9054 7798 7927 7114 6726 6098 5691 7114 ..7243 8814 9424
8518 9609 7816 7853 7354 6781 6005 6190 7022 7206 9073 9701
8962 9516 8149 8241 6874 6818 5636 5691 6745 6634 9128 9313
8906 9609 7909 7983 6430 6615 5654 5322 7170 6449 8796 9756
(hI Required InfOrmation
Proposed on-line date and other significant
dates required to complete milestones
Please note that there Is related schedule Information related to the project interconnection process
and the anticipated lead times for interconnection components shown in additional information request
ü) below.D 0 IT.._ "'
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AddItional InformatIon reauested
Provide schedule to achieve these dates
including interconnection and construction
milestones
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m Required Informtion
Proposed contract term and pricing provisions
Additional Information requested
None
m Required Information
Status of interconnection or transmission
arrangement
Additional Information requested
Provide status of sellets interconnection
application with PacifCorp Transmission;
provide date Sellets application was deemed
complete by PacifiCorp Transmission; provide
copy of SiS and other studies, if available;
provide documentation of availabilty of
transmission for project, if available; provide
schedule of remaining interconnection work.
Identify procurement lead times for major
interconnection components and indicate
whether such interconnection equipment has
been ordered.
Windlands request for interconnecting Power County Wind Park North and Power County Wind Park
South is being evaluated by PacifiCorp Transmission under lGIQ0323. PacifiCorp Transmission
acknowledged Wlndlands application requesting interconnection as complete on March 4, 2010.
Interconnection of a larger wind farm at the same location was previously evaluated by PacifiCorp
Transmission under queue #038. During that process a Feasibilty Study and a System Impact Study as
well as a preliminary Facilty Study were completed. Copies of the Feasibilty Study and System Impact
study are available at http://www.oasis.pacificorp.com/oasis/ppw/lgia/pacificorplgiag.htm. As the QFs
wil interconnect with PacifiCorp Transmission system, Wlndland has not requested transmission
service.
Windland expects the following milestones in the interconnection process to complete on or before the
following: Scoplng Meeting, April 2nd; System Impact Study complete, August 3rd; Facilty Study
complete, December 1st; large Generator Interconnection Agreement executed, February 2,2011.
Windlands electrical engineering firm estimates the following procurement lead times for major
interconnection components:
. Potential transformers and current transformers
. Circuit breakers
. Steel structures
. 34.Sl230kV SOMVA transformer
. Switches
25-35 weeks
16-20 weeks
2Q.24 weeks
20-30 weeks
12-16 weeks
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These components have not been ordered at this time. Orders wil be placed when the construction
schedule requires.
(kl Reaulred information
Point of Delivery
Additional Information requestd
Provide precise substation location; provide
specifications. Indicate status of substation
design.
As was mentioned In item (i) above, during the Interconnection review process for queue #038 Facilty
studies were undertaken. The location selected for interconnection was between structures S3 and SS
on the 8rady-Treasureton line. The 3-ring bus was placed adjacent to PacifiCorp Transmission's existing
easement for the Ben lomand - Borah 34SkV line. An image showing the substation location and a one-
line drawing for an earlier configuration are shown below. Structure #S4 on the Brady-Treasureton line
lies about 7 miles south of the Brady substation. If the Path C cut-plane is metered at the Brady
substation our point of delivery would likely be viewed as being south of the cut-plane.
Power Engineers wil update the substation to reflect the current layout during the Interconnection
process.
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m Required Information
Wind Rights
Additional Information requested
Provide documentation that Seller has obtained
rights to wind at project site.
Windland holds lease rights with four landowners covering the project site. Under those leases
Windland has exclusive wind rights and other rights necessary to construct and operate wind farms now
and for more than 30 years into the future. Each of the leases and amendments to those leases are
recorded under memoranda filed in Power County Idaho under the Instrument numbers listed below.
Copies of the seven memoranda are attached to this Jetter for your ease of review.
1. Memorandum of Lease, Kopp et ai, instrument # 195132
2. Memorandum of Lease, Deeg et ai, instrument #185679
3. Memorandum of Lease Amendment, Deeg et aI, instrument # 195134
4. Memorandum of Lease, Isaak et ai, Instrument # 185678
5. Memorandum of Lease Amendment, Isaak et ai, instrument # 195136
6. Memorandum of Lease, Meadows et ai, instrument # 194226
7. Memorandum of Lease Amendment, Meadows et aI, instrument # 195131
tm) Required information
Form of Security to be provided
Additional Information requested
Specify preferred form of security to be
provided (letter of credit, cash escrow or
guarantee)
Wind land is not requesting a contract based on levelized rates. We are advised by counsel that under
Idaho rules QFs are not required to post security for contracts, such as Windland is requesting, that are
based on non-Ievelized rates and consequently we are not required to specify a preferred form of
security.
Nonetheless, were a form of default security to be required, Windland would prefer to provide it via a
letter of credit.
tn) Required Information
Required Facilty Documents
Additional Information requested
Please list all permits, licenses, and land rights
and contracts (e.g. interconnection agreement)
required to operate project; provide status of
each such required facilty document
As was explained under additional information request (I) above, Wind land already has the land rights
needed to construct and operate both QFs. In additional information request ü) above, we explained
that we expect to execute the LGIA on or before February 2, 2011. A Special Use Permit wil be required
from Power County Planning & Zoning to allow construction and operation of the wind farms. Power
County Planning and Zoning granted Windland such a permit in 2005. That permit has expired. Power
County Planning and Zoning reviewed and approved Windlands current application for the wind farm
10 I
on March 2nd. A public hearing on that application is scheduled for April 6th. We expect the Power
County Planning and Zoning Commission to issue Windland a Special Use Permit on or before April 26,
2010.
A variety of other permits and approvals that wil be required to construct and operate the wind farm
are listed below. They wil be acquired as required during the construction process.
. Power County P&Z Building permit
. Power County Highway District Access permit
. Southeast District Health Department Septic permit
. Idaho Division of Building Safety Electricl permit
. Idaho Transportation Department, Division of Aeronautics, FAA Form #7460
. Idaho Transportation Department, Overlegalload permit
. Idaho Department of Environmental Quality, Dredge and Fil permit
. Federal Aviation Administration, FAA Form #7460-1 and #7460-2 for each turbine
. US Army Corp of Engineers, Section 40 Clean Water Act
. US Environmental Protection Agency, Construction General Permit / Notice of Intent
lol Required Information
Creditworthiness
Additional Information requested
Please provide legal name and 2 years of
audited financials for the QF developer or the
entity providing credit support to the QFdeveloper .
J
On advice of counsel Wlndland respectully declines to submit the additional information requested
under request (0). We are advised that PURPA and FERC regulations require utilties to purchase
capacity and energy from qualifying facilties. 18 C.F.R. 292.303(a). The utilty must provide a QF a
contract at the "avoided costs calculated at the time the obligation (provide energ or capacity) is
incurred." 18 CFR § 292.304(d)(2). Further, the Ninth Circuit has held that FERC has jurisdiction to
determine QF status, and FERC has determined self. certification is one way to become a QF.
Independent Energy Producers Ass'n v. California Pub. Utils. Comm'n, 36 F.3d 848, 853-54 (9th Cir.1994)
(holding FERC regulations allowing for self-eertification preempted California PUC regulations allowing
for utilties to suspend payments to a QF if the QF failed to demonstrate it continued to meet FERCs
operating and effciency standards). FERC has detailed requirements for becoming a QF through self-
certification.ld.; see also 18 C.F.R. 292.204 (requirements for wind projects). These do not include any
onerous requirements that a QF demonstrate creditworthiness with detailed financial information prior
to receiving a PPA at the avoided cost rate. There are no contrary regulations or orders from the Idaho
PUC, and If there were PURPA and FERC regulations would preempt them.
In sum, utilty actions that Impede progress to a contract violate PURPA and FERC regulations; state PUC
regulations that unduly Impede QFs' abilty obtain contracts are preempted. PURPA, FERC Regulations,
and Idaho PUC rules and orders do not allow PaclfiCorp to require demonstration of creditworthiness
prior to providing a contract. Windland does not have to provide detailed creditworthiness information
to obligate itself to contract at the current avoided cost rate. See 18 CFR § 292.304(d)(2).
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Notwithstanding our bellefthat Windland is not required to provide the creditworthiness information
PacifiCorp has requested, Wind land has a demonstrable abilty to develop, construct and operate wind
farms such as Power County Wind Park North and Power County Wind Park South.
Windland developed a wind farm in Tehachapi, california and has continuously operated that farm since
1982. i would expect that few, likely none, of the operators PacifiCorp currently contracts with, whether
qualifying facilties, non-QFs sellng to PaclfiCorp under a PPA or sites PacifiCorp has acquired and
operates itself, have been in the wind farm business for so long.
Windland has co-developed two wind facilties with Vestas NS, the world's largest wind turbine
manufacturer. Windland co-developed the 60MW OASIS wind farm, located near Mojave, California,
with enXco. Windland has co-developed the Cotterel Mountain wind farm with Shell Wind Energy.
I hope PacifiCorp finds the Information provided for Items (a) through (0) above to be of use. Based on
our experience, Windland knows the Power County Wind Park North and Power County Wind Park
South sites to be suffciently mature to warrant executing PPAs.
As has been the case since February 26th, Power County Wind Park North and Power County Wind Park
South remain ready, wiling and able to sign PPAs today. We believe that both QFs are entitled to PPA
contracts at the rates in effect today.
Sincerely,
d~¿~!eJ
Director, Marketing & Development
Enclosures:
Form SS6 for Power County Wind Park North, with conveyance letter to John Younie
Form 5S6 for Power County Wind Park South
Seven lease memoranda (as listed above under Information request (i))
Cc:
Peter Rlèhardson, electronic version only
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ATTOl.NIY.s AT LAW
T"I: 201.nl.7900 fax, 201.938.1904
P.O. Box 721$ 801M. JD 13707 . SIS N. 27da St. 8oit. JD 83702
Marh 2,2010
John Youne
Manger, QF Contracts
Suite 600
825 NE Multnomah .Strt
Portand. OR 97232
Dea Mr. Youne:
Pursut 10 18 C.F.R. § 292.207(a), I am providig PacifiCorp '\th a copy of the notice of
self-cercation of Power County Wmd Park Nort LLC an Power Coun Wind Par South,
LLC as Qu Facties unr the Public Utities Reguatory Policy Act of 1978 ("PUR A j.
Our law fu eleconically filed the enclos notice of self-cerficaon afer 5:00 p.m. on Marh
2,2010, with the Fedal Ener Reguatory Commission.
VlJäM
wthaon
Richdsn ån O'Le, PLLC
Attrneys for Fal River Rur
Electrc Coopeve
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Enclosure
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FEDERAL ENERGY REGULATORY COMMISSION OMBContrl 1902075
WASHINGTON, DC
F 0 r m. 5 5. 6 Certfication of Qualifyng FacUlty (QF) Status for an Existing or aProposed Small Power Production or Cogeneration Facility
Typ' or print yor rese bew. Information about the Commision's QF prgram, answers to frequentl a¡ke
queions abol, qF requirements or completing this form, and contact Information for OF proram staff are available at
wW.ferç~OVIQF.
Cem.ln Jine in thl$ form will be automatically caculated ~ on responses to previous lines With the rent formulas
$,hown In ~ d.eslptlQn. ofthe automê1tlally calculated lines. If you disagree with the reult of any automatic calculati
,n this fOl, ~Ølta CommIssion stff to discss the discrepancy before filing.
P.aperwrk Reqi,løn Ae. Notice: The Ofce of Management and Budget (OMB) Control No. Is , 902-0075 and authorization
exjre¡ on 12/31/2012. èomplla.nce with the information requirements esl?lished by the FERC Form No. 556 is reuire to
obtin or maimain sttus as a QF. See 18 C.FA § 131.80 and Part 292. An agency may not conduc or sponsor, and a persn
is not requIre to r\tpo to; a collection of Infoation unless it displays a cur-rely valid OMB control number. The
esimattd burden fo completing the FERC Form No. 556, including gatheing and reportng infmation. is 4 hours for self-
certification and 38 hours for applications for Commission certifition. Send comments regarding this burden estimate or
any aspeçt ofthls collcton of infomation, Including suggestns for redudng this burden, to the following: Michael Miller,
ofce of th Ex,cutiv Direcor (ED-34), Feaeral Energ Regulatory Commission, 888 Firs Street N.E. Washington, DC 20426;
and Desk Qfce for Fae, Ofce of Information and Regulatory Affairs, Ofe of Management and Budget Washington, DC
;¡Q503 (oiraJubmission~mb.eop-gov). Include the Contrl No. 1902-075 in any correspondence.
la
Full name.ofappiicant
Power County Wind Park South
Doet number a.5.signed to the immediately preceding submittal filed with the CommiSSÎO.n in connecion with the
instt.faøllty, if any: OF _ - _ - 1: Check here If no prevous QF submitls fo your fait. . .
PUI' nf insli flUng: Undr whih ceriftin proess Is the applicant n:king this filing? (check on)
10 Notice of selfertlfcatlon or recertIfication 0 Application for Commission certcation or reertcationLC pursuant to '8 C.F A § 292.207(a) pursuant to 18 C.F.R. § 29U07(b) and (d)(2)
What type(s) of QF sttus Is the applicant seking for it facilit? (check all that apply)
1: Qualifying small power producton facilit status 0 Qualifying cogeneration facility sttus
Indicate tile spedfic purpos of the til ing: (check one)
t8 Onginal certifican
o R~rtifcatlon to give notice of change(s) to a preiously certifed fKiIty (spcify change(s) beow)
o Name change and/or other administrative change(s) 0 Change in ownership
o Change(s) affectlng plant equipment fuel use, power production capacit and/orcogeneraton thermal outut
o Supplement or corction to a previous filing submitted on the folowing date:
(deribe the ~upplement or correction In section 6)
Full address of appncant
Street Addres
7669 W Riverside Dr., Ste. 102
lb Cit
Boise
Postal code
83714
State/provnce
ID
Countr (If not United States)
RCForm556 Page i . All Facilities
Indicate the ownerCs) ofthe fadllty (indudlng the percentage of ownership held by any elecc utlity or elecic utiit
holding company, or by any persons owned by either).
1)
2)
3)
4)
5)
6)
7)
8)
9)
10)
.Fulliegal name of direct oWnr
Power County Wind Park South, LLC
Elecic utUlty
or holding
company (or
owned byeiter)?
YesO No ~
Yes 0 No 0
Yes 0 NoD
Yes 0 No 0
Yes 0 No 0
Yes D No 0
Yes.D No 0
Yes 0 No 0
Yes 0 No 0
Yes 0 NoD
%
ownersip
held
%
%
%
%
%
%
%
%
%
%
o Check here and continue In secon 6 If additnal space Is needed to provid direc ownership information.
Indicate the fality operator
Same as Direct Owner.
Additionally, state whether or not any of the non-elecric utilty ow or their upsream owners are engaged in the
generation or sale of electñe power, Or have any ownership or oprating Interes in any electric facilities other than QFs.
Continue In section 6 If additional space Is needed.
No.
i order to facilitate review of the application, the applicant may provide an ownership chart identifying the upstream
wnership of the facility.. Such chart should indicate ownrship percentages where appropriate.
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FERC Form 556 Page 3 - All Facilities
Pe to whm communicns regarding the filed information may be addressed
-. .. .
Name of contact peon
Mike Heckler
Tit Telephone number
Director,Marketing &Development [phone]
2 18 If the contact person's address is the same as provided above fo the applicant check here and skip to section 3a.
Street address
CI State/province
Postal code Country (if not United States)
Location of facilty to be certified
Facility name
Power Wind Park South
Stret address (if known)
3a NA
CI Of unincorpoted, check here and enter neares cit) 18 State/province
American Falls ID
County (or check l1ere for independent city) D Country (if not United States)
Power
. .
Indicate the ~c utilties tht are contemplated to transact wih the facilit and desribe the services those electric
utilities are expected to provide the servces indicated below:
Indicate utilit Interconnecting wlth the facfity
PacifiCorp
Indicate utilites providing wheeling service (if known):
'NA
3b
Indicate utilties purchasing th usel electric power output (if known):
PacifiCorp
Indicte utilties providing supplementary powr, backup power, maintenance poer, and/or interruptible power
service (If known):
pacifiCorp
FERC Form 556 Page 4 . AD Facilties
Describe the principal components of the facilit Including boiler, prime movers and elecric generators, and explain
their operation. Include transmission lines, transformers and switchyard equipment, if Included as part of the facilit.
Continue in section 6 If additional spce is needed.
4a
Indicate the maximum gross and maximum net elecric power producion capacity of th facilty at the polnt(s) of
delivery by com pletlng the worksheet below. Enter zero for any value which are negligible.
A) The maimum gross power producton capacity at the terminals of the indivdual generator(s)
under the most favorable anticipated design conditions
B) Paraitic statIon power used at the facility to run equipment which Is necessry and integ ral to
the power production process (pumps, fans, necessary offce or maintenance buildings, etc.)
C) Electrical losses in all Interconnection transformers
21,600 IN
660 kW
4b 1,000 IN
.
0) Electrical losses In ACIDC conversion equipment, if any a kW
E) Other interconnection losses in power lines or fadlitles (other than transformers) betwee the
terminals of the generator(s) to the point of interconneon with th utUit
F) Total deductions from gross power production capacit = B + C+ 0 + E
OkW
1,660 kW
G) Maximum net power production capacit = A - F 19,940 kW
Indicate th.e actual or expected installation and operation dates ofthe facility, or the actual or expected date of
completion ofthe reported modifictions to the fadlit.
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FERC Form 556 Page 5 ~ All Facnlt
4d
Describe the prlmary energy Input (check one main cateory and, if applicable, one subcteory)
o Biomass (s~cify) t& Renewable resources (specif) 0 Geothermal
o Lantfllgas 0 Hyro power - river 0 Fossil ful (speif)
o Manure digeser gas 0 Hydro power- tidal 0 Coal (not waste)
o Munidpal solid waste 0 Hydro powe - wave 0 Fuel olVdle
o Sewage digester gas 0 Solar - photovoltlc 0 Natural gas (not wase)o Wood 0 Solar~theral 0 Oterfossllfuel
o Other biomass (describe in section 6) ~ Wind (desalbe in secton 6)
O Waste (spefy type below) 0 Other renewable resurce 0 0 he (d .be i i 6)(describe in secon 6) t r escrr n se on
If you specified "waste" as the primary energy Inpu indicate the type of waste fuel used: (check one)
o Waste fuel listed in 18 C.F.R. § 292.02(b) (specfy one of the following)
o Anthracite culm produced prior to July 23, 1985
o Anthrace refuse that has an average heat content of 6,000 Btu or less per pound and has an averageash content of 45 percent or more
o Bituminous coal refuse that has an average heat content of 9,500 Btu per pound or less and has anaverage ash content of 25 percent or more
Top or botom subbltumlnous c~1 produced on Federal lands or on Indian lands that has been
o determined to be waste by the United States Department of the Interior's Bureau of Land Management(BLM) or that is loced on non.Federa I or non-Indian lands outside of BLM 's Jurisdiction, prvided that
the applicant shows that the latter coo lis an extension of that determined by BLM to be waste
Coal refue produced on Federal lands or on Indian lands that has been determined to be waste by theo BLM or that Is locted on non- Federal or non-Indian lands outside of BLM's Jurisdiction, provided that
applicant shows that the later is an extension of that determined by BLM to be waste
o lignite produced In association with the producton of montan wax and lignite that becomes expedas a result of such a mining operation
o Gaseous fuels (except natural gas and synthetic gas from coa~ (desribe in section 6)
Waste naral gas frm gas or oil wells (descrbe in secion 6 how the gas meets the requirements of
o section 2400 of the Commission's regulations, 18 C.F.R. § 2400, for waste natural gas; indude with yourfiling any materials necessary to demonstrte compliance wih secion 2.400)
o Materials that a government agency has certfied for disposal by combustion (describe in sectn 6)
o Heat from exothermic reactions (describe In section 6) 0 Residual heat (desribe in secon 6)
o Used rubber tires 0 PlastIc materials 0 Refinery off.gas 0 Petroleum coke
Oter waste energy input that has litle or no commercal value and exist In the absence of the qualifyIng
o faclhty Industry (descrbe in section 6; Indude a discussion ofthe fuel's lack of commercial value and
existence In the absence of the qualifyng facilit Industry)
5
Provide the average annual hourly energy Input in terms of Btu for the following fossil fuel energy Inputs, and
provide the related percentage of the total average annual hourly energy input to the facilit (t 8 C.F.R. § 292.202
0)). For any 011 or natural gas fuel, use lower heating value (18 C.F.R. § 29i.i02(m)).
Annual average energy
input for specified fuel
Percentage of total
annual energy input
%
Fuel
Natural gas
Oil-based fuels
Coal
Btulh
Btu/h
Btu/h
%
%
FERC Form 556 Page 6 - All Faclit
6 Miscellaneous
Discuss any partcular characteristics of the facilit which the co~nerator or small power producer believes might bear on Its
qualifying status.
You may also use this space to provide any Information fo which there was not suffcient space in any other seetions of the
for. For such information c!early Identify the section number to which the ¡nformatipn belongs.
Your response below is .!limited to one page. Additional page(s) wil automatically be inserted Into this fom if th length of
your response excees the space on this page. Use as many pages as you require.
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FERC Form 556 Page 7 - small Power Prouction Facilites
Description" of the Smaii Power Production Facilty
If you indicated In secton 1 a that you are seeking qualifyng sma!! power production facility stetu for your failit, then
you must repod to sections 7 and 8. Otheise, skip sens 7 and 8.
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De 'hoW fosil fue~ use win riot excee 2S Percent of the toal annual engy input limit (18 C.F.R §§ "292.22(1 and
292.204(b)). Al, descbe how the use of fossil fuel will be limited to the following purpes to conform to Federl
Power Act sectlon 3(17)(8): ignitin. start-up, testing. flame stabilization, control use, and minimal amounts of fuel
requIred to allevllte or prevent unanticipated equipment outages and emergencies directly affcting the public.
Continue in secion 6 if additional space is needed.
7
If the failty reported nerein Is not an "eligible solar. wind, waste or geothermal facillt,- and If any other non-llgible
f~cilJ located within one mile of the insant facilit is owned by any of the entities (or their affliates) repored In
section 1c above and uses the s(!me primary energy inpu provIde the following information about the other
facilities fo the purpse of demonstrating that the total of the power production capacities ofthese facilits does
not exceed 80 MW.
An "eligible solar, wind, waste or geothermal facilty,' as defned in Secton 3(1 7)(E) of the Federal Power Act is a
small power production facilit that prduces electic energy solel by the use, as a prima ry energy input, of solar,
wind, waste or geoermal resources, for which either an application for Commission certfication of qualifing sttus
(18 C.F.R § 292.207(b)) or il notice of self-eertification of qualifying status (18 C.F.R § 292.207(a)) was submitted to the
Commission not later than December 31, 1994, and for which construction of such facilit commences not later than
December 31, 199, or if not, reasonable dilgence is exercised toward the completion of such facilty, taking into
account all factors relevant to construion of the facility.
ContInue in seion 6 if additional space is needed to respond to any of the items below.
Check here and skip the rest of section 8 if there are no eligible solar. wind, waSte or geothermal facilities
o locted within one mile of the Instnt facilit which are ownd by any of the entities (or their affliates)reported in section 1 c above and which use the same prmary energy input.
Fadlity names. if any (as reported to the Commission)
8
Commission dcxet numbers
Names of common owners
Common primary ene.rgy source used iI energy input
.
Power producton capacities (MW
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FERC Fann 556 Page 8 . Cogeneraon Facllit
Description of the Cogeneration Facility
If you indicated in section 1 a that you are seking qualifying c09oeratlon fadtlty sttus for your facilit, then you must
respond to secions 9 through 11 Oterwise, skIp seions 9 through 11
Describe the cogeneration system (18 C.F.R §§ 292202(c) and 292.03(b)). Continue In secton 6 If additional SpaCê is
neéced.
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I ndicate whether the facll ity Is a topping-cle (18 C.F.R § 292.202(d)) or botmlng-ecle. (18 C.F.R § 292.02(e))
cogneration facilit (check all that appl)
o Topping -ccle cogeneration 0 Bottoming-de cogeneration
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FERC Fonn 556 Page 9 - Cogeneration FacIlities
To demonstrate th seuentiallt of the cogeneration prcess (18 C.F.R. § 292.22(s)) and tq support compliance with
other requiremenu such as the operating and effciency standards (secton 11 below), provide a mass and heat
balince (cyle) diagram depicting the following average annual hourly operating conditions for the foføwng:
Working fluid (e.g., steam, water) flow conditions at (1) inpu and output of prime mover(s) and (2) at delivry to and
rem from .eaè usl thal applicaion Including the following: (t flow rates OtiJhr.), (2) temperature (deg. F), (3)
pressur (pa), and (4) enthålpy (BU/lb.). (Excepton: Preure values are ll require to be specif In a flow cyle
10 that is AI liquid and has no vapor at any point in the cycl. Also, fo cycl which are il liquid water, enthlpy need not
be provied and a spefic heat of 1.002 Btu/(Ib*R) for wil be assumed unless otherwise speclfled.)
Indicte on the diagm the average ful flow Inputs In Btulhr. (using lower heatIng value) (18 C.F.R § 292.202(m)),
separately IndIcating fosil fuel inputs for any supplementary fiñng in Btu/hr. (i 8 C.F.R § 292.202(f)).
Number of hours of opeati()n used to determ Ine the avege annual hourly facilty input I
hand outputs
Compute the opeatng value (applicable to a topping-cle facJlty under T 8 C.F.R § 292.205(a)(1 ))and the efciency
value (18 c..R §§ 292.5(a)(2) and (b)), based on the Information provided In and correspondIng to Item 10.
If you Indicated in secion 9 that your facilty represents toppng-de cogeneration technoloy, compute topping-
cyle operating and efiency values by completing the worhee below. Topping-cycle operating value Is required
to be S percent or more. Topping-cle effcincy value. is required tQ be 45 percent or more when operang value is
les than 1 S percent, or 42.5 percent or more when operating value is eq ual to or greater tha n 15 percent
tPt) Aveage annual hourl useful therml energy output
Btulh
Average annual rate of elecril output
kW
(pe) Convert elerical output to Btulh by multiplying line above by 3,4 T 2
BtulhAverae annual rate of menical output
hI)
(Pm) C9nvert med.riiQ¡ ou~ to BtWh by multlpl)ng line abOve by 2.54 8t
11
(Pi Ave~. annu..J hourly enérgy Input (nal gas or oil only)
Btulh
(Ps) AVèl'ge i,nu.ai holJ~r1y energy inpllt from süpplemimtary firln.g (natural
gas or ()II only)
BtU/h
Topping..qd~ operating vae. . l00Pt I (P + Pe + Pm)0%
Topplng-cclé effci~C; v~lue.. 1 Do-CPe + Pm + OS'.Pt) / (PI + Ps)0%
If you indlc in selon 9 that your facilit reests boom Ing-cle cogenetion technoloy, compute
bottlAg- effdenc value by completng th wokset below. Boomingcycle efciecy value Is reuired to
be 4S percent or more.
Average annual rate of elecrical output
kW
CPe) Convert electrical output to Btu/h by multiplying line above by 3,412 BtulhAverage annual rate of mechanical output
hD
(Pm) Convert mechanical output to Btuh by multplying line above by 2,544 Btuth
(Ps) Average annual hourly energy Input from supplementary firing (natural
gas or oil only Btul
Bottomlng-cle effciency value = 1 OO*(Pe + Pm) / Ps 0%
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F~~C F.gnn 556 Page 10.- Topplng-C)'d.e Cog~tion Facilties
For Topping-Cycle Coge.neration Facilities
If you indicated in secion 9 tht yo r facilit repreent topplng-le cogeneation tecnology, then you must respond to
sections 12 and i 3. Oterwise, skip sections i 2 and 13.
Identify the entity O.e., thermal hos) which win purchase the usefu therml energy outut from the facilit (18 C.F.R. §
292.202(h)). Indicate whether the entit use such outut fo the purpse of space and water heating, space cooling,
and/or process use. Continue In secton 6 if additional space is needed.
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In conecion with the requirement thClt the thermal energy outut be usef (18 (..R § 292.202(l))): For pros uses
by commercial or Industal host(s), descbe each prote5 (or group of similar prOesses usIng the same quali of
steam) and prvide the averae annual hourly thenl energ made available to the proces.less .press return. For a
complex syem, where the primary steam header at the host-side is divded into various sub-se, each having
different pressure and temperature characteristcs describe the processes assoiated with each sub-se and provide
the average annual hourly thermal energy delivered to each sub-use, les process return frm such sub-se. Provide a
diagram showing the main steam header and the sub-uses wih other relevant information such as the avrage header
pressure (pia), the temperature (deg. f), the enthalpy (Btu/lb.), and the flow (lbJhr.), both in and out øf éach sulHse.
For space and water heating, descrbe the type of heating involved (e.g., offce space heating, domestic water heating)
and provide th average annual hourly theral energy delivered and used for such purpo. For space coling,
desaibe the type of cooling Involved (e.g., offce space cooing and provide the average annual. hourl thermal energy
used by the chiler. Continue in secton 6 if additional space Is needed.
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fERC Form 556 Page 11 - Bottoming-Cycle Cogeneration Fadllties
"For Bottoming-Cycle Cogeneration Facilties
If you Indk:ted in ~ion 9 that your facilty represents bottming-ec/e cogeneration technology, then you must repond
to seçion 14- ~~ ~kl,p se, 14.
pro i deriptn of the. cOmmerdal Ór indstl præs OF othe therml applicion to which the energy input to
the syem Is firSt applie and from which the reje heat Is then used for elecrfc power productin. Continue in
secton 6lf additiQnal spåce Is needed.
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FERC Form SS6 p. ~ 2 : Cogeneraion Facilites
For New Cogeneration Facilities
For any cogeneration faility tht was eiter not certfied as a qualifyng cogeneration facillt on or beore August 8, 2005,
or that had not filed 8 notice of ~elf-eertcation, self-recertfication or an appliction for c:ømmisjon certification under
i 8 (.F.R. § 292.207 prIor to February 2, 200, respond to the items In secton 15 below. Oterwise, skp sectio 15.
Demonstrate that the thermal energy output ofthe cogenertin facilit Is used tn.a productIve and be-neficiai manner
(i 8 (.F.R §§ 292.205(d)(1), (d)(4) and (d)(S)). Continue In secion 6 if additional space is needed.
Demonste that the elerica~ thermal, chemical and mechanical output of the cogeneration facilty Is used
fundamentally for Industrial, commercial, residential or Institutonal .purposes and is not Intended fundamentally for
sale to an electic utilit, taking into account technological, effciency, economic, and vanable thermal energy
requitments as well as state laws applicable to sales of elecric energy frm a qualifyng facilty to its host fadlit (18
C.F.R §§ 292.20S(d)(2), (d)(3) and (d)(4)). Continue In section 6 if additonal space Is needed.
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fERe Form 556 Page i 3 ~ AIl Facilites
Signature
Provide your sIgnature and signature date below. Rule i005(a) of the Commission's Rules ofPraetice and Procedure
(18 C.f.R. § 385.25(a)) prvides that a signature on 'a filing constitutes a certificate that (1) the signer has read the flUng
and knows It eøntents¡ (2) thir the contents are trl.e as state~, to the best knowledge and belief of the Signer¡ and (3) the
signer possees futl por and authorit to sIgn the filing.
Rule 205(c) ri the Commission's R1les of Practice and Procedure (18 c..R. § 385.2005(c)) provdes that persons filing their
dQtumets elorty ma use tyed characters representing theIr name to sign the fiied documents, A persn flling
this dou~nt f.le.~Ðy sboul.d slgn (by typing their name) in the space provided below. A persn fiing this form in
hardcopy fwt shld sin in ink.
Signature
Peter J. Richardson I~Mar. 2, 2010
Filng Fee
Nc¡ filing fH is required If you are submin. a sef-eertif.tion of your facility as a QF pursuant to 18 C.F.R. § 292.07(a).
A filing fee is requIred lf you are filing either of th folowIng:
(i) an appllcation for Cçimmlsslon certifiation Qf your facilit as a QF under i 8 C.F.R § 292.207(b), or
(2) a peion tor declaratory ordr granting waIver pursuant to 18 c..R. §§ 292.204(a)() or 292.20S(c).
The C\rreJt fees for apptcations for Commission certifications and petitions for de~ratory orde can be found by visiting
the Commission's QF website at ww.fercgov/QF and clicking on the Fee Schedule link.
See the How to File seion oh the following page for details on how to Include your fiing fe wit Y04r filing. If a fling fee
Is req,ire, you must sul,mlt yaur fee ~fore your application can be considered complete.
Notice Requirements
Draft Notice Suitable for Publication in the Federal Register
Pursuant to 18 C.F.R. §§ 292.07(a)(iv) and (b)(4i a notice Is required to be published In the Federal Register alering the
public to the filing of th folowing types of documents: (1) application for Commission certflcation of a facilit as 8 QF
(small power pTOudion or cogeneran failit); or (2) sef-eertifcation of a "new" cogeneration facility.
Definition: À cogeneration fadlity Is "new" if It wa either not cefied as a q ualifng cogeneration facilit on or before
August 8, 20, or had ri flied a notice of selfertfkion, self-recerficatio or an appliction ror Commission
certificaon. or' Commis$lon reertifition as a qualifng cogeneration facility under secion 292.207 of the Commission'sregulations prir to Februar 2, 2006. '
No draft Federal Register notice Is required to be published for the self-certficatlon of any small power prpduction facilit, or
for the self-eertifiation of any .old" cogeneration facilit (i.e., any cogeneration facilit that does not meet the aboe
definition of a "new" fadlity).
If publicatin of a draft Feami/ Register noce is required for your filing, you must obtain a blank notce from the
Commision's website, cómplete the draft notice wlth the information pertaining to your facilit, and include the draft
notice with your filing In a word processing format (DO RT, WPD, etc.) on elecronic media (either eletronically flied With
your document, or on a dlsk CD or D,VD accompanying your filing). The Secretry of the Commission wil, upon receipt of
your draft noice, AM the notice to ensure proper format and send it for publ.catll)n in the Federal Register. 81a~k copies
of Federal Register notices can be downloaded from the Notice Requirements hnk frm the Commission's OF website at
wwJerc.govIQF.
Required Notice to Utilties and Public Utilty Commissions for Self-Certification
Pursuant to 18 C.F.R. § 292.207(a)(Ii), you must provide a copy of a self-cerification to the utilities with which the fiidlity wrii
interconnect and transact as well as to the Pl,blic Utilty Commissions of the sttes in Which those utilities and your facllty
resid links to Informtin abo the Public Utility Commissions in various states is avanable from the Notice Requirements
link on the CommissIon's QF website at ww.ferc:.gov/QF.
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FERC Form 556 Page 14 - All Faclities
How to Submit Your Filng to the Commission
Electronic Filng
All QF applications and self-eeTtlfcaons may be filed e1eticlly,.and applicants are strong encouraged to use the
electonic filing process. By flllng elecronically, you wil reuce your filing burden, save paper resource, save postge or
courier charges, help keep Commission expense to a minimum, and receIve a much faster confimation (via an email
containIng the docke-t numbe assigned to your fadlity) tht the Commission ha received your flUng.
To elecronically flle your Form 556, visit the Commission's OF webse at ww.ferc.gov/Q, and dick the eFilinglink. Follow
the insructions. When prompted, selec one of the following filing ty, as appropriat, from the Elrk menu:
(Fee) Application for Commission Cen. as Cogenertion QF
(Fee) Application for Commission Cert as Small Power OF
Self-eertcation Note (QF, EG, FQ
Self-Recerification of Qualifing Facilit (QF
Supplemental InformatIon or Request (use this selecion if you are supplementing or correcng a filing, whether on
your own initiatie, or at the reque of Commissin staff
If you are required to pay a fee (see previous page for informtion), you wil be prompt~ to submit your fee elecronically
during the elecronic -fling process. You can pay vi credit card or elecronic debit frm a bank account.
If you are eFiling an application which requires yo to submit a draft Federal Register notice (s~ prevus page for
information), you must upload your draft notice in a word processing format (DOC, RTF, WPD, etc.) during the eFmng process.
If you have any questions about the elecronic -fUng prcess, contact the Commissin's eFilng Exerts by phone at
202-502-8258 or by email at eFilingOferc.gov.
Hardcopy (Paper) Filng
While we stngly encourage you to file electronically, yo may file in hardcopy format by sending foureen (14) copies of
your Form 556 and all required materials to the following add ress:
Secretary of the Comm ission
Federal Energy Regulatory Commission
888 First St. N.E
Washington, DC 20426
If you are required to pay a fe (see previous page for Information), you must enclose with your filing a check payable to the
Treasurer of the United States in the amount ofthe reuired fee.
If you are eFilng an application whIch requires you to submit a draft .Federal Register notke (se previous page for
Information), you must Include with your filing a disk. CD or DVD containing your draft notice in a word processing format
(DO, RTF, WPD, etc.).
What to Expect From the Commission
An applicant filing any document via the electronic filing process will receive an email message acknowlging receipt of
their filing and. showing the docket number assigned to their filing. Such email is ty~ly sent within one business day, but
may be delayed pending confirmation by the Secretary of the Commission of the content of your filing.
An applicnt -fling a sel-certifean as a QF vi the hardcopy fit.lng prcess wlll receive a message via U.S. maH
ackowledging receipt of thir filing and showng th docket number assigned to their fiflng. . This paper acknwledgement Is
typically sent within 7 to 10 days of recel pt of the filing by the Commision.
An applrcant submitting a self-eeTtlfcation of their facilit as a OF (either electronically or via hardcopy fìling) should expect to
receive no documents from the Commission, other than the elecronic or paper acknowledgement of receipt described
above. An acknowedgement of receipt of a filing does 1l represent a determination. by the.Commission with regard to the
QF statu.ofthe facilit.
An applicant for Commission certfication wtl receive an order either granting or denying certification as a QF, or requesing
additional information. Pursuant to 18 CF.R. § 292.207(b)(3), the Commissin m.ust act on an applica.tion for Commission
certifiation withi n 90 days of the later of the filing date of the apJ'licaion or the filing date of a supplement, amendment or
other change to the application.
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FEOERAL ENERGY REGULATORY COMMISSION OMBConl# 1902-0075
WASHINGTON, DC
F. o.r'm.' : '. 5 5 6 Certification of Qualifying Fadlity (QF) Status for an
ExiSting or a
. . " . . Proposed Small Power Production or Cogeneration Fadlit
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Typ.~.r print Y9~ r~nses ~Iow. Informtion about the Commission's OF program, answrs to frequently asked
qu~ons abo\; QF reulrements or completing this form, and contact informtion for QF program stff are available at
wwlercgov/QF.
Certin lin. In thiS f~um ~i1 be automatically calculated base on reponses to previous lines, wih the relevnt formulas
show in th decriptons of the au:cimatically calculated lines. If you disagree wit the result of any automati calciiiation
on this form~ co.ntact Comhi ission stff to discuss the discepancy before filing.
PiperworkAeduetn Ac Notice: The Ofce of Management and Budget (OMB) Contrl No. is t 902-0075 and authonztion
expires on 12!.1/~Ol i. Çqmpliance with the Information requirements established by the FERC Form No. 556 is require to
obtin or maintlin sttus as It OF. See 1 S C.F.R. § 13 t .80 and Part 292. An agency may not conduct or sponsor, and a peon
Is not required to r~spond to, a collection of information unless it displays a currently valicl OMB control number. The
esimted burc:l~ for C9mpletng the FERC Form No. 556, Indudlng gathering and reporting Information, Is 4 hours for self-
ctFtfttions and ~ hQl.TS for applk;-ations for Commission cerficatin. Send comments regarding this bl,rder estmate or
any aspeà of this coUecon of informtion. including suggestions for red udng this burden. to the following: Michael Mille,
Ofce of the Executiii Direcor (ED-34), Feeral Energy Regulatory Commission, 888 Flrs Str~ N.E., Washington, DC 20426;
and D~k Ofcer for FERC. Ofce of Informtion and Reull!tory Afairs, Offce of Management inc: Budget, Washington, DC
20503 (olra_subrisslooomb.eop.gov). Indude the Control No. 1902-075 in any correspondence.
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Full name of applicant
Power County Wind Park North,LLC
Docket number assigned to the immediately preceding submitl filed with the Commissln In connecion with the
Instant fatllity, if ~nr. QF --C8 Check hee If no preVi.OUS qF submittals for your facility-
Purpose of instant filing: Under whIch certfication process is the applicant making this filing? (check one)
~ Notice of self~ertlñcation or recertifcation
o Application for Commission certfication or recertcltionpursuant to 18 C.F .R. § i92.07(a)pursuant to 18 C.F.R. § 292207(b) and (d)(2)
What type(s) of OF sttus Is the applicant seeklng for Its facilit? (check all that apply)
la C8 Qualifyng small power producton facilty status o Qualifying cogeneration facilit status
Indicate the speific purpose of the filing: (check one)
C8 Original certfication
o Recertification to give notice of change(s) to a previously certifed facilty (specify change(s) below)
o Name change and/or other administative change(s)o Change in ownership
o Change(s) affecng plant equipment, ful use, power production capacity and/orcogeneration thermal output
o Supplement or correction to a previous filing submitted on the following date:
(describe the supplement or corrcton In section 6)
Full addres of applicant
Street Address
7669 w.Riverside Drive,Ste.102
lb City State/province
Boise 1D
Postal code Country (if not United States)
83714
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FERC Form 556 Page 2 . All Facilities
Indicate the owner(s) of the facility (including the percentage of ownership held by any electic utilty or electrlc utilty
holding copany, or by any persons owned by either). Elecic utilty
orholdlil
company(oT %
owned by ownersip
Full legal name of direc owner either)?h~d
n Power County Wind Parle,.LLC Yès 0 No 18 %
2)Yes 0 NoD.%
3)Yes 0 No 0 %
4)Yes 0 No 0 %
5)Yes 0 NoD %
6)Yes 0 NoD %
n Yes 0 Nå 0 %
8)Yes 0 No 0 %
9)Yes 0 No 0 %
10)Yes 0 No 0 %
o Check here and continue in seon 6 if additional space is neded to provide direc owerhip Informtin.
Indicate the facilit operator
Same as Direct Ower .
1c Additiona Ily, stte whether or not any of the non-lectric utilty owners or thir upstream ownrs are engaged in the
generation or sale of electric power, or have any ownership or operating interest in any elecic faciltie other than Ofs.
Continue In section 61f additional space is needed
No.
In order to facilitate review of the application, the applicant may provide an ownership chart identifying the upstream
ownership of the facility. Such chart should indicate ownershi p percentages where appropriate.
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FERC Form 556 Page 3 . All FaciJties
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Perso.n to whom communications regarding the filed information may be addressed
Name of conta person
Mike Heckler
TItle Telephone number
Director,Marketing &Development [phone]
2 I8 If the contac person's address is the same as provided above for the applicant, check here and skip to section 3a.
Street address
Oty State/province
Postal code Country (if not United States)
Location of facilty to be certified
Facility name
Power County Wind Park North
Stret address (if known)
3a NA
City (if unincorporated, check here and enter nearest city) iz State/province
American Falls ID". . .
Cp.~nty (9r check nere for independent clty) 0 Countr (If not Unitec States)
Power
.. ..,.... .. .
Indicate the e1eçri~ Llti"~es th~t are contemplated to transact with the facilit and .deKrbe the seces those e1ecnc
utilities are exed to provid th serkes Indicated below
Indicate utilty Interconnecting with the facility
l?acifiCorp
Indicate utilities providing wheeling service (If known):
NA
3b
Indicate utiltie purchasing the useful electic power output (if known):
PacifiCorp
Indlcateutlit!es Pf9viding supplementary power, backup power, m~intenance power, and/or Interruptible power
servce (If known):
PacifiCorp
;-)
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FERC Form 556 Page 4 - All Facilties
Describe the principal components of the fadl.it induding boilers, prime mover and elecc genertors, anq explain
their operation. Include transmission lines, transfrmers and swchyard equipment, If Included as part of the facilty.
Continue In sectn 61f additional space Is neeed.
Vestas vioo 1. BMW or similar wind turbines.
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Indicate the maximum gross and maimum net elecic power production capacity otthe facility at the point(s) of
delivery by completing the worksheet below. Enter zero for any values which are negligible.
A) The maximum gross power production capacity at the terminals of the individual generator(s)
under the most favorable anticipated design conditions
B) Parasitic station power used at the facility to Nn equipment which is necessary and integral to
the power production process (pumps, fans, necessary offce or maintenance buildings, etc.)
C) Electrical losses in all interconnection transformers
21,600kW
220 kW
4b 440 kW
D) Electical losses in ACIDC conversion equipment. if any OkW
E) Oter interconnection losss In power lines or facllites (other than transformers) between the
terminals of the generator(s) to the point of interconnecon with th utilit
F) Total deductions from gross power producton capacit = B + C + D + E
660kW
1,320kW
G) Maximum net power production capadty = A - F
20,280 kW
Indicate the actual or expeted installation and operation dates of the fadlity, or the actual or exped date of
completion ofthe reported modifications to the fadlity.
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FERC Form 556 Page 5 . All Facilities
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Deibe the primary energy Input (check one main categry and, if applicble, one subcategor)
o Slomass (spec) ~ Renewable resources (specif) 0 Geothermal
o Landfill gas 0 Hyro power. river 0 Fossil fuel (spe)
o Manure digester gas 0 Hydro power - tidal 0 Coal (not~)
CJ Municipal scd waste 0 Hydro power - wave 0 FuelolVdies
o Sewage digester gas 0 Solar - photovoltaic 0 Natural gas (not waste)o Wood 0 Solar. thrmal 0 Oter fossil ful
o Other biomass (describe in secon 6) ~ Wind (describe in secn 6)
O 0 Other renewable resourceWaste (speif tye below) (describe in section 6) 0 Oter (describe in secton 6)
If you specied 'waste" as the primary energy input indicate the tye of waste fuel used: (check one)
o Waste fuel listed in 18 C.F.R. § 292.202(b) (speify one of the following)
o Anthracite culm produced prior to July 23,1985
o Anthracite refus~ that has an average heat content of 6,000 Btu or less per pound and has an averageash content of 45 percent or more
o Bituminous coal refuse that has an average heat content of 9,500 Btu per pound or less and has anaverage ash content of 25 percent or more
Top or bottom subbituminous coal produce on Federal lands or on Indian lands that has been
determined to be waste by the Unite States Departent of the Interior's Bureau of Land Managemeto (BLM) or that is located on non-edera I or non-Indian lands outside of BlM's Jurisdiction, provided that
the applica nt shows that the latter coal is an extension of that determined by BLM to be waste
Coal refuse produced on Fedral lands or on Indian lands that has been determined to be waste by the
o BlM or that Is located on non- Federal or non-Indian lands outide of BLM's juridiction, provided that
applicant shows that the latter is an exension of that determined by BLM to be waste
o Lignite produced in assocation with the production of montan wax and lignite tht beomes exposedas a result of such a mining operation
o Gaseus fuels (except natural gas and sythetic gas from coal) (describe in secion 6)
Waste natural gas from gas or oil wels (describe in seon 6 how the gas meets the requirements of
o setion 240 of the Commission's regulatins, 18 C.F.R. § 2.400, for waste natural gas; includ with your
filing any materials necessary to demonstrate compliance with secton 2.400)
o Materials that a government agency has certified for disposal by combustion (descrbe in seion 6)
o Heat from exothermIc reactions (desribe In section 6) 0 Residual heat (describe in seion 6)
o Used Tubber tires 0 Plastc materials 0 Refiner off-gas 0 Petroeum coke
Other waste energy Input that has lite or no commercial value and exsts i n the absence of the qualifying
o facilit industry (describe in section 6; Indude a discion of the fuel's lack of commercial value and
existence in the absence of the qualifying facilty Industry)
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Provide the average annual hourly energy input In terms of Btu for the following fossil fuel energy inputs and
provide the related percentage of the total average an nual hourly energy input to the facilit (18 C.F .R. § 292.202
(j). FOT any oil or natural gas fuel, use lower heating value (18 C.F.R. § 292.202(m)).
Annual average energy
Input for specified fuelFuel
Percentage ohotal
annual energy Input
%
%
Natural gas
Oil-based fuls
Coal
Btu/h
Btulh
Btulh %
FERC Form 556
6 Miscellaneous
Page 6 - All Facilities
Discuss any partcular characteristics of the facilty which the cogenerator or small powe producer believes might bear on Its
qualifyng status.
You may also use this space to provide any Informatin for which there wa not sufcient space in a ny other seons of the
form. For such information clearly identify the section number to which the information belongs.
Your response below is D. limited to one page. Additional page(s) wil automatically be inserted into this form if the length of
your response excees the space on this page. Use as many pages as you require.
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FERC Form 556 Page 7 . Small Power Production Facilities
Description of the Small Power Production Facilty
If YQu indicated in selon 1 a that you are seeking qualifying small po produen fadlft status for yor facilit, then
you must respod to seions 7 and 8. Otherwise, skip seons 7 and 8.." -.' '. . . .. . . ....
DeKbe how'fo fuLuse wlU not ex(;eed 25 percent ofthe total anm,lêl1 energy input ltmit (18 C.FA §§ 2.92202(1) and
292.J04(b)). A1Q, desibe how the USE! offossll fuel will be limited to the following purpses to conform to Federal
Power Act secion 3(17)(B): Ignition, start-up, testing, flme stabiliztion, control use and minimal amounts of fue
required to alleviate or prevent unanticipated equipment outges and emergencies direcly affectng the public.
Continue In secion 6 if additional space is needed.
Wind is the motive force being used.7
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If the facilty reported herein is not an "eligible solar, wind, waste or geothermal facilty," and If any oter non-ellglble
facUlt locate wihin one mile of the instant facility is owned by any of the entities (or their affliate) reported In
secion 1 c above and uses the same primary energy input, provide the following Information about the other
facilties for the purpose of demonstrating that the total of the power producion capaities of these facilities does
not exceed 80 MW.
An "eligibl sola r, wind, waste or geothermal facility," as deflned In Section 3(1 neE) of the Federal Power Act is a
small power production facility that produces electric ener solely by the use, as a primary energy Input, of solar,
wInd, waste or geothermal resources, for which eiter an application for Commission cerfication of quallfng statu
e18 c..R § 292.207(b)) or a notice of self-certification of qualifing status (18 C.F.R § 292207(a)) was submitted to the
Commission not later than December 31. 1994, and for which constructon of such facility commences not later than
December 31,199, or if not, reasonable dilgence Is exercised toward the completion of such faUlty, taking Into
account all factrs relevant to constcton of the facllit.
Contnue in secon 6 if additional space is needed to respond to any of the items below.
Chek here and skip the rest of secon 8 if there are no eligible solar. wi nd, waste or geothermal facilities
18 located within one mile of the instant facility which are owned by any of the entities (or their affliates)
reported In secion 1 c above and which use the same primary energy input
Facilit names, if any (as reported to the Commission)
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Commission docket numbers
Names of common owners
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Common primary energy source used as energy input
Power production capacities (MW)
FERC Form 556 Page 8 - C9generation Facilites
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Description of the Cogeneration Facilit
If you indicated in secion 1 a that you are seking qualifyng cogeneration facility sttus fO your (adllty, then you must
,respond to secions 9 through t 1. Otherwise, skip sections 9 through 11
Deibe the cogeneration system (18 C.F.R §§ 292.202(c) and 292.i03(b)). Continue fn section 61f additonal space is
neeed.
9
Indicate whether the facilty is a topping-ecle (18 C.F.R § 292.202(d)) or bottml ng-ede (18 C.F.R § 292.202(e))
cogeneration facility (check all that apply)
o Topping -cycle cogeneration 0 Bóttomlng,ycle cogeneration
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FERC Form 556 Page 9 - Cogeneration Facil1tles
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.. ... . . .' .' .. . .~ I. ," .To demonsæ the seuentialit of the cogeneration. process (18 C.F.R. §.292.202(sl) and.to support c.ompJlanc with
other reuirements such as the operating and effcincy standards (seon t 1 below), provIde a mass and heat
balance (cyle) di(lgra deictg the followng average annual hourl operating conditions for the followlng:
Working fluId (e.g., steam, water) flw conditons at (1) input and output of prime mover(s) and (2) at deive to and
return from each u$.efu,i ther appllcation incuding the following: (1) now rates (lbsr.), (2) temperatLre (deg. F), (3)
prssure (psli), and (4) éAthalpy (BtUb.). (Excepton: PreSsure values are!l requirèd to pe speified In a flow cycle
that Is il l1quld and has no vapor at any point In the cyle. Also, for cycles which are .m liquid water, entl py need not
be provided and a speifc heat of 1.002 Btu/Obtt) for wil be assumed unless otherwise specified.)
Indicate on the diagram the average fuel flow inputs In Btuhr. (using lower heating value) (18 C.F.R § 292.202(m)),
separately indicating fosil fuel inpu for any supplemetary firing in Btuhr. (18 C.F.R § 292.202(f)).
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Numbe of hours of opertion used to determine the average annual hourly facilty inputs
IndQutputs
Compute the openg value (applicable to a toppIng-cycle facilty under 18 C.F.R § 292.205(a)(1 ))and the effciency
value (t 8 C.F oR §§ 292.205(a)(2) and (b)), based on the information provide in and corresponding to Item 10.
If you indicate in secion 9 that your fadlity represents topping-cycle cogeneration technology, compute topping-
cycle operating and effciency values by completing the workshee below. Topping-cyete operating value is required
to be 5 percent or more. Topping-ele effciency value is require to be 45 percent or more when operating value is
less than 15 percent. or 425 percent or more when operating value Is equal to or greater than 15 percent.
CPt Average annual hourly useful thermal energy output
Average annual rate of elecial output
(Pe) Cønvert elecical output to Stulh by multiplying line above by 3,412
Avege annual rate of mehanical output
(Pm) Convert ~~niøl o!o~t to Btul. by multipling line abo~e by 2.5. . . . .
(PI) A\ferae annual hourly energ Input (naturalga~ or oil only
(Ps"Ay~ge ~noi.1 hÖ'4.rlý energy inpit fro ~u.pplementary firing (natural. gas or 911 only Btulh
Topping-cycle operating vakie := l00Pt I CPt + Pe + Pm) 0 %
TOPPing-yet eff.Cil!nÇy y~lue = i OO*(Pe + Pm +' Ô.$*Pt) i (PI + Ps) 0 %
If you Indicated in seon 9that.yourfac¡liiy repréents booming-cycle cogeneration technølogy, compute
. bomlng efcienc value by completIng the workheet below. Botoming-cyle effciency value is required to
be 45 percent or more.
Average annual rate of elecical output
(Pe) Convert elecial outut to Btul by multiplying line above by 3,412
Average annual rate of mechanical outut
(Pm) Convert mechanical output to Btuh by multiplying line above by 2,544
(Ps) Average annual hourly energy input from supplementary firing (natural
gas or oil only)
Bottomlng-ede effciency value = 1 OO*(Pe + Pm) I Ps
h
Btul
kW
8tulh
ho
Btul
Btulh
kW
Btuf
ho
Btulh
Btull
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FERC Form 556 Page 10 - TOPl?ing:-ycle Cogeneration Facilities
For Topping-Cyde çogeneration Facilties .
if you indicated in secon 9 that your falit represts topping-ce cogeneration technolog, then you must respond to
sections 12 and 13. Otherwise, skip seetions12 and 13.
Identif the entity (i.e., thrmal host which wJII purchase the LlfuJ therml energy ouput from the fadlity (18 C.F.R. §
292.202(h)). Indicate whether the entity us such outut for the purpose of space and water heating, space cooling,
and/or process use. Continue In seion 6 If additional spce Is nede
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In connecion with the requirement thitthe thermal energy outp be usefl (18 C.F.R § 292.202(h)): For proces uses
by commercial or indusal host(s), desaibe each process (or group of similar processe using the same quality of
steam) and provide the average annual hourly theral energy made available tG the..~s, le pross return. For a
complex system, where the primary steam header at tle hos-sde is dMded into various.sub-uses each having
diferent pressure and temperature characterstcs, describe the processes assoiated with each sub-use and provide
the average annual hourl thermal energy delvered to eac sub-e, less process return from st,ch sub-use. Provide a
diagram showing the main steam heade and the sub-uses wit oth relevnt Informatio such as the aveRlge header
presre (psia), the temperature (deg. F), the enthalpy (Btu/lb.), and the flow (lbJhr J, both in and out of each sub-use.
For space and water heating. desaibe the type of heating involed (e.g.. offce s~ce heating, domesic water hèating)
a nd provide the averge ann ual hourly thermal energy delivered and used for such purpo For space cooHng,
describe the tye of cooling involved (e.g.. offce space cooling) and provide the average annual hourly th~l energy
used by the chller. Continue In secton 6 if additional space Is needed.
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FERC Form 556 Page 11 - Bottomlng-ycle Cogeneration Facilitie.s
For Bottoming-Cycle Cogeneration Facilities
If)lu Indicate in seion 9 that your failty represnts bottoming-ccle cogneration technology, then you must resnd
to selon \4. Ot~ ~p.slcl' 14.
Provide ä dePt~ ofthecommèfctal or industrial proces or othertherma! app,lcation to which the energy input to
. the sym ls ft applIed and from which the rejec heat is then USed fQr eleic power production. Continue In
secon 61f additional spae is nee~ed.
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FERC Form 556 Page 12 - Cogeneration Faclities
For New Cogeneration Facilties
For any cogeneraion facilit that was either not certified as a qualifying cogenertion facilty on or beore Augu 8, 2005,
or that had not filed a notice of self-certfication, self-recerfication or an application for Commission certification under
i 8 C.FA § 292.207 prior to February 2, 200, respond to the items in secion ,"S below. Oterise, skip secion 1 S.
Demonstrate that the thermal energy output of the cogeneration facility Is use in a producte" and beneficial manner
(18 C.F.R §§ 292.205(d)(1), (d)(4) and (d)(S)). Continue In section 6 if additional space is needed.
Demonstate that the elecical, thermal, chemical and mechanical output of the cogeneration facilty is used
fundamentally for industrial, commercial, residential or institutional purpose and Is not intended fundamentally for
sale to an elecric utilit, taking Into account technoloical, effciency, economic¡ and variable thermal energy
requirements, as well as stte laws applicable to sales of elecic energy from a qualifying facility to its host facilit (18
C.F.R §§ 292.20S(d)(2), (d)(3) and (d)(4)). Continue in setion 6 if additional space is needed.
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FERC Form 556 Page 13 - All Facilities
Signature
Provide your signature and signature date below. Rule 2oo5(a) of the Commission's Rules of Prctice and Procedúre
(18 c..R. § 385.2005(a)) provides that a signature on a filing consttutes a certificate that (1) the signer has read the filing
and knows it contents (2) that the contents are true a~ stated, to the best knowledge and belief of the signer ¡nd (3) the
signer po$S~s fu.il powr ~nd. authority to sign the flUng.
Rule 2ooS(d of.th Commisslon's Rules of Practice and Procedure (18 C.F.R. § ~85.200S(c)) provldés that persns filing their
documents elecroniclly may usetyped characters repreenting their name to sign the flied documents. A pe filing
thls documet e.leonÎOUy shouJa sign (by tying their name) in the space provided below. A person filing this form in
hardcopy fçrme.t shøuld sign in ink.
Signature
Peter J. Richardson I~Mar.2, 2010
Filng Fee
No flll"g fe is req,\.ired If you are KIbmittJng a self-certification of your facilit as a QF puruant to 18 C.F.R. § 292.207(a).
A fiing fe is required if you are filing either of th following:
(i ) ~ n applicatin for Commissn certifcation of your facility as a QF under 18 C.F.R. § 292.207(b), or
(2) a petition for dectory order granting waiver pursuant to i 8 c.F.R. §§ 292.204(8)(3) or 292.20S(c).
The current fe fo applications for Commf$sion c~rtifcations and petiions for declaratory order can be found by visiting
the Commissn's QF wesite at ww.ferc.gov/QF and clicking on the Fee Schedule link.
See the How to File section on the following page for details on how to Include your filing fee wih your filing. If a filing fe
is requir you mus submit your fee befe your application can be considered complete.
Notice Requirements
Draft Notice Suitable for Publication in the Federal Register
Pursuant to i 8 C.F.R. § § 292.207(a)(iv) and (b)(4), a notice is required to be published in the Federal Register alertng the
public to the filing of the foJlwing types of documents: (1) application for Commission certfication of a facilty as a OF
(small power proueton or cogeneration fadllty); or (2) self-certfication of a Knew. cogeneration facilty.
Definition: A cogenerion facUlt Is "new" if It was either not certified as a qualifyng cogeneration faility on or before
August 8, 2005, or had not flied a notlçe of self-certñcatin, self-rcertcation or an application for Commission
certiflcaton or Commlssiøf' tecllkatfn as a quallfying cogeneration faållt under seion 292.207 of the Commissin's
regulations prior to February 2, 2006.
No draft Federal Register notice is required to be published for the se-eertfication of any smæill power production facilit, or
for the self-eertficatlon of any Kold~ cogeneratin facilty (i.e., any coeneration rccilit that does not mee th above
defnition of a "new. facility).
if pu.bJlcation of a drft Fediol Registe notice is required for your filing, you must obtain a blank notice from the
Commission's website, complet the draft notce wIth the informtion pertaining to your fadlit, and Include the draft
notice with your filing In a word processing format (DO RTF, WPO, etc.) on eleçronlc media (either electronically file with
your document, or on a disk. C;O or OVD accompnying your filing). Th Sereiry of the Commission wil, upon receipt of
your draft notice, review the notice to ensure proper format and send it for publication In the F~deral Regster. Blank cOpies
of Fedl!fal Registe notices can be downloaded from the Notice Requirements link from the Commission's QF website at
ww-ferc.gov/OF.
Required Notice to Utilties and Public Utilty Commissions for Self-Certifcation
Pursuant to 18 C.F.R. § 292.07(a)(iI), you must provide a copy of a self-eertfication to the utilties with which the fadlit wil
Interconnect and transact as well as tQ tne Public Utilit Commissions ofthe states in which thqse utilties and your fadlity
reside. Unks to informati.n about the Public Utilit Commissions in various states is avallable from th Notice Réquirerients
link on the Commission's QFwebsite at ww.ferc.gov/QF.
FERC Form 556 Page 14. All Facilities
How to Submit Your Filng to the Commission
Electronic Fi-ng
All OF applications and self-certifications l'y be filed electonically, and applicants are stongly encouraged to use the
electronic filing process. By filing electronically, you will reuce your filing burden, save paper resources, save postge or
courier charges, help keep Commision exp to a minimum, and reeive a muc faster confirmation (via an email
contain Ing the docket number assigne to your fadlit) tht the Commission has received your filing.
To electonically file your Form 556. visit the Commission's OF websi at ww.ferc.gov/QF, and dick the eFilng link. Follow
the instructions. When prompted, select one of the following filing types, as appropriate, from the.E1ectric menu:
(Fee) Application for Commission Cert. as Cogenertion OF
(Fee) Application for Commission Cert. as Small Power OF
self-eertficatlon Notice (OF, EG, FC)
self.Recertflcatlon of Qualifying Fadllty (OF)
Supplemental Information or Request (use this selecton !fyou are supplementing or correctng a filing, whether on
your own initiative, or at the request of Commission staff
If you are required to pay a fee (see previous page for informtion), you wit! be prompted to submit your fee eleconically
during the electrnic filing proces. You can pay via crit card or elecnic debit from a bank account.
If you are eFilng an applicstion which requires you to submit a draft Federl Regist notiçe (see previous page for
information). you must upload your draft notice in a wod processing format (DO, RT, WPD. etc.) eluring the eFllng process.
If you have any questons about the electronic filing processi contact the Commission's eFilng Exrt by phone at
202.502.8258 or by email at eFilng~ferc.gov.
Hardcopy (Paper) Filng
While we strongly encourage you to flle electronically, you may file in hardcopy format by sending fourteen (14) copies of
your Form 556 and all required materials to the following address:
Secretary of the Commission
Federal Energy Regulatory Commission
888 First St. N.E.
Washington, DC 20426
If you are required to pay a fee (see previous page for informtion), you must enclose with your filing a check pay~le to the
Treasurer of the United States In the a mount of the requIred fee.
If you are eFilng. an application which requires you to submit a draft Federal Register notice (se prevouspage for.
information), you must include with your filing a disk, CD or DVD containing your draft. notice in a word. procesing formt
(DOC, RTF, WPD, etc.).
What to Expect From the Commission
An applicant filing any document via the electronic filing process wil receive an email message acknowledging receipt of
their filing and showing the docket number assigned to their filing. Such email is typically sent withn one business day, but
may be delaye pending confirmation by the Secretary of the Commision of th contents of your filing.
An applicant filing a self-certifìcatJon as a QF via the hardcopy filing process win receive a message via US. .mail
acknowledging receipt of their filing and showing the docket numbe assigned to their filing. This paper acknwledgement is
tyically sent within 7 to 10 days of receipt of the filing by the Commissìoii.
An applicant submitting a self-certfication of their facilit as a OF (eithr elecronically or via hardcopy filing) should expect to
receive no doci,ments frorr the Commission, other than the electronic or paper acknowledgements of receipt decribed
above. An acknowledgement of receipt of a filing does .Q.represent a detrmination by the Commission with regard to the
OF status of the facilty.
An applicant for Commission certfication wil receive an order either granting or denying ceifcation as a QF, or requesng
additional information. Pursuant to 18 C.F.R. § 292.07(b)(3), the Commissn must aetonan application for Commission
certification within 90 days of the later of the filing date of the application or the filing date of a. supplement, amendment or
other change to the application.
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Exhbit B
Memoradum of Lee
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When Recorded Mail to:
Windland, Inc.
7669 W Riveride Dr, Suite 102
Boise, Idao 83714
Instument # 196132
PO COUNTY, IDAHO11.2(2008 03:~48 No. olPag: 11
Reeorde ft ; wtNDLAND. tNC.
CHRISTlI STBNUCHT Fe.: 33.00Ex.olo Rec De ~ ~
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MEMORADUM OF LEASE
Ths MEORAUM OF LEASE ("Memorandum") is made by and amng Mø
M. KOPPt a widow, and Richd G. Kopp and Edth Kopp, husband and wie
(collectively, the "Ow er") and Wldld Inc., a Calorna corpration ("Te nat").
RECIAL:
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A. Ower is the fee title owner of th cer real pro located in Power Couty,
Idah, as more parcularly describe in Schedule A atthed herto and incorported herein by
ths reference (the "Land"), together with all and singular (a) the wid and ai rights on or
peraining to the Land (the "Wind Rihts") an (b) all other rights, inte, prvileges and
appurences perainig to the Lad, including any eaements and other rights as may be
necessa for ings, egres and maitenance of the Lad and any and all right, title and intere
of Ower in an to adjacent roads, stee, alleys or rights-of-way (such items in claus (b)
collectively, the "Other Appurtenances"). The Land, Wind Rights and Other Appurenance
ar collectively refered to herin as L'Ower's Propert",
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B. On Septeber If 2008 (the uEffectfve Daten), Owner and Tenant enteed into a
La Lease and Wind Eaemen Agrent (the "Lej puruat to which Ower leaed to
Tent and Tent leaed frm Owner Ower's Prper.
. C. Owner and Tenant desire to execte ths Memoradum to prode constctive
notice of Tenantls rights under the Lease to al thrd pares.
NOW, THEFORE, for and in consideration of the mutu covenants and benefits
herei contaned and other goo and vauable consideron. the reeipt and suffciency of which
ar hereby acknwledged Ower and Tenant herby ag as follows:
Section 1. Purpgse of Memoradgm. The purose of ths Memoradum is to give
recoid notice of the Lease, and of the rights cred thereby, all of which ar hery confued.
The paries, however, advise all paries acqurig interess subsequent to the date of ths
Memorandum, that th Lease and any and all documents executed in connection therewith may
be amended fr and afer the date heref with Uie consent of the pares thereto. and without
amendment of ths Memorandum. Without limting the generity of the foregoing, the Lease, as
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the same may be amended from tie to time without amendment of ths Memoradum, shall be
binding upon all pares tag intei in the Lad subseqt to th dat of recordtion of this
Memoradum. As such, all such pares ar herby on notice that they should inquire as to the
terms of. the Lese as in effect frm tie to time, an that thrd pares may rely on this
Memoradum solely for record notice of the existece of th Leae and cerai of the provisions
therf as of the date of ths Memoradum and not with ret to the spifics of the ter
therf as the same may be in effec from tie to tie.
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Section 2. Term of Lee. Th "Deelopmen Pha" of the Le shal be for a
term commencing on the Lee Commment Dat an teinating on the earlier to occur of
(a) Deceber 31, 2014 an (b) the coenent of the Opations Date (as defed below).
During the Development Phae, Tena sha have the right to study the feaibilty of wind
energy conversion on Owner's Prop and to exercise its other rights uner this Le. The
"Oprations Ph" of the Lee shall commene on (x) the fist day of the fist month
imediately following the month in which the sale of elecicity (excepti tet electrcity) ha
firt occrred in connon with the Project and at least one WT ba bee constrte on the
Lad and is operating to produce electrcity or, (y) if ths Lee ha bee assued by a Utility
at the time, the first day of the first mont imedtely followi the month in which
electricity (exceg te eleccity) ha fit bee delivere to the elecc power grid in
comiecon wit the Project and at leat on Wl bas be conste on the Lad an is
operang to produce eleccit (the "Opt io Da"). The Operons Phase shall
contine for a perod of th-fie (35) ye afer the Oprati Date, uness sooner
termte in accordace wit the provision heref. Tenat may, by notice to Owner no later
th thir (30) days prior to the expiration of the Op Ph, elect to fuer exten ths
Leae for an additonal twenty (20) year period coeng upon the date on which th
Operations Phse expires. on the sae term an conditions, except lengt of te, as applied
during the Operations Phase (the liRe newaI Term").
Section 3. Pum. of Leaie. The Le is for wid energy converion to
electcity on Owner's Prope and for the collecon an trsmission of elecc power by
developing and operatig wid powered electrcity geerng prjects on Ower's Propert and
other propery, and for related activities (collecvely. "Operations "), includin, without
limittion:
(a) conductig smdies of wid spe, win dicton and othermetorological da, extacting soil saples, peorm geotehncal tests, and
conducting such other tests, stuies, inections and anysis as Ten deem advisable
or necessa;
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(b) developing, constrct, reonstrcti, er. intallin,reinstali, imrovin. replacin, reoca an reovig fr tie to ti, an
main, usg, monitonng an operag, exiti, aditona or new (i) WTGs .(as
defined below), (ii) elecca trsmision an distibuton facies, includ without
linútation. overhead an ungroun transsion, disnòuûon or collector lines,
circut breaks, meers, conduit. footigs, towers, poles, crossarms, guy lines.
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anchors, caling an wi, (iii) overhea an unergroun control, communications
and radio relay system, (iv) substations, inerconnection and/or swithig facilties and
electric tranformers and tranformer pads, (v) energy storage facilities, (vi)
meterological towes an wi mesuremnt equipment, (vi) contrl buildings,
control boxes an computer monitorin harwar, (vil) utty inaton, (ix) safe
protection failties, (x) maenace yards an buidins. (xi) ro and erosion contrl
faciltiest (xi) sign an fences, an (xüi) oter improvements, fixtures, facilies,
machinery and equipment associated or conneced wit th gention. coversion,
strage. swiin, metri, ste-up, steoWD, transsion, ditrbution,
conductng, wheeling, sae or oth use or conveyance of eleccit on Owner's
Prop an on other prpe (in such loctions as Tena shal detine from th
to tie in the exercise of its sole discretn) (al of the foregoin, collecvely the
"Wfndpower Facities");
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(c) developing, erecing, constrct, intaling, replacing, reprmg,
relocating, removi. maintaining, opratig an using the followig from tim to tie
in connection with Winwer Faciltis, wheter located on Ownr's Prope or
elsewhee, (i) a lin or lines of poles or towers, togeter wit such wires an cables as
from ti to time are supeed therfrm, anor unergrd wire and cables, for
the tranmission of electrca energy anor for counication puse, and all
necsar and prop anchors, supprt strctes, foundaton, footi, crossar an
other appliances and fitures for use in connecon with said towers, wies an cables;
(ii) one or more substations or intercnntion or switching failites fr which
Tenat or others that generate energy may inteconnect to a utilty transsion syst
or the transmission syste of anther puchser of electrca engy; an (ii) roads
associated wit the foregoing (such towers, wies, cables, substations, failites an
other enumerated items in clauses (i), (ii) an (üi) are herei collecvely called th-1'sion Facle sot);
(d) capturng and to converg al ofthe wind reures ofth Lad;
(e) exercising the right of ingress of and egress from th Wmdwer
Facilties over and along Ower's Prer by me of any existing road an las
thereo, an by such other rout or routes as Tenat may consct on Ower's
Propert frm tie to ti, for the benefit of an fo purses inidenta to Tenat's
use of Owner's Propert as provided herein an for the benefi of an for puse
incidenta to Tenat's actities and projects on lan other th Ownr's Prope;
and
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(f) exercising any an all rights of Ower to select, deerne. prohibit or
contrl the locaton of sites for dring and/or exloration of mieral in, to or uner the
Land.
Section 4. Ownenhip of Windpower Faciles. Under the Lease, Ower'
covenanted tht Ower shall have no ownership or other interest in any Improvements (as
defied below), and that Tenant could reove any or all-such Imrovements at any tie. AE
used in the Lease, the ten "Improvements" mea all mea all WTGs, Tranission
Facilties, an other facilties, strctues, equipmet, machiner, wie, cond, fier, cable,
poles, materials an property of ever ki and chact whih is constted, insed an/or
placed on, abve or under Ower's Proper by or on beha of Tenat. "WTGu mean any
wind turbine generator, win enrgy converion system or other power generion facilty, of
any ty of teology, designed for th genration of elecca power from wind power,
including without limtation, the associa towers, surt stctue, guy wies, brace,
foundations, concrete pad, footings, anchors, fences an dirly related equient.
Section 5. TransniuloD 'acUities Easeeut. Under the Leae, Tent has the
right to grant to any utility, power prvider or other par (collectively, '''nmsmissloa Facllty
Assignees") (a) the nght to contnct, operte and maiain the Transmssion Faclities on
Owner's Prery ~ (b) for purose of acces to and frm such Trasmssion Facilties, the
right of ingrss and egess acss portons of Ower's Proper and land that is owned by Ower
and that is adjacet to Ower's Pro. In order to faitae the assignent by Tenant of
cerin of its nghts under th Lease to Trasmssion FaciHty Asgnees (separte and apar frm
Tenant's other rights wider the Leae), Ower agr, upon the request of Ten at any time
durig the ter of the Lease, to grant to Tenat one or more exclusive, assignble eaements
upon, thugh, under, over, across and above portons of Ower's Propert and land th is
owned by Owner and that is adjacent to Ower's Pro. Owner is reuied to grt to Tenant
such easements encumbeng Ower's Prery (or other adjace prope as may then be
owned in fee by Ower) tht Tenant deem necessa, helpfu, apropnate convenent or cost-
effective in connection ~ incidental to or to accompHsh my of the Operons.
Section 6. No Liens. Under th Lee, Ower is not allowed, without the pror
wntten consent of Tenant, to create or peit to be created or to rema, any lien,
encubraces, leases, mortgages, deed of trt, secty interests, licenses or other exceptions
with resect to Ower's Pr or any par theof.
Section 7. No Inteñerence; No Third Part Riglts. Owner covenaned an agreed
under the Lease that Tenant would have the quiet use and enjoyment of Ower's Prery in
accrdance with the ter of the Lee without hidrce or interrption frm Ower or any
other peron or perons. Without limiting the generity of the foregoing, Ower agred that
Ower would not and would cause the other Ower Pares (as defined below) not to (a)
materill intefere with or prohibit the free an complete use an enjoyment by Tenat of its
rights granted by th Lee; (b) ta any acon which coud materly inte with the
availabilty, accesibilty, flow, frequen, or direction of air an win over an -above
Owner's Prpert; (c) ta any action which could in any way mateia intefere wit the
tranmision of electc, elecomagnetic or oth form of engy to or from Owner's
Proper; (d) tae any acton which could marily imair Tenat's acc. to Owner's
Prpert for the purses specified in the Lese or maly impai Tennt's acs to any or
all of th Improvements; or (e) otherwse interere with Tent's intended use of Ower's.
Property. Owner also agreed th Ower would not tae any action or grt any th pary any
rights in Ower's Prert that could matenaiiy inteiere with the development, constrction,
instalation, matenance or operation of any Windpower Faclities on Ower"s Prper or that
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could allow any pay other th Tenant to exploit the Wind Rights or that could matenaly and
adverely afect Tenants',use or Ower's Prper. Ymally, Owner agrd tht durng the ter
of the Lease, Ower would not grant any rights to any third par to develop, constnct, install or
maintain or operte any Windpower Facilties on or around Ower's Pro, including without
limitation, constrction or upgradng of any Trasion Facities, without Tenant's pnor
wrtten consent, which consent may be witheld in Tenan's sole discon.
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Section 8. Release. Under the Lee. Ower on it own beha and on behalf of each
of Ower's affliates. succers an asign and all such pares' stockolder member,
parer, offce, directors emloyees, agents, repreSentatives, contrctors, faily member and
invitee (collectively, thE( "Owner Partesj has released and dischaed eah of Tenat and
Tenat's afliates, successrs and assigns and all such pares' stockholder, member, parer,
offcer dictors, emloyees, agets, reresetatives, contrtors and invitees (collectively, the
"'leDant Partes") frm any losses, liabilties, daages, cost. cl~ suts and causes of acon
(including losses or claims for perona injures or death and prer dae an including
reaonable attorneys' fees and costs of litigaton) (collectively, "Loses") attbutle to (a)
interferce with wi on any proper owned in whole or in par by Ower that is adjacent to
Owers Prer and (b) dager associated with electrical geerating facilties, such as audible
and electrmagnetc fields, electrmagnetic noise, electrcal intererce, rao fruency
interferene or cell tower inteerce (collecvely, '1:ntenerence and E~ectrjcai Generatig
Facilty Dangen"), even ifsuch Losses ar caused by or allegedl caused by any Tenant Par's
sole, join or concurt neggence, strct liabilty or other legal fault
Section 9. Asignment. Subject to cein restctons in the Le. the Lease and the
rights of any par to the Lee and Owerts Pr, wind ener projects, Trasmission
Facilties and Imrovements may be asgned (includig to an electc utity), encuber or
morgaged, in whole or in pa, without the prior wntten consen of the non-assigng par but
no such assignent, .encumbrace or mortgage shall operte to enlarge the obligaon or
diminish the rights of the non-assigning pary thero. Ower and Grtee acknowledge tht ths
Memorandum wil continue to be effecve with respt to any assignent un the Le by
either par therto.
Section 10. Successrs. The Lease shl inure to the benefit of, an be binding upn,
Owner and Tent and their reective heirs trsferes successors and assigns, and all perns
claing under them.
Section 11. No Modcation of the Lease. Ths Memoradum doe not alte, amend
or modify the ters an provisions of the Leae, but is executed solely for th purose of ging
notice of the exstence of the Lease and the terms and conditions therein, which Lease is
incorporated herei by reference for all purses to the same extent and with the same effect as if
set fort hern in full.
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Section 12. Governing Law. Ths Memoradum shall be govered by and constred,
interpreted and enforced in accordace with th laws of the State of Ida. excluding any
conficts of laws rules or prciples that might requre or pemt the application of the laws of
another jursdicton.
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Section 13. Counterpart. This Memoradum may be' exec by facimile and in
multiple countears, no one of which nee be execute by al pares herto, each of which
shal consttu an orginal. Counterar thus execute sh together constitute one and the
same instrent.
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IN WITSS WHEROF. Ower and Tenant have caused this Memoradwn to be
executed and deliver by their duly authoried rereentatives as of the da fist set fort
above.
TEAN:OWNRS:
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Jn~~Marth .. KOPP~~OW
11, IltUt.j.~
Richard G. Kopp, a maried inividua
~Edith Kopp, a rn individua
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STATE OF 0da.k.
COUN OF P Ð ( )" ,ee
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On ~ch :z 'l. 200 be me, 15o/".e ~ nota
)ublic, peonaly appea Richad G. Kopp, pernally known to me or prved to me on the)asis of satisfactory evidence, to be the peron whose name is subsòed to the withn
nstrent and acknwledged to me that he/she execte the same.
WIS my hand and offcial sea..\\\\"llløY1~ n ic -:.I. . - Q#O~~~lŠ'~~O~(é ~l§l¡ .... . ..+....À~
~ .. NOTA"'" .\'\~ l ~ £!.:: ..0__ 'I =5 i I æ- . I ~~ \. .oUBL1G l 8~la;.. .,~ i§~..~ '. .:.~'UìS
~~"""'iO...~~~~-~It/iiiiiim "lATEOF .
:)UNY OF ~Ð \.e kL
Nota Public in an for sad County and State
Commission Exires: II l b(n I d.Dl ø
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On~2008,beme, BObb'-l ~ck nota
blic. peronally appear Edth Kopp, peronally known to me or prved to me on the basis of
isfaetory evidence, to be th per whose name is subscribed to the withn instnent an
cnowledged to me that he/she executed the same.
WIS my ba and offcial se.~
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t~o~'?........~'~ æ.~
..- ..~O,~.,. ÙOT:"'b ....:s~.: .' " 1"'" " . ~:3 L : ~== i ..... ! ==l, ~ 1 æ
\ \. PlJSLlC / ¡~~'" ....'Oø~:1~.......:o.",,'n~~ ~.t:-OF \ ~..
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Notay Public in and for said County and Sta
CoinionExir: LJ I ()~ I 90ia
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COUN OF Je ( V;e e.
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J On S~. ~ 'l, 2008, bcf m.. ~d1 ,,; Ma nota
public, pernally apeaed Mar M. Kopp, pery known to me or proved to me on the
bass of satisfactor evidence, to be the pern whose nae is suscnbe to th withn
instrument and acknowledge to me that helshe executed the same.
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WlS my ha an offci se. ~
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Nota Public in and for sad Couty and Stae
Commission Exirs: Lt IOCR ld D t R
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STATE OF IDAHO
COUNOF&
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Onths.ldayof$,f . 2008, before me, i.S'w.rtòC' PI(¡31t. ,a
Notar Public, persnally appeaed Roald Doskelan knwn or identied to me (or proved to
me on the oath of Roald Doskelan), to be the President of the coiporation that executed the
above instrent or th person who. executed the instrent on behalf of said eoiporation and
acknowledged,tø.me.that such coiporation executed the sam...... .....,..' 1l1"1'"'. ¿." ~~ '. ~
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Page 10 of II
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'1 SCHEDULE A
Land
In Townip 8 Sou. Range 32 Ea. Boise Merdian:
1 Setion 29:
Section 30:
Secon 31:
Section 32:
W~; Lots 3 and 4
Lots 1 and 2; NE~NW%; E~; EYiSwiA
Lots I and 2; EY2N~; NEY.
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EXCEPTIG THOM the following:
Commencing at a point 285 feet west an 495 feet nor of the southeas comer of the SWY-SE~
of Section 29. Townhip 8 South, Rane 32 Ea Boise Merdian which is on the Reseraton
Line; thence west 19° South 495 feet; thence west 34° south 2310 feet; thence west 54° sout
1898feet; thence south 200 feet to the quarer section lie; thence wes 246 fee, more or less, to
the southeat comer of the NEY..fSecon 31; thence eas 160 ro; thence nort 160 ro;
thence east along said quarer line to the Reservaton Line; thence nort 495 feet to the plae of
beginng;
ALSO Excepting:
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Commencing at the Southeast corer ofNEY", said Section 31; thence Nort 205 fet; thence
Wes 49° Nort 535 fee; thence Wes 0° 330 fee; thence West 44° South 700 fee; thence Sout
160 feet, more or les~ to the cente section line of said Section 31; thence West 00 2790 feet;thence West 45° Nort 990 fee; thence. West 71° Nor 782 fee thence Wes 84° Nort 380
fee; thence Eat 83° Nort 740 feet more or less, to a point on the Section line beteen Sections
30 and 3 i, 390 feet East of the Southwest comer of said Section 30; thence West 390 feet; thence
South 160 rods; thence East 320 rods to the Point of Beging.
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Page 11 oft I
When Recrded Mail to:
Instrunt # 185879
POWER COUNT,IDAHO
20-Gø. "':22:31 No. of Pa: 9R.c fo : AlUANCE nnECHJlNE STEINUCHT F..: 27.00Ei-O RII Deut ~l
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Windlandt Inc
10480 Oaere Court Suite 840A
Boise, Idaho 83704
MEMORADUM OF LEAE
This MEORADUM OF LEASE ("Memorandum") is mad and exected to be
effective as of .J cJ c. '1 ': e: ..,, . 200 t by and amng Steven.K Dee 8Id Lyn Marie
Dee. husband and de. (collecvely, and toget with their suessors and assigns
hereunder, "Owner"), and Wlndland. Ine, a Calfornia Corporation (togeer with its
successo and assigns herder, "Tenant".
RECITAL:
A. Owner is the fee title owner of tht cein re prpe located in Power County,
Idaho, as more parcuarly descrbed in Schedule A atached heo and incorated he by
this reference (the "L8Id'), togeer wi al and singuar (a) the wind and ai rights on or
pering to the Lad (the "Wind Rights") and (b) aU other rits inter, prvileges an
appurence pering to the Lad, incldi any eaements and other rights as may be
necesar for ingrs, egs an maiance of the La an any and all nght, title and intet
of Ower in and to adjac roads, st, alley or righ-of-way (such item in claus (b)
collecvely, the "Other Appllaneell). The Lad, Wind Rights and Oter Appwtences
are coUectvely refer to herei as "Owner's Property".
., . zøii'fB. On JIJ'" ¿~ - (the "Effective Date"), Ower and Tenant enter into a Lad
Leae and Wind Easemen Agent (the "Lease") put to which Ower leaed to Tent
and Tent leaed frm Ower Owner's Proerr.
C. Ower and Tent desire to execute ths Memoradum to prvide constmve
notice of Tenant' s rights under the Lee to all thir pares.
NOW, THEREORE for an in consideration of the mut covents and benefits
herin contaned and other good and valuable cosideron, the reeipt and sufciency of whichar herby acknowledged, Ower and Tent hereby agr as follows:
Secion 1. Purpse of Memorandum. The puose of th Memoraum is to give
record notice of the Lease, and of the rights created thereby, all of which ar hery confied.
The pares, however, advise all pares acqirig interes subsequet to the date of ths
Memradum, that the Lee and any and all docuents executed in connecon therth may
be amended frm and afer the date herf with the consent of the pares theret, and without
amendment of tbis Memorandum Without limg the geerty of the foregoing, th Lee,
as the sae may be amended frm time to time without amendment of ths Memoradum, shan
be bindin upon all pares takng interts in the Lad subsequent to the date of reoration of
7.28.04 Dc Mem Of Le.DO Page 1 offq
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this Memorandum. As such all such paes ar herby on notice that they should inq1Û as to
the ten of the Lease as in effect frm time to tie, and that th pares may rely on this
Memoradum solely for record notice of the existce of the Lee and cen of the prvisionstherf as of the dae of ths Memorandu and not with respect to the speifics of the tens
therf as the same may be in effect frm time to tie.
Section 2. Term of Lease. The llDeveJopment Phase" of the Lee shall be for a
ten commencing on the Effective Date and teiminati on the eaier to oc of (a) the date
which is five (5) ye afer the Effectve Date and (b) the commencct of the Options
Date (as defied below); it beng underood that if the Operaons Date has not commenced
withn :fve (5) yea after the Effecve Date, Owner and Tenant may agree in wnting on an
anual basis to extend th Development Pha for succive one~year peod not to exce the
ealier of (i) fifteen (15) year afer the Effctve Date an (ii) the coenceent of the
Options Date. Dug the Development Phase, Tenant shall bave the righ to stuy the
feasbilty of wind engy converion on Ower's Proper and to exercise its other ngbts under
the Lee. The "Operations Phas" of the Le shll coence on the first day of the fit
month imedately followig the month in which the sale of eleccity (exceng tet
electrcity) has first occur ín connecon with a wind power projec (the "Operations Date")
and shall contiue for a peod of thrt-five (35) year aft the Options Date, uness soner
tenated in acorce with the provisions thereof. Tent may, by notice to Ower no later
than thrt (30) days pnor to the expiration of the Options Pha, eJect to fuer exten the
Leae for an additiona twenty (20) yea perod commencing upon the date on which the
Opations Phase exire, on the same ter an conditions, except lengt of tem, as applied
dug the Opons Phase (the "Renewal Term").
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Section 3. Purpose of Lease. The Lease is for wind energy converion to electrcity
on Owner's Propey and for the collecion an transmission of electrc power by developing and
opeting wind power eleccity generating prjec on Owner's Proper and other proper,
and for related activities (collectively, "Opetion."), inclding, without limtation:
(a) conducting studies of wind spe, wid dicton and other meteorologica
data, extractng soil samples, peoming geotechnica tets, and conducting such other
tests, stdies, inspeons and analysis as Tenant dees advisale or necessa
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(b) developin constrctng, reconSbictg, erng, intaling, reintallng,
improving, relacin& relocting and reovig from time to tie, and matanig, using,
monitoring and opertig, existg, additiona or new (i) WTGs (as defied below), (ii)
eleccal tranission an distribution facilities, includi withut limitation overhea
and undergrund transsion, distrbution or collector lines, circut breaer, meter,
conduit, footings, towers, poles, crossams, guy lines anchors, cabling and wire, (iii)
overea and undergrund contrl, communcaons and rado relay system, (iv)
substations, interecon and/or swtchig facilties and elecc trsfuimer and
tranfonner pads, (v) energy storage faclities (vi) metlogica tower and wid
meaurement equipment, (vii) control buildings~ cotrl boxes and coput montonng
hadwar, (viü) utility instlation, (ix) safety protecon facilities, (x) maite yads
and buildigs, (xi) road and ersion contol facilties (xi) sign and fence, an (xiü)
other imprvements, fitues, facities, machinery an equipment associated or
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conneced with the genertion converion, storage, switch& meterng, .stepup, step
down, trsmion, distrbution, coctg. wheelig, sae or other use or conveyace
of electrcity on Ower's Prope and on other prperty (in such locaons as Tenant
shall deterine frm time to time in the exerise of its sole discron) (all of the
foregoing, collectively the "Windpower Faclties");
(c) developing, er consg, instaing, replacg, repairig,
relocang, remoVIng, matang, opeg an usin the followi fr time to time in
connecon with Wmdpower Facilities, wheter loca on Ower's Proper or
elsewhere, (i) a line or lines of poles or tower togeter with such wies and cables as
fr time to tie ar suded thereft, andlor unergrun wir and cables, for the
trsmission of electrca energy and/or for commwication purses and all necesa
and pro anchors, supprt strct, fomidations, footings, crssars and other
appliances and fixtu for use in connecon with said towe wire and cales; (ii) one
or more substtions or internnecon or swtching facilities frm which Tent or others
th generate energy i,ay inerconnec to a utiity tranision sytem or the trmission
syste of another purhaser of elecca energy an (ii) road associate with the
foreoing (such tower wi, cables, sustations, facilities and oth enwnerted items
in clauses (i), (ii) an (iii) ar hern collectively called the ''Transmission Faclties");
(d) captug and to coverg al of the wi reures of the Land;
(e) exercising the right of ingress of and egss frm the Windpower Facilities
over and along Owners Pr by meas of any existig roads and lanes thereon, and
by such other route or routes as Tenant may constrct on Owner's Proper fi tie to
ti for the 'benefit of and for puroses incidenta to Tenant's use of Ower's Prper
as provided herei and for the benefit of and for puroses incidental to Tenant's acvities
and prjects on lans other than Ower's Prpey; and
(1) (exercising any and a11 rights of Owner to selec, detemine, prohibit orcontrl the locon of sites for drng anor exloron of minerals in, to or under the
Lad.)
Secon 4. OwnershiP of Windpoer Facities. Under the Lee, Owner
covented that Owner shl have no ownhi or other inter in any Improvements (as
defined below), and tht Tenant could reove any or al such Imvements at any time. As
used in the Lease, the teo "Improvements" means al mea all WTOs, Trasion Faclities
and oth facilities, strtue~ eqpment, macner, wire, conduit, fier, cale, poles, materals
and prpey of ever kid and charcter which is constrcted, insalled and/or plac on. above
or under Ower's Propery by or on behalf of Tenant. "WTG" meas any wid tuine
geertor, wind energy conversion sytem or other power generation facity, of any tye of
tecology, designed for the generon of elecca power frm wind power, including without
limitation. the asocated tower, supp st, gu wi, brace, fOlDdations, concrete
pads, footings, anchor, fences and direcy related equipment.
Secon 5. Transmission Facltiei Easement Under the Lee, Tent has the
nght to grant to any utility, power prvider or other par (collecvely, cTralUmission FacUft
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Assignees'') (8) the right to constct, operte and matan the Traission Faciities on
Ower's Prope and, (b) for purses of accs to an from such Trasmssion Facilities, th
right of ingrss and egrs acss portions of Owner's Prpery an land that is owned by Ower
an that is adjact to Ower's Prper. In order to facilitate the assignent by Tenant of
ce of its rights under the Lee to Tl8ssion Faclity Assignee (separe and ap from
Tenant's other rights wider the Leae), Owner ag, upon the reue of Tent at any tie
durg the tei of the Leae, to grt to Tenant one or more exclusive, assignable easements
upon, thugh under, over, across and above portons of Owner's Proer and lan tht is
owned by Owner and that is adjacet to Owers Prper.
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Secon 6. No Liens. Under the Le, Owner is not allowed, withut the priorwrttn consent of Tent, to cre or pert to be crated or to reain, any liens,
encubraces, leaes, mortgaes, dees of trst, secty intersts, licees or othr excetions
with reec to Owner's Proper or any par thereí
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Section 7. No Interference; No Third par R.ts. Own coveante and agr
Wlder the Lee that Tenant would have the quiet use an enjoyment of Owner's Propey in
accrdance with the ters of the Leae without hindrance or inteirption frm Ower or any
other peron or peons. Without limitig the generalty of the foregoing, Ower agrd that
Owner would not an would cause the other Ower Pares (as dened beow) not to (a)
materally inteer with or prhibit the fr and coplet use and enjoyment by Tent of its
rights grted by th Leae; (b) take any action which could maeraly interfe with the
avaiabilty) accebilty) flow, frequency, or diecon of ai and wid over and above Ownr's
Proy; (c) tae any action. which could in any way materally inteier with the trsmssion
of electc, electomagnetc or other fonns of energ to or frm Ower's Propery; (d) tae any
acon which could materally impai Tenant's acce to Owers Prper for the purpse
specified in the Lee or mateally impair Tenant's acc to any or all of the Improvements; or(e) otherse inteer with Tenant's inteded use of Ower's Proper. Ower alo agr that
Ower would not take any acon or grt any thir par any rights in Ower's Prpe thatcould matally inteer with th developmt, constrtion, instalation, matence or
opetion of any Windpwer Faclities on Owner's Proer or th could alow any par other
than Tenant to exoit the Win Rights or that could maally and advery afect Tenant's use
of Owner's Prpert. Finally, Owner agreed tht dur the te of the Leas Ower would not
grant any rights to any thrd par to develop, constct, inl or main or opere any
Wind power Facilties on or arund Owner's Proper, including without limittion, conscton
or upgrding of any Trasmission Facilities, without Tenant's prior wrtten coent, which
consnt may be withld in Tenant's sole discreon.
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Secton 8. Release. Under the Lee; Ower on its own beh and on behalf of each
of Ower's afliate, succeors an assign and all suc pares' stockolder, member,
parers offce, dictors employes) ageI. retatives contraeoß) faly member and
invitee (collectively, the "Owier Par") has reeased and dischared each of Tenant and
Tents afliates, successors and assign and al such pares) stocolder, m~ parer,
offcer, diors, employes, agents, representatives, contracrs and invitee (oollecvely, the
"Tenant Partes") frm any Josses, liabilties) daages, costs, clais, suits an caes of acton
(includig losses or claims for peonal injures or death and prope damage and includg
J Page 4 off 1
reasonable attorneys' fee and cost of litigation) (collectively, "Losses") atbutle to (a)
intererence with wind on any prpert owned in whole or in par by Ower tht is adjacet to
Owers Propy; and (b) daer associate with elecca geertig facilties such as audible
and elecmagnetc fields, elecmagnetic noise, elecca inteerce, radio frequecy
intererence or cel towe inteerce (collecvely, "lterferece and Electr Geeratlg
FaelUty Dangersj, even if such Losses ar caed by or allegedy case by any Tenant Pary's
sole, joint or conCUent negligece strct liability or other lega fat
Secion 9. Aisignment Subjec to cer resctons in th Leae, the Lee and the
rights of any pary to the Leae and Own's Pro, wind ener projects, Tramission
Facilties and Improvements may .be assigned, encwber or mortged in whole or in par
without the pror wrtten consent of the non-assignng par but no such assigment,
encumrance or mortgage shall operate to enarge the obligations or dinih th rights of the
non-assignng pary ther. Ower and Grantee acknowledge tht this Memoradum will
continue to be efecve with respect to any assignent uner th Lea by either pay thero.
Section 10. Suççssors. The Lease sha inur to the benefit ot: an be binding up
Ower an Tenant and thei reecive heirs, transfe, succors and asgn, and all perns
claing uner them
Section i 1. No Modcan of the Lease. Ths Memorandum does not alter, amend
or modifY the ter and provisions of the Lease, but is exected solely for th puiose of giving
notice of the existence of the Lee and the ters and conditions ther, which Lee is
incoiprated herein by referce for all puroses to the same extet an with the same effec as if
set fort herein in fuL.
Section 12. Governing Law. Ths Memoradu shall be govered by and constid,
interreted and enforced in accrdace with th laws of the State of Idaho, excluding any
conflicts of laws roes or prnciples th migh reui or per the applicaion of the laws of
another jursdicton.
Secion 13. COunterpar. This Memordu may be exected by facsimile and in
multiple counteiar, no one of which nee be execte by all pares hero, eah of which
shal constute an ongial. Counterars thus. execed shall togeter constitute one and the
same instrent
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IN WITSS WHOF, Owner and Ten have caed ths Memordum to be
exected and deliveed by thei duly authrized represetatives as of th date fit set fort
above.
"Owner"
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"Tenait"
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ta1fJr ..d ØH1á~On ~~ .;Ltl .20 , . efore me, notar public,
personaly a ea . ~ i to me or prved to me on
the basis of satsfary evidence, to the p whose name is subscnòed to the within
instrent and ackwledged to me that helshe exected the same in hisler aut1onzed capacty
and that by hisler sign on the inent the peon or th enty upn behalf of which the
person acted executed the instent.
STATEOF U(fl/tP
COUNTY OF ftJe
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WIESS my hand an offcial sea.. (KARENM. HA . .Not PubibOta Pub c In and for smd untyan State
Slae of Idaho 5-2n:-~ û/(ion Expir: r: ?l
STATE OF .r
COUN OF et1..
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øl( lA 'I ~notaiPUbIiC,
peron y known to me or prved to me onthe basis of satisfactory . dence, to be the whose name is suscròed to the withn
instruent and acknowledge to me that helshe executed the same in hier autIonzed capacty
and that by hisler signatu on the ins1rent the person. or the entity upn behalf of which the
peon acted. exected the instren.
WISS my ha an otci -i._.1áu6-=.f1- ~
Nota Public in and for said Couny and State
K~; ..,: '.ii~oni ~pire: .r¡¿~~t:
Nor;, -J Publk:
Stte of Idaho
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STATE OF IDAHO )t1)SS .COUNTYOF ~(lfA,ltt ) .
On this 2! day Of~L 200, be me, £R1!" ~~¿.
Notar Public. pernally app oskeland, knoor identified to me (orproved to
me on the oath of Ronald Doskeland).. the Presdent of the corpration that exected theabove intrent or the peon who exected the instrent on behalf of said corpration and
acknowledged to me that suc corporation exected the same.t:~!/~
"-=~~~A;M;ô~.. N~~~~Jtt~~~Nolary Public mmlSSon Expires: Z Z
Slaie of Idaho
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SCHEDULE A
Lud
Lel DeptOD
Township 7 South, Rage 32 Eut, Boise Meridi, Power COUDty Idaho
Section 31 - ElI2E1f
Section 32 -SWl/4NWl/4; NWl/4SW/14; Sl12SWl/4
Section 32 - Lot 4
Township 8 South, Rage 32 East, Boise MeridJ, Power County Idaho
Section 5 - Lot 6; SW/14NW114; NWlI4SW1I4
Section 5 - Lots 2,3, 4 & 5; ElI2SWI14; SElI4N1/4
Section 6 - Lot 1
Section 6 - NEl/4SE1/4; SEl14NEl/4
Section 20 - Lou 1, 2, 3 & 4; Wll2
Secon 29 - Lots i & 2
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Schedle A - Page i
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Memorandum of Lese Amdment
When Recorded Mail to:Instrut # 195134
POR COUY, IDAHO
11-20- 03:085 No of Pag: 1Reon fo : W1DI,ND,1H
CHRISTIE STEUCHTEx.o Ibcordi
Windlan, Inc.
1040 Oaerdale Cour Suite 840-A
Boise, Idaho 83704
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MEMORANDUM OF AMNDMENT TO LEASE
This MEORAUM OF AMNDME TO LEASE ("Amendment'") is made an
executed to be effective as of Septeber X. 2008 by and amng Stven K. De and Lyn
Marie De, husband and wie (collectively, with their succssos an assigns the "Ower")
and Wfndland, Inc., a CaliorDi corpratin (together with its successors an asign, the
"Tenant") .
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rhls Amendmen addreses llndments made to the Letse that is the siibject of the
MEMORADUM OF LEE tecorded in the records of Power County, ID I1I,;strument No.
_185679_ (the ('Memo").
RECITALS:
A. Ower is the fee title owner of tht certain real proper located in Power County,
Idaho. as more parcularly described in Schedule A athed hereto and incoiprated herin by
this reference (the "Land"), together with all and singuar (a) the wind and ai rights on or
pertaining to the Lad (the "Wind Rfghts") and (b) all other rights, interests, privileges and
appurences pertaining to the Lad, including any easement and other rights as may be
necessar for ingress, egr and maiteie of the Lad and any and all right, title and interet
of Ower in and to adacent roads, strets, alleys or rights.of-way (such ites in clause (b)
collectively, the "Other Appurtances'). The. Lad, Wind Rights and Oter Appurenances
ar collectively refer to herin as "Owner's Propert.
B. On July 29, 200 (the ""Effective Date"), Ower and Tenant entered into a Lad
Leae and Wind Eaement Agr~ment (the "Leas") puruant to which Ower leased to Tenant
and Tenant leased ftm Owner Owner's Propert. Cerai ters of the Lee ar addressed in
the Memo.
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C. Ower an Tenant have now amded th Lease to, among other amendments.
provide for a fixed Development Phase, and execute ths Amendment to provide constrctive
notice ofTenants nghts under the Lease, as amended, to all thir paries.
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NOW. THFORE, for and in considertion of th mutu covenan an benefits
herein contane and other go and valuale coidertion, the reeit and sufciency of which
ar hereby aoknowledged, Ower and Tent hery agr as foUows:
Secon i. Purpose of Memorandum. The purose of ths Amendment is to give
reord notice of the Amendment to La Lee and Wind Easent Agrment, an of the rights
crted therey, al of which ar hery coed The pares, however, advise all paies
acqiring interts sueqent to th date of this Amenent, that the Lease ha bee amended
as of September b 2008, and that the Leas may be amended fr and afer the date herf
with the consent of th pares thereto, and without amendment to the Memo or this Amendment.
Without limiting the generity of the foregoing, the Lee, as amended to date and as the same
may be amended frm tie to time without amenent to the Memo or ths Amendment, shal
be bindig upon all pares tang inters in the Lad subsequent to the date of recrdaton of
ths Amendment. As such, all such paries ar hereby on notice that they should inquire as to the
tenns of the Lease as in effct frm time to tie, an tht th pares may rely on the Memo
and this Amendment solely for recrd notice of the existence of the Lease and cer of the
provisions thert: as 8rende as of the date of ths Amendment, and not with repet to the
specifics of the ter thereof 11 the sae may be in effect fr time to time.
Section 2. Term of Lese. The "De"elopmeDt Phae" of the Lease shal be for a
term commncig on the Effectie Date and terminating on the ealier to ocr of (a)
Decber 31, 2014 an (b) the commencement of the Oprations Date (as defied below).
The "Opetions Ph" of the Lease shal coence on (x) the fist day of the fist month
imediately following the month in which the sale of electricity (excetig te electricity) ha
flIt occured in connecon with the Prject and at least one WTG has been constrct on the
Land an is operating to produce elecicity or. (y) if th Lee has been assumed by a Utility
at the time. th fist day of. the fist mo imedtely following the mont in which
. elecicity (exceti test eleccity) has fist be delivered to the electrc power grid in
connecon with the Project and at least one WTG has bee conscted on the Lad and is
operatig to produce electrcity (the "Operat Jons Date-). The Operations Phas shall
continue for a period of thir-five (35) years aft the Oprations Date, unless sooner
teed in accordance with the provisions hereof. Tent may. by notice to Owner no late
than thir (30) days prior to the expiration of the Operaons Phas, elec to fuer exten this
Lease for an additiona twenty (20) year peod commencin upon the date on which the
Oprations Phse expires, on the same ter and conditions, except lengt of tenn, as applied
during the Operaons Phase (the "Re newaJ Term").
Section 3. Purpose of Lease. The Lease contues for the purpse of wind energy
conversion to electrcity on Ower's Prer and for the collection and trsmssion of electrc
power by developing an operati wind powered electrcity generang prjects on Ower's
Prperty and other property) and for related activities (collecvely, "Oper mons"). See initial
Memo for additiona detas.
Section 4. TranSmission Faclties Easement Under the Lee, Tent has the
right to grt to any utility, power provider or other pary (collectively, uTransmission Facilty
Assignees") (a) the right to constt, operate and maitai the Transmission Facilities on
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Own's Prper and, (b) for puroses of acess to and fr such Traiission Facilties, the
nght of ingrs and egress across portons of Ower's Proper and lan that is owned by Ower
and that is adjacent to Ower's Prper. In order to failitate the asgnnt by Tenant of
cern of its nglts under the Le to Tranission Facilty Asignees (separte an apar frm
Tent's other rights under the Lease), Ower agred, upon the reest of
Ten ant at any timedurg the ter of the Leas, to grant to Tenant one or more exclusive, asgnable eaements
upon, thrugh under, over, across and above porons of Ower's Proper an lan that is
owned by Owner and that is adjacent to Ower's Prpe. Ower alo is reuir to grt to
Tenant such easements enumberg Ower's Propery (or other adjacent prperty as may then
be owned in fee by Ower) that Tenant deems necar, helpfu, aproriat, convenient or
cost~effective in connection with, incidenta to or to accomplish any of the Operations.
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Section 5. Assignment. Subject to certai restctions in the Lease, the Leae and the
rights of any par to the Leae and Owner's Prpert, wind energy projects, Traission
Facilties and Imprvements may be assigned (includig to an electrc utility), encumber or
mortged. in whole or in par, without the prior wrtten consent of the non-assignng pary but
no such assignent, encumbrace or mortgage shall opate to enar the obligations or
diminish the rights of the non-assigng pary thereto. Ower and Tenant acknwledge that the
Mera and this Amendment will contiue to be effective with respt to any assignent under
the Lease by either pary therto.
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Section 6. §uccessors. The Lease, as amened, shall inur to the benefit of. and be
binding upon, Ower and Tent and their resective hei trferees, sucessors and asgn,
and aU peons claiming wider them.
Secton 7. No ModifiatioD of the Lease. This Amendment does not aler, amend or
mody the tenns and provisions of the Lee or the Memo. but is executed solely for th purse
of giving notice of certai amendments to the Lease, which Lee, as amended. is incorporated
herin by refeence for all puroses to the same extent and with the same effect as if set fort
herein in fu.
Section 8. Governing Law. Ths Amendment shal be govered by and constred,
inteieted an enforced in accordace with the laws of the State of Idaho, excluding any
confcts of laws rues or priciples that might require or pert the application of the Jaws of
another jursdiction.
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Section 9. Counterpart. Th Amdment may be executed by facsimile and in
multiple counteiar, no one of which need be exected by all paries hero, each of which
shall constitute an origi. Counterpar thus executed shall togeter constitute one. and the
same instrent.
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IN WISS WHOF, Ower and Tent have ca ths Amendment to be
executed an delive by thei duly auorize rereentatives as of the date fit se fort
above.
"Ower"
Næn~i.O~=
''Tenant'
Roald Doskeland
Preident, Windland, In.
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STATE OF Jdl)o
COUN OF !lW(r
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On ~ JI . 2008, before me, ß:t~ LfL.' J;oSJte,; nota
public, peronaly appe Steven K. Deeg, peronaly known to me or proved to me on the
bass of satisfactor evidence, to be the peron whose name is subscbed to the with
instrment and acknowledged to me that helshe executed the saie in hisler autorized capacity
and that by his/er signatu on th instent the peron, or the entity upon behaf of which the
peron acted, executed the intrent.
&rè¿ ~.t"
Notar Public in and for said County and State
Commision Expires: II.J-";oll)
)
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On ~L n¡ . 2008, before me, &'t:b. bù...ns ¡¿~ notar
public, personally appeared Lynn Mare Deeg, personally known to me or proved to me on the
basis of satisfactory evidence, to be the peron whose name is subscbed to the within
instrment and acknowledged to me th helshe executed the same in bisler authried capacty
and that by hisler signtue on the instrent the person, or the entity upon behalf of which the
persn acted executed the instent.
WITNSS my hand and offcial sea.
&(jdiH44~
Nota Public in and for said County and State
Commission Expires: i/..s. &'0 I 0
17
STATE OF IDAHO )
./J )ss.COUNOF ILwl!r )
On tI..;"" day of Jø. 2008. beor me, ~.4"- L., J! . .
Notar Public, peonly ap Road Doskeland, knwn~cntied to me (or proved to
me on the oath of Roald Doskeland), to be the Prdent of the coipration that executed theabove instnent or the pern who executed the insten on behf of said corporation and
acknowledged to me that such C0oration exected the sae.
~d~Prd Name: ¿tla ¿u ~.;Keø
Comission Expir: 1/-3 -õU)/ l)
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SCBULEA
Land
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Le Deripton
Township 7 South, Rage 32 East, Boise Meridian, Power County Idaho
SectloD 31 - Ell2Ell2
Section 32 - SW1I4NW1I4; NWl/4SW/14; S1I2SWll4
SectoD 32 - Lot 4
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Township 8 South, Range 32 East Boise Merdian, Power County Idaho
Section 5 - Lot 6; SWl/4NWl/4; NWlI4SW1I4
Section 5 - Lots 2, 3, 4 & 5; El/2SW/14; SEl/4NWl/4
Section 6 - Lot i
Section 6 - NEl/4SEl/4; SE1I4NE1I4
Section 20 - Lots 1, 2, 3 & 4; WI/2
Section 29 - Lot 1 & 2
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When Record Mal to:
Windlaid, Inc
10480 Gaerale Cour Suite 84o-A
Boise, Idaho 83704
Instrument # 194226
POWER COUNTY, IDAHO200-25 02:7:15 No. of Pages 10
Record for : MIHAEL HECKLERCHR/T1E STBUCHT F..: 30-00e:-o Rec DIJ 2!~~t'
MEORAUM OF LEAE
Ths MEORAUM OF LEASE ("Memorandum'') is made and executed to be
effective as of bJ. Cfb1 ~)ii'l 5 . 200:: by and among Crag Meadows' personal
representative of the estate of Dean MeadoWS decease! 85 vendor and Richard G. Kopp,
as personal representative of the estate of Gerge B. KORP, deceased; Marta M. Koppi a
widow; Riehard G. Kop and Edith Ko,p. husband and wie as vendees under that certain
unreorded land contract dated February 8 . 1971 and as amended Mar 17. 1989
between Craig Meadows as personal rereentatie of tie estate of Dean Mead~Ws,
deceased od George B. KOPD and Martha M. KORP, husband aDd wie and Richard G.
KoPR and Editb KoDP, husband and wife. (collecvely subject to Section 14 below, and
together with their success and asgns hereder. "Owner"). and Wlndland. In~ a
Calfornia Corpration (together with its successors and asign herder, "Tenant'').
RECITAL:
A. Ower is the fee title owner of tht cen real proper located in Power County.
Idaho, as more parcularly described in Schedle A attached hero and incorporated herein by
ths referce (the "Land"), togeter with all and singlar (a) the wind and air rights on or
peraiing to th Lad (the "Wind Rights") and (b) all other rights, interess, prvileges and
appurnances pertaining to the Lad, includig any eaements and other rights as may be
necessar for inss, egress and maitenane of the La and any and all right, title and interst
of Ower in and to adjact roads, steets, aleys or righf-way (such item in clause (b)
collectively, the "Other Appurtnances'). The Lad, Wind Rights and Oter Appurtenanes
are collectvely refe to herein as "Owner's Propert".
B. On .Àc d. :i(;~ (the "Effective Datej, Ower and Tenant entered ino a Lad
Leae and Wind Easement Agrement (the "Leue") pursuant to which Ower leaed to Tenan
and Tenant leased frm Ower Ow's Prpery.
C. Ower and Tenant desire to execute ths Memoraum to prvide constctive
notice ofTenants rights under the Leae to all thrd paries.
NOW. THREORE for and in consideraon of the mut covents and beeñts
herein containe an other good and valuable considertion, the receipt and suffciency of whichar hereby acknowledged, Owner and Tenat herby agree as follows:
Section 1. Purpose of Memorandum. The puiose of ths Memoradum is to give
reord notice of the Lease, an of the rights crted thereby, all of which ar herby confrmed.
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The paries, however, advise all pares acng inter subseent to the date of this
Memoradum, tht the Lease and any an all documents execed in connection therwith, may
be amended from and afer the (fate herf with the conset of the paes therto, and without
amendment or this Memorandum. Without liitig the generty of the foregoing, th Lease,as the sae may be amended frm time to tie withut amendmt of this Memoradum, shl
be binding up all pares takng interets ii the Lad subseent to the date of rerdaton ofthis Memoradu As such, all such pares ar herby on notice tht they should inquire as to
the tes of the Lease as in effec frm time to tie, and that thd pares may rely on this
Memorandum solely for rec notice of the existence of the Lease and cer oftbe provisionstherf as of the date of tbiB Memorandum an not with repect to the specifics of the ters
therof as the sae may be in effect fr time to time.
Section 2. Term of Lease. The "Development Phase" of the Lee shal be for a
ter coimencing on the Effective nate an ternati on the earer to occur of (a) the date
which is five (5) year afer the Effective Date and (b) the commenement of the Opation
Date (as defied below); it beig undersod that if the Opertions nate ha not commenced
within five (5) year afer the Effective Date, Ower and Tent may agree in wnti on ananua bas to extend the Development Phase for sucessive one-year period not to exceed the
ealier of (i) fift (15) yea afer the Effective Date and (ii) the commence of th
Opertions Date. Dung the Development Phase, Tent shal have the right to stdy. the
feaibilty of wind energy converon on Owner's Prer and to exere its other rights under
the Lease. The uOperations Phase" of the Leas shal commence on the first day of the firs
month imedately followig the month in whch the. sale of electrcity (excepti tes
electrcity) ha fi occ in connecon with a wind power projec (the '-Operations Date")
an shall continue for.a peod of thrt-five (35) years afer the Options Date, unless soo
terinated in accordance with the provisions therf: Tenant may. by notice to Ower no later
th thirt (30) days prior to the expiration of the Opertions Phase, elect to fuer extend the
Lease for an additional twenty (20) ye penod commencing upon the date on whch the
Opraons Pha expires on the same tems and conditions, except len of ter as applied
durng the Operatons Phase (the "R.ènewal Term").
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Section 3. Pqrpose of Lease. The Leas is for wind ener converion to electcity
on Owner's Propert and for the collection and tranmission of electrc power by developing and
operating wind powered electrcity generating prjecs on Ower's Propert and other proer,
and for related activities (collectively. ''Operations''), includig, without lition:
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(a) conducting stdies of wid spee wid diction and other meteorological
data extrtig soil samples, performing geotcchncal tes. and conducting such oter
tes, stues, inections an anlysis as Tenant dee advìsable or necessa
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(b) developing, constrctg, renstrcting, ertig, insling, reintalig,
improving, relacing, relocatig and removing fr time to tie, and mag, using,
monitoring and operting, existin, additional or new (i) WTGs (as defied below), (ii)
electrcal trmission and distrbution failties, inludig without liitaon, overead
and undergrund transmission, distbution or collector lines, ciruit braker, meter,
conduit, footing. towers, poles, crossas, guy lines, anchors, cabling and wi, (ii)
overhead and underground control. comuncations and rao relay system, (iv)
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substaons, intennection and/or swtchig failties and elecc trfoner and
tranformer pads. (v) energy storage facilites, (vi) metrologica towers and wid
meaurent equipment, (vii) contrl buildings, contrl boxes an computer monitoring
harwa (viii) utiity inallaton, (ix) saf prtecon facilities (x) maiten ya
and buildigs, (xi) road and erion contrl falities, (xü) sign and fences and (xii)
other improvements, fixtus, faclities. machiery and equiment associated or
connected with the generion, converson, storae, switching, meter, .step-up, step
down, trsmisson, distrbutio~ conductng. wheeling, sae or other us or conveyce
of electrcity on Ower's Prpert and on other proer (in such location as Tenant
shall detine frm tie to tie in the exerise of its sole discreon) (all of the
foregoing, collectively the "WiDdpower Facilties'');
(c) . developing, erctig, constrctig, instalig, relacing, repaing,
relocating, removing, maintag, operting and usng the following frm tie to tie in
connection with Wind power F8clities, wheer locaed on Ower's Prer or
elsewher, (i) a lie or lines of poles or tower, together with suh wi and cables as
:fom time to tie are suspended therfr~ anor undergrund wire and cables, for the
trssion of electrcal enery and/or for communcation puioses, and al necessar
and prer anchors, surt strctu, foundations, footigs, crssam and other
appliances and fixtes for use in comiection with said tower, wires and cables; (ii) one
or more substations or internnecon or swtching facilties frm which Tenat or other
that generate energy may internnect to a utilty trsmsson syte or the trsmission
system of another purhaser of eleccal energy an (iii) roads associate with the
foregoing (such tower, wies, cales subsatons, failties and other enWDerated items
in clauses (i). (ii) and (il) ar herin collectively called the '7ralmission Facilities'');
(d) captug and to converng all of th wi reoures of the Lad;
(e) exerising the right of ingess of and egress frm the Winwer Facilties
over and along Owets Proery by means of any exstng road and laes thern. and
by such other route or routes as Tenant may constrct on Ower's Prper frm tie to
tie, for the benefit of an for puroses incidental to Tenant's us of Owner's Prpey
as provided herein and for the benefit of and for purs incidenta to Tenant's activities
and projects on lids other th Ower's Proper and
(f) (exersing any and all rights of Ower to select, deterine, prohibit or
contrl the location of sites for drlling and/or exploraton of miners in, to or under the
Lad.)
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Section 4. Ownership of WindDower FaciltieJ. Under the Lee, Owner
covented tht Owner shall have no ownerhip or oth interest in any Improvements (as
defined below), and that Tenan could reove any or all such Imrovements at any time. As
used in the Lease, the tem "Improvements" mean all mea al WTOs, Transsion Facilties
and other failties, strctu, equipment. machier, wire, conduit, :fr, cable, poles, materals
and proper of ever kind and charcter which is constcte instaed anor placed on, above
or under Ower's Propert by or on bealf of Tent. "WTG'" mea any wind tubine
generator, wind ener converson sysem or other power generon faclity, of any tye of
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teclmJogy, desgned for the generation of eleccal power frm wid power, includng without
limitation, the associated tower, support stctu guy wi, braes, foundatons, concre
pa, footis, anhors fences and diectly relate equipment.
Setion S. Transmission Facles Easement. Under the Lease, Tent has the
right to grt to any utility, power provider or other par (collectively, "Trasmison Faemty
AsigneesU) (a) the right to constrt, operte and maintai the Traission Facilites on
Ow's Prpery and, (b) for puises of access to and frm sucb Trasmission Facilties, the
right of ins and egrss acoss portons of Ower's Pr and land tht is owned by Ower
and tht is adjact to Ower's Prper. In order to failtate the assignen by Tenant of
cerain of its rights uner th Lee to Tranmission Facilty Assignee (separte an apar frm
Tenant's other rights under the Lease), Ower agree, upon the reuest of Tenant at any tie
durg theter of the Lease, to grant to Tenant one or more exclusive, assignble eaements
upon, thugh under, over, across and above portons of Ower's Prope and land that is
owned by O\er and that is adjacent to Ower's Prper.
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Section 6. No Liens. Under the Le, Ower is not alowed, without th prior
wrtten const of Tenant, to create or peit to be creted or to reai any lien,
encumbraces leas, mortgages, dee of bust, secwity intets, licenes or oter exceptions
with reect to Ower's Prpe or any par ther£
Section 7. No Iiterference; No Thir Part Riglts. Ower covenanted and agr
under the Lee tht Tenant would have the quiet use and enjoyment of Ow's Proper in
accordance with the ten of the Leae without hindrance or intemption :f Ower or any
other pen or perons. Without limiting the geerity of the foregoing, Owner agreed th
Owner would not and would cause the other Owner Pares (as defied below) not to (a)
materally interere with or prohibit the fre and complete use and enjoyment by Tent of its
rights granted by the Lease; (b) tae any acon whch could materaly interfer with the
availabilty, accessibilty, flow, frequeny, or diretion of air and wid over and abve Ow's
Prery; (c) take any action which could in any way materaly interfer with the trsmssion
of electrc, elecmagnetic or other fonns of enery to or from Ower's Prop (d) tae any
action which could materally impar Tenant's acces to Owers Proper for the purses
specified in the Lease or materially impair Tenant's acces to any or all of the Imrovements; or
(e) othse interfm with Tenant's inended use or Owner's Proer. Ower al agree th
Owner would not take any acton or grant any th pa any rights in Ower's Prpert that
could materally interfe with the development, constrction, inta1atio~ maitenance or
operation of any Windpower Facities on Ower's Proer or that coul allow any par other
than Tenat to exploit th Win Rights or tht could materally and adverely afect Tenat's us
of Ower's Prope. Finly, Ower agred tht durg the tem of the Le~ Ower would Dot
grt any rights to any third pary to develop, constct, intal or maita or opere any
Wind power Facilties on or around Ower's Proer, includig without liation, consction
or upgrdig of any Trasmission Facilties without Tent's prior wrtten conset, whch
consent maybe witheld in Tenant's. sole discrtion.
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Section 8. .lelease. Under the Lee, Ower on its own behf and on behalf of each
of Ower's afliates, successors and assigns and all such pares' stockholder) member,
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parer offcet ditors, emplOyet agentst rereentive cotracort faily member and
invitees (collectively, the "Owner Partt' ha releaed and dischaed eah of Tenant and
Tenantts afliates, successors an assign and all suh pares' stkholder membe, parerst
offcer, dictorst employes, agents, reresentatives, cotractor and invitees (collectively, the
"Tenant Partesj frm any lossest liabilties, daages costs, clai~ suts and causes of action
(includig losses or clai for peronal injures or death and prpert daage an includingreanable attomeyst fe and costs of litigation) (coJlectively, "Loses") atbutble to (a)
inteerence with wind on any proper owned in whole or in par by Ower that is adjacet to
OWner's Prert and (b) dangers associated with eleccal generg faciltiest such as audble
and electrmagnetic fields, elecmagnetic noise, electrcal inererce, rado frquency
interference or cell tower interere (collecelYt "nteñeren~ aDd EJeciel Generating
Facility Dangersj, even if such Loes ar caused by or alegedly caused by any Tenant Par's
sole, joint or concuent negligece, strct liablity or other lega fault.
Secton 9. Assignment Subject to cer restrctions in the Lee, the Lease and the
rights of any par to the Lease and Ower's Proper, wid energy projects. Trsmsson
Facilties and Improvements may be assignedt encumered or mortgage in whole or in par,
without th pror wrtten conent of the non~asignng par but no such asgnent,
encmnbrce or mortgage shall operate to enarge the obligaons or dimish the righs of the
non-assigng par thero. Ower an Grantee acknowledge tht th Memmadu win
contiue to be efecvc with reect to any assignent unde the Lease by cither par thero.
Section i o. Sgcceon. The Lee sha inur to th benefit of; an be bing UPn.
Ower and Tent and their reective h~ trfees suessrs and assign, an all peons
clai under them.
Section i 1. No Modifcation of the Lease. Ths Memoradum does not alter, amend
or modfy th tenS an provisions of the Lee, but is executed solely for the purose of givig
notice of the existence of the Lese and the tes and conditions therin, which Lease is
incorporated heei by reference for all purposes to the same extent and with the sae effec as if
set fort her in ful.
Secon 12. Governing Law. This Memoradum shall be govered by and contred,
interreed an enorc in accordce with the laws of the State of Idaho, excluding any
conflicts of laws rules or priciples tht might requi or perit the aplication of the laws of
another jursdiction.
Section 13. Counternart. Ths Memradum may be executed by facsimile and in
multile counar. no one of which need be executed by all pares her, each of whch
shall costtute an ongial. Counterar thus execut shall togeter consttute one and the
same instent.
Section 14. VendorN endee Isues. The vendor ("Vendorfl) under the unecrded
land contrt identified in th introductory pargraph of ths Lease, as amened (the "LandContract') herby agree tht the entr into this Lease by the vendees under the La Contrt
(the try endee") shall not be deemed a traner for the purse of any retrctions on trsfer or
any due-an-trfer clauses in the Lad Contrct. So long as the Lad Contrct is in effect. and
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af the Land Contr is fulflled and Vendots inter is conveye to Vendee, Vend and not
Vendor shan be obligad to peronn the obligaons of Ower under the Lease. If the LadCotrt is ever termnat forfeited or forelose, however, Venr shal perim the
obligations of Owner aring therer. As betwee Vendor an Vendee Tent may satsfy its
obligation to the Ower under ths Lee by rederg perormce to the Vendee uness and
until (a) Vendee dict Tenant in wrting to render perfonnce to Vendor or (b) Tent is
provide with a co orer indcang that Venee' intert ha bee forfeite to Vendor or (c)
Tent is provided with a cour order otherse ding Tenant to redèr pernnce to
Vendo.
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IN WITSS WHOF, Ower an Tenant have case ths Memorandum to be
exected and deliver by thei duly authrid reentatives as of the dae first set fort
above.
"Vendor"
By: \
"Vendee"BY.~~Nam~G; =mõna Resentative
Title: Estate of Gerge B. Kop deed
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By: ,LLL4~
Name: Richad G. Kopp
Title: venee
By: Q4.-L~
Name: Ed KoRP
Title: vendee
By: lr4Zvm, ¿W'
Name: Mar Me KQPTitle: ye
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Name: Roald Doskeland
Title: Prident. Windland. Inc
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STATE OF (drAt'
COUNTY OF .Ut
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On ~A11ø c.P , 20dbefor me, ~ 7i,,¿,t . nota public,
penaly appeaed Cr Meaws ' . pesonà to me or prved to me on the
bais of sasfactry evidene, to be the peon whose nae is suòe to th withn
instrent and acknowledged to me that ht"she exected th sae in hi authri capacity
and that by ~..i~ on the inen the pern, or the enty up behf of which thepern act~~~ed tl ~ent.,....'\ ... ;,iIC.... ~..II '"_ .., ... ¡¡, ('' .'"" ' 0 ~w/l~)nJ had'f¥~ffcial seal.
5;". ¡. . ;; :~!.. "'.. 0 , ....
\ ~l~.. '; ~4;1l /1f'8'~~'T _.. ... ~
.... ... 1l~¡P""~ '* s't r;
~',........ Commsson Expir:
STATE OF Tc/hQ
COUNY OF -PÐi cec
)
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)
On 'Vt (e roW 2., 2~ before me, Jt.n~re. ~u.p nota public,
peronlly appear Rich G. Kop , peronally known to me or proved to me on the
basis of satsfactory evidenc, to be the peron whose nae is subscribed to the with
insent and acknowledged to me tht heshc executed the sae in hier authori caacity
and that by hisler signe on th Instent the person or the entity upon behal of which thepern acted executed the instr~iirrirllJj~~\~~ RU¡jf~~
WITSS my had ;: cialf ~':4ì o~p$ ~
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STATEOF~
COUN OF \
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On .1:et m be. ~ 2~ befor me. ~ \i1'~ LfP · nota public,peronallyappeaed Edth Kop . perna knwn to me or prved to me on th
basis of satisfto evdence, to be the per whose name is subscrbed to the within
instrent an acknwledged to me that he/she exected th same in hisler authonzd capacity
and that by hisAer signat on the insten the pern, or the enty upn behalf of which the
peron acted, executed the instrent
~~\\\\\.~iilU!J'lh,WISS my ha an oA"....~. . RV~.T: '.~~ yi§ ii. o~ttR.;;.. ~ '.~ =- ,. Ci _. 1
\ P\J~ &blie in and said County and State~ ~ ,§~erA :f\.~~~. . ~ :J ~n",l)í'lÍIIIIf~~ssion Expir: . -,J oUi
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STATE OF -1 da no
COUNY OF l)Qu
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On ~Ù&: niW&. iCt before me, ~(.o n.~-A2 u. p nota public,
personaly apeared Ma M. KQpp , pernally knwn to me or proved to me on the
bas of satisfctory evidence, to be the peson whose nae is subscnòcd to the with
insent and acknowledged to me that he/sh executed the same in hisler auonzed capacity
an tht by hisler signat on the instrent tbe peon, or the entity upon behalf of which the
persn actd, execut the instrent.
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STATE OF IDAHO
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COUN OF AD~ )
On this -. day of Ol¥em,c .200, before me, i. Q. .r4¿ PtA' t,.. . a
Notar Public, persnay apea Roald Doskelaid, knwn or idetified to me (or prved to
me on the oat of Road Doskelad), to be th Pridet of the corpon th execute the
. above instrent or the per who execut the inent on beha of said corpration and
acknwledged to me tht such coiration execed th same.¿~
Nota Public for Idah
Prnte Name: &1&*" N PIg ß' C
Comission Exir: Q. ~ ') . a ')
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SCHDULE A
Land
Parce ODe ~ Order No.: 301042008
Towohlp 8 South Rage 32 Ea Boise Median, Power County, Idaho:
Secon 30: Lots 3 aid 4;
EXCEPTG THEREFROM tile followi:
BegDnfDg at th Soatlwest COrDer of Secdon 30, Township 8 Soutl, Rage 31 East, Boise MerdJ,
Power C01lty, Idaoj
tllenee Nort 88°36'%0" East, 50.05 fee;
thence Nort 1%02'00" East along an e:dst fence line 810.%0 feet
tllenee North 13°13'15" Eat alng an exis1ing fece J1e 1,19563 fee
thence North 14001 '45" East along and existng fene One 376.65 feet;
thence Nort 79°58'30" Wes along an exstng race One 451.00 fee;
thene North 79"6'50" Wes SIODI an e:dstng fence lie 396.70 ree
thence Nort 76ai4'.5" West along an e:stng fence One 258.30 fee more or Jess, to the Wes be
of said Secon 30;
tbence South 00°57'00" East, ~54.50 feet more or less, to the POIN OF BEGG.
Parcel 2 - Order No.: 3010420080
Township 8 South Rae 31 East, Boise Meridian Power County, Idaho:
Secon 13: SYiSEV4-
Secton 24: ~Y.. SEY.%; NEVSY..
Towshlp 8 South, Rage 32 East Boise Meridin, Power County, Idaho:
Secton 17: Lots 1, i and 4, SEY..Y.. SWY..
Secton 18: Lot 4, SE%SW%; S~EY4-
Secon 19: Lots i, 3 and 4; EYiNE%; SE%; SEY~/.. EYiSWY..
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Parcel 3 - Order No.: 3010420076
Township 8 South, Range 31 E.B.M. Power County, Idah.
Secon 25: A portion of the S % NE % descried as foUows:
Commendng at a point 390 feet East of the Soutwest corner of Sectlon 30, Towshi 8 South
Range 32 E.B.M, Power COllty, Idah;
Tbence Nort 70 Eat 2430 fee;
Thence Nort 75° Wes 1568 feet;
Thence Nort 54° Wes 1860 feet, more or less intersedbg a point 330 feet Ea of the Northwesteonier of the SW % NE % Secton 25, TowDShi 8 Soth, Range 31 E.B.M..
Thence East 2310 fee
Thence South 80 ros;
Tbence East 80 rods;
Thence South 160 rods;
Thence Wes 930 feet to the POIN OF BEGING.
EXCEPT therefom aU that portOD of1aid lying In Seeton 30, Township 8 South, Raie 32
E.B.M.
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Scede I -l)10)110
Memorandum of Lease Amendment
'i'hcn Recorded Mail to:Inumt # 196131
POER COUNTY, ID11.~ 03:02 No. of Pages: 9
Rec fo : W1DLAND.IHC.
CHRISTIE STEINUCHT F..: 27.80Ex.o Recon D'P ~':~
Wind land. Inc.
7669 W Riverside Dr. Suite 102
Boise. ld"ho 83714
MEMORANDUM OF AMl~NDMENT TO LEASE
This MEMORANDUM OF AMENDMENT TO LEASE ("AmcndmcnC) is made and
executed 10 be etTective as of September 2' 2008 by and among Craig Meadows, as trustee
("Trustee"), under that certain Dean Ml.'adows Trust established on or about January 6,
1988 by Last WiJ and Testament of Dean Meadows (the .'Trust"), as vendor, and Richard
G. Kopp and Edith Kopp, husband and wife, as vendees (succes50rs to the initial "Owner"
mimed in the Land Lease and Wind Easement Agreement) under that certain unrecorded
land contract dated February 8, 1977 and as amended March 17, J 989 between Craig
Meadows, as personal representative of the estate of Dean Meadows, deceased, and Goorgc
B. Kopp and Martha M. Kopp, husband and wife, and Richard G. Kopp and Edith Kopp,
husband and wife (collectively. with their successors and assigns, and subjcct to Section 48 of
the Lease. as amended (defined below). the "Owner") and Windland Ine.. 11 California
corporation (togethcr with its successors and assigns. the "Tenant").
Tlris Amendment addresses nmenclments mtUle 10 tIie Lease thot is t!le :rubjeet of th~
MEMORANDUM OF L/:"ASE recorded in the records of Power County, ID iu.lnstrument Nt',
194226 (the "Memil~.
iu:crl ALS:
A. Owner is the fee titlc owner of that certain real proper located in Power County.Idaho. as more particularly described in Schcdule A attached hereto and incorporated herein by
this rcference (the "Land"). together with all and singular (a) thc wind and air rights on or
rx'Taining to the Land (the "Wind Rights") and (b) all other rights, interests. privileges and
appurtenances pertaining to the Lad. including any easements and other righL'i as mn)' be
necessary lor ingress. egress and maintenance of the Land and any and all right. titlc and interest
of Owner in and to adjacent roads, streets, aUeys or rights-or-way (such items in clause (b)
collectively, the "Other Appurtenances"). The Land. Wind Rights and Other Appurtenances
are collectively referrd to herein as -Owner's Property".
B. On December 3~ 2004 (the "EfTective Date"), Craig Meadows, as personal
representative of the estate of Dean Meadows (deceased), Martha Kopp. a widow. Richard G.
Kopp. Edith Kopp. a.nd Richard G. Kopp as Personal Representative of George B. Kopp
(deceased) (collectively. as the "Owner" thereunder). and Tenant entc~cd into a Land Lease nnd
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Wind Easement Agreement (the .'Lease") pursuant to which Owner leased to Tenant and Tenant
leased from Owner, the Owner's Propeny. Cenain ters of the Lease arc addressed in the
Memo.
C. The probate of the estate of George B. Kopp has been closed. with Martha Kopp
being declared the sole heir. and Richard Kopp has been released as Personal Representative.
See Estate Closing Order dated December 20. 2004. and attached Petition for Approval of Final
Settlement and Distribution. fied in Case No. CY 04-0092. before the District Court of thc Sixth
Judicial Distict 01' the State of Idaho in and for the County of Power.
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D. WlIEREAS. by Quitclaim Deed dated February 4. 2005. recorded on February 7.
2008 as Instrument No. 193358 in the real property records of Power County. Idaho. Martha M.
Kopp conveyed all of her interest in and to the Owner's Property. as well as other land to
Richard (I. Kopp.
E. WI ll~REAS. the probate of the estate of Dcan Meadows has bcen closed. with all
nfhis interests in the Owner's Property and Land Contract being conveyed by Will
10 the Trust.and Craig Meadows has been released as Personal Representative. Sec Verified Statement of
Personal Representative Closing Estate dated October 3 i , ) 998. ficd in Informal Probate
Proceeding, Cas No.3P- i 1827, before the District Court of the Fourth Judicial District of thc
State of Idaho in and for the County of Ada.
F. OYr'lcr and Tenant have now amended the Lease to. among other amendment.\.
provide for a fixed Development Phase and to provide for an option to purchase a portion of the
property for a substation site, and execute this Amendment to provide constructive notice or
Tenant's tights under the Lease, as amended, to aU third pares.
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NOW. THEREFORE. for and in consideration of the mutual covenants and bcncfit.c;
herein contained and other good and valuable consideration. the reeipt and suffciency of which
are hereby acknowledged. Owner and Tenant hereby agree as fbllows:
Section i. Purpose of Mcmor~indum, The purpose of this Amendment is to give
record noticc of the Amendment to Land Lease and Wind Easement Agrt.-ement. and orihe rights
crcated tht.'feby. aU of which arc hereby confirmed. The parties. however. advise all parties
acquiring interests subs~qucnt to the date of this Amendment. that the Lease has been amended
us of Scptcmbcr?b 2008. and that the Lease may be amended n-om and after th'c dElte hereor
with the consent ofthc parties thereto, and without amendment to the Memo or this Amendment.
Without limiting the generality of the foregoing, the Lease, as amended to datc and as the same
may be amended from time to time without amendment to the Memo or this Amendment. shall
be binding upon all parties taing intersts in the Land subsequent to the date of rccordiition of
this Amendment. As such, all such parties are hereby on notice that they should inquire as to the
tenns. of the Lease as in effect from time to time. and that third pal1icsmay rely on the Memo
and this Amendment solely for record notice of the existence of the Lease and certain of thc
provisions thereof, as amended as of the date of this Amendment, and not with rcspect to the
specifics of the terms thcrcotas the same may be in eJTcct from. time to time.
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Section 2. Term of Lc:asc. The "Development Phase" of the Lease shall be for a
tcrm commencing on thc Effective Dale and tcrminating on the earlier to occur of (a) December
31, 2014 and (b) the commencement of the Operations Dale .(as dcfined below). The
"Operations Phase" of the Leas shall Commence on (x) the first day of thc fiTSt mtmth
immediately following the month in which th sale of electrcity (excepting test electricity) has
first occurred in connection with the Project and at least one WTO has been constrctcd on thc
Land and is operating to produce electricity or, (y) if this Lease has been assumed by a Utility atthe time, the first day of the first month immediately following the month in which e1cctricity
(excepting test electrcity) has first been delivered to the electric power grd in connection with
the Project and at leas one WTO has been constructed on the Land and is operating to produce
dectricity (the "Operations Date"). The Operations Phase shall continue for a period of thirty-
live (35) years after the Operations Date. unless sooner tennjnated in accordance with the
provisions hereof. Tenant may, by notice to Owner no later than thirty (30) days prior to the
expiration of the Operations Phae, elect to further extend this Leas for an additional twcnty
(20) year period commencing upon the date on which the Opert.tions Phase expir(,'S. on the same
ters and conditions except length of ter. as applied during the Operations Phase (tht
.'Renewal Term").
Section 3. l'urposc of Lease. 'Inc Lease continues for the purpose of wind energy
conversion to electricity on Owner's Property and tor the collection and transmis.-;ion (lr electric
power by developing and operating wind powered electricity generating projects on Owner's
Properiy and other property, and fòr related activities (collectivcly. .'Operations"). Sce initial
Memo for additional details.
Section 4. Transmission Facilties J:~ascmcnt. Under the Leasc. Tcnant has the
right to grant to any utilty, power provider or other par (collecively, "Transmission ¡"aeilty
Assignees") (a) the right to constrct, operate and maintain the Trasmission Facilities on
Owner's Property aiid, (b) for purposes of acces to and from such Transmission Facilti~s. the
right of ingres and egress across portions of Owner's Property and land that is o~ncd by O~ner
and that is adjacent to Owner's Propcrty. In order to Hieiltate the assignment by renant of
certain of its rights under the Lease to Transmission Facilty Assignees (separate and apart from
Tenant's other rights under the Lease)~ Owner agreed. upon the request of Tenant at any time
dU1;ng the term of the Lease, to grant to Tenant one or more exclusive. assignable easements
upon. through, under, over, across and above portons of Ownr's Property and land that is
owned by Owner and that is adjacent to Ower's Property. Owner also is required to grant to
Tenant such cascments encumbering Owner's Property (or other adjacent property as may thcn
be o\\ncc in ibe by Owner) that Tenant decms necessary. helpful, approprate. com.cnicnt or
cost-effective in connection with, incidental to or to accomplish any of the Operations.
Sec lion 5. Option to Purchase 10 Acres. At any time during the 1eni of the i .casc.
Tenant or any Transmission Facilty Assignee ("Purchaser") has the option to purchase Ii.om
Owner a portion of the Land consisting of up to len (10) acres for usc by T~nant or the
Transinission Facilty Assignee íor the construction of a subsistionlntcrconncction facility for
ihe Windpowci. Facilties and for .the operation and maintenance thereof. The specific location
otthe Substation Lot is to be detrmincc at the time ofcxercisc ofthc option.
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Section 6. Assignment. Subject to certain restictions in the Lease, the Lease and the
rights of any pary to the Lease and Owner's J)ropety, wind energy projects. Tranmission
Facilities and Improvements may be assigned (including to an electric utility), encumbered or
mortgaged. in whole or in par, without the prior wrtten consent of thc nonwassigning party but
no such assignment. encumbrance or mortgage shall operate to enlarge the obligations or
diminish the rights of the non-assigning party thereto. Owner and Tcnant acknowledge that the
Memo and this Amendment will continue to be co-cctive with respect to any assignment under
the Lease by either party thereto.
Sectíon 7. Successors. The Lease. as amended. shall inure Lo the bencHt of. and be
binding upon, Owner and Tenant and their respective heirs, traferes. successors and assigns.
and all persons claiming under them.
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Section 8. No Modification of the Lease. This Amendment docs not alter. amend or
modify the tcnns and provisions ofthc Lease or the Memo. but is executed solely lor thc purpose
of giving notice of certain ainendments to the Lca.~e. which Lee, as amended. is incorprated
herein by reference for all purposes 10 the same extent and with the sae cffbct as ir set forth
herein in fuJI.
Section 9. Governing Law. This Amendment shall be governed by and construed.
interpreted and enforced in accordance with the laws of thc State of Idaho. excluding any
conflcts of laws rules or principles that might require or permit the application of the hl'wS of
another jurisdiction.
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Section i o. Counterparts. This Amendment may be executed by facsimile and in
multiple counterparts. no one of which need be executed by all parties hereto. each of which
shall constitute an origina1. Counterprt thus. executed shall together constitute one and the
saml! instrument.
Section i i. VcndorNendee Issues. 'Ine vendor ("Vendor") under the unrecorded
land contract ,identified in the introductory pargraph of the Lease. as amended (the "LandContrnctl) agreed that the entry into the Lease by the vendee imder the Land Contract (the
"Vendees") shall not be deemed a transfer for the purpose of any restrictions on trasfer or any
due-on-transfer clauses in the Lad Contract. So fong as the Land Contrct is in effect. and ancr
the Land Contract is fulfilled and Vendor1s interest is conveyed to Vendee, Vendee and not
Vendor shaH be obligated to perfonn the obligations of
Owner under the Leusc. If the LandContract is ever terminated, forfeited or foreclose. however. Vendor shall pcrfonnthe
obligations orOwner arising thereafter. As between Vendor and Vendee, Tenant may satisfy its
obligations to the Owner under this Lease by rendering performance to the Vendees unless and
unti (a) Vendees direct Tenant in wrting to render performance to Vendor or (b) Tenant is
provided with a court order indicatiiig that Vendees' interet has ben forfeited to Vendor or (c)
Tenant is provided with a court order otherwse directing Tenant to render pcrlormancc to
Vendor.
Page 4 or9
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IN WITNESS WHREOF, Owner and Tenant have caused this Amendment to be
executed and delivered by their duly authorize representatives as ofthe date first set forth
above.
TENANT:OWNERlENDi~F..:
WINDLAND. INC..
a California co ion JtJi~
Richard G. Kopp, a individual
, -l /.)7--
Craig Meado rustec under .lbc
De Meado" Trust dated Januar 6. 1988
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STATE OF IDAHO
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)ss.COUNTY OF Ao" )
On !his bS day of j G t , 2008, before me .J.i.. tlQe:r , a
Notary Public, personally appeare Roald Doskeland, known or identified to ~e (or proved to
me on the oath of Roald Doskeland), to be the Prident of Windland, Inc., the corporation that
executed the above instrument or the person who exccuted the instrment on behalf of said
corporation and acknowledged to me that such corporation executed the same.~~
Notay Public fOT Idaho
Pnnlt.'C Name: YIA (A A. PIA 8 ie ,.
Commission Expires: 3 'LD . Poll Ý
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STATE OF IDAHO )n )85.
COUNTY OF Ye;H,0€.JL )
On this ~ay o£i 0 nf.. 2008. before me, Eo hlo, -. ttetc: _ .._ a
Notar Public, persnally ap~ar G. Kopp, known or identified to me to be the peron
who executed the above instrument and acknowledged to me that he executed the same.
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STATE OF IDAIIO )
l\ )5S.COUNTY OF ..t~ _. )
On this clQ1ßdSY or; ni\h.. 2008. before me. ___Bolc!.~_tYt£.~_._. .' a
Notary Public. personally ap~ Edith Kopp. known or identified to me to be the perStln who
executed the above instrument and acknowledged to me that she executed the same.
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#o~~~l~'~~.~~(; " .~¿-~~ ..' ""OTAR'" '.~,. %S.l\, ,. \~:: : \ ===i! ..0.. : =a i ¡s
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Notary Public .
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~ Qbbz JYl i\Notary Public ~ _IPrinted Name:. .Ai evCommission Expi ~~ -
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COUNlYOF Az?l7
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On $érEmaøi S ,2008. before me, 12u."hlJL:!;'-.F.:.G~.._.:~_c:.I~ ___ notary
public, personally appeared Craig Meadows. personally known to me or proved to me on the
basis of satislàctory evidence. to be the sole trustee under that certain Dean Meadows Trust dated
lIbout January 6. i 988. whose name is subscribed to the ""ithin instrment and acknowledged to
me that he executed the same in such capacity and that by his signature on thc instrument the
person. or the entity upon behalf of which the person acted. executed the instniment.
WITNESS my hand and offcial seaL.
EJ ~-cA~ F ~_.__.__.
Notai)' Public in and for said County and State
Commission Expires: Oc:~-e't 2R .20/:Z
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SCHEDULE A
Land
ParecJ One - Order No.: i(TitNbn)
Township 8 South, Range 32 East, Boise Meridian, Power County, Idaho:
Sc.'Ction 30: Lots 3 and 4;
EXCEi~lNG THEREFROM the following:
Beginning at the Southwest corner of SctiOD 30, Township 8 South, Range 32 F..st, Boise Meridian.
I)ower County, Idaho;
thence North 88036'20" F..t. 504.05 feci;
thence North 12116'OO" East along an existing fence line 810.20 feet;
thence North 13°13'15" East along an existing fence line 1,195.63 feet;
theiice North J4°01'45" East along and existing fence line 376.65 rcet;
thence North 79°58'30" West along an existing fenee linc 451.00 fcet;
t!lencl' North 79°36'50" West along an existing Jèmcl' line 396.70 fect;
thence North 76°14'50" West along an existing fence line 25.30 feet. morc or Jess, to the West linc
at'sKid Scetion 30;
thence South 00057'00" East, 2.5.50 feet, niore or les, to the POINT OF BEGINNING.
Parcel 2 . Order No.: (iTitINbN)
Township 8 South Range 31 East, Boise Meridian, Power County. Idabo:
Section 13: SYzSE~.
Section 24: NYzNE~; SE%NE%; NEYotEY..
Towiiship 8 South, Range 32 F..st, Boise Meridian, Power County, Idaho:
Section 17: Lots 1,2 and 4, Sl:%NWY.; SWY..
Section is: Lot 4, SEY.SW~; SYzSEK
SLoction 19: Lots 2,380(14; EYzE%¡ 8E%; S~;%NW%; l:YzSW%.
laTccI3 - Order No.: ((11tINbn)
Township 8 South, IÙlnge 31 Ji:.B.M., l)owcr County, èd)r()pStat~_S_)).
Section 25: A portion of the S Yz N E V. de.'ccribediis follows:
Comnienc:ng af a ¡)oint 390 feet Eas1 of tbe Southwesl corner of Section 30, Township 8 South,
Raii~c 32 l.B.M., l)owcr County. Idaho;
Thence North 7° East 2430 fect;
Thence North 75° West 1568 lect;
Thcnt':c North 54° West 1860 feet, more or Jess, intersecting a point 330 feet Eiist of the Northwesl
torner orthe SW.Y. NE % Section 25, Township 8 South, Range 31 E.ß.M.,
Thence East 23 i 0 feet;
Thence South 80 rods;
Thence East 80 rods;
Thence South 160 rods;
Thence West 930 rect to tbe POINT OF BEGINNING.
Jo:XCEPT lhcrcfrom all that portion ofland lying in Section 30, Township 8 South, Range 32
E.B.M.
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07/29/28B4 12: 31 2B83752894 _PAGE 82
When Reced Mail to:Instrut # 18H78
PO COUNTY. IDAH:z 11 :2:30 No. of Pages: 9
Recon fo : ALLIANCE TILECHJISTIHE 8TUCHT ~ 27.00Ei.olo Recde Dep ~,a J
Wínd, In104 Gae Cour Sui 84.A
Bois Idah 83704
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MEMORAUM OF LEASI
Th$ MEORAUM 0t l.Ja lMemonudumj is mae im execute to be
efectve as of -JUt.l. ¿. if"'.. . 200.ï by an amon kef bilk an Viole Is"k.".1_4 ..4 de (collecvely, an togeer with thei sucers an asgn he.er,
"Ower"), an Wmdl'pd. lpç, a. Ca Corptioa (togeter with its su and
asgns herde, uTeit'').
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REALS:
A Ow is the fee title owner oftbt cei mJ prop located in Powe County,
Icb, as more paricularly decrbe in Soliul A athe heret an inco li by
ths reerèn (th .'L..d")~ togeer with all and sinlar (8) th wi and ai ngls on or
perng to the La (the cøiB Rlu') and (b) aU other righ in, prvilege anappances peg 10 the La inludg any eacm and ot Tits as may be -
n~ry fo ingres egr and mateance of th La an any .id .n ngb, title an ÌDb:
of Owner in an to adacent ro, str, aleys or nghta-or.way (such item in clae (b)
colkvely. the "Otker ApPllrtenlieej. Th Lan Wmd Rights an Oter Apurces
ii collecvely referrd to herin as "Oer's Prper.TI Ad -B. On Jix'f I' .%'''c c'EO'eee Datt" Ower an Ten enteR in10 a I.
Le and Win Eaement Agen (th '"Lwej pmant to which Ow lead to Tenant
and Tenant lea fr Ower Ower's Prer.
C. Ower an Tent dere to execute fb. Memnmum to prvide oove
noce of TCIts righ uner the Lee to all th pares
NOW~ THORA for and in cosideon of the mutu covents an beef
hern contaed and oth good an valuable consdertion the reeipt and suffciency ofwbich
are herby acknowledged Ower an Tenan herby age as foll:
Secon 1. Purpose or M,mprJlldum. The pu8e of th Memdum is to give
rec notice or the Leii~ an of the righ ~ theby, all of which ar hery conflnned.
The pares however. advise al pares acri in subseuen to th da of ths
Memoraum that the Lcae an any and all doumts executed in coecon therh. may
be amended ft and af the date herf with the eot of the pares t'hero, ud without
_ine1ldment ortI Memorudom. Without liti th geeralty ofth foregoin, the leas
as the samo may be amened tl time to time without amdment of ths Memor sh
be bindi upon all pares tag intes in the La subseque to the dat of recation of
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B7/29/2a84 12: 31 2083752894 PAG 03
thi Memoraum As aue al suh Par ar hery on notice that they shuld inufre as to
th te of the Lee as in eftt ft ti to ti an that tbird paes may rely on this
Memoradu solely for rec noti~ of the exence of the Lee and cer of the proviøici
thf ø of the da of th Memorum, an not wi repect to the spfics of th ter
therf as th sa ma be in eièC f\ ti to ti.
Seçtion 2. ter or Lee. Th -Deel Ph" of th Lee sh be fo a
te coening on th Bfve Dat aD terinting on th eaUer to ocr of (a) the da
which is five (5) yea af the Effve Dar an (b) th COt of th OprationsDa (81 def below); it beg unto tht if th Op Da ha not coin
wi five (5) yea af th Effve Date, Owne an Ten may agree in wr on an
annul bais to exend tb Deelop Phas for succsive onyea peiods DOt to ex
th ealier of (i) fi (15) yea aft the Effve Dat an (ii the co of the
Opraons Dat. Durig the Deelop Ph, Ten sb bavc th rigb to st thefesibil of wmd energy conver on Ow.i Propert an to exerse it other righ
under th Lease. The "Op Ph" of th Lee sh co on the fit day of th
fi mo immy followi the moth in wbeh the sae of electy (except testelecty) ba fi occ in connon wi a wii poer proje (the "OptJ
Date") an sh co fo a pe of th~ñve (3 yea af the Opation Dat,
unless so tcte in acorda with the provions theof. Tcn may. by noce to
Ow no lat tb th (30 da prior to th expJtin of th OpOD Phe, elec tofuer exte th Lease fo an addina tw (2 yea ped conc upn th da
on wbi th Options Pha exp, on the sae tei aD conditi, excet leo of
te. as appliti dug th Opons Pbe (th "Reewal Ter-).
Secon 3. Purpose of Lee. The Le is for wind eigy conerion to
electrcity on Ower's Pr and for th collecon an tron of elèCe power by
developir and opern.g wi poer eleccity geerg prjec on Owers Pr an
othci proer, and for relate. actities (eoUecely, "Opedon-), in, wit
limtion:
(a) conduct sts of Wid sp wi dirCån and otermetorologica dat. exct soi samples, perfrmg geohnca tets, an
couctg suc: other te, stes. inspetins an analyss as Tenant dee adyj.sale
Of nees;
(b) deelopin, eontn, reosct. erecg, iusli,
restali, improv, relacin. reloctig an revi from ti to time, an
mainta, usin, i:oitori an opg. existig. additina or new (i) WlOs (as
defed beow), (I elecic trmion en di faciUtes, inm:tn¡ without
litation. overhed an. underro trio distrbuon or collec lies.circnlt brak, me, condt. fos. toers, poles, cross. guy li.
anhors calin an wi, rii ov an ungroun cool, communicans
an rao rely syste. Civ) S1tiOD, i.on anor swi falities andelecc trsformes and trfor pa, (v) engy stoge falities, (vi)
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07/29/2664 12: 31 2683752894 PAG 84
,j
merologi towe an WI tnea eq (vii) col bus,
conl boxes an com monir hawar, (vi) ut itoo, (ix) safe
pr fall. (x) mant yas an buiis, (.x) ro an eros contlfaciti, (xi iip an fece, an (xi) othr imovent, fies, faes,
macbiner an eqip a. or coce wit th gen conerion,
ste, sw, in,. st, st, tr~ dJ'bon
coet, whli, sae or ot U8 or co of eleçity on Ow's
Pr and on oth prop (in su loctions as tci 8b dee from tito ti in th exercise of its sole dison) (al of th fogoin, coUeey th
"WiDdpowe Facilies");
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(c) devdopin, erec, COlJ, iili, relacin, rc,
reloting, remin. mainning, opi and using the follow ft ti to tiin connct wi Witer Pacies, wb loe on Own's Pr or
elhere. (I) a line or li of poles or towe, toge with such wi an calf' as
from tie to ti ar su thr;om. anor nÐde wire an cablet, fothtrsion of eleccal c: anor fo comcati pu, an al
near me prop imor, suport stct, founon, fodns, crssar an
other apliance an fis for nse in coimon wit sad to, wi an cables;
(ii) one or mo suston or biimn or swi faUlt frm whch
Tenant or other tht geera ene ma in to a utty trssion sy
or the trion syBt of anoth purch of eleëca onergy; an (m) ros
asocia with th foreoing (sn towes, wir, cales, substons, faili an
oter enum it in cla (í), (ii) an (iii) are heein collecvel caled thMTr Fac."):
(4) captu¡ and to co aU ofth wi rcur of the La
(e) exeriJ the rit of lness of ai egrs from th Wlnpower
Failies over an along Owner's Pr by me of an ex ro an latbetn, an by such other route or ro as Teit ma c:t: on Ower's
Prope frm ti to tie, fo the befi of aD for purses indent to Tena's
us of Ower's Prer as proved h. am for the be of an fo pu
incidetal to Ten's acvi an prjec on las otber th Ow's Pr; an
(f) r exorsing any and al righ of Owa to $Clee, det prhibit orcontl the loction or sites 10 dnling anor ~loron of miers in to or under th
Lado)
Section 4. Ownerhi Qf WJCiwer FaclHties Und the Le, Ow
coved that Ower shal have no owmbp or other iner in any Imements (as
deñned below), an th Tent could reove an or al such Jiveeits at any tie. Aß
used in th Le, the te '1prnemeits" mems al me al WI0s. Trasrnsion
Fades. an other faties, st, eqpmt. maine, wi, cond, fiber, cable,
poles, maal an proer of ever tind an cl which is contr. insted an/or
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07/29/2804 12: 31 2083752894 PAG 115
place on, abov or un Ow's Prpe by or on be of Ten. "WG'" mea an
wi tu .geer, win CJ1y coio sy or ot po getin fà, of
an ty of te, deigo to th Ie of e1 power fr wind poer,incluing witt limn. th a. to, su st. gu wÍ. bra,fou, coet pa, fo, anor, fe aD dirly re eqen
Secon 5. Trusmi FM!tå EIiCDi. Ui the Le Ten ha the
rlghtto gr to an utlity, PO"'~ provider or oter pa (coUecvely, "Tnuimlion F.eßityAsigneej (a) th right to consct op an maita th Tra Facilies on
Ow's Prpe and, (b) fu put.s of acl! to an frm such Trasmsson Faces the
righ of ingr an ègrSS acs poron of Ower. Pr and la th is ow by Ower
an tht is a(ac to Ow', Proptry. In or to falitae the BSigment by Tent of
cer of its rights uner th Lee to Tramission Faclity As (septe and apart fi
Tenants ot rigb.t$ undw th Leae), Ow a¡~ upon the reues of Tco81t at any tiedurg the te of th Le to gr to Ten on or mor excluve asgnlci eaents
upon, thnnet, ove, acrss an above poon of Ower's Pr an land that is
owned by Ow and that is adjatt to Ower's Pr.
SecOD 6. No Lie,. Under the Le~, Ower is no alwed wiou the pror
wrtten consent of Tei to crte or pet to be cn or 10 re any lien
enbranes, leas mogaes, dee of tnt, se in licenes or ot excetions
with ~ec to Ower's Proer or any par therf'.
Seçon 7. No Intereraçe No TI Pa D)P. Ow coven an agreeun th Lee that Tenant would ha th quiet us and ,qoymt or Ov's Pr in
accordce with th te of th Le withom hindce or inti fr Ower or an)'
oth per or pens. Withut liti the gc of the fogoing, Ower ag tht
Ower would not an would ea th other Ower Paes (as defied belc:) not to (a)
may intefe with or prohiõit th frcc an comlet use an eønt by Ten of itsrigh g. by th Le; (b) tae an acon which co maly iiere wi thc
avaiit, acibility, flow, frY. or dion of air and win over and abve
Owner's Prop; (c) ta an acon whch co in an way materl1y ine with thtrssion of clec. eleetromgoe or oter form of en to or fr Own'sProp; (d) ta an actin whi cod maly imr Ten's aCC to Owr's
Prer for the puses specified bi the Le or matey im Ten's acce to an or
all of th Imovei: or (e) otherse inteer with Tent.s intede lI of Ow'.
Proper. Ower alo agr that Ow wou DO ta any acon Of grt any thd par anyrights in Ower's Pr that could ma iner with the delopen conon.
instllon, mace or opetion of any 'Wmd Faclities on Owers Prer or th
could alow any part other than Ten to eloit th Wmd Righ or th cod ma an
adverlyafee Ten's lU of Ower's Pr. Finy, Ower agr th dig th te
of the lie. Ow would not grant any rits to an th par to devclop, costr iil ~r
mainta or ope any Window Fac1ities on or arund UWer'$ Pro. inlu wihout
litaoIl eoction or upgradng of my Trission Facilties -M.tbout Tent's pror
wrtt consen which cosent may be witheld in Temt's solo discreton
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87/29/2004 12:31 2B83752894 PAGE 8S
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Secon 8. Releae. Under the Le Ow on its own be and on be of eahof Ower's afates Ilrs and asps an al su pates' stkbO~t memer
paer offce ditm, emplo a¡~ ~tive contrs. famly membe aninvit.es (çoUecveIYt the "Owiier Paes') ha releaed and dischad eac of Ten an
Tent.l afat success an Asgn an aU su priest stckhlde niembe parofl dito. imloyees. agts, reretave, contto an invite (collectively. th
"Ten..d Part") fr an losSC liabities, da~ coss. clai suit and case of action
rmcliiding los or o1a for petal injures or dea and pro dmage ai inudng
reble atrn' fe and cost of litigation) (eoUccm:vely. "Loisei") attr.ibutale to (a)
inteere with wi on any Pt own in whole or in part by Ow th is acaeent to
Ow's Pr an (b) da aseiat wi electrcal geer .tlities suc 85 auòJe
and electretc fields, electragetc noise, eleca.l ;nteemc:e. rao frezcy
Íntercrcc or ce tower inteerce (collectively, "IterereDce and Elecal CeenUiI
'adlit Daopn"). CVQ1 if mcb Loss ar cause by or allegedy Daused by any Tent Par.
sole, joint or eoeit neglgece. stct liabilty or oth leg falt.
Secton 9. AsinlMnt Subjec to cer restrctions in th Lee, the Le an the
rights of any par to the Leae an Ow. Prop, wid t:èl prjects Tmission
Faclities an Imements may be assign enber or mortga in whole or in pa
withut the pror wrtten cosent of th non-assigng pa but no such asgnen,
cnbn or morgage shl op to enar th obUgations or dish th rights of the
:o-assi pay therto. Ow an Gr acknledge th ths Memm will
coue to be effective with res to any asign uner th Leas by either pa th.
Section 10. S1lIO!J Th Le shan iJ1 to the benfit o( an be biin upon
Ower and Ten and th ~e heirs trsf, successors an asgu an al per
claimig unde them.
Secti i 1. No Mod.tioq oCtht Lee. Ths Memondum doe not al. amen
or mod the tc and ptovisiOM of the Leas, but is execed solely for th pwpe of givi
notice of the eJstei of the Lease an the te and coditions'ther which Le j$
.incorpor her by reference fo all puroses to th sae extent and with the sae ctr as if
set fort he in fun.
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Section 12. GqmU La)!. This Memora shal be govemed by and coed
intclld atd enrced in eerdce with th law of the Sta of Ido, exludi any
concts of la rues or principles tht might roquire or peit th appHea;on of the laws of
anther jursdiction.
Secon 13. Cpniiterart. This Memordl may be execute by facc an in
multiple counterar, no one of which nee be exec by an pmes he. eah of which
shall oonstitu an orgina. Count: thus executed sb'togethe constitute on and the
sam ins~t.
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B7/29/26e4 . 12: 31 2083752894 PAG 87
IN WlS WHOF, Ow an Tenant have caed ths Meidwn to be
execd and deliver by thei duly auonze :rtaves as of th dae fit Bet fort
above.
"Oer
By. ¿(b2~
Name: TdP& ISaA
Title:
~:~u
Tite:
"Tl!Rbt"
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67/29/2884 12: 31 2083152894 Pl: B9
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STATE OF IDAHIc' 0 )
'. 1# //" )S8.COUN OF A/vtl )
On th Æ day of ( 1Z /# ~ 200, beor me, .lllÆ. 1d/It#II¿Nota Publi, pe~JY ap~id Doeld. knov or idetied to me (or proved to
me on the oa of d Doskelan), to be the Presden oftbe oorp that executed the
above intnt or peton wh exected the ;nsei on bef of sad coiraon and
acmowleded to me th su~~..~1p,~~~~~." d sae.~- 4 "",~i. Il t/~7~"~~1t1'~, :'" V\i~\\C. .~o.~ .' \~\l ~ j _ . /'S~IL..f '-~ .r' ~ J,~.. ~~~4/q¿ØICosion Bxpir:~ _ -7-
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Ø7/29/2ß84 12: 31 2883752994
STATE OF :;Æc)
COUN OF fb1~ ¡-
)
) as
)
On J7$ '~meI!Uf.lllldl~pøtic.
per t~~ perlly know to me OT pr to me on
th bass of satifato evdee. to be Qi per whse na is subacnDc to the with
insten and acknwledgd to me that heshe executed th same in .hisl auth caacity
and that by hi signtu on the iient the pcnn, or the enty up be of which the
pmon acted. exeote th inst:i.
WI my hanê and offcial sea.
KA M. HAN~H in an for sa. 'ØØai.StNOIry Public ~ t:Slte or Id .. ir: . M ~
STATE OF:Jft:P
COUNO~. ~)
) liS
)
~.7!f1p'ltílé~fnt=::i~the bas of safator evdei to be th per whose nae is subscn"bed to th with
litrent and acknowled to me th heshe exeeu the same in hisler auorze capacity
and th by hicr signatu on th 1n1ren the peon or th enti up be of which thepen scte execte the instl
WIS my hand and off iea.
'".t
KARENM '
Notry PublicStart oNGIl Pulic' d for sad Couty and Stae
Conimission Exir: 5/ß/t
~/q
PAG 88
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07/29/2984 12: 31 2083752994
SCBDVLEA
Land
TOWlhi 8 Sntl, Rae31 Eat, Boee Meria Pow Conty, ldaJo:
SetOR 12: SE%NY-; NE%SEY.
Secon l3: NEY.; NE%M~; SliNW/.; NYiS; SEY.s~
TOWId 8 Sout Rae 32 Eu Bose MeridlaD Pmi County, Ida
SedOtt S: Lo 1; SW%SW1A.
SectJl 6: Lets Ii and 7; E~~; NW..l~; S1JS/..
Secon 7: Lots I, 2 and 3; NlW..~; SEYdAi; S~y~ N%/.. SE~SE%; NE~Á;
N~Y..
Seen 8i Lon 1, i, 3, _ 4; S~Á; NWYor~; S~wi/.; NWhSW/..Se 17. W1~A; NlY.N1.
Seeon 18: Loti 1, :z and 3; E~A; NE%; NEYßWA; N%Y..
a/a
Schle i - Page 1
P~GE 10
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Memorandum of Lease Amendment
When Recorded Mail to:Instrmet". 195131
POR COUNTY, IDHO11-æ20 03:0:0 No of Pa 1Recd fu : W1DLAHÐ, INCHRIS1.E STEHT FliOOEx-o Recon D8 ~
j",¡O/
Windland, Inc.
MEMORA OF AMMENT TO LEASE
Thi MEMORAUM OF AMNDME TO LEASE ("Amendment'') is made and
executed to be effective as of September i. 2008 by and among Lamar Isaak and Violet
Isaak, husband and wife (collectively, with the sucessors and asigns the "Ower'') and
WindJand, Inc., a CaliforJia corporation (togeer with its succesors and asigns, th
"Tenanf).
This Amendment addesses amsents matk to the Lease tlu is t1e suje of the
MEMORAUM OF LEASE rerded In the record of Power County, 1D as Instrument No. ,
_185678_ (the "Memo").
RECIAL:
A. Ower is th fee title owner of th cer real proper located in Power County,
Idah, as more pariculaly described in S&hedule A atthed hero and incorted herin by
ths referece (the "Land''), togeer with all and singuar (a) the wind and ai rights on or
pertning to the Lad (the "Wbid Rights') and (b) all other rights, inteest, privileges and
appurtenances pertaiing to the La, includig any easents and other rights as may be
necar for ingresJ egres and maitenance of th Lad an any and al right, title an interestof Ower in and to adjacent road, stee, alley or rights-of-way (such ite in clause (b)
collectively, the "Otber Appurtenances"). The Lad, Wind Rights and Other Appurtenances
are collectively refer to her as "OwJler's PropertyJf.
B. On July 29, 2004 (the "EtJecve Datej, Ower and Tent entered into a Lad
Leae and Wind Easeent Agreement (the ''Liej pursuant to which Ow leased to Tenat
and Ten lea from Ower Owers Prert. Cerain ter of the Lee ar addrssed in
the Memo.
C. Ower and Tenant have now amended the Lease tOJ among other amendmentsJ
provide for a fied Development Phas an execute ths Amendment to provide costtive
notice of Ten ant's rights under the Leas, as amended to al thd pares.
NOW, THFORE, for and in consideraon of the mutual covenants and benefits
herein contained and other god and valuable considertion, th receipt and suffciency of which
are hereby acknowledged, Owner an Tenant hery agr as follows:
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Secon 1. furp05e of Memrudum. The pmpose of th Amendment is to give
record notice ofthc Amendment to Lad Lee and Wind Eaent Agreeent, an of the rightscrted thery, all of which ar hereby confed The paries. however. advise all pares
acqu~n.i\.i.tteres subseuent to the dae of this Amendment, that the Leas has bee amened
as of~, 2008, and tht the Lee may be amended frm and afer the date herfwith the
consent of the pares thero, and without amendment to the Memo or ths Amenent
Without limitng the generity of the foregoing the Lee, as amended to date and as the sae
may be amened frm tie to time without amenent to the Memo or ths Amendment, shall
be binding upon all pares tag interests in the Lad suseuen to th da of reordaon of
ths Amendment. Aß such, all such pares ar hereby on notice tht they should inquire as to the
terms of the Leae as in effect from tie to time, and tht third pares may rely on the Memo
and this Amendment solely for rerd notice of the existence of th Lease and cerin of the
provisions therf: as amended as of the date of ths Amenent, and not with respect to the
spfics of the ters threof as the same may be in effect frm tie to tie.
".)
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Section 2. TelJ of LeaH. The "Development Phase" of the Lee shal be for a
ten commencing on th Efective Date and terintig on the earlier to ocur of (a) Decembe
31. 2014 and (b) the commencement of the Operons Date (as defined below). TheuOperatioDS Phase" of the Lee shall commence on (x) the first day of the first month
immediately following the month in which th sae of electrcity (excepti tes electrcity) has
first occured in connection with the Prject an at leas one WTG ha been constcted on the
Land and is opratig to produce electrcity or. (y) if ths Le has been ased by a Utility at
the time, the fi day of the first month imedtely following the month in which electrcity
(exceptig tes electrcity) bas fir been delivered to the electrc power grd in conection with
the Project and at leas one WTG has bee constrcte on the Lad and is operatig to prouce
electrcity (the "Operations Date"). The Operations Phae shall contiue for a perod of thirt-five (35) yea afer the Operons Date. uness sooner terated in acrdae with the
provions herof. Tent may. by notice to Owner no later than th (30) days pror to the
expiration of the Opertion. Phae, elec to fuer exend this Lese for an additiona twenty
(20) yea perod commencing upon the date on which the Operaions Phae exp on the sae
tes and conditions, except lengt of ter, as applied durg the Operations Phase (the
'')enewal Termj.
Section 3. Purpose of Lease. The Lease contiues for the purse of wid energy
conversion to eleccity on Ower's Prper and for the collecton and transsion of electrc
power by developing and operting wid powered elec1rcity genertig projects on Ower's
Prper and other pro, and for related activities (collecvely, "OpertionS"). See initial
Memo for additional detls.
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Section 4. TrusmisioD. FaciHties Easement Under the Lee, Tenan has the
right to grt to any utity, power prvider or other pary (collectively, "Transmision Facility
Assignees'') (a) the right to constr operte and maintan the Transmission Faclities on
Ower's Prer and, (b) for puroses of access to and frm such Trasmission Facilties, the
right of ingrss and egrs across portions of Ower's Propery and land th is owned by Ower
and tht is adjacent to Owner's Prper. In order to faciltate the asignent by Tenant of
certain of its rights under the Lease to Tramission Facility Assignees (searate and apar frm
Tenant's other rights under the Lease), Owner agreed. upon the request of Tenant at any time
2/7 ~~~
during the ter of the Leae, to grt to Tenant one or more exclusive, asgnable eaements
upon, thugh mider, over, across an above poons of Ower's Proer and lan that is
owned by Ower an that is adjacent to Ower's Proper. Ower also is reuire to grt to
Tent such easements enumberng Owers Pr (or other adjacent pr as may then
be owned in fee by Ower) that Tenant dees necsa, helpfu apropriate, convenent or
cost-effective in connection with, incidenta to or to accomplish any oftbe Options.
Section S. Assignment Subject to cerai resctons in the Le, the Lese and the
rights of any par to the Lee and Ower's Prper, wid energy projec, Transson
Facilties and Improvements may be assigned (includg to an electrc utilty), encumbered or
mortgaged, in whole or in pa, without the pror wrtten consent of the non-assigning pay but
no such assigmtnt, encumbrance or mortgage shall operte to enlarge the obligatons or
diinsh the rights of the non-assigning pary there. Ower and Tenant acknowledge that the
Memo and ths Amendment will contiue to be effective with respec to any asignent wider
the Lease by either par thero.
Secon 6. Successors. The Lee, as amended, shal inure to the benefit of; and be
binding upn, Ower and Tenan and thei respective heirs trfer, successors and asgn,
and all peons claim uner them. .
Section 7. No Modcation of the Lease. This Amendment does not alter, amend or
modifY the tens and proviions of the Lease or the Memo, but is executed solely for the purpse
of giving notice of cerain amendments to the Lease, whch Lease, as amended, is incorpora
herin by referen for al puroses to the same exent and with the sae effect as if set fort
herin in ful
Section 8. ggverning Law. This Amendmen shal be govered by an consted,
inteireted and enforced in accordce with the laws of the State of Idaho, excluding any
conflcts of laws roles or pnnciples that might require or pert the application of the laws of
another jursdction.
Section 9. Counterpart. Ths Amendment may be execed by facsimiJeand in
multiple counteipar~ no one of which nee be exected by all pares herto, each of which
shall constitute an onginal. Counteiar thus executed shall together constitute one and the
same intrent. .
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IN WIS WHREOF. Ower and Tenant hae caused ths Amendment to be
executed and delivered by thei duly auori representatives as of th date firs set for
above.
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"O~_~- fsName: La Isa
ilò.l J);1aJName: Violet Issak
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"Tenant"
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STATE OF J9O-O
COUN OF tO't,.
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Dil.o? , 2008, before me, & #~, l,k :./le. notar public.peally appear Laar Isaak peronally kno\Z to me or prved to me on the bass of
satisfactory evidence, to be the pern whose name is subsbed to the with instent and
acknowledged to me th he/she execed the same in hiser auried capacty and that by
hisler signtue on the inent th pe or the enti upon behal of which the pern
acted executed the inent.
Wl~ my han and offcial seal." . ~)¡. J/f9~'pr:...4e~ .t:......'.... '(.. ~
" . "-¡ f(' r,,,. ", ~ \ltr: "r_ *'
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Nota Public in and for said Couny and State
Commsson Exir; JI-~ '';OltJ
STATE OF ::ahO
COUN OF 1'lt,
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On&,ql 01 .2008, before me, Æ#: jilL :iJtt!t!f' nota public,
personiilyapd Violet Isaa, peronally know to me or proved to me on the bas of
satisfactory evdence, to be the pern whose nae is subscDe to the with instrent and
acknowledged to me tht he/she executed the same in hisler authorized capacity and that by
hier signtu on the insent th pe or the entity upon bealf of which the peon
acted, executed the instrument.
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Notar Public in and for said Couty and State
Cossion Exires: 1/-.:-t5oltJ
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WIESS my hand and offcial sea.
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STATE OF IDAHO )I? )s&COUN OF 744lr= )
On thisØ! day of ~Niu 2008, before me, &r tic.:~ . a
Notar Public, penally appeai Roald Doskelandt known or identified to me (or prved to
me on the oath of Roald Doskeland), to be the President of the coiporation that executed the
above intrent or the peron who execute the instent on be of said coiration and
acknowledged to me that such corporation exected the same.
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/' :..". ,\01 ~ ç l' ~ \.1. Å' 'tt .,'" (1 ...- * \
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4c?~N; ublic ~Idah04
Prted Name: #r l. :: A:c.0C
Commission Expire: 11-,;.JiD¡fJ
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SCBEDULA
Land
Township 8 South, Range 31 Eat, Bois MerdlD, Power County, Idaho:
Section 12: SEY~Y.. NEYßE%
Sen 13: NEV.. NEV~A; SYi,A; Nthsh; SEtASW%
Townhip 8 South, Range 32 East Boise Meridian, Power County, Idaho:
Secton 5: Lo i; SWV..WY..
Section 6: Lots 6 and 7; E%SW54; NW/ßE~; S%SE%.
Sectn 7: Lois 1,2 and 3; NEY.sW%; SEY.eA; S~%; ~E%; SEVßE%; NEY.N.4;
N%NEY..
Section 8: Lots 1, 2,3, and 4; S~; NWY..%; S%SWÁi; NWV..wi"-
Sectn 17: W%%; NEY..A.
SectoD 18: Lots 1, 2 and 3; EYaA; NE%; NEY.... N%V40
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EXHIBIT A-7
March 15, 2010 email from Bruce Griswold
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Case: PAC-E-10-0S
Exhibit A to Rocky Mountain
Power's First Production
Request to Windland, Inc.
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From: "Griswold, Bruce iMkt Function)" c:Bruce.GriswoldêPacifiCorp.com::
Subject: RE: Reply to Kaufman letter and PacifiCorp information requests of
March 10, 2010
Date: March 15, 2010 10:18:50 AM PDT
To: '''Mike Hecklerll c:mhecklerêwindland.com::
Cc: IIlpeterêrichardsonandoleary.comll c:peterêrichardsonandoleary.com::,
"Kenneth Kaufmann (kaufmannêLKLaw.com)" c:kaufmannêLKLaw.com::
1,i Thanks Mike. We are reviewing your data this week.
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Bruce Griswold
PacifiCorp C&T
503-813-5218 Offce
503-702- 1445 Cell
503-813-6260 Fax
j From: Mike Heckler (mailto:mhecklen.ãwindland.comJ
,. Sent: Friday, March 12, 2010 1:00 PM
To: Griswold, Bruce -(Mkt Functon)-
.1 Cc: oeter(Crichardsonandolearv.com
tj Subject: Reply to Kaufman letter and PacifiCorp information requests of March 10, 2010
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Bruce,
In the attached letter Windland responds with the information Mr Kaufman forwarded as PacifiCorp
information requests Wednesday afternoon. A printed copy wil follow in the maiL.
Regards,
Mike Heckler
Director, Marketing & Development
Windland Inc.
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Case: PAC-E-10-0S
Exhibit A to Rocky Mountain
Power's First Production
Request to Windland, Inc.
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EXHIBIT Å-8
March 29,2010 letter from Mike Heckler with two partially executed power purchase
agreements
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clean energy from wind
March 29, 2010
Bruce Griswold
PacifiCorp
825 NE Multnomah Street, Suite 600
Portland, Oregon 97232
Reference:Letter dated March 5,2010 to Bruce Griswold from Michael Heckler, subject: Requests
for Power Purchase Agreements for Qualifying Facilties
Dear Bruce:
Wind land requested that you forward Power Purchase Agreements for Idaho wind QFs on February 18,
2010. We followed that request up with multiple further phone calls, letters and emails the details of
which were ineluded in the referenced letter dated March 5.
On February 26th Windland sent you two letters detailng the essential elements that we intended
PacifiCorp to use to fill into two standard PURPA Power Purchase Agreements for the Power County
Wind Park North and Power County Wind Park South qualifying facilties and requesting executable
Power Purchase Agreements. Wind land followed up on March 5 with yet another offer to énter into
two standard Power Purchase Agreements. PacifiCorp counsel sent a letter to Peter Richardson on
March 10th detailng fifteen additional information requests, including information related to
interconnection studies.
PacifiCorp should be intimately familiar with the details of these two projects from our 2007
negotiations for PacifiCorp to purchase the site. As part of those negotiations, Windland signed a waiver
for PacifiCorp transmission to communicate with PacifiCorp commercial and trading, ánd PacifiCorp
performed a Feasibilty Study, a System Impact Study and a facilty study for up to 150 MW at the very
same interconnection we requested for PURPA contracts. PacifiCorp had no objections to transmission
or interconnection at that time.
Wind land supplied the additional data requested by Mr. Kaufmann in a 103 page letter delivered
electronically on March 1th. In that March 12th letter we responded to the additional data requests,
noted that some of the data requested had recently been supplied to PacifiCorp, and we reiterated the
offer of both Power County Wind Park North LtC and PoWer County Wind Park South LLC to enter into
binding POwer Plirchase Agreements to provide energy and capacity.
You responded with an email on March 15th saying "Thanks Mike. We are reviewing your data this
week." It's now two weeks since you sent that emáil and thirty nine days since our first request for
Power Purchase Agreements with the PURPA avoided Cost rates. PacifiCorp has yet to accept
Wlndlands offer for standard PURPA Power Purchase Agreements.
WINDLAND INCORPORATED 208-377-7777 7669 W. RIVERSIDE DR SUITE 102 BOISE, IDAHO 83714 FAX [phone]
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clean energy from wind
In his March 10th letter PacifiCorp counsel, Ken Kaufmann, suggested that these two QFs shouldn't be
eligible for power purchase agreements under the then current terms, in part, because theQFs had yet
to enter into negotiations with PacifiCorp. Without conceding that we are obligated to engage in
protracted negotiations after the essential elemênts of the standard contracts are well settled,
Windland has negotiated thes.e two projects with PacifiCorp for some time now. Prior to the rate
changes referenced in Mr. Kaufmann's March 10 letter, Windland provided PacifiCorp with the essential
elements of Windlands proposed, standard Power Purchase Agreements, and fully committed itself to
deliver the output of the projects pursuant to terms in PacifiCorp's standard PURPA contracts for QFs
under 10 aMW in Idaho.
The existence of any perceived lack of negotiations is only because PacifiCorp has not exercised good
faith in timely providing the executable contracts first requested thirt nine days ago - which you
previously informed me would be provided on February 24. We have provided you more than adequate
data to inform PadfiCorp on the two QFs and to substantiate their maturity.
Due to PacifiCorp's delay, I am enclosing two executable Power Purchase Agreements for P;:cifiCorp
cont;:ining the avoided cost rates in effect during the weeks prior to March 12, 2010. These Power
Purchase Agreements contain the provisions of the two most recently approved standard PURPA
agreements between PacifiCorp and QFs of under 10 aMW on file at the Idaho Commission. Those two
QFs are Lower Valley Energy and the Bell Mountain Hydro. As envisioned when Windland initially
requested two standard PURPA contracts, i have filled the essential e!ements related to our two projects
(as provided to you previously) into contracts with these standard terms PacifiCorp uses for PURPA
contracts in Idaho.
If PacifiCorp does not execute the enclosed agreements or provide suitable, executable substitute
agreements for both the Power County Wind Park North and the Power County Wind Park South by
Thursday, April 1, 2010, with the avoided cost rates in effect prior to March 12, Wind land wil be forced
to request that the Idaho PUC compel such an outcome.
/N
Mi hael Heckler
Director, Marketing and Development
WINDLAND INCORPORATED 208-377-7777 7669 W. RIVERSIDE DR SUITE 102 BOISE, IDAHO 83714 FAX [phone]
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POWER PURCHASE AGREEMENT
BETWEEN
POWER COUNTY WIND PARK NORTH, LLC
(a new qualifying facilty)
AND
PACIFICORP
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Section 1: Definitions. ............... ..... ...... ........ ..... .... ...... ...... ............. ....... .... .... ......... ........ ....... .......... 1
Section 2: Term, Commercial Operation Date ................................................................................ 6
Section 3: Representations and Warrnties......................................................................................7
Section 4: Delivery of Energy and Capacity....................................................................................9
Section 5: Purchase Prices ............................................................................................................. 13
Section 6: Operation and Control... .......... .... .... ...... .... ....... ...... ....... ....... .... ...... ......... ...... ... ... .... ..... 15
Section 7: Motive Force........... ...................................................................................................... 17
Section 8: Metering.... .................................................................................................................... 17
Section 9: Bilings, Computations and Payments .... ..... ..... ......... .......... ...... ............... ......... ........... 18
Section 10: Defaults and Remedies... ..... ... ... .......... ............. ..... ...... ........ ...... .... ... .... ... .......... ......... 18
Section 11: Indemnification................................. ..........................................................................20
Section 12: Liability and Insurance .............................................................. ................................. 21
Section 13: Force Majeur............................................ .................................................................23
Section 14: Several Obligations.....................................................................................................23
Section 15: Choice of Law................................................. ............................................................24
Section 16: Parial Invalidity ...... .... ....... .... .... .... ...... ......................... ...... ... .... ....... ..... ......... .... ........24
Section 17: Waiver ..........................................................................................................................24
Section 18: Governmental Jurisdiction and Authorizations .......................................................... 24
Section i 9: Successors and Assigns .......... ...... ... .... .... ......... .... ......... ..... ..... ...... ...... ... .... ....... ......... 24
Section 20: Entire Agreement................................. .......................................................................25
Section 21: Notices ........................................................................................................................25
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DRAFT
POWER PURCHSE AGREEMENT
THIS POWER PURCHASE AGREEMENT, entered into this day of March, 2010 is
between Power County Wind Park Nort, LLC, (the "Seller") and PacifiCorp, an Oregon
corporation acting in its regulated electnc utility capacity ("PacifCorp"). Seller and PacifiCorp
are referred to collectively as the "Parties" and individually as a "Party".
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RECITALS
A. Seller intends to construct, own, operate and maintain a wind powered generating facilty
for the generation of electnc power, including interconnection facilities, located near the city of
American Falls in Power County, Idaho with a Facilty Capacity Rating of21,600 kilowatts; and
B. Seller intends to commence delivery of Net Output under this Agreement, for the purpose
of Sta-up Testing, on May 31, 2011; and
C. Seller intends to operate the Facilty as a Qualifying Facilty, commencing commercial
operations on November 30, 2011 ("Scheduled Commercial Operation Date"); and
D. Seller estimates tht the average Net Energy to be delivered by the Facilty to PacifiCorp
is 67,300,000 kilowatt-hours (kWh), which amount of energy PacifiCotp will include in its
resource planing; and
E. Seller shall sell Net Output surlus to its needs at the Facility site to PacifiCorp and
purchase parial electric requirements service from PacifiCorp, in accordance with the terms and
conditions of this Agreement; and.
F. This Agreement is a "New QF Contract" under the PacifiCorp Inter-Jurisdictional Cost
Allocation Revised Protocol.
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NOW, THEREFORE, the Parties mutually agree as follows:
SECTION 1: DEFINITIONS
When used in this Agreement, the following terms shall have the following meanings:
1.1 "Adjusted Scheduled Monthly Energy Delivery" shall have the meaning set
fort in Section Error! Reference source not found..
1.2 "Availabilty" means, for any Biling Period, the ratio, expressed as a percentage,
of (x) the aggregate sum of the minutes in which the Facilty was available to generate at the
Maximum Facilty Delivery Rate during the Biling Penod divided by (y) the number of minutes
in the Biling Period. The Facilty shall be deemed available during time of forced outages, force
majeure, low wind speeds and scheduled maintenance.
1.3 "Biling Period means the time period between PacifiCorp's reading of its power
purchase meter at the Facility and for this Agreement shall coincide with calendar months.
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1.4 "Capacity Factor" means, for any given penod of tie, the Net Output divided by
the product of Facilty Capacity Rating and the total hours in the given period of time.
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1.5 "Commercial Operation" means the Facilty is fully operational and reliable, at
not less than ninety percent (90%) of the expected Facility Capacity Rating, and interconnected
and synchronized with the Transmission Entity's System. In order to meet the requirements for
Commercial Operation, all of the following events shall have occurred:
1.51 PacifiCorp shall have received a certficate addressed to
PacifiCorp from a Licensed Professional Engineer (a) stating the Facilty Capacity Rating
of the Facility at the anticipated time of Commercial Operation and (b) stating that the
Facilty is able to generate electnc power reliably in amounts required by this Agreement
and in accordance with all other terms and conditions of this Agreement;
1.5.2 Star-Up Testing of the Facilty shall have been completed;
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1.5.3 PacifiCorp shall have received a certificate addressed to
PacifiCorp from a Licensed Professional Engineer, or an attorney in good stading in
Idaho stating that Seller has obtained all Required Facilty Documents and, if requested
by PacifiCorp in wrting, Seller shall have provided copies of any or all such requested
Required Facilty Documents.
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Seller shall provide notice to PacifiCorp when Seller believes that the Facility has achieved
Commercial Operation. PacifiCorp shall have ten (10) days afer receipt of such notice either to
confrm to Seller that all of the conditions to Commercial Operation have been satisfied or have
occured, or to state with specificity those conditions that PacifiCorp reasonably believes have
not been satisfied or have not occurred. If, with such ten (10) day penod, PacifiCorp does not
respond or notifies Seller confirming that the Facilty has achieved Commercial Operation, the
onginal date of receipt of Seller's notice shall be the Commercial Operation Date. If PacifiCorp
notifies Seller within such ten (10) day period that PacifiCorp believes the Facilty has not
achieved Commercial Operation, Seller shall be obligated to address the concerns stated in
PacifiCorp's notice to the mutual satisfaction of both Paries, and Commercial Operation shall be
deemed to occur on the date of such satisfaction, as specified in a notice from PacifiCorp to
Seller. If Commercial Operation is achieved at less than one hundred percent (100%) of the
expected Facilty Capacity Rating, Seller shall provide PacifiCorp an expected date for achieving
the expected Facilty Capacity Rating, and the Facilty's Capacity Rating on that date shal be the
final Facilty Capacity Rating under ths Agreement. In no event will delay in achievig the
expected Facilty Capacity Rating beyond the Commercial Operation Date postpone the
Expiration Date specified in Section 2.1.
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i.6 "Commercial Operation Date" means the date the Facilty first achieves
Commercial Operation.
1.7 "Commission" means the Idaho Public Utilties Commission.
J 1.8 "Conforming Energy" means all Net Energy delivered to the Point of Delivery
except Non-Conforming Energy.
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1.9 "Conforming Energy Price" means the applicable price for Conforming Energy
and capacity, specified in Section 5.1.
1.10 "Contract Year" means a twelve (12) month penod commencing at 00:00 hours
Mountan Prevailng Time ("MPT") on Januar 1 and ending on 24:00 hours MPT on
December 31; provided, however, that the firs Contract Year shall commence on the
Commercial Operation Date and end on the next succeeding December 31, and the last Contract
Year shall end on the Expiration Date, uness earlier terminated as provided herein.
1.11 "Delay Liquidated Damages", "Delay Period", "Delay Price" and "Delay
Volume" shall have the meanings set fort in Section 2.3 of this Agreement;
1.12 "Effective Date" shall have the meaning set fort in Section 2.1 of this
Agreement.
1.13 "Energy Delivery Schedule" shall have the meang set forth in Section 4.3 of
this Agreement.
1.14 "Expiration Date" shall have the meaning set forth in Section 2.1 of this
Agreement.
1.15 "Facilty Capacity Rating" means the sum of the Nameplate Capacity Ratings for
all wind turbine generators comprising the Facilty.
1.16 "Force Majeure" has the meaning set fort in Section 13.1.
1.17 "Inadvertent Energy" means energy delivered to the Point of Interconnection (1)
in excess of the Maximum Monthly Purchase Obligation; or (2) at an average hourly rate
exceeding the Maximum Facility Delivery Rate. Inadvertent Energy is not included in Net
Output.
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1.18 "Index Price" shall mean the weighted average of the daily On-Peak and Off-Peak
firm energy pnces, as published in the Intercontinental Exchange (ICE) Day Ahead Power Price
Report for the Palo Verde Hub. For Sunday and NERC holidays, the 24-Hour Index Price shall
be used, uness ICE shall publish a Firm On-Peak and Firm Off-Peak Pnce for such days for Palo
Verde, in which event such indices shall be utilzed for such days. If the ICE index or any
replacement of that index ceases to be published during the term of this Agreement, PacifiCorp
shall select as a replacement a substantiàlly equivalent index that, afer any appropnate or
necessary adjustments, provides the most reasonable substitute for the index in question.
PacifiCorp's selection shall be subject to Seller's consent, which Seller shall not uneasonably
withold, condition or delay.
1.19 "Initial Year Energy Delivery Schedule" shall have the meaning set forth in
Section 4.2.1.
1.20 "Licensed Professional Engineer" means a person acceptable to PacifiCorp in its
reasonable judgment who is licensed to practice engineering in the state of Idaho, who has
training and experience in the engineering discipline(s) relevant to the matters with respect to
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which such person is called to provide a certification, evaluation and/or opinion, who has no
economic relationship, association, or nexus with the Seller, and who is not a representative of a
consulting engineer, contractor, designer or other individual involved in the development of the
Facilty, or of a manufactuer or supplier of any equipment installed in the Facilty. Such
Licensed Professional Engineer shall be licensed in an appropriate engineenng discipline for the
required certfication being made. The engagement and payment of a Licensed Professional
Engineer solely to provide the certifications, evaluations and opinions required by this
Agreement shall not constitute a prohibited economic relationship, association or nexus with the
Seller, so long as such engineer has no other economic relationship, association or nexus with the
Seller.
1.21 "Material Adverse Change" shall mean, with respect to the Seller, if the Seller,
in the reasonable opinion of PacifiCorp, has experienced a matenal adverse change in abilty to
fulfill its obligations under this Agreement.
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1.22 "Maximum Curtailed Facilty Delivery Rate" means the maximum
instantaneous rate (kW) at which the Facilty is capable of delivering Net Output at the Point of
Interconnection during a Qualifying Curtailment.
1.23 "Maximum Facilty Delivery Rate" mean the maximum instantaeous rate (kW)
at which the Facilty is capable of delivenng Net Output at the Point of Interconnection, as
specified in Exhibit A, and in compliance with the Generation Interconnection Agreement, if
applicable.
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1.24 "Maximum Monthly Purchase Obligation" means the maximum amount of
energy PacifiCorp is obligated to purchase under this Agreement in a calendar month, In
accordance with Commission Order 29632, the Maximum Monthly Purchase Obligation for a
given month, in kWh, shall equal 10,000 kW multiplied by the tota number of hours in that
month.
1.25 "Motive Force Plan" shall have the meaning set forth in Section 7 of this
Agreement.
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1.26 "Nameplate Capacity Rating" means the maximum instataeous generating
capacity of any quaifying small power or cogeneration generating unt supplying all or par of
the energy sold by the Facilty, expressed in MW, when operated consistent with the
manufactuer's recommended power factor and operating parameters, as set fort in a notice
from Seller to PacifiCorp delivered before the Commercial Operation Date and, if applicable,
updated in the As-built Supplement.
1.27 "Net Energy" means the energy component, in kWh, of Net Output.
1.28 "Net Output" means all energy and capacity produced by the Facility, less station
use and less transformation and transmission losses and other adjustments, if any. For puroses
of calculating payment under ths Agreement, Net Output of energy shall be the amount of
energy flowing though the Point of Interconnection, less any station use not provided by the
Facility. Net Output does not include Inadvertent Energy.
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1.29 "Non-Conforming Energy" means all Net Output produced by the Facilty pnor
to the Commercial Operation Date.
1.30 "Non-Conforming Energy Price" means the applicable price for Non-
Conformng Energy and capacity, specified in Section 5.1.
1.31 "Off-Peak Hours" means all hours of the week that are not On-Peak Hours.
1.32 "On-Peak Hours" means hours from 7:00 am. to 11 :00 p.m. Mountain Prevailing
Time, Monday through Saturday, excluding Western Electncity Coordinating Council (WECC)
and North Amencan Electric Reliabilty Corporation (NERC) holidays.
1.33 "PacifiCorp Transmission" means PacifiCorp, an Oregon corporation, acting in
its transmission fuction capacity.
1.34 "Point of Delivery" means a 3-ring bus near PacifiCorp's 230kV Brady-
Treauteton line strctues 53 and 55 the point of interconnection to PacifiCorp's transmission
system where PacifiCorp has agreed to receive the Seller's Net Output.
1.35 "Point of Interconnection" means the point of interconnection between Seller's
Facilty and the Interconnected Utilty's system, if applicable, as specified in Exhibit B.
1.36 "Prime Rate" means the rate per anum equal to the publicly announced pnme
rate or reference rate for commercial loans to large businesses in effect from time to time quoted
by J. P Morgan Chase & Co. If a J. P. Morgan Chase & Co. prime rate is not available, the
applicable Prime Rate shall be the anounced prime rate or reference rate for commercial loans
in effect from time to time quoted by a ban with $10 bilion or more in assets in New York
City, N.Y., selected by the Pary to whom interest based on the pnme rate is being paid.
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1.37 "Prudent Electrical Practices" means any of the practices, methods and acts
engaged in or approved by a significant portion of the electncal utilty industr 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. Prudent Electrical
Practices is not intended to be limited to the optimum practice, method or act to the exclusion of
all others, but rather to be a spectru of possible practices, methods or acts.
1.38 "Qualifying Curtailment" shall have the meanng set fort in Section Error!
Reference source not found..
1.39 "QF" means "Qualifying Facilty", as that term is defined in the version ofFERC
Regulations (codified at 18 CFR Par 292) in effect on the date of ths Agreement.
1.40 "Replacement Period", "Net Replacement Power Costs", "Replacement Price"
and "Replacement Volume" shall have the meanings set fort in Section 10.4 of this
Agreement;
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1.41 "Required Facilty Documents" means all material licenses, permits,
authorizations, ard agreements necessar for construction, operation, and maintenance of the
Facilty, including without limitation those set fort in Exhibit C.
1.42 "Scheduled Commercial Operations Date" means the date by which Seller
promises to achieve Commercial Operation, as specified in Section 2.2.1.
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1.43 "Scheduled Maintenance Periods" means those times scheduled by Seller with
advance notice to PacifiCorp as provided in Section 6.2 uness otherwse mutually agreed.
1.44 "Scheduled Monthly Energy Delivery" means the Net Energy scheduled to be
delivered to the Point of Delivery durng a given calendar month, as specified by Seller in the
Energy Delivery Schedule.
1.45 "Start-Up Testing" means the completion of required factory and sta-up tests as
set fort in Exhibit E hereto.
1.46 "Subsequent Energy Delivery Schedule" shall have the meaning set fort in
Section 4.3.3.
1.47 "Tariff' means the PacifiCorp FERC Electrc Tariff Fift Revised Volume No.ll
Pro Forma Open Access Transmission Tariff, as revised from time to time.
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SECTION 2: TERM, COMMERCIAL OPERATION DATE
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2.1 This Agreement shall become effective after execution by both Parties and after
approval by the Commission("Effective Date"); provided, however, this Agreement shall not
become effective unti the Commission has determined that the prices to be paid for energy and
capacity are just and reasonable, in the public interest, and that the costs incured by PacifiCorp
for purchases of capacity and energy from Seller are legitimate expenses, all of which the
Commission will allow PacifiCorp to recoverin rates in Idaho in the event other jursdictions
deny recovery of their proportonate share of said expenses.
Unless earlier terminated as provided herein, the Agreement shall remai in effect until
November 30, 2031 ("Expiration Date").
2.2 Time is of the essence of this Agreement, and Seller's abilty to meet certain
requirements prior to the Commercial Operation Date and to achieve Commercial Operations by
the Scheduled CommerciaJ.Operation Date is critically important. Therefore,
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2.2.1 By May 1, 2011, Seller shall use best effort to obtan and
provide to PacifiCorp copies of all governmental permits and authorizations necessar for
construction of the Facilty.
2.2.2 By Febru 2,2011, Seller shall provide PacifiCorp with a copy
of an executed Generation Interconnection Agreement whose terms shall be consistent
with all material terms and requirements of this Agreement..
2.2.3 Prior to Commercial Operation Date, Seller shall provide
PacifiCorp with an As-built Supplement acceptable to PacifiCorp.
2.2.4 By November 30, 2011, Seller shall have achieved Commercial
Operation ("Scheduled Commercial Operation Date").
2.3 Seller shall cause the Facilty to achieve Commercial Oper.tion on or before the
Scheduled Commercial Operation Date. If Commercial Operation occurs after the Scheduled
Commercial Operation Date, Seller shall be liable to pay PacifiCorp delay damages for the
number of days ("Delay Period") the Commercial Operation Date occurs afer the Scheduled
Commercial Operation Date, up to a total of 120 days ("Delay Liquidated Damages"). Bilings
and payments for Delay Liquidated Damages shall be made in accordance with Section 9. Any
undisputed amount of Delay Liquidated Damages not paid withn 30 .days of the invoice date
shall be drawn on the Delay Securty.
Delay Liquidated Damages equals the sum of the Delay Pnce times the Delay Volume,
for each day of the Delay Period.
Where:
"Delay Price" equals the positive difference, if any, of the Index Price minus the
weighted average of the On-Peak and Off-Peak monthly Conforming Energy Prices; and
"Delay Volume" equals the applicable Scheduled Monthy Energy Delivery divided by
the number of days in that month.
The Paries agree that the damages PacifiCorp would incur due to delay in the Facilty achieving
Commercial Operation on or before the Scheduled Commercial Operation Date would be
diffcult or impossible to predict with certainty, and that the Delay Liquidated Damages are an
appropnate approximation of such damages.
SECTION 3: REPRESENTATIONS AND WARNTIES
3.1 PacifiCorp represents, covenants, and warants to Seller that:
3.1.1 PacifiCorp is duly organized and validly existing under the laws
of the State of Oregon.
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3.1.2 PacifiCorp has the requisite corporate power and authority to
enter into this Agreement and to perform according to the terms of this Agreement.
3.1.3 PacifiCorp has taen all corporate actions required to be taken by
it to authorize the execution, delivery and performance of this Agreement and the
consumation of the transactions contemplated hereby.
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3.1.4 Subject to Commission approval, the execution and delivery of
ths Agreement does not contravene any provision of, or constitute a default under, any
indenture, mortgage, or other matenal agreement binding on PacifiCorp or any valid
order of any cour, or any regulatory agency or other body having authority to which
PacifiCorp is subject.
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3.1.5 Subject to Commission approval, this Agreement is a valid and
legally binding obligation of PacifiCorp, enforceable against PacifiCorp in accordace
with its terms (except as the enforceabilty of ths Agreement may be limited by
banptcy, insolvency, ban moratonum or similar laws afecting creditors' rights
generally and laws resticting the availabilty of equitable remedies and except as the
enforceabilty of this Agreement may be subject to general pnnciples of equity, whether
or not such enforceability is considered in a proceedig at equity or in law).
3.2 Seller represents, covenants, and warants to PacifiCorp that:
3.2.1 Seller is a limited liability company duly organzed and validly
existing under the laws of the State of Idaho.
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3.2.2 Seller has the requisite power and authority to enter into this
Agreement and to perform according to the terms hereof, including all required
regulatory authority to make wholesale sales from the Facilty.
3.2.3 Seller's shareholders, directors, and offcers have taken all
actions required to authorize the execution, delivery and performance of ths Agreement
and the consumation of the transactions contemplated hereby.
3.2.4 The execution and delivery of this Agreement does not
contravene any provision of, or constitute a default under, any indenture, mortgage, or
other material agreement binding on Seller or any valid order of any cour, or any
regulatory agency or other body having authonty to which Seller is subject.
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3.2.5 This Agreement is a valid and legally binding obligation of
Seller, enforceable against Seller in accordance with its terms (except as the
enforceabilty of this Agreement may be limited by banptcy, insolvency, ban
moratorium or similar laws affecting creditors' nghts generally and laws restrcting the
availability of equitable remedies and except as the enforceabilty of this Agreement may
be subject to general principles of equity, whether or not such enforceabilty is considered
in a proceeding at equity or in law).
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3.2.6 The Facilty is and shall for the term of ths Agreement continue
to be a QF. Seller has provided the appropriate QF certification, which may include a
Federal Energy Regulatory Commission self-certfication to PacifiCorp prior to
PacifiCorp's execution of ths Agreement. At any time PacifiCorp has reason to believe
duóng the term of this Agreement that Seller's sttus as a QF is in question, PacifiCorp
may require Seller to provide PacifiCorp with a wrtten legal opinion from an attorney in
good stading in the state of Idaho and who has no economic relationship, association or
nexus with the Seller or the Facilty, stating that the Facility is a QF and providing
sufficient proof (including copies of all documents and data as PacifiCorp may request)
demonstrating that Seller has maintained and will continue to maintain the Facility as a
QF.
3.2.7 Neither the Seller nor any of its principal equity owners is or has
within the past two (2) years been the debtor in any bankruptcy proceeding, is unable to
pay its bils in the ordinar course of its business, or is the subject of any legal or
regulatory action, the result of which could reasonably be expected to impair Seller's
abilty to own and operate the Facilty in accordance with the terms of this Agreement.
3.2.8 Seller has not at any time defaulted in any of its payment
obligations for electricity purchased from PacifiCorp.
3.2.9 Seller is not in default under any of its other agreements and is
current on all of its financial obligations.
3.2.10 Seller owns, or shall own prior to Commercial Operation, all
nght, title and interest in and to the Facility, free and clear of all liens and encumbrances
other than liens and encumbrances related to third-pary financing of the Facilty.
3.3 Notice. If at any time during this Agreement, any Pary obtains actual knowledge
of any event or information which would have caused any of the representations and waanties
in this Section 3 to have been materially untre or misleading when made, such Par shall
provide the other Pary with wrtten notice of the event or information, the representations and
warranties affected, and the action, if any, which such Pary intends to tae to make the
representations and warranties trùe and correct. The notice required pursuant to this Section
shall be given as soon as practicable afer the occurence of each such event.
SECTION 4: DELIVERY OF ENERGY AND CAPACITY
4.1 Delivery and Acceptance of Net Output-Unless otherwise provided herein,
PacifiCorp will purchase and Seller will sell all of the Net Output from the Facility
4.2 No Sales to Third Paries-During the term of this Agreement, Seller shall not sell
Net Output from the Facilty to any entity other than PacifiCorp.
4.3 Energy Delivery Schedule-Seller shall prepare and provide to PacifiCorp, on an
ongoing basis, a written schedule of Net Energy expected to be delivered to the Point of Delivery
by the Facility ("Energy Delivery Schedule"), in accordance with the following:
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4.3.1 Durg the first twelve full calendar months followig the
Commercial Operations Date, Seller predicts that the Facilty will produce and deliver to
the Point of Delivery the following monthly amounts ("Initial Year Energy Delivery
Schedule"):
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Month
Januar
Febru
March
April
May
June
Energy Delivery (kWh)
6,919,152
6,387,656
6,912,781
5,924,079
5,239,214
It if ;r048,6293,831,940
3,694,149
4,575,147
5,276801
6,250,831
7,251,062
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August
September
October
November
December
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time prior to the Commercial Operation Date.
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4.3.3 Beginning at the end of the ninth full calendar month of
operation, and at the end of every 3rd month thereafter, Seller shall supplement the
Energy Delivery Schedule with thee additional month of forward estimates (which shall
be appended to this Agreement as Exhibit D) ("Subsequent Energy Delivery
Schedule"), such that the Energy Delivery Schedule will provide at least six months of
scheduled energy estimates at all times. Seller shall provide Subsequent Energy Delivery
Schedules no later than 5 :00 pm of the 5th day after the due date. If Seller does not
provide a Subsequent Energy Delivery Schedule by the above deadline, scheduled energy
for the omitted period shall equal the amounts scheduled by Seller for the same thee-
month period during the previous year.
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4.3.4 Beginng with the end of the thd month afer the Commercial
Operation Date and at the end of every thrd month thereafer; (1) the Seller may not
revise the immediate next three months of previously provided Energy Delivery
Schedules, but by wrtten notice given to PacifiCorp no later than 5:00 PM of the 5th day
following the end of the previous month, the Seller may revise all other previously
provided Energy Delivery Schedules. Failure to provide timely wrtten notice of changed
amounts will be deemed to be an election of no change.
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4.4 Minium Availability Obligation. Seller shall cause the Facility to achieve an
Availabilty of at least 90% durg eaèh month ("Guaranteed Availabilty").
4.5 Liquidated Damages for Output Shorfall. If the Availability in any given month
falls below the Guaanteed Availability, the resulting shortall shall be expressed in kWh as the
"Output Shortall." The Output Shortall shall be calculated in accordance with the followig
formula:
Output Shortfall = (Guaranteed Availabilty '- Availabilty) * Past Monthy
Energy Delivery
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Where:
Past Monthy Energy Delivery = the average of the monthy tota Net Output
for the calenda month of the same name as the
immediately precedig Contract Years. Until net
Output has been delivered durg for at least thee
such months, Past Monthy Energy Delivery shall
equal the average of the total monthly Net Output
for the named calendar months durg preceding
Contract Years, if any, and the Scheduled Monthy
Energy Delivery for the named month.
Seller shall pay PacifiCorp for any Output Shortall at the lower of (l) the positive difference, if
any, of the Index Price minus the weighted average of the On-Peak and Off-Peak monthly
Conforming Energy Purchase Prices; or (2) the weighted average of the On-Peak and Off-Peak
monthy Conformg Energy Purchase Prices ("Output Shortfall Damages").
Output Shortfall Damages = Output Shortall * Output Shortfall Price
Where:
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Output Shortfall Price = (Index Price - Weighted Average CEPP), except
that if Output Shortall Price': 0, then Output
Shortfall Price = 0, and except that if Output
Shortall Price? Weighted Average CEPP, then
Output Shortall Price = Weighted Average CEPP.
Weighted Average CEPP = the weighted average On-Peak and Off-Peak
Conformg Energy Puchase Prices for the month
of Output Shortall
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If an Output Shortfall occurs in any given month, Seller may owe PacifiCorp liquidated
damages. Each Pary agrees and acknowledges that (a) the damages the PacifiCorp would incur
due to the Facilty's failure to achieve the Guaranteed Availabilty would be diffcult or
impossible to predict with certinty, and (b) the liquidated damages contemplated in this Section
4.6 are a fair and reasonable calculation of such damages.
4.6 Termination for Non-availabilty. Unless excused by an event of Force Majeure,
Seller's failure to deliver any Net Energy to the Point of Delivery for a continuous period of
three months shall constitute an event of default.
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SECTION 5: PURCHASE PRICES
5.1 Energy Purchase Price. Except as provided in Section 5.3, PacifiCorp will pay
Seller non-levelized, Conforming Energy or Non-Conforming Energy Purchase Prices for Net
Output adjusted for the month and On-Peak or Off-Peak Hours and the Wind Integration Cost
(WIC) using the following formulae, in accordance with Commission Order Nos. 30423,30497,
and 30744:
Conforming Energy Purchase Price:: (ARce * MPM) - WIC
Non-Conforming Energy Purchase Price = (ARnce * MPM) - WIC
Where:
ARnce =
Conforming Energy anual rate from Table 1,
below, for the year of Net Output
the lower of
85% of the Conforming Energy annual rate
from Table 1, below, for the year of Net
Output
ARce
Or
85% of weighted average of the daily On-
Peak and Off-Peak ICE Mid-Columbia
index pnces for firm energy for the month,
or portion of month, of Net Output
monthy On-Peak or Off-Peak multiplier from Table
2, below, that corresponds to the mongh of the Net
Output and whether the net Output occured duóng
On-Peak Hours of Off.Peak Hours
$5.10IMWh, the Wind Integration Cost prescribed
in Commssion Order No. 30497
Example calculations are provided for in Exhibit G.
MPM =
WIC
Table 1: Conforming Energy Annual Rates
Conforming Energy Annual Rate (ARe)
Year $/MWh
2011 75.83
2012 77.95
2013 80.24
2014 82.14
2015 84.09
2016 86.09
2017 88.25
2018 90.34
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2019 92.60
2020 94.80
2021 97.05
2022 99.36
2023 101.73
2024.104.15
2025 106.64
2026 109.19
2027 112.30
2028 115.50
2029 118.80
2030 122.20
2031 125.71
2032 128.55
Table 2: Monthly On-PeaklOff-Peak Multipliers (from Commission Order No. 30423)
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Month On-Peak
Honrs Off-Peak Hours
Januar 103%94%
Februar 105%97%
March 95%80%
April 95%76%
May 92%63%
June 94%65%
July 121%92%
Au~st 121%106%
September 109%99%
October 115%105%
November 110%96%
December 129%120%
5.2 Payment
For each Biling Period in 'each Contract Year, PacifiCorp shall pay Seller as follows::
For delivery of Conforming Energy:
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Payment =(CEnergyon-Peak * CEPPriceon-PeailOOO)+
(CEnergyoff-Peak * CEPPiceoff.PeaiI000)
For delivery of Non-Conforming Energy:
Payment =(NCEnergYOn-Peak * NCEPPnceon-PeaklOOO) +
(NCEnergYOff-Peak * NCEPPriceoff.Peakl000)
Where:
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CEnergy
CEPrice
NCEnergy
NCEPPrice
On-Peak
=Conforming Energy in kWh
Conforming Energy Purchase Price in $/MWh
Non-Conforming Energy in kWh
Non-Conforming Energy Purchase Pnce in $/MWh
the corresponding value for On-Peak Hours
=
=
=
=
Off-Peak =the corresponding value for Off-Peak Hours
5.3 Inadvertent Energy. PacifiCorp may accept Inadvertent Energy at its sole
discretion or pay for Inadvertent Energy.
SECTION 6: OPERATION AND CONTROL
6.1 Seller shall operate and maintain the Facility in a safe maner in accordance with
ths Agreement, the Facilty's Generation Interconnection Agreement, if applicable,
Transmission Agreement(s), Prudent Electrical Practices and in accordance with the
requirements of all applicable federal, state and local laws and the National Electnc Safety Code
as such laws and code may be amended from time to time. PacifiCorp shall have no obligation
to purchase Net Output from the Facilty to the extent the interconnection between the Facilty
and the Point of Delivery is disconnected, suspended or interrpted, in whole or in par, pursuant
to the Generation Interconnection Agreement or Transmission Agreement(s), or to the extent
generation curlment is required as a result of Seller's non-compliance with the Generation
Interconnection Agreement or Transmission Agreement(s). PacifiCorp shall have the nght to
inspect the Facilty to confrm that Seller is operating the Facilty in accordance with the
provisions of ths Section 6.3 upon reasonable notice to Seller. Seller is solely responsible for
the operation and maintenance of the Facilty. PacifiCorp shall not, by reason of its decision to
inspect or not to inspect the Facilty, or by any action or inaction taen with respect to any such
inspection, assume or be held responsible for any liabilty or occurence arising from the
operation and maitenance by Seller of the Facilty.
6.2 Seller may cease operation of the entire Facilty or any individual unit for
Scheduled Maintenance Penods for each calendar year at such times as are provided in the
monthly operating schedule.
6.3 Energy Acceptace
6.3.1 PacifiCorp shall be excused from accepting and paying for Net
Output or accepting Inadvertent Energy produced by the Facility and delivered by the
Seller to the Point of Delivery, if it is prevented from doing so by an event of Force
Majeure, or if PacifiCorp determines that curtailment, interrption or reduction of Net
Output or Inadvertent Energy delivenes is necessar because of line constrction or
maintenance requirements, emergencies, electrical system operating conditions on its
system or as otherwise required by Prudent Electrical Practices. If, for reasons other than
an event of Force Majeure, PacifiCorp requires such a curailment, interrption or
reduction of Net Output deliveries for a period that exceeds twenty (20) days, beginnng
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with the twenty-first day of such interrption, curtlment or reduction, Seller will be
deemed to be delivering Net Output at a rate equivalent to the pro rata daily average of
the amounts specified for the applicable month in the Energy Delivery Schedule under
Section 4.2 unadjusted by Section 4.3. PacifiCorp will notify Seller when the
interrption, curailment or reduction is terminated.
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6.3.2 PacifiCorp shall not be obligated to purchase, receive or pay for
Net Output that is not delivered to the Point of Delìvery (a) during times and to the extent
that such energy is not delivered because the interconnection between the Facility and
PacifiCorp's system is disconnected, suspended or interrpted, in whole or in par,
pursuat to the Generation Interconnection Agreement or Transmission Agreement(s), (b)
during times and to the extent that such energy is not delivered because the Tranmission
Entity Curls (as defined in the Tariff) Transmission Service (as defined in the Tariff to
PacifiCorp pursuant to the terms of the Tariff, or (c) during times and to the extent that an
event of Force Majeure prevents either Party from delivering or receiving such energy.;1
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6.3.3 Under no circumstances wil the Seller deliver Net Output and/or
Inadvertent Energy from the Facilty to the Point of Delivery in an amount that exceeds
the Maximum Facility Delivery Rate. Seller's failure to limit deliveries to the Maximum
Facilty Delivery Rate shall be a Matenal Breach of this Agreement.
6.4 Seller Declared Suspension of Energy Delivenes.
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6.4.1 If the Seller's Facility experiences a. forced outage due to
equipment failure which is not caused by an event of Force Majeure or by neglect,
disrepair or lack of adequate preventative maitenance of the Seller's Facilty, Seller may,
after giving notice as provided in Section 6.4.2 below, temporarly suspend all deliveries
of Net Energy to PacifiCorp from the Facilty or from individual generation unites) with
the Facility affected by the forced outage for a period of not less than 48 hours to correct
the forced outage condition ("Declared Suspension of Energy Deliveries"). The Seller's
Declared Suspension of Energy Deliveries wil begin at the star of the next full hour
following the Seller's notification as specified in Section 6.4.2 and will continue for the
time as specified (not less than 48 hours) in the written notification provided by the
Seller. In the month(s) in which the Declared Suspension of Energy occurred, the
Scheduled Monthly Energy Delivery will be adjusted as specified in Section 4.3.
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6.4.2 If the Seller desires to initiate a Declared Suspension of Energy
Deliveries as provided in Section 6.4.1, the Seller wil notify PacifiCorp's generation
coordination desk, bye-mail to wscc(lacificorp.com. by telephone [phone]), or
by fax [phone]), of Seller's unscheduled outage. Seller shall take all reasonable
measures and exercise its best efforts to avoid unscheduled maintenance, to limit the
duration of such unscheduled maintenance, and to pedorm unscheduled maintenance
during Off-Peak Hours. The beginning hour of the Declared Suspension of Energy
Deliveries wil be at the earliest the next full hour after making contact with PacifiCorp.
The Seller will, withn 24 hours after the telephone contact, provide PacifiCorp a wntten
notice in accordance with Section 21 declaring the beginning hour and duration of the
Declared Suspension of Energy Deliveries and a description of the conditions that caused
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the Seller to initiate a Declared Suspension of Energy Deliveries. PacifiCorp wil review
the documentation provided by the Seller to determine PacifiCorp's acceptace of the
described forced outage as qualifying for a Declared Suspension of Energy Deliveries as
specified in paragraph 6.4.1. PacifiCorp's acceptace of the Seller's forced outage as an
acceptable forced outage will be based upon the clear documentation provided by the
Seller that the forced outage is not due to an event of Force Majeure or by neglect,
disrepair or lack of adequate preventative maintenance of the Seller's Facilty. Seller
agrees to retain all performance related data for the Facilty for a minimum of thee years,
and to cooperate withPacifiCorp in the event PacifiCorp decides to audit Seller's
reporting of Facilty Net Output and Adjusted Scheduled Monthly Energy Delivery.
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SECTION 7: MOTIVE FORCE
Pnorto the Effective Date of this Agreement, Seller provided to PacifiCorp an engineenng
report ("Motive Force Plan"). Such Motive Force Plan demonstrated to PacifiCorp's reasonable
satisfaction: (1) the feasibilty that the Facilty wil average 67,300,000 kWh per full calendar
year for the full term of this Agreement; and (2) the likelihood that the Facilty, under average
design conditions, wil generate at no more than 10 aMW in any calendar month. The Motive
Force Plan and accompanying documents are attached hereto as Exhibit F-l, together with a
certification from a Licensed Professional Engineer attached hereto as Exhibit F -2, certifying to
PacifiCorp that the Facility can reasonably be expected to perform as predicted in the Motive
Force Plan for the duration of this Agreement.
SECTION 8: METERING AT THE POINT OF INTERCONNECTION
8.1 . Metenng shall be performed at the 10cation and in a maner consistent with this
Agreement, as specified in Exhibit B. Seller shall provide to PacifiCorp metered Facilty Net
Output in hourly increments, and any other energy measurements required to administer this
Agreement. If the Transmitting Entity(s) requires Seller to telemeter data, PacifiCorp shall be
entitled to receive the same data Seller provides to the Transmitting Entity, if such data is useful
to PacifiCorp's ádministration of this Agreement. Seller's metered output shall be adjusted to
account for electrical losses, if any, between the point of metering (x) and the Point of
Interconnection (x) ("adjusted metered output"). The loss adjustment shall be 1 % of the kWh
energy production recorded on the Facilty output meter until actually measured and confirmed
in letter agreement between the paries. Subject to other provisions applicable to Net Output in
this Agreement (e.g., disallowance of Inadvertent Energy), PacifiCorp shall subtract Seller's
station service load from Seller's adjusted metered output to determine Net Output.
8.2 Seller shall pay for the installation, testing, and maintenance of any metering
required by Section 8.1, and shall provide reasonable access to such meters. PacifiCorp shall
have reasonable access to inspection, testing, repair and replacement of the metering equipment.
If any of the inspections or tests discloses a measurement error exceeding two percent (2%),
either fast or slow, proper correction, based upon the inaccuracy found, shall be made of
previous readings for the actual period during which the metering equipment rendered inaccurate
measurements. Any correction in billngs or payments resulting from a correction in the meter
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records shall be made in the next monthly biling or payment rendered following the repair of the
meter, or dunng the shortest reasonable period.
SECTION 9: BILLINGS, COMPUTATIONS AND PAYMENTS
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9.1 On or before the thrtieth (30th) day following the end of each Biling Penod,
PacifiCorp shall send to Seller payment for Seller's delivenes of Net Output to PacifiCorp,
together with computations supporting such payment. PacifiCorp may offset any such payment
to reflect amounts owig from Seller to PacifiCorp pursuant to this Agreement and any other
agreement(s) between the Paries.
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9.2 Any amounts owing after the due date thereof shall bear interest at the Prime Rate
plus two percent (2%) from the date due until paid; provided, however, that the interest rate shall
at no time exceed the maximum rate allowed by applicable law.
SECTION 10: DEFAULTS AND REMEDIES
10.1 The following events shall constitute defaults under ths Agreement:
10.1.1 Seller's failure to make a payment when due under ths
Agreement, or maintain insurance in conformance with the requirements of Section 12 of
this Agreement, if the failure is not cured within ten (10) days after the non-defaulting
Par gives the defaulting Par a notice of the default.
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10.1.2 Breach by a Pary of a representation or waranty set fort in this
Agreement, if such failure or breach is not cured within thrt (30) days following wntten
notice.
10.1.3 Seller's failure to cure any default under any commercial or
financing agreements or instrent (including the Generation Interconnection
Agreement, if applicable) within the time allowed for a cure under such agreement or
instrent.
10.1.4 A Pary (a) makes an assignment for the benefit of its creditors;
(b) files a petition or otherwise commences, authonzes or acquiesces in the
commencement of a proceeding or cause of action under any banptcy 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; (c) becomes
insolvent; or (d) is unable to pay its debts when due.
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10.1.5 A Material Adverse Change has occured with respect to Seller
and Seller fails to provide such performance assurances as are reasonably requested by
PacifiCorp, within fifteen (15) days from the date of such request.
10.1.6 A Pary otherwise fails to perform any matenal obligation
(including but not limited to failure by Seller to meet any deadline set forth in Section
2.2) imposed upon that Part by this Agreement if the failure is not cured within thirty
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(30) days afer the non-defaulting Pary gives the defaulting Par notice of the default;
provided, however, that, upon written notice from the defaulting Par, ths thirty (30)
day period shall be extended by an additional ninety (90) days if (a) the failure canot
reasonably be cured within the thirty (30) day period despite dilgent efforts, (b) the
default is capable of being cured within the additional ninety (90) day period, and (c) the
defaulting Pary commences the cure within the original thirty (30) day period and is at
all times thereafer dilgently and continuously proceeding to cure the failure.
10.2 In the event of any default hereunder, the non-defaulting Pary must notify the
defaulting Part in writing of the circumstaces indicating the default and outlining the
requirements to cure the default. If the default has not been cured within the prescribed time,
above, the non-defaulting Pary may terminate this Agreement at its sole discretion by delivering
wntten notice to the other Pary and may pursue any and all legal or equitable remedies provided
by law or pursuant to this Agreement. The rights provided in this Section 10 are cumulative such
that the exercise of one or more nghts shall not constitute a waiver of any other rights.
10.3 In the event this Agreement is terminated because of Seller's default and Seller
wishes to again sell Net Output from the facilty using the sae motive force to PacifiCorp
following such termination, PacifiCorp in its sole discretion may require that Seller do so subject
to the terms of this Agreement, including but not limited to the purchase pnces as set fort in
(Section 5), until the Expiration Date (as set fort in Section 2.1). At such time Seller and
PacifiCorp agree to execute a wntten document ratifying the terms of ths Agreement.
10.4 If this Agreement is terminated as a result of Seller's default, Seller shall pay
PacifiCorp for the energy and associated capacity that Seller was scheduled to provide for a
penod of twelve (12) months ("Replacement Period") from the date of termination plus the
estimated administrative cost to acquire the replacement power ("Net Replacement Power
Costs"). Net Replacement Power Costs equas the sum of the Replacement Price times the
Replacement Volume for each day of the Replacement Period, plus the estimated administrative
cost to the utility to acquire replacement power.
Where:
"Replacement Price"equals the positive difference, if any, of the Index Price mius the
weighted average of the On-Peak and Off-Peak Conforming Energy Pnces; and
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"Replacement Volume" equals the applicable Scheduled Monthly Energy Delivery
divided by the number of days in that month.
10.5 Upon an event of default or termination event resulting from default under this
Agreement, in addition to and not in limitation of any other nght or remedy under this
Agreement or applicable law (including any right to set-off, counterclaim, or otherwse withhold
payment), the non-defaulting Par may at its option set-off, against any amounts owed to the
defaulting Par, any amounts owed by the defaulting Pary under any contract(s) or
agreement(s) between the Pares. The obligations of the Paries shall be deemed satisfied and
discharged to the extent of any such set-off. The non-defaulting Par shall give the defaulting
Pary written notice of any set-off, but failure to give such notice shall not affect the validity of
the set-off.
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10.6 Amounts owed by Seller puruant to ths paragraph shall be due within five (5)
business days afer any invoice from PacifiCorp for the same.
SECTION 11: INDEMNFICATION
11.1 Indemnities.
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11.1.1 Indemnity by Seller. Seller shall release, indemnify and hold
harless PacifiCorp, its directors, offcers, agents, and representatives against and from
any and all loss, fines, penalties, claims, actions or suits, including costs and attorney's
fees, both at trial and on appeal, resulting from, or ansing out of or in any way connected
with (a) the energy delivered by Seller under this Agreement to and at the Point of
Delivery, (b) any facilities on Seller's side of the Point of Delivery, (c) Seller's operation
and/or maintenance of the Facility, or" (d) ansing from this Agreement, including without
limitation any loss, claim, action or suit, for or on account of injur, bodily or otherwise,
to, or death of, persons, or for damage to, or destrction or economic loss of propert
belonging to PacifiCorp, Seller or others, excepting only such loss, claim, action or suit
as may be caused solely by the fault or gross negligence of PacifiCorp, its directors,
offcers, employees, agents or representatives.
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11. i .2 Indemnity by PacifiCorp. PacifiCorp shall release, indemnfy
and hold harless Seller, its directors, officers, agents, Lenders and representatives
against and from any and all loss, fines, penalties, claims, actions or suits, including costs
and attorney's fees, both at tral and on appeal, resulting from, or ansing out of or in any
way connected with the energy delivered by Seller under this Agreement after the Point
of Delivery, including without limitation any loss, claim, action or suit, for or on account
of injur, bodily or otherwse, to, or death of, persons, or for damage to, or destrction or
economic loss of property, excepting only such loss, claim, action or suit as may be
caused solely by the fault or gross negligence of Seller, its directors, officers, employees,
agents, Lenders or representatives.
i 1.2 No Dedication. Nothing in ths Agreement shall be construed to create any duty
to, any standard of care with reference to, or any liabilty to any person not a Pary to this
Agreement. No undertaking by one Pary to the other under any provision of this Agreement
shall constitute the dedication of that Pary's system or any portion thereof to the other Pary or
to the public, nor affect the status of PacifiCorp as an independent public utilty corporation or
Seller as an independent individual or entity.
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11.3 CONSEOUENTIAL DAMAGES. EXCEPT TO TH EXTENT SUCH
DAMAGES ARE INCLUDED IN THE LIQUIDATED DAMAGES, DELA Y DAMGES, OR
OTHER SPECIFIED MEASURE OF DAMAGES EXPRESSL Y PROVIDED FOR IN THIS
AGREEMENT, NEITHER PARTY SHALL BE LIALE TO THE OTHER PARTY FOR
SPECIAL, PUNITIE, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES,
WHETHER SUCH DAMAGES AR ALLOWED OR PROVIDED BY CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTE OR OTHERWISE.
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SECTION 12: LIABILITY AND INSURANCE
12.1 Certficates. Seller shall provide PacifiCorp insurance certificate(s) (of "ACORD
Form" or the equivalent) certifying Seller's compliance with the insance requirements
hereunder. Commercial General Liabilty coverage written on a "claims-made" basis, if any,
shall be specifically identified on the certificate. If requested by PacifiCorp, a copy of each
insurance policy, certified as a tre copy by an authorized representative of the issuing insurance
company, shall be fuished to PacifiCorp.
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12.2 Required Policies and Coverages. Without limiting any liabilties or any other
obligations of Seller under ths Agreement, from the commencement of interconnection with
PacifiCorp's electric transmission system until the Termination Date of this Agreement, at its
own expense, Seller shall secure and continuously car, with an insurance company or
companies rated not lower than "A- or better" by the A.M. Best Company, the insurance
coverage specified below:
12.2.1 Worker's Compensation insurance which complies with the laws
of the state withn which the Facilty is located;
12.2.2 Commercial General Liabilty insurance with bodily injury and
property damage combined single limits of at least $1,000,000 per occurence. Seller
shall maintain the policy in accordance with terms available in the insurance market for
similar electric generating facilities. Such insurance shall include, but not necessanly be
limited to, specific coverage for contractual liabilty encompassing the indemnfication
provisions in ths Agreement, broad form propert damage liability, personal injur
liabilty, explosion and collapse hazard coverage, products/completed operations liability,
and, where applicable, watercraft protection and indemnity liability;
12.2.3 All Risk Insurance. The policy shall provide coverage in an
amount equal to not less than 80% of the curent replacement in kind of the Facilty for
"all risks" of physical loss or damage except as hereinafter provided, including coverage
for boiler and machinery, transit and off-site storage accident expoSure, but excluding the
equipment owned or leased by Operator and its subcontractors and their personal
propery. The policy may conta separate sub-limits and deductibles subject to
insurance company underwiting guidelines. Seller shall maintain the policy in
accordance with terms available in the insurance market for similar electric generating
facilities. The policy shall include coverage for business interruption in an amount
covering a period of indemnity equal to twelve (12) months. Additional coverages to be
included are:
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(a) Catastrophic Penls Insurance not less than 80% of the curent
replacement cost of plant, building, and/or equipment.
12.3 Insurance Strcture. Seller may satisfy the amounts of insurance required above by
purchasing primary coverage in the amounts specified or by buying a separate excess Umbrella
Liabilty policy together with lower limit primar underlying coverage. The structure of the
coverage is at Seller's option, as long as the total amount of insurance meets the above
requirements.
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12.4 Occurrence-Based Coverage. The coverage required above, and any umbrella or
excess coverage, shall be "occurence" form policies. In the event that any policy is wntten on a '
"claims-made" basis and such policy is not renewed or the retroactive date of such policy is to be
changed, the first insured Pary shall obtain or cause to be obtained for each such policy or
policies the broadest basic and supplemental extended reporting penod coverage or "tail"
reasonably available in the comrnercial insurance market for each such policy or policies and
shall provide the other Pary with proof that such basic and supplementa extended reporting
penod coverage or "tail" has been obtained.
12.5 Endorsement Items. Seller shall immediately cause its insurers to amend its
Commercial General Liabilty and Umbrella or Excess Liabilty policies with all of the following
endorsement items, and to amend its Worker's Compensation policy with the endorsement items
set fort in Paragraphs 12.5.3 and 12.5.4 below:
12.5.1 PacifiCorp and its Affliates, their respective directors, offcers,
employees, and agents as an additional insured under ths policy and to the maximum
extent allowed by law, shall be provided with coverage at least as broad as those required
of the Seller by this Agreement;
12.5.2
PacifiCorp and
agents;
This insurance is pnmar with respect to the interest of
its Affliates and their respective directors, offcers, employees, and
12.5.3 Insurer hereby waives all rights of subrogation against
PacifiCorp, its Affiliates, offcers, directors, employees and agents;
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12.5.4 Notwithstanding any provision of the policy, this policy may not
be canceled, non-renewed or matenally changed by the insurer without giving ten (l0)
days' pnor written notice to PacifiCorp; and
12.5.5 Cross liabilty coverage so that the insurance applies separately
to each insured against whom claim is made or suit is brought, even in instances where
one insured claims agaist or sues another insured.
12.6 Periodic Review. PacifiCorp may review ths schedule of required insurance as
often as once every two (2) years. PacifiCorp may, in its discretion and if allowed by the
Commission, require the Seller to make 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 facilties
comparable to the Facility at the time PacifiCorp's review taes place. In addition, Seller shall
have the right, subject to PacifiCorp's consent, to make changes in the coverages and limits of
the Builder's All-Risk Insurance and the All-Risk Insurance required under this Section, to the
extent the coverages and limits specified herein are not reasonably available at commercially
reasonable rates.
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SECTION 13: FORCE MAJEUR
13.1 As used in ths Agreement, "Force Majeure" or "an event of Force Majeure"
means any cause beyond the reasonable control of the Seller or of PacifiCorp which, despite the
exercise of due dilgence, such Pary is unable to prevent or overcome. By way of example,
Force Majeure may include but is not limited to acts of God, flood, storms, wars, hostilities, civil
strife, stnkes, and other labor distubances, earhquakes, fires, lightning, epidemics, sabotage,
restraint by cour order or other delay or failure in the pedormance as a result of any action or
inaction on behalf of a public authority which is in each case (i) beyond the reasonable control of
such Par, (ii) by the exercise of reasonable foresight such Pary could not reasonably have been
expected to avoid and (ii) by the exercise of due dilgence, such Par shall be unable to prevent
or overcome. Force Majeure, however, specifically excludes the cost or availabilty of fuel or
motive force to operate the Facilty or changes in market conditions that affect the pnce of
energy or transmission. If either Par is rendered wholly or in par unable to perform its
obligation under this Agreement because of an event of Force Majeure, both Paries shall be
excused from whatever performance is affected by the event of Force Majeure, provided that:
13.1.1 the non-performing Part, shall, within two (2) weeks after the
occurence of the Force Majeure, give the other Pary written notice descnbing the
parculars of the occurence, including the star date of the Force Majeure, the cause of
Force Majeure, whether the Facilty remains parally operational and the expected end
date of the Force Majeure;
13.1.2 the suspension of performance shall be of no greater scope and of
no longer duration than is required by the Force Majeure;
13.1.3 the non-performing Pary uses its best efforts to remedy its
inabilty to perform; and
13.1.4 the non-performing Pary shall provide prompt wrtten notice to
the other Par at the end of the Force Majeure event detailing the end date, cause there
of, damage caused there by and any repairs that were required as a result of the Force
Majeure event, and the end date of the Force Majeure.
13.2 No obligations of either Par which arose before the Force Majeure causing the
suspension of performance shall be excused as a result of the Force Majeure.
13.3 Neither Pary shall be required to settle any stnke, walkout, lockout or other labor
dispute on terms which, in the sole judgment of the Par involved in the dispute, are contrary to
the Pary's best interests.
SECTION 14: SEVERAL OBLIGATIONS
Nothing contained in this Agreement shan ever be construed to create an association, trust,
parership or joint venture or to impose a trust or parnership duty, obligation or liabilty
between the Paries. If Seller includes two or more paries, each such party shall be jointly and
severally liable for Seller's obligations under this Agreement.
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SECTION 15: CHOICE OF LAW
This Agreement shall be interreted and enforced in accordance with the laws of the state of
Idaho, excluding any choice of law rules which may direct the application of the laws of another
jurisdiction.
'j SECTION 16: PARTIAL INY ALIDITY
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It is not the intention of the Pares to violate any laws governng the subject matter of this
Agreement. If any of the terms of the Agreement are finally held or determined to be invalid,
ilegal or void as being contrar to any applicable law or public policy, all other terms of the
Agreement shall remain in effect. If any terms are finally held or determined to be invalid,
ilegal or void, the Paries shall enter into negotiations concernng the terms affected by such
decision for the purose of achieving conformity with requirements of any applicable law and
the intent of the Parties to this Agreement.
SECTION 17: WAIVER
Any waiver at any time by either Pary of its nghts with respect to a default under this
Agreement or with respect to any other matters arsing in connection with this Agreement must
be in writing, and such waiver shall not be deemed a waiver with respect to any subsequent
default or other matter.
SECTION 18: GOVERNMENTAL JURSDICTION AND AUTHORIZATIONS
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This Agreement is subject to the jurisdiction ofthose governental agencies having control over
either Par or this Agreement. PacifiCorp's compliance with the terms of this Agreement is
conditioned on Seller's submission to PacifiCorp prior to the Commercial Operation Date and
maintaning thereafter copies of all local, state and federal licenses, permits and other approvals
as then may be required by law for the constrction, operation and maintenance of the Facilty.
SECTION 19: SUCCESSORS AND ASSIGNS
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Ths Agreement and all of the terms and provisions hereof shall be binding upon and inure to the
benefit of the respective successors and assigns of the Paries hereto, except that no assignent
hereof by either Pary shall become effective without the written consent of both Paries being
fist obtained. Such consent shall not be unreasonably witheld. Notwithstanding the foregoing,
any entity with which PacifiCorp may consolidate, or into which it may merge, or to which it
may conveyor transfer substantially all of its electric utilty assets, shall automatically, without
further act, and without need of consent or approval by the Seller, succeed to all of PacifiCorp's
rights, obligations, and interests under this Agreement. Ths aricle shall not prevent a financing
entity with recorded or secured rights from exercising all rights and remedies available to it
under law or contract. PacifiCorp shall have the nght to be notified by the financing entity that it
is exercising such rights or remedies.
24
SECTION 20~ ENTI AGREMENT
20.1 This Agreement supersedes all pror agreements, proposals, representations, ""l
negotiations, discussions or lettrs, whether oral or in wrtig, regarding PacifiCorp's purchase of
Net Output from the Facilty. No modìfication of this Agrement shall be effective uness it is in
writing and signed by both Paries.
20.2 By executig this Agreement; each Pary releases the other from any clais,
known or unown, that may have arsen prior to the Effective Date with respect to the Facilty
and any predecessor facì1ty proposed to have been constrcted on the site of the Facìlty.
SECTION 21: NOTICES
21.1 All notices except as otherwse provided in ths Agreement shall be in wrting,
shall be directed as follows and shall be considered delivered if delivered in person or when
deposited in the U.S. Mail, postage prepaid by certfied or registered mail and retu receipt
requested
Notices PacifiCorp Seller
All Notices PacifiCorp power County Wind Park Nort
825 NE Multnomah Street Portland,Attn:Ròa1d Doskeland
OR 97232 Windland Inc.
7669 W. Riverside Drive
Att: Contrct Admstation,Suite 1ú2
Suite 600 Boise, Idaho 83714
Phone: (503) 813 - 5952 Phone: [phone]
Facsimile: (503) 813 - 6291 Fax:[phone]
DWlS: 00-790-9013
Federal Tax iD Number: 93-0246090
All Invoices:Att: Back Offce, Suite 700 Same as above
Phone: (503) 813 - 5578
Facsimile: (503) 813 - 5580
Scheduling:Att: Resource Plang, Suite 600 Sl:e as above
Phone: (503) 813 - 6090
Facsimile: (503) 813 - 6265
Payments:Att: Back Office, Suite 700 Same as above
Phone: [phone]
Facsimile: (503) 813 - 5580
Wire Transfer:Ban One N.A.To be provided in a separate letter.
robe provided in separate letter from
PacifiCorp to Seller
Credit and Att: Credit Manager, Suite 1900 Same as above
Collections:Phone: (503) 813 - 5684
Facsimile: [phone]
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Notices PacifiCorp Seller
With Additional Att: PacifiCorp General Counel Same as above
Notices of an Phone: [phone]
IL'Vent of Default Facsimile: [phone]
or Potential
Event of Default
to:
The Paries may change the person to whom such notices are addressed, or their addresses. by
providmg wrtten notices thereof iIi accordance with ths Subsection.
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IN WITNES$, WHEOF, the Paries her~to have caused this Agreellent to be executed
in their respective names as of the date firs.t above wrtten.
PacifiCorn Seller
By:
Naie~ .BrueGrisW~ld
Title: Diìeetor Oriination
,~../. .
Name: Roal lDoske1ard
Title: Pr~si4ent~ Win.dland Inc.
Manager~ Power County Wind
Park North LLC
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EXHIBIT A
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DESCRIPTION OF SELLER'S FACILITY
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Both Power County Wind Park Nort and Power County Wind Park South have configurations
consisting of 12 Vesta VI 00 tubines. The Vestas VI 00-1.8 MW wind turbine is a pitch
regulated upwind tubine with active yaw and a three-blade rotor. The Vestas VlOO-L.8 MW
turbine has a rotor diameter of 100 m with a generator rated at 1.8 MW. The tubine utilzes a
microprocessor pitch control system called OptiTipQY and the Varable Speed concepts (VCS:
Vestas Converter System). With these features the wind turbine is able to operate the rotor at
variable speed (RPM), helping to maintan the output at or near rated power.
The tubines in both Power County Wind Park Nort and Power County Wind Park South will
be supplied all parasitic station power via each facilty's electrcal collector system. Both
facilities will be connected to a common substation. Station service will not be measured for
each tubine but each facilty will consume collectively approximately 220kW of parasitic station
power and a fuer 1,100kW of electrical losses to power lines and transformers. Total
deductions from gross power production capacity are estimated at 1,320kW for each quaifying
facility.
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The map below displays both Power County Wind Park Nort and Power County Wind Park
South on a topographic background. Power County Wind Park Nort tubines are indicated by
solid orange circles. Power County Wind Park South tubines are shown in green with open
centered circles. Dotted lines show access road alternatives reviewed and approved by a
constrction engineer. The red rectagle shows the site of the Operations and Maintenance
building. The black rectangle shows the location of the 3-ring bus for interconnection to the
Brady- Treasureton line adjacent to the wind far substation.
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EXHIBITB
SELLER'S INTERCONNCTION FACILITIES
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Windland's request for interconnecting Power County Wind Park North and Power County Wind
Park South is being evaluated by PacifiCorp Transmission under LGIQ0323. PacifiCorp
Transmission acknowledged Windlands application requesting interconnection as complete on
March 4, 2010. Interconnection of a larger wind far at the same location was previously
evaluated by PacifiCorp Transmission under queue #038. Duóng that process a Feasibilty
Study and a System Impact Study as well as a preliminar Facilty Study were completed.
Copies of the Feasibilty Study and System Impact study are available at
http://ww.oasis.pacificorp.com/oasis/ppw/lgia/pacificorplgiag.htm. As the QFs wil
interconnect with PacifiCorp Tranmission system, Windland has not requested transmission
service.
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Windland expects the following milestones in the interconnection process to complete on or
before the following: Scoping Meeting, April 2nd; System Impact Study complete, August 3rd;
Facilty Study complete, December 1 S\ Large Generator Interconnection Agreement executed,
Februar 2, 2011.
Windlands electrical engineering firm estimates the following procurment lead times for major
interconnection components:
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. Potential transformers and current transformers
. Circuit breakers
. Steel structures
· 34.5/230kV 50MVA transformer
. Switches
These components have not been ordered at ths time.
constrction schedule requires.
25-35 weeks
16-20 weeks
20-24 weeks
20-30 weeks
12-16 weeks
Orders will be placed when the
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During the Interconnection review process for queue #038 Facilty studies were undertaken. The
location selected for interconnection was between strctues 53 and 55 on the Brady- Treasureton
line. The 3-ring bus was placed adjacent to PacifiCorp Transmission's existing easement for the
Ben Lomand - Borah 345kV line. An image showing the substation location and a one-line
drawing for an earlier configuation are shown below. Strcture #54 on the Brady- Treasureton
line lies about 7 miles south of the Brady substation. Power Engineers will update the substation
to reflect the curent layout during the Interconnection process.
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A IsSVIl FOR RtEWREV R~~NS 11/8/04 os
iltE ORN
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EXHBITC
REQUIRED FACILITY DOCUMENTS
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Power County Wind Park Nort's Qualifying Facilty status is recorded as FERC QFlO-349-000.
A copy of the Large Generator Interconnection Agreement wil be provided before the
Scheduled Initial Delivery Date
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Windland holds lease nghts with four landowners covering the project site. Under those leases
Windland has exclusive wind fights and other rights necessar to construct and operate wind
fars now and for more than 30 years into the futue. Each of the leases and amendments to
those leases are recorded under memoranda fied in Power County Idaho under the Instrument
numbers listed below.
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1. Memorandum of lease, Kopp et ai, instrument # 195132
2. Memorandum of lease, Deeg et ai, instrument #185679
3. Memorandum of lease Amendment, Deeg et ai, instrument # 195134
4. Memorandum of lease, Isaak et aI, instrument # 185678
5. Memorandum of lease Amendment, Isaak et ai, instrument # 195136
6. Memorandum of lease, Meadows et ai, instrument # 194226
7. Memorandum of lease Amendment, Meadows et ai, instrument # 195131
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Jan
Feb
Mar
Apr
May
Jun
Jul
Aug
Sep
Oct
Nov
Dec
EXHIBITD
ENERGY DELIVERY SCHEDULE
Power County Wind Park
North, Average Monthly
Production (KWH)
Power County Wind Park
South, Average Monthly
Production (KWH)
6,919,152 6,221,422
6,387,656 5,743,522
6,912,781 6,215,694
5,924,079 5,326,692
5,239,214 4,710,890
5;048,629 4,539,524
3,831,940 3,445,526
3,694,149 3,321,630
4,575,147 4,113,788
5,276,801 4,744,687
6,250,831 5,620,495
7,251,062 6,519,863
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EXHIBITE
START-UP TESTING
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Required factory testing includes such checks and tests necessary to determine that the
equipment systems and subsystems have been properly manufactured and installed, fuction
properly, and are in a condition to permit safe and efficient sta-up of the Facilty, which may
include but are not limited to:
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1. Test of mechanical and electrcal equipment;
2. Calibration of all monitonng instents;
3. Operating test of all motors;
4. Alars, signals, and fail-safe or system shutdown control test;
5. Point-to-point continuity test;
6. Bench test of protective devices; and
7. Tests required by manufactuer of equipment
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Requied star-up tests are those checks and tests necessar to determne that all features and
equipment, systems, and subsystems have been properly installed and adjusted, fuction
properly, and are capable of operating simultaneously in such condition that the Facilty is
capable of continuous delivery into PacifiCorp's electrical system, which may include but are not
limited to:
1. Turbine/generator mechanical runs and fuctionality;
2. System operation test;
3. Brake test;
4. Energization of transformers;
5. Synchronizing tests (manual and auto);
6. Excitation and voltage regulation option tests;
7. Auto stop/star sequence;
8. Tests required by manufactuer of equipment;
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EXHIBITF-l
MOTIVE FORCE PLAN
Windland has collected wind data at the sites of Power County Wind Park Nort and Power
County Wind Park South since 2002. Data have been collected on multiple met masts and site
analyses have been performed by Garad Hassan, WindLogics, 3Tier, Ron Nierenberg and V -bar
LLC. The 12x24 tables displayed below were based on an analysis of wind data collected on site
between Januar 2005 and December 2009. The basic analytcal method employed was
Measure-Correlate-Predict (MCP). The on site observations were correlated across met masts to
develop produce an site wide distnbution. They were subsequently correlated with data
collected at the Pocatello airport to provide long term wind speed adjustments. Monthly
averages, diurnal varations and long term averages were used to produce site frequency
distnbutions including the 12x24 arays shown below.
(MST)
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5
6
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9
10
11
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14
15
16
17
18
19
20
21
22
23
12x24 production (KWH) for Power County Wind
Park North
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
9345 10349 9406 8587 7357 7521 5881 5718 7480 7931 9406 10328
9693 9591 9652 8689 7070 7603 5451 5287 7418 6988 9283 10267
9898 9652 9714 8464 7275 7111 5205 5574 7050 7213 8996 9673
10062 9324 9611 8136 7234 6865 4939 5431 6599 7275 8218 9099
9488 9140 9468 8156 6701 6660 4652 4693 6414 7152 7849 9160
9857 10021 9857 7828 6763 6742 3853 4406 6312 6886 7992 9119
9693 9755 9509 7418 6230 6168 4365 4160 6066 7111 8095 9652
9755 9755 9037 7111 5615 5677 3730 4099 5144 6455 7726 9632
9591 9980 8750 6947 5390 5595 3012 3443 4652 6332 7603 9488
9468 9898 8402 6742 5840 5677 3381 3299 4611 5861 7951 9673
9201 9427 9181 7705 6394 5820 3853 3299 4344 5595 7910 9878
9140 8996 10021 8095 6845 6476 3791 3771 4447 5779 8013 9242
8566 8976 10083 8382 7091 6681 4283 4836 5000 6066 8156 9058
8443 8709 9775 8648 7173 7132 4857 4734 5861 6927 8115 8443
8136 8607 9468 8320 7459 7623 5472 5799 6189 6988 8156 8976
8238 8095 9591 8361 7849 8197 6230 5963 6537 7132 7951 8750
8546 8095 9386 8074 7767 8566 5881 6291 6353 7582 8197 9488
9099 8443 8771 8464 7275 7808 6127 5615 6025 7521 9037 10349
8955 9242 8832 8648 7009 7377 6168 5267 7050 8054 9529 10390
8935 9529 8730 8648 7398 6640 6189 5718 7418 8361 9878 10226
9201 10042 8648 8791 7890 7459 6763 6312 7890 8033 9775 10451
9447 10656 8668 8709 8156 7521 6660 6865 7787 7992 10062 10759
9939 10554 9037 9140 7623 7562 6250 6312 7480 7357 10123 10328
9878 10656 8771 8853 7132 7336 6271 5902 7951 7152 9755 10820
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EXHmITF-2
ENGINER'S CERTIFICATION
The Engineer's Certification will be provided before the Scheduled Initial Delivery Date
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EXHIBITG
SAMPLE ENERGY PURCHASE PRICE CALCULATION
The following are samples of calculations of energy purchase prices using the formula and tables
in Section 5.1.
The calculation for the purchase price during an On-Peak Hour in May of 2009 is $65.15/MWh
(the 2009 anua rate for Conformng Energy) multiplied by 92% (0.92) (the May On-Peak Hour
multiplier), which equals $59.94/MWh.
Table 3: Sample Calculations for Conforming Energy in 2009 (Purchase Price = anual rate *
monthy On- PeakOff-Peak multiplier).
Calculated Calculated
Conforming Purchase Price Purchase Price
Energy for 2009 On-for 2009 Off-
Annual Peak Peak
Rate for On-Peak Conforming Off-Peak Conforming
2009 Hour Energy Hour Energy
Month (per MWh) Multiplier (per MWh) Multiplier (perMWh)
Janua $65.15 103%$67.10 94%$61.24
Februar $65.15 105%$68.41 97%$63.20
March $65.15 95%$61.89 80%$52.12
April $65.15 95%$61.89 76%$49.51
May $65.15 92%$59.94 63%$41.04
June $65.15 94%$61.24 65%$42.35
July $65.15 121%$78.83 92%$59.94
August $65.15 121%$78.83 106%$69.06
September $65.15 109%$71.01 99%$64.50
October $65.15 115%$74.92 105%$68041
November $65.15 110%$71.67 96%$62.54
December $65.15 129%$84.04 120%$78.18
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EXIDBITH
SELLER AUTHORIATION TO RELEASE GENERATION DATA TO PACIFICORP
The Seller will authorize release of Seller generation data to PacifiCorp before the Scheduled
Initial Delivery Date
POWER PURCHSE AGREEMENT
BETWEEN
POWER COUNTY WIND PARK SOUTH, LLC
(a new qualifying facilty)
AND
PACIFICORP
Section 1: Definitions.... ............ ............. ....... ....................... ....... .... ................................................ 1
Section 2: Term, Commercial Operation Date ........................................................ ...... ........ ..........6
Section 3: Representations and Warnties......................................................................................7
Section 4: Delivery of Energy and Capacity....................................................................................9
Section 5: Purchase Prices .............................................................................................................. 13
Section 6: Operation and Control.... ...... .... ... ... ... ....... ............. ..... .... ...... ... ..... ... .... ...... .... ......... ...... 15
Section 7: Motive Force.................................................................................................................17
Section 8: Metering.................................................................................................. ...................... 17
Section 9: Bilings, Computations and Payments ... ........ ......... .... ..... ...... ....... ..... ....... ..... ... ...... ...... 18
Section 10: Defaults and Remedies ....................................................................................... ........ 18
Section 11: Indemnification.............................. .................................................. ...........................20
Section 12: Liability and Insurance ...............................................................................................21
Section 13: Force Majeur..............................................................................................................23
Section 14: Several Obligations.....................................................................................................23
Section 15: Choice of Law................................................. ............................................................24
Section 16: Partial Invalidity .........................................................................................................24
Section 17: Waiver ........................................................................................................................24
Section 18: Governental Jurisdiction and Authorizations ............................... ................. ....... ...24
Section 19: Successors an Assigns.. .... ... ........... ......... ..... .......... ...... .... ............. ........ ..... ....... .......24
Section 20: Entire Agreement........... ...................................................................................... .......25
Section 21 : Notices .... ................ ........ ..... ...... ...... ... ... ........ .... ...... ........ ...... ...... ........... .......... ... .... ... 25
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DRAFT
POWER PURCHASE AGREEMENT
THIS POWER PURCHASE AGREEMENT, entered into this day of March, 2010 is
between Power County Wind Park South, LLC, (the "Seller") and PacifiCorp, an Oregon
corporation acting in its regulated electrc utilty capacity ("PacifiCorp"). Seller and PacifiCorp
are referrd to collectively as the "Parties" and individually as a "Part".
RECITALS
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A. Seller intends to construct, own, operate and maintain a wind powered generating facilty
for the generation of electric power, including interconnection facilties, located near the city of
American Falls in Power County, Idao with a Facility Capacity Rating of21,600 kilowatt; and
B. Seller intends to commence delivery of Net Output under ths Agreement, for the purose
of Star-up Testing, on May 31, 2011; and
C. Seller intends to operate the Facilty as a Qualifying Facilty, commencing commercial
operations on November 30, 2011 ("Scheduled Commercial Operation Date"); and
D. Seller estimates that the average Net Energy to be delivered by the Facility to PacifiCorp
is 60,500,000 kilowatt-hours (kWh), which amount of energy PacifiCorp will include in its
resource planng; and
E. Seller shall sell Net Output surlus to its needs at the Facilty site to PacifCorp and
purchase parial electrc requiements service from PacifiCorp, in accordance with the terms and
conditions of this Agreement; and.
F. This Agreement is a "New QF Contract" under the PacifiCorp Inter-Jurisdictional Cost
Allocation Revised Protocol.
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NOW, THEREFORE, the Paries mutually agree as follows:
SECTION 1: DEFINITIONS
When used in this Agreement, the following terms shall have the following meanngs:
1.1 "Adjusted Scheduled Monthly Energy Delivery" shall have the meaning set
fort in Section Error! Reference source not found..
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1.2 "Availabilty" means, for any Biling Period, the ratio, expressed as a percentage,
of (x) the aggregate sum of the minutes in which the Facilty was available to generate at the
Maximum Facilty Delivery Rate during the Billng Period divided by (y) the number of minutes
in the Billng Period. The Facility shall be deemed available during time of forced outages, force
majeure, low wind speeds and scheduled maintenance.
1.3 "Biling Period means the time period between PacifiCorp's reading of its power
purchase meter at the Facility and for this Agreement shall coincide with calendar months.
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1.4 "Capacity Factor" means, for any given period of time, the Net Output divided by
the product of Facility Capacity Rating and the tota hours in the given period oftime.
1.5 "Commercial Operation" means the Facilty is fully operational and reliable, at
not less than niety percent (90%) of the expected Facilty Capacity Rating, and interconnected
and synchronized with the Transmission Entity's System. In order to meet the requirements for
Commercial Operation, all of the following events shall have occurred:
1.5.1 PacifiCorp shall have received a certificate addressed to
PacifiCorp from a Licensed Professional Engineer (a) stating the Facility Capacity Rating
of the Facilty at the anticipated time of Commercial Operation and (b) stating that the
Facility is able to generate electnc power reliably in amounts required by this Agreement
and in accordance with all other terms and conditions of this Agreement;
1.5.2 Start-Up Testing of the Facilty shall have been completed;
1.5.3 PacifiCorp shall have received a certificate addressed to
PacifiCorp from a Licensed Professional Engineer, or an attorney in good standing in
Idaho stating that Seller has obtained all Required Facilty Documents and, if requested
by PacifiCorp in wnting, Seller shall have provided copies of any or all such requested
Required Facilty Documents.
Seller shall provide notice to PacifiCorp when Seller believes that the Facilty has achieved
Commercial Operation. PacifiCorp shal have ten (10) days after receipt of such notice either to
confrm to Seller that alI of the conditions to Commercial Operation have been satisfied or have
occured, or to state with specificity those conditions that PacifiCorp reasonably believes have
not been satisfied or have not occured. If, within such ten (10) day period, PacifiCorp does not
respond pr notifies Seller confirming that the Facilty has achieved Commercial Operation, the
onginal date of receipt of Seller's notice shall be the Commercial Operation Date. If PacifiCorp
notifies Seller within such ten (10) day period that PacifiCorp believes the Facilty has not
achieved Commercial Operation, Seller shall be obligated to address the concerns stated in
PacifiCorp's notice to the mutual satisfaction of both Paries, and Commercial Operation shall be
deemed to occur on the date of such satisfaction, as specified in a notice from PacifiCorp to
Seller. If Commercial Operation is achieved at less than one hundred percent (100%) of the
expected Facilty Capacity Rating, Seller shall provide PacifiCorp an expected date for achieving
the expected Facilty Capacity Rating, and the Facilty's Capacity Rating on that date shall be the
final Facilty Capacity Rating under this Agreement. In no event wil delay in achieving the
expected Facilty Capacity Rating beyond the Commercial Operation Date postpone the
Expiration Date specified in Section 2.1.
1.6 "Commercial Operation Date" means the date the Facilty first achieves
Commercial Operation.
1.7 "Commission" means the Idaho Public Utilties Commission.
.1.8 "Conforming Energy" means all Net Energy delivered to the Point of Delivery
except Non-Conforming Energy.
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1.9 "Conforming Energy Price" means the applicable pnce for Conforming Energy
and capacity, specified in Section 5.1.
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1.10 "Contract Year" means a twelve (12) month period commencing at 00:00 hours
Mountain Prevailing Time ("MPT") on Januar 1 and ending on 24:00 hours MPT on
December 31; provided, however, that the first Contract Year shall commence on the
Commercial Operation Date and end on the next succeeding December 31, and the last Contrct
Year shall end on the Expiration Date, unless earlier terminated as provided herein.
1.11 "Delay Liquidated Damages", "Delay Period", "Delay Price" and "Delay
Volume" shall have the meanngs set fort in Section 2.3 of this Agreement;
1.12 "Effective Date" shall have the meaning set fort in Section 2.1 of this
Agreement.
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1.13 "Energy Delivery Schedule" shall have the meaning set fort in Section 4.3 of
this Agreement.
1.14 "Expiration Date" shall have the meaning set forth in Section 2.1 of this
Agreement.
1.15 "Facilty Capacity Rating" means the sum of the Nameplate Capacity Ratings for
all wind tubine generators comprising the Facilty.
1.16 "Force Majeure" has the meaning set fort in Section 13.1.
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1.17 "Inadvertent Energy" mean energy delivered to the Point of Interconnection (1)
in excess of the Maximum Monthly Purchase Obligation; or (2) at an average hourly rate
exceeding the Maximum Facilty Delivery Rate. Inadvertent Energy is not included in Net
Output.
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1.18 "Index Price" shall mean the weighted average of the daily On-Pea and Off-Peak
firm energy prices, as published in the Intercontinental Exchange (ICE) Day Ahead Power Price
Report for the Palo Verde Hub. For Sunday and NERC holidays, the 24-Hour Index Price shall
be used, unless ICE shall publish a Fir On-Peak and Firm Off-Peak Price for such days for Palo
Verde, in which event such indices shall be utilized for such days. If the ICE index or any
replacement of that index ceases to be published during the term of this Agrement, PacifiCorp
shall select as a replacement a substatially equivalent index that, after any appropriate or
necessar adjustments, provides the most reasonable substitute for the index in question.
PacifiCorp's selection shall be subject to Seller's consent, which Seller shall not unreasonably
withold, condition or delay.
1.19 "Initial Year Energy Delivery Schedule" shall have the meanng set forth in
Section 4.2.1.
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1.20 "Licensed Professional Engineer" means a person acceptable to PacifiCorp in its
reasonable judgment who is licensed to practice engineering in the state of Idaho, who has
training and experience in the engineering discipline(s) relevant to the matters with respect to
3
which such person is called to provide a certification, evaluation and/or opinion, who has no
economic relationship, association, or nexus with the Seller, and who is not a representative of a
consulting engineer, contractor, designer or other individual involved in the development of the
Facilty, or of a manufacturer or supplier of any equipment installed in the Facilty. Such
Licensed Professional Engineer shall be licensed in an appropnate engineering discipline for the
required certification being made. The engagement and payment of a Licensed Professional
Engineer solely to provide the certfications, evaluations and opinions required by this
Agreement shall not constitute a prohibited economic relationship, association or nexus with the
Seller, so long as such engineer has no other economic relationship, association or nexus with the
Seller.
1.21 "Material Adverse Change" shall mean, with respect to the Seller, if the Seller,
in the reasonable opinion of PacifiCorp, has experienced a material adverse change in abilty to
fulfill its obligations under this Agreement.
1.22 "Maximum Curtailed Facilty Delivery Rate" means the maximum
instantaneous rate (kW) at which the Facilty is capable of delivering Net Output at the Point of
Interconnection during a Qualifying Curtilment.
1.23 "Maximum Facilty Delivery Rate" means the maxum instantaneous rate (kW)
at which the Facilty is capable of deliverng Net Output at the Point of Interconnection, as
specified in Exhibit A, and in compliance with the Generation Interconnection Agreement, if
applicable.
1.24 "Maximum Monthly Purchase Obligation" means the maximum amount of
energy PacifiCorp is obligated to purchase under this Agreement in a calendar month, In
accordance with Commission Order 29632, the Maximum Monthly Purchase Obligation for a
given month, in kWh, shall equal 10,000 kW multiplied by the total number of hours in that
month.
1.25 "Motive Force Plan" shall have the meaning set fort in Section 7 of this
Agreement.
1.26 "Nameplate Capacity Rating" means the maximum instantaneous generating
capacity of any qualifying small power or cogeneration generating unit supplying all or par of
the energy sold by the Facilty, expressed in MW, when operated consistent with the
manufacturer's recommended power factor and operating parameters, as set forth in a notice
from Seller to PacifiCorp delivered before the Commercial Operation Date and, if applicable,
updated in the As-built Supplement.
1.27 "Net Energy" means the energy component, in kWh, of Net Output.
1.28 "Net Output" means all energy and capacity produced by the Facilty, less station
use and less transformation and transmission losses and other adjustments, if any. For purposes
of calculating payment under this Agreement, Net Output of energy shall be the amount of
energy flowing though the Point of Interconnection, less any station use not provided by the
Facilty. Net Output does not include Inadvertent Energy.
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1.29 "Non-Conforming Energy" means all Net Output produced by the Facilty prior
to the Commercial Operation Date.
1.30 "Non-Conforming Energy Price" means the applicable price for Non-
Conformng Energy and capacity, specified in Section 5.1.
1.31 "Off-Peak Hours" means all hours of the week that are not On-Peak Hour.
1.32 "On-Peak Hours" means hours from 7:00 a.m. to 11 :00 p.m. Mountain Prevailing
Time, Monday though Satuday, excluding Western Electrcity Coordinating Council (WECC)
and Nort American Electric Reliabilty Corporation (NERC) holidays.
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1.33 "PacifiCorp Transmission" means PacifiCorp, an Oregon corporation, acting in
its transmission fuction capacity.
1.34 "Point of Delivery" means a 3-ring bus near PacifiCorp's 230kV Brady-
Treasureton line strctures 53 and 55 the point of interconnection to PacifiCorp's transmission
system where PacifiCorp has agreed to receive the Seller's Net Output.
1.35 "Point of Interconnection" means the point of interconnection between Seller's
Facilty and the Interconnected Utility's system, if applicable, as specified in Exhibit B.
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1.36 "Prime Rate" means the rate per anum equal to the publicly anounced pnme
rate or reference rate for commercial loans to large businesses in effect from time to time quoted
by J. P Morgan Chase & Co. If a 1. P. Morgan Chase & Co. prime rate is not available, the
applicable Prime Rate shall be the anounced prime rate or reference rate for commercial loans
in effect from time to time quoted by a bank with $10 billon or more in assets in New York
City, N.Y., selected by the Pary to whom interest based on the pnme rate is being paid.
1.37 "Prudent Electrical Practices" mean any of the practices, methods and acts
engaged in or approved by a significant portion of the electrical utility indust 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 reliabilty, safety and expedition. Prudent Electrcal
Practices is not intended to be limited to the optimum practice, method or act to the exclusion of
all others, but rather to be a spectr of possible practices, methods or acts.
1.38 "Qualifying Curtailment" shall have the meaning set fort in Section Error!
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1.39 "QF" means "Qualifying Facilty", as that term is defined in the version ofFERC
Regulations (codified at 18 CFR Par 292) in effect on the date of this Agreement.
1.40 "Replacement Period", "Net Replacement Power Costs", "Replacement Price"
and "Replacement Volume" shall have the meanings set fort in Section 10.4 of this
Agreement;
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1.41 "Required Facilty Documents" means all material licenses, permits,
authonzations, and agreements necessar for constrction, operation, and maintenance of the
Facilty, includig without limitation those set fort in Exhibit C.
1.42 "Scheduled Commercial Operations Date" means the date by which Seller
promises to. achieve Commercial Operation, as specified in Section 2.2.1.
1.43 "Scheduled Maintenance Periods" means those times scheduled by Seller with
advance notice to PacifiCorp as provided in Section 6.2 unless otherwise mutually agreed.
1.44 "Scheduled Monthly Energy Delivery" means the Net Energy scheduled to be
delivered to the Point of Delivery during a given calendar month, as specified by Seller in the
Energy Delivery Schedule.
1.45 "Start-Up Testig" means the completion of required factory and star-up tests as
set fort in Exhibit E hereto.
1.46 "Subsequent Energy Delivery Schedule" shall have the meanng set forth in
Section 4.3.3.
1.47 "Tariff' means the PacifiCorp FERC Electrc Tariff Fift Revised Volume No.1 1
Pro Forma Open Access Transmission Tariff, as revised from time to time.
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SECTION 2: TERM, COMMERCIAL OPERATION DATE
2.1 This Agreement shall become effective afer execution by both Parties and afer
approval by the Commission("Effectie Date"); provided, however, this Agreement shall not
become effective until the Commission has determined tht the prices to be paid for energy and
capacity are just and reasonable, in the public interest, and that the costs incured by PacifiCorp
for purchases of capacity and energy from Seller are legitimate expenses, all of which the
Commission will allow PacifiCorp to recover in rates in Idaho in the event other jursdictions
deny recovery of their proportionate share of said expenses.
Unless earlier terminated as provided herein, the Agreement shall remain in effect until
November 30, 2031 ("Expiration Date").
2.2 Time is of the essence of this Agreement, and Seller's ability to meet certain
requirements pnor to the Commercial Operation Date and to achieve Commercial Operations by
the Scheduled Commercial Operation Date is critically importt. Therefore,
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2.2.1 By May 1, 2011, Seller shall use best efforts to obtan and
provide to Pacifi Corp copies of all governental permits and authorizations necessar for
construction of the Facility.
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2.2.2 By Februar 2, 2011, Seller shall provide PacifiCorp with a copy
of an executed Generation Interconnection Agreement whose terms shall be consistent
with all material terms and requirements of this Agreement..
2.2.3 Prior to Commercial Operation Date, Seller shall provide
PacifiCorp with an As-built Supplement acceptable to PacifiCorp.
2.2.4 By November 30, 2011, Seller shall have achieved Commercial
Operation ("Scheduled Commercial Operation Date").
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2.3 Seller shall cause the Facilty to achieve Commercial Operation on or before the
Scheduled Commercial Operation Date. If Commercial Operation occurs after the Scheduled
Commercial Operation Date, Seller shall be liable to pay PacifiCorp delay damages for the
number of days ("Delay Period") the Commercial Operation Date occurs afer the Scheduled
Commercial Operation Date, up to a total of 120 days ("Delay Liquidated Damages"). Bilings
and payments for Delay Liquidated Damages shall be made in accordance with Section 9. Any
undisputed amount of Delay Liquidated Damages not paid within 30 days of the invoice date
shall be drawn on the Delay Security.
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Delay Liquidated Damages equals the sum of the Delay Price times the Delay Volume,
for each day of the Delay Period.
Where:
"Delay Price" equas the positive difference, if any, of the Index Price minus the
weighted average of the On-Peak and Off-Peak monthly Conforming Energy Prices; and
"Delay Volume" equals the applicable Scheduled Monthly Energy Delivery divided by
the number of days in that month.
The Paries agree that the damages PacifiCorp would incur due to delay in the Facilty achieving
Commercial Operation on or before the Scheduled Commercial Operation Date would be
difficult or impossible to predict with certainty, and that the Delay Liquidated Damages are an
appropriate approximation of such damages.
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SECTION 3: REPRESENTATIONS AN WARNTIES
3.1 Pacifi Corp represents, covenants, and warants to Seller that:
3.l.l PacifiCorp is duly organized and validly existing under the laws
of the State of Oregon.
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3.1.2 PacifiCorp has the requisite corporate power and authority to
enter into this Agreement and to perform according to the terms of this Agreement.
3.1.3 PacifiCorp has taken all corporate actions required to be taken by
it to authonze the execution, delivery and performance of this Agreement and the
consumation of the transactions contemplated hereby.
3.1.4 Subject to Commission approval, the execution and delivery of
ths Agreement does not contravene any provision of, or constitute a default under, any
indenture, mortgage, or other material agreement binding on PacifiCorp or any valid
order of any court, or any regulatory agency or other body having authonty to which
PacifiCorp is subject.
3.1.5 Subject to Commission approval, ths Agreement is a valid and
legally binding obligation of PacifiCorp, enforceable against PacifiCorp in accordance
with its terms (except as the enforceabilty of this Agreement may be limited by
banptcy, insolvency, bank moratorium or similar laws affecting creditors' nghts
generally and laws restricting the availabilty of equitable remedies and except as the
enforceabilty of ths Agreement may be subject to general pnnciples of equity, whether
or not such enforceabilty is considered in a proceeding at equity or in law).
3.2 Seller represents, covenants, and warants to PacifiCorp that:
3.2.1 Seller is a limited liabilty company duly organzed and validly
existing under the laws of the State of Idaho.
3.2.2 Seller has the requisite power and authority to enter into this
Agreement and to perform according to the terms hereof, including all required
reguatory authonty to make wholesale sales from the Facilty.
3.2.3 Seller's shareholders, directors, and offcers have taken all
actions required to authorize the execution, delivery and performance of this Agreement
and the consummation of the tranactions contemplated hereby.
3.2.4 The execution and delivery of this Agreement does not
contravene any provision of, or constitute a default under, any indenture, mortgage, or
other material agreement binding on Seller or any valid order of any cour, or any
regulatory agency or other body having authority to which Seller is subject.
3.2.5 This Agreement is a valid and legally binding obligation of
Seller, enforceable against Seller in accordance with its terms (except as the
enforceability of this Agreement may be limited by banptcy, insolvency, bank
moratonum or similar laws afecting creditors' nghts generally and laws restricting the
availabilty of equitable remedies and except as the enforceability of this Agreement may
be subject to general principles of equity, whether or not such enforceability is considered
in a proceeding at equity or in law).
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3.2.6 The Facilty is and shall for the term of this Agreement continue
to be a QF. Seller has provided the appropnate QF certification, which may include a
Federal Energy Regulatory Commission self-certification to PacifiCorp prior to
PacifiCorp's execution of this Agreement. At any time PacifiCorp has reason to believe
during the term of ths Agreement that Seller's status as a QF is in question, PacifiCorp
may require Seller to provide PacifiCorp with a wrtten legal opinion from an attorney in
good standing in the state of Idaho and who has no economic relationship, association or
nexus with the Seller or the Facility, stating that the Facility is a QF and providing
sufcient proof (including copies of all documents and data as PacifiCorp may request)
demonstrating that Seller has maintained and wil continue to maintain the Facility as a
QF.
3.2.7 Neither the Seller nor any of its principal equity owners is or has
within the past two (2) years been the debtor in any banptcy proceeding, is unable to
pay its bils in the ordinary course of its business, or is the subject of any legal or
regulatory action, the result of which could reasonably be expected to impair Seller's
ability to own and operate the Facilty in accordance with the terms of this Agreement.
3.2.8 Seller has not at any time defaulted in any of its payment
obligations for electricity purchased from PacifiCorp.
3.2.9 Seller is not in default under any of its other agreements and is
curent on all of its financial obligations.
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3.2.10 Seller owns, or shall own prior to Commercial Operation, all
nght, title and interest in and to the Facilty, free and clear of all liens and encumbrances
other than liens and encumbrances related to third-pary financing of the Facilty.
3.3 Notice. If at any time during this Agreement, any Par obtains actual knowledge
of any event or information which would have caused any of the representations and waranties
in ths Section 3 to have been matenally untre or misleading when made, such Part shall
provide the other Pary with wrtten notice of the event or information, the representations and
waranties affected, and the action, if any, which such Pary intends to take to make the
representations and warranties tre and correct. The notice required pursuant to this Section
shall be given as soon as practicable afer the occurrence of each such event.
SECTION 4: DELIVERY OF ENERGY AND CAPACITY
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4.1 Delivery and Acceptace of Net Output-Unless otherwse provided herein,
PacifiCorp will purchase and Seller will sell all of the Net Output from the Facilty
4.2 No Sales to Third Partes-Dunng the term of this Agreement, Seller shall not sell
Net Output from the Facilty to any entity other than PacifiCorp.
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4.3 Energy Delivery Schedule-Seller shall prepare and provide to PacifiCorp, on an
ongoing basis, a written schedule of Net Energy expected to be delivered to the Point of Delivery
by the Facilty ("Energy Delivery Schedule"), in accordance with the following:
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4.3.1 Durng the first twelve full calendar months following the
Commercial Operations Date, Seller predicts that the Facilty wil produce and deliver to
the Point of Delivery the following monthly amounts ("Initial Year Energy Delivery
Schedule"):
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Month Energy Delivery (kWh)
Januar 6,221,422
Februar 5,743,522
March 6,215,694
April 5,326,692
May 4,710,890
June 4,539,524
July 3,445,526
August 3,321,630
September 4,113,788
October 4,744,687
November 5,620,495
IDeèember6,519,863
4.3.2 Seller may revise the Initial Year.Energy Delivery Schedule any
time prior to the Commercial Operation Date.
4.3.3 Beginnng at the end of the ninth full calendar month of
operation, and at the end of every 3rd month thereafter, Seller shall supplement the
Energy Delivery Schedule with thee additional months of forward estimates (which shall
be appended to ths Agreement as Exhibit D) ("Subsequent -Energy Delivery
Schedule"), such that the Energy Delivery Schedule will provide at least six months of
scheduled energy estimates at all times. Seller shall provide Subsequent Energy Delivery
Schedules no later than 5 :00 pm of the 5th day after the due date. If Seller does not
provide a Subsequent Energy Delivery Schedule by the above deadline, scheduled energy
for the omitted penod shall equal the amounts scheduled by Seller for the same thee-
month period during the previous year.
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4.3.4 Beginning with the end of the thrd month after the Commercial
Operation Date and at the end of every third month thereafer; (1) the Seller may not
revise the immediate next thee months of previously provided Energy Delivery
Schedules, but by written notice given to PacifiCorp no later than 5 :00 PM of the 5th day
following the end of the previous month, the Seller may revise all other previously
provided Energy Delivery Schedules. Failure to provide timely wntten notice of changed
amounts wil be deemed to be an election of no change.
4.4 Minimum Availabilty Obligation. Seller shall cause the Facilty to achieve an
Availabilty of at least 90% durng each month ("Guaranteed Availabilty").
4.5 Liquidated Damages for Output Shorfall. If the Availabilty in any given month
falls below the Guaranteed Availabilty, the resulting shortfall shall be expressed in kWh as the
"Output Shortaii.'~ The Output Shortall shall be calculated in accordance with the following
formula:
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Output Shortfall = (Guaranteed Availabilty - Availabilty) * Past Monthly
Energy Delivery
Where:
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Past Monthly Energy Delivery = the average of the monthy tota Net Output
for the calendar months of the same name as the
immediately preceding Contract Years. Until net
Output has been delivered dunng for at least three
such months, Past Monthly Energy Delivery shall
equa the average of the tota monthy Net Output
for the named calendar months dunng preceding
Contract Years, if any, and the Scheduled Monthly
Energy Delivery for the named month.
Seller shall pay PacifiCorp for any Output Shortfall at the lower of (l) the positive difference, if
any, of the Index Price minus the weighted average of the On-Peak and Off-Peak monthy
Conforming Energy Purchase Prices; or (2) the weighted average of the On-Peak and Off-Peak
monthy Conformng Energy Purchase Prices ("Output Shortfall Damages").
Output Shortfall Damages = Output Shortfall * Output Shortfall Price
Where:
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Output Shortall Pnce = (Index Price - Weighted Average CEPP), except
that if Output Shortfall Price ~ 0, then Output
Shortfall Price = 0, and except that if Output
Shortfall Price;: Weighted Average CEPP, then
Output Shortfall Pnce = Weighted Average CEPP.
Weighted Average CEPP = the weighted average On-Peak and Off-Peak
Conforming Energy Purchase Prices for the month
of Output Shortfall
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If an Output Shortfall occurs in any given month, Seller may owe PacifiCorp liquidated
damages. Each Pary agrees and acknowledges that (a) the damages the PacifiCorp would incur
due to the Facilty's failure to achieve the Guaranteed Availabilty would be diffcult or
impossible to predict with certainty, and (b) the liquidated damages contemplated in this Section
4.6 are a fair and reasonable calculation of such damages.
4.6 Termination for Non-availabilty. Unless excused by an event of Force Majeure,
Seller's failure to deliver any Net Energy to the Point of Delivery for a continuous period of
thee months shall constitute an event of default.
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SECTION 5: PURCHASE PRICES
5.1 Energy Purchase Price. Except as provided in Section 5.3, PacifiCorp will pay
Seller non-Ievelized, Conforming Energy or Non-Conforming Energy Purchase Prices for Net
Output adjusted for the month and On-Peak or Off-Peak Hours and the Wind Integration Cost
(wiC) using the following formulae, in accordance with Commission Order Nos. 30423, 30497,
and 30744:
Conforming Energy Purchase Price = (ARce * MPM) - WIC
Non-Conforming Energy Purchase Price = (ARnce * MPM) - wic
Where:
ARnce =
Conforming Energy annual rate from Table 1,
below, for the year of Net Output
the lower of
85% of the Conforming Energy anual rate
from Table 1, below, for the year of Net
Output
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ARce
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85% of weighted average of the daily On-
Peak and Off-Peak ICE Mid-Columbia
index prices for firm energy for the month,
or portion of month, of Net Output
monthly On-Peak or Off-Peak multiplier from Table
2, below, that corresponds to the mongh of the Net
Output and whether the net Output occured during
On-Peak Hours of Off-Peak Hours
$5.10/MWh, the Wind Integration Cost prescribed
in Commission Order No. 30497
Example calculations are provided for in Exhibit G.
MPM
WIC =
Table 1: Conforming Energy Annual Rates
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Conforming Energy Annual Rate (AR)
Year $/MWh
2011 75.83
2012 77.95
2013 80.24
2014 82.14
2015 84.09
2016 86.09
2017 88.25
2018 90.34
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2019 92.60
2020 94.80
2021 97.05
2022 99.36
2023 101.73
2024 104.15
2025 106.64
2026 109.19
2027 112.30
2028 115.50
2029 118.80
2030 122.20
2031 125.71
2032 128.55
Table 2: Monthly On-Peak/Off-Peak Multipliers (from Commission Order No. 30423)
Month On-Peak
Hours OtT-Peak Hours
Januar 103%94%
Februar 105%97%
Marh 95%80%
April 95%76%
May 92%63%
June 94%65%
July 121%92%
August 121%106%
September 109%99%
October 115%105%
November 110%96%
December 129%120%
5.2 Payment
For each Biling Period in each Contract Year, PacifiCorp shall pay Seller as follows::
For delivery of Conforming Energy:
Payment =(CEnergyOn.Peak * CEPPriceon.Peai1000)+
(CEnergyoff-Pea * CEPPiceoff-PeaiJ1000)
For delivery of Non-Conforming Energy:
Payment =(NCEnergyOn-Peak * NCEPPnceon-Peakl000) +
(NCEnergyoff-Pea * NCEPPriceoff-Peakl000)
Where:
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CEnergy =
CEPnce =
NCEnergy =
NCEPPnce =
On-Peak =
Conforming Energy in kWh
Conforming Energy Purchase Price in S/MWh
Non-Conforming Energy in kWh
Non-Conforming Energy Purchase Pnce in $/M
the corresponding value for On-Peak Hours
Off-Peak =the corresponding value for Off-Peak Hours
5.3 Inadvertent Energy. PacifiCorp may accept Inadvertent Energy at its sole
discretion or pay for Inadvertent Energy.
SECTION 6: OPERATION AND CONTROL
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6.1 Seller shall operate and maintan the Facilty in a safe manner in accordance with
ths Agreement, the Facility's Generation Interconnection Agreement, if applicable,
Transmission Agreement(s), Prudent Electrical Practices and in accordance with the
requirements of all applicable federal, stte and local laws and the National Electrc Safety Code
as such laws and code may be amended from time to time. PacifiCorp shall have no obligation
to purchase Net Output from the Facilty to the extent the interconnection between the Facilty
and the Point of Delivery is disconnected, suspended or interrupted, in whole or in par, pursuat
to the Generation Interconnection Agreement or Transmission Agreement(s), or to the extent
generation curlment is required as a result of Seller's non-compliance with the Generation
Interconnection Agreement or Transmission Agreement(s). PacifiCorp shall have the nght to
inspect the Facilty to confirm that Seller is operating the Facility in accordance with the
provisions of this Section 6.3 upon reasonable notice to Seller. Seller is solely responsible for
the operation and maintenance of the Facility. PacifiCorp shall not, by reason of its decision to
inspect or not to inspect the Facilty, or by any action or inaction taken with respect to any such
inspection, assume or be held responsible for any liabilty or occurrence arising from the
operation and maintenance by Seller of the Facilty.
6.2 Seller may cease operation of. the entire Facility or any individual unt for
Scheduled Maintenance Periods for each calendar year at such times as are provided in the
monthly operating schedule.
6.3 Energy Acceptance
6.3.1 PacifiCorp shall be excused from accepting and paying for Net
Output or accepting Inadvertent Energy produced by the Facilty and delivered by the
Seller to the Point of Delivery, if it is prevented from doing so by an event of Force
Majeure, or if PacifiCorp determines that curailment, interrption or reduction of Net
Output or Inadvertent Energy deliveries is necessar because of line constrction or
maintenance requirements, emergencies, electrical system operating conditions on its
system or as otherwse required by Prudent Electricál Practices. If, for reasons other than
an event of Force Majeure, PacifiCorp requires such a curailment, înterrption or
reduction of Net Output deliveries for a period that exceeds twenty (20) days, begining
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with the twenty-first day of such interruption, curtailment or reduction, Seller will be
deemed to be delivenng Net Output at a rate equivalent to the pro rata daily average of
the amounts specified for the applicable month in the Energy Delivery Schedule under
Section 4.2 unadjusted by Section 4.3. PacifiCorp will notify Seller when the
interrption, curilment or reduction is terminated.
6.3.2 PacifiCorp shall not be obligated to purchase, receive or pay for
Net Output that is not delivered to the Point of Deliver (a) during times and to the extent.
that such energy is not delivered because the interconnection between the Facilty and
PacifiCorp's system is disconnected, suspended or interrpted, in whole or in par,
pursuant to the Generation Interconnection Agreement or Transmission Agreement(s), (b)
durng times and to the extent that such energy is not delivered because the Transmission
Entity Curls (as defined in the Tariff) Transmission Servce (as defined in the Tariff) to
PacifiCorp pursuant to the terms of the Tarff, or (c) durng times and to the extent that an
event of Force Majeure prevents either Par from delivering or receiving such energy.
6.3.3 Under no circumstances will the Seller deliver Net Output and/or
Inadvertent Energy from the Facilty to the Point of Delivery in an amount that exceeds
the Maximum Facilty Delivery Rate. Seller's failure to limit deliveries to the Maximum
Facility Deliver Rate shall be a Matenal Breach of this Agreement.
6.4 Seller Declared Suspension of Energy Deliveries.
6.4.1 If the Seller's Facility expenences a forced outage due to
equipment failure which is not caused by an event of Force Majeure or by neglect,
disrepair or lack of adequate preventative maintenance of the Seller's Facility, Seller may,
afer giving notice as provided in Section 6.4.2 below, temporarly suspend all delivenes
of Net Energy to PacifiCorp from the Facility or from individual generation untes) withn
the Facilty afected by the forced outage for a penod of not less than 48 hours to correct
the forced outage condition ("Declared Suspension of Energy Deliveries"). The Seller's
Declared Suspension of Energy Deliveries will begin at the star of the next full hour
following the Seller's notification as specified in Section 6.4.2 and will continue for the
time as specified (not less than 48 hours) in the written notification provided by the
Seller. In the month(s) in which the Declared Suspension of Energy occured, the
Scheduled Nonthy Energy Delivery wil be adjusted as specified in Section 4.3.
6.4.2 If the Seller desires to initiate a Declared Suspension of Energy
Deliveries as provided in Section 6.4.1, the Seller will notify PacifiCorp's generation
coordination desk, bye-mail to wsccØJacificorp.com. by telephone [phone]), or
by fax [phone]), of Seller's unscheduled outage. Seller shall take all reasonable
measures and exercise its best effort to avoid unscheduled maintenance, to limit the
duration of such unscheduled maintenance, and to perform unscheduled maintenance
during Off-Peak Hours. The beginning hour of the Declared Suspension of Energy
Deliveries will be at the earliest the next full hour afer making contact with PacifiCorp.
The Seller will, within 24 hours afer the telephone contact, provide PacifiCorp a written
notice in accordance with Section 21 declaring the beginning hour and duration of the
Declared Suspension of Energy Deliveries and a description of the conditions that caused
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the Seller to initiate a Declared Suspension of Energy Deliveries. PacifiCorp will review
the documentation provided by the Seller to determine PacifiCorp's acceptance of the
described forced outage as qualifying for a Declared Suspension of Energy Deliveries as
specified in paragraph 6.4.1. PacifiCorp's acceptance of the Seller's forced outage as an
acceptable forced outage will be based upon the clear documentation provided by the
Seller that the forced outage is not due to an event of Force Majeure or by neglect,
disrepair or lack of adequate preventative maintenance of the Seller's Facilty. Seller
agrees to retain all performance related data for the Facilty for a minimum of thee years,
and to cooperate with PacifiCorp in the event PacifiCorp decides to audit Seller's
reporting of Facilty Net Output and Adjusted Scheduled Monthly Energy Delivery.
SECTION 7: MOTIVE FORCE
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Pnor to the Effective Date of this Agreement, Seller provided to PacifiCorp an engineering
report ("Motive Force Plan"). Such Motive Force Plan demonstrated to PacifiCorp's reasonable
satisfaction: (1) the feasibility that the Facility wil average 60,500,000 kWh per full calendar
year for the ful term of ths Agreement; and (2) the likelihood that the Facilty, under average
design conditions, will generate at no more than 10 aMW in any calendar month. The Motive
Force Plan and accompanying documents are attached hereto as Exhibit F-I, together with a
certification from a Licensed Professional Engineer attached hereto as Exhibit F -2, certifying to
PacifiCorp that the Facility can reasonably be expected to perform as predicted in the Motive
Force Plan for the duration of this Agreement.
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SECTION 8: METERIG AT THE POINT OF INTERCONNCTION
8.1 . Metenng shall be performed at the location and in a maner consistent with this
Agreement, as specified in Exhibit B. . Seller shall provide to PacifiCorp metered Facilty Net
Output in hourly increments, and any other energy measurements required to administer this
Agreement. If the Transmitting Entity(s) requires Seller to telemeter data, PacifiCorp shall be
entitled to receive the same data Seller provides to the Transmitting Entity, if such data is useful
to PacifiCorp's administation of this Agreement. Seller's metered output shall be adjusted to
account for electrical losses, if any, between the point of metering (x) and the Point of
Interconnection (x) ("adjusted metered output"). The loss adjustment shall be 1 % of the kWh
energy production recorded on the Facility output meter until actually measured and confied
in letter agreement between the parties. Subject to other provisions applicable to Net Output in
ths Agreement (e.g., disallowance of Inadvertent Energy), PacifiCorp shall subtract Seller's
station service load from Seller's adjusted metered output to determine Net Output.
8.2 Seller shall pay for the installation, testing, and maintenance of any mètenng
required by Section 8.1, and shall provide reasonable access to such meters. PacifiCorp shall
have reasonable access to inspection, testing, repair and replacement of the metering equipment.
If any of the inspections or tests discloses a measurement error exceeding two percent (2%),
either fast or slow, proper correction, based upon the inaccuracy found, shall be made of
previous readings for the actual period during which the metenng equipment rendered inaccurate
measurements. Any correction in bilings or payments resulting from a correction in the meter
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records shall be made in the next monthy biling or payment rendered following the repair of the
meter, or during the shortest reasonable period.
SECTION 9: BILLINGS, COMPUTATIONS AND PAYMENTS
9.1 On or before the thirtieth (30th) day following the end of each Biling Period,
PacifiCorp shall send to Seller payment for Seller's delivenes of Net Output to PacifiCorp,
together with computations supportng such payment. PacifiCorp may offset any such payment
to reflect amounts owing from Seller to PacifiCorp pursuant to this Agreement and any other
agreement(s) between the Paries.
9.2 Any amounts owing after the due date thereof shall bear interest at the Prime Rate
plus two percent (2%) from the date due until paid; provided, however, that the interest rate shall
at no time exceed the maximum rate allowed by applicable law.
SECTION 10: DEFAULTS AND REMEDIES
10.1 The following events shall constitute defaults under this Agreement:
10.1.1 Seller's failure to make a payment when due under this
Agreement, or maintain insurance in conformance with the requirements of Section 12 of
this Agreement, if the failure is not cured withn ten (10) days after the non-defaulting
Par gives the defaulting Pary a notice of the default.
10.1.2 Breach by a Pary of a representation or waranty set fort in this
Agreement, if such failure or breach is not cured within thirty (30) days following written
notice.
10.1.3 Seller's failure to cure any default under any commercial or
financing agreements or instrent (including the Generation Interconnection
Agreement, if applicable) within the time allowed for a cure under such agreement or
instrment.
10.1.4 A Pary (a) makes an assignment for the benefit of its creditors;
(b) files a petition or otherwse commences, authorizes or acquiesces in the
commencement of a proceeding or cause of action under any banptcy or similar law
for the protection of creditors, or has such a petition fied against it and such petition is
not withdrawn or dismissed within sixty (60) days after such filing; (c) becomes
insolvent; or (d) is unable to pay its debts when due.
10.1.5 A Matenal Adverse Change has occured with respect to Seller
and Seller fails to provide such performance assurances as are reasonably requested by
PacifiCorp, within fifteen (15) days from the date of such request.
10.1.6 A Par otherwse fails to perform any material obligation
(including but not limited to failure by Seller to meet any deadline set fort in Section
2.2) imposed upon that Par by ths Agreement if the failure is not cured within thirt
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(30) days afer the non-defaulting Part gives the defaulting Pary notice of the default;
provided, however, that, upon wntten notice from the defaulting Par, this thirt (30)
day penod shall be extended by an additional ninety (90) days if (a) the failure canot
reasonably be cured within the thirt (30) day period despite diligent efforts, (b) the
default is capable of being cured within the additional ninety (90) day penod, and (c) the
defaulting Part commences the cure within the original thrty (30) day period and is at
all times thereafter diligently and continuously proceeding to cure the failure.
10.2 In the event of any default hereunder, the non-defaulting Pary must notify the
defaulting Par in wnting of the circumstances indicating the default and outlining the
requirements to cure the default. If the default has not been cured within the prescribed time,
above, the non-defaulting Pary may terminate this Agreement at its sole discretion by delivering
wntten notice to the other Pary and may pursue any and all legal or equitable remedies provided
by law or pursuant to ths Agreement. The rights provided in this Section 10 are cumulative such
that the exercise of one or more nghts shall not constitute a waiver of any other rights.
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10.3 In the event this Agreement is terminated because of Seller's default and Seller
wishes to again sell Net Output from the facilty using the same motive force to PacifiCorp
following such termination, PacifiCorp in its sole discretion may require that Seller do so subject
to the terms of this Agreement, including but not limited to the purchase prices as set fort in
(Section 5), until the Expiration Date (as set fort in Section 2.1). At such time Seller and
PacifiCorp agree to execute a wntten document ratifying the terms of this Agreement.
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10.4 If this Agreement is terminated as a result of Seller's default, Seller shall pay
PacifiCorp for the energy and associated capacity that Seller was scheduled to provide for a
penod of twelve (12) months ("Replacement Period") from the date of termination plus the
estimated administrtive cost to acquire the replacement power ("Net Replacement Power
Costs"). Net Replacement Power Costs equas the sum of the Replacement Price times the
Replacement Volume for each day of the Replacement Period, plus the estimated administrative
cost to the utilty to acquire replacement power.
Where:
"Replacement Price" equals the positive difference, if any, of the Index Price minus the
weighted average ofthe On-Peak and Off-Peak Conforming Energy Prices; and
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"Replacement Volume" equas the applicable Scheduled Monthly Energy Delivery
divided by the number of days in that month.
10.5 Upon an event of default or termination event resulting from default under this
Agreement, in addition to and not in limitation of any other right or remedy under this
Agreement or applicable law (including any nght to set-off, counterclaim, or otherwse withold
payment), the non-defaulting Par i:ay at its option set-off, against any amounts owed to the
defaulting Party, any amounts owed by the defaulting Pary under any contract(s) or
agreement(s) between the Pares. The obligations of the Paries shall be deemed satisfied and
discharged to the extent of any such set-off. The non-defaulting Par shall give the defaulting
Pary written notice of any set-off, but failure to give such notice shall not affect the validity of
the set-off.
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10.6 Amounts owed by Seller pursuat to this paragraph shall be due within five (5)
business days afer any invoice from PacifiCorp for the same.
SECTION 11: INDEMNFICATION
11.1 Indemnities.
1 i. i. i Indemnity by Seller. Seller shall release, indemnify and hold
harless PacifiCorp, its directors, offcers, agents, and representatives against and from
any and all loss, fines, penalties, claims, actions or suits, including costs and attorney's
fees, both at trial and on appel, resulting from, or arsing out of or in any way connected
with (a) the energy delivered by Seller under ths Agreement to and at the Point of
Delivery, (b) any facilties on Seller's side of the Point of Delivery, (c) Seller's operation
and/or maintenance of the Facility, or (d) arising from this Agreement, including without
limitation any loss, claim, action or suit, for or on account of injur, bodily or otherwse,
to, or death of, persons, or for damage to, or destrction or economic loss of property
belonging to PacifiCorp, Seller or others, excepting only such loss, claim, action or suit
as may be caused solely by the fault or gross negligence of PacifiCorp, its directors,
officers, employees, agents or representatives.
11.1.2 Indemnity by PacifiCorp. PacifiCorp shall release, indemnify
and hold harless Seller, its directors, officers, agents, Lenders and representatives
against and from any and all loss, fines, penalties, claims, actions or suits, including costs
and attorney's fees, both at tral and on appeal, resulting from, or arsing out of or in any
way connected with the energy delivered by Seller under this Agreement afer the Point
of Delivery, including without limitation any loss, claim, action or suit, for or on account
of injur, bodily or otherwise, to, or death of, persons, or for damage to, or destruction or
economic loss of propert, excepting only such loss, claim, action or suit as may be
caused solely by the fault or gross negligence of Seller, its directors, officers, employees,
agents, Lenders or representatives.
11.2 No Dedication. Nothing in ths Agreement shall be constred to create any duty
to, any stdard of care with reference to, or any liabilty to any person not a Pary to this
Agreement. No undertaking by one Pary to the other under any provision of ths Agreement
shall constitute the dedication of that Pary's system or any portion thereof to the other Pary or
to the public, nor afect the status of PacifiCorp as an independent public utilty corporation or
Seller as an independent individual or entity.j
11.3 CONSEQUENTIAL DAMAGES. EXCEPT TO THE EXTENT SUCH
DAMAGES AR INCLUDED IN THE LIQUIDATED DAMAGES, DELAY DAMAGES, OR
OTHER SPECIFIED MEASURE OF DAMGES EXPRESSLY PROVIDED FOR IN THIS
AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR
SPECIAL, PUNITIVE, INDIRECT, EXEMPLARY OR ,CONSEQUENTIAL DAMAGES,
WHETHER SUCH DAMAGES AR ALLOWED OR PROVIED BY CONTRCT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTE OR OTHERWISE.
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SECTION 12: LIABILITY AND INSURANCE
12.1 Certificates. Seller shall provide PacifiCorp insurance certificate(s) (of "ACORD
Form" or the equivalent) certifying Seller's compliance with the insurance requirements
hereunder. Commercial General Liabilty coverage written on a "claims-made" basis, if any,
shall be specifically identified on the certificate. If requested by PacifiCorp, a copy of each
insurance policy, certified as a tre copy by an authorized representative of the issuing insurance
company, shall be furnished to PacifiCorp.
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12.2 Required Policies and Coverages. Without limiting any liabilties or any other
obligations of Seller under this Agreement, from the commencement of interconnection with
PacifiCorp's electric transmission system until the Termination Date of this Agreement, at its
own expense, Seller shall secure and continuously cary, with an insurce company or
companies rated not lower than "A- or better" by the A.M. Best Company, the insurance
coverage specified below:
12.2.1 Worker's Compensation insurance which complies with the laws
of the state within which the Facility is located;
12.2.2 Commercial General Liabilty insurance with bodily injur and
property damage combined single limits of at least $1,000,000 per occurence. Seller
shall maintain the policy in accordance with terms available in the insurance market for
similar electrc generating facilties. Such insurance shall include, but not necessanly be
limited to, specific coverage for contractual liabilty encompassing the indemnification
provisions in ths Agreement, broad form property damage liabilty, personal injur
liabilty, explosion and collapse hazard coverage, products/completed operations liabilty,
and, where applicable, watercraft protection and indemnity liabilty;
12.2.3 All Risk Insurance. The policy shall provide coverage in an
amount equal to not less than 80% of the current replacement in kind of the Facilty for
"all risks" of physical loss or damage except as hereinafter provided, including coverage
for boiler and machinery, transit and off-site storage accident exposure, but excluding the
equipment owned or leased by Operator and its subcontractors and their personal
property. The policy may contan separate sub-limits and deductibles subject to
insurance company underwiting guidelines. Seller shall maintain the policy in
accordance with terms available in the insurance market for similar electric generating
facilties. The policy shall include coverage for business interrption in an amount
covering a period of indemnty equal to twelve (12) months. Additional coverages to be
included are:
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(a) Catastrophic Perils Insurance not less than 80% of the curent
replacement cost of plant, building, and/or equipment.
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12.3 Insurance Strcture. Seller may satisfy the amounts of insurance required above by
purchasing primary coverage in the amounts specified or by buying a separate excess Umbrella
.Liabilty policy together with lower limit primary underlying coverage. The structure of the
coverage is at Seller's option, as long as the total amount of insurance meets the above
requirements.
21
12.4 Occurence- Based Coverage. The coverage required above, and any umbrella or
excess coverage, shal be "occurence" form policies. In the event that any policy is written on a
"claims-made" basis and such policy is not renewed or the retroactive date of such policy is to be
changed, the first insured Par shall obtan or cause to be obtained for each such policy or
policies the broadest basic and supplemental extended reportg period coverage or "tail"
reasonably available in the commercial insurance maket for each such policy or policies and
shall provide the other Par with proof that such basic and supplemental extended reporting
period coverage or ''tl'' has been obtained.
12.5 Endorsement Items. Seller shall immediately cause its insurers to amend its
Commercial General Liabilty and Umbrella or Excess Liabilty policies with all of the following
endorsement items, and to amend its Worker's Compensation policy with the endorsement items
set forth in Paragraphs 12.5.3 and 12.5.4 below:
12.5.1 PacifiCorp and its Affliates, their respective directors, offcers,
employees, and agents as an additional insured under this policy and to the maxmum
extent allowed by law, shall be provided with coverage at least as broad as those required
of the Seller by this Agreement;
12.5.2
PacifiCorp and
agents;
This insurance is primar with respect to the mterest of
its Affliates and their respective directors, officers, employees, and
12.5.3 Insurer hereby waives all nghts of subrogation against
PacifiCorp, its Affiliates, officers, directors, employees and agents;
12.5.4 Notwithstading any provision of the policy, ths policy may not
be canceled, non-renewed or materially changed by the insurer without giving ten (10)
days' pnor wrtten notice to PacifiCorp; and
12.5.5 Cross liabilty coverage so that the insurance applies separately
to each insured against whom claim is made or suit is brought, even in instances where
one insured clais against or sues another insured.
12.6 Penodic Review. PacifiCorp may review this schedule of required insurance as
often as once every two (2) years. PacifiCorp may, in its discretion and if allowed by the
Commission, require the Seller to make chages to the policies and coverages described in ths
Exhibit to the extent reasonably necessar to cause such policies and coverages to conform to the
insurance policies and coverages tyically obtained or required for power generation facilties
comparable to the Facilty at the tie PacifiCorp's review taes place. In addition, Seller shall
have the right, subject to PacifiCorp's consent, to make changes in the coverages and limits of
the Builder's All-Risk Insurance and the All-Risk Insurance required under ths Section, to the
extent the coverages and limits specified herein are not reasonably available at commercially
reasonable rates.
22
SECTION 13: FORCE MAJEURE
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13.1 As used in this Agreement, "Force Majeure" or "an event of Force Majeure"
means any cause beyond the reasonable control of the Seller or of PacifiCorp which, despite the
exercise of due dilgence, such Party is unable to prevent or overcome. By way of example,
Force Majeure may include but is not limited to acts of God, flood, storms, wars, hostilties, civil
strife, stnkes, and other labor distubances, earhquakes, fires, lightning, epidemics, sabotage,
restraint by court order or other delay or failure in the performance as a result of any action or
inaction on behalf of a public authority which is in each case (i) beyond the reasonable control of
such Par, (ii) by the exercise of reasonable foresight such Pary could not reasonably have been
expected to avoid and (iii) by the exercise of due diligence, such Pary shall be unable to prevent
or overcome. Force Majeure, however, specifically excludes the cost or availabilty of fuel or
motive force to operate the Facilty or changes in market conditions that affect the pnce of
energy or transmission. If either Pary is rendered wholly or in par unable to perform its
obligation under this Agreement because of an event of Force Majeure, both Paries shall be
excused from whatever performance is affected by the event oflorce Majeure, provided that:
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13.1.1 the non-performing Par, shall, withn two (2) weeks afer the
occurrence of the Force Majeure, give the other Par written notice descnbing the
pariculars of the occurence, including the star date of the Force Majeure, the cause of
Force Majeure, whether the Facility remains parially operational and the expected end
date of the Force Majeure;
13.1.2 the suspension of performance shall be of no greater scope and of
no longer duration than is required by the Force Majeure;
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13.1.3 the non-performing Par uses its best efforts to remedy its
inabilty to perform; and
13.1.4 the non-performing Pary shall provide prompt written notice to
the other Par at the end of the Force Majeure event detailing the end date, cause there
of, damage caused there by and any repairs that were required as a result of the Force
Majeure event, and the end date of the Force Majeure.
13.2 No obligations of either Par which arose before the Force Majeure causing the
suspension of performance shall be excused as a result of the Force Majeure.
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13.3 Neither Par shall be required to settle any stnke, walkout, lockout or other labor
dispute on terms which, in the sole judgment of the Pary involved in the dispute, are contrar to
the Pary's best interests.
SECTION 14: SEVERAL OBLIGATIONS
Nothing contained in this Agreement shall ever be constred to create an association, trust,
partnership or joint venture or to impose a trust or parnership duty, obligation or liability
between the Paries. If Seller includes two or more paries, each such par shall be jointly and
severally liable for Seller's obligations under this Agreement.
23
SECTION 15: CHOICE OF LAW
This Agreement shall be interpreted and enforced in accordance with the laws of the state of
Idaho, excluding any choice of law rues which may direct the application of the laws of another
junsdiction.
SECTION 16: PARTIAL INVALIDITY
It is not the intention of the Paries to violate any laws governing the subject matter of this
Agreement. If any of the terms of the Agreement are finally held or determined to be invalid,
ilegal. or void as being contrar to any applicable law or public policy, all other terms of the
Agreement shall remain in effect. If any terms are finally held or determined to be invalid,
ilegal or void, the Paries shall enter into negotiations concerning the terms affected by such
decision for the purpose of achieving conformity with requirements of any applicable law and
the intent of the Paries to ths Agreement.
SECTION 17: WAIVR
Any waiver at any time by either Par of its nghts with respect to a default under this
Agreement or with respect to any other matters arising in connection with this Agreement must
be in wrting, and such waiver shall not be deemed a waiver with respect to any subsequent
default or other matter.
SECTION 18: GOVERNENTAL JURISDICTION AND AUTHORIZATIONS
This Agreement is subject to the junsdiction of those governenta agencies having control over
either Pary or ths Agreement. PacifiCorp's compliance with the terms of this Agreement is
conditioned on Seller's submission to PacifiCorp prior to the Commercial Operation Date and
maintaining thereafter copies of all local, state and federal licenses, permits and other approvals
as then may be required by law for the constrction, operation and maintenance of the Facility.
SECTION 19: SUCCESSORS AND ASSIGNS
This Agreement and all of the terms and provisions hereof shall be binding upon and inure to the
benefit of the respective successors and assigns of the Paries hereto, except that no assignent
hereof by either Pary shall become effective without the wrtten consent of both Paries being
first obtained. Such consent shall not be uneasonably withheld. Notwithstanding the foregoing,
any entity with which PacifiCorp may consolidate, or into which it may merge, or to which it
may conveyor tranfer substtially all of its electric utilty assets, shall automatically, without
fuer act, and without need of consent or approval by the Seller, succeed to all of PacifiCorp's
rights, obligations, and interest under this Agreement. Ths aricle shall not prevent a financing
entity with recorded or secured rights from exercising all rights and remedies available to it
under law or contract. PacifiCorp shall have the right to be notified by the financing entity that it
is exercising such nghts or remedies.
)
24
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SECTION 20: ENTIRE AGREEMENT
20.1 This Agreement supersedes all prior agreements, proposals, representations,
negotiations, discussions or letters, whether oral or in writing, regarding PacifiCorp's purchase of
Net Output from the Facilty. No modification of this Agreement shall be effective unless it is in
wnting and signed by both Paries.
20.2 By executing this Agreement, each Par releases the other from any claims,
known or unown, that may have arisen prior to the Effective Date with respect to the Facilty
and any predecessor facilty proposed to have been constructed on the site of the Facilty.
SECTION 21: NOTICES
21.1 All notices except as otherwse provided in this Agreement shall be in writing,
shall be directed as follows and shall be considered delivered if delivered in person or when
deposited in the u.s. Mail, postage prepaid by certified or registered mail and retu receipt
requested
Notices PacifiCorp Seller
All Notices PacifiCorp Power County Wind Park Nort
825 NE Multnomah Street Portland,Att: Roald Doskeland
Windland Inc.
OR 97232 7669 W. Riverside Drive
Attn: Contract Administration,Suite 102
Suite 600 Boise, Idaho 83714
Phone: (503) 813 - 5952 Phone: (208) 377~7777
Facsimile: (503) 813 - 6291 Fax: [phone]
Duns: 00-790-9013
Federal Tax ID Number: 93-0246090
All Invoices:Att: Back Office, Suite 700 Same as above
Phone: (503) 813 - 5578
Facsimile: (503) 813 - 5580
Scheduling:Attn: Resource Planing, Suite 600 Same as above
Phone: (503) 813 - 6090
Facsimile: (503) 813 - 6265
Payments:Attn: Back Offce, Suite 700 Same as above
Phone: (503) 813 - 5578
Facsimile: (503) 813 - 5580
Wire Transfer:Bank One N.A.To be provided in a separate letter.
To be provided in separate letter from
PacifiCorp to Seller
Credit and Att: Credit Manager, Suite 1900 Same as above
Collections:Phone: (503) 813 - 5684
Facsimile: [phone]
25
Notices PacifiCorp Seller
With Additional Att: PacifiCorp General Counsel Same as above
Notices of an Phone: [phone]
Event of Default Facsimile: [phone]
or Potential
Event of Default
to:
The Paries may change the person to whom such notices are addressed, or their addresses, by
providing wrtten notices thereof in accordance with ths Subsection.
26
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IN WI'IES:S WHREOF; the Paties heretQ have caused this AgreeOlent to be executed
in their respective names as of the date rust above written.
PacifjQQm Seller
Naie::Ri:øe On$Weld
1',tle¡ IDÌJRcitör Ottgiiiation
e: Roald DO$kelaid
Title: PT;e.sid~t, Wil'dl~t; Inc.
Manager, Power County Wind
Park NeLLC
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EXHIBIT A
DESCRIPTION OF SELLER'S FACILITY
Both Power County Wind Park Nort and Power County Wind Park South have confgurations
consisting of 12 Vestas VI00 turbines. The Vestas VIOO-l.8 MW wind turbine is a pitch
regulated upwind turbine with active yaw and a three-blade rotor. The Vestas VI 00- 1.8 MW
tubine has a rotor diameter of 100 m with a generator rated at 1.8 MW. The turbine utilzes a
microprocessor pitch control system called OptiTip~ and the Varable Speed concepts (Ves:
Vestas Converter System). With these features the wind turbine is able to operate the rotor at
variable speed (RM), helping to maintan the output at or near rated power.
The tubines in both Power County Wind Park Nort and Power County Wind Park South will
be supplied all parasitic station power via each facilty's electncal collector system. Both
facilties wil be connected to a common substation. Station servce will not be measured for
each tubine but each facilty will consume collectively approximately 220kW of parasitic station
power and a fuher 1,100kW of electrical losses to power lines and transformers. Tota
deductions from gross power production capacity are estimated at 1,320kW for each qualifying
facilty.
The map below displays both Power County Wind Park North and Power County Wind Park
South on a topographic background. Power County Wind Park Nort turbines are indicated by
solid orange circles. Power County Wind Park South tubines are shown in green with open
centered circles. Dotted lines show access road alternatives reviewed and approved by a
constrction engineer. The red rectangle shows the site of the Operations and Maitenance
building. The black rectagle shows the location of the 3-ring bus for interconnection to the
Brady- Treasureton line adjacent to the wind far substation.
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EXHIBITB
SELLER'S INTERCONNECTION FACILITIES
Windlands request for interconnecting Power County Wind Park Nort and Power County Wind
Park South is being evaluated by PacifiCorp Transmission under LGIQ0323. PacifiCorp
Transmission acknowledged Windland's application requesting interconnection as complete on
March 4,2010. Interconnection of a larger wind far at the same location was previously
evaluated by PacifiCorp Transmission under queue #038. Durng that process a Feasibilty
Study and a System Impact Study as well as a preliminar Facility Study were completed.
Copies of the Feasibilty Study and System Impact study are available at
http://ww.oasis.pacificorp.com/oasis/ppw/lgia/pacificorplgiaq.htm. As the QFs will
interconnect with PacifiCorp Transmission system, Windland has not requested transmission
service.
Windland expects the following milestones in the interconnection process to complete on or
before the followig: Scoping Meeting, Apnl 2nd; System Impact Study complete, August 3rd;
Facilty Study complete, December 1 st; Large Generator Interconnection Agreement executed,
February 2, 2011.
Windland's electrical engineering firm estimates the following procurement lead times for major
interconnection components:
. Potential transformers and current transformers
. Circuit breakers
. Steel structures
. 34.5/230kV 50MVA transformer
. Switches
These components have not been ordered at this time.
constrction schedule requires.
25-35 weeks
16-20 weeks
20-24 weeks
20-30 weeks
12.16 weeks
Orders will be placed when the
During the Interconnection review process for queue #038 Facility studies were undertaken. The
location selected for interconnection was between structures 53 and 55 on the Brady- Treasureton
line. The 3-ring bus was placed adjacent to PacifiCorp Transmission's existing easement for the
Ben Lomand - Borah 345kV line. An image showing the substation location and a one-line
drawing for an earlier configuration are shown below. Structue #54 on the Brady- Treasureton
line lies about 7 miles south of the Brady substation. Power Engineers will update the substation
to reflect the curent layout during the Interconnection process.
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EXHIBITC
REQUIRD FACILITY DOCUMENTS
Power County Wind Park North's Quaifying Facilty status is recorded as FERC QFI0-349-000.
A copy of the Large Generator Interconnection Agreement wil be provided before the
Scheduled Initial Delivery Date
Windland holds lease nghts with four landowners covenng the project site. Under those leases
Windland has exclusive wind rights and other nghts necessar to constrct and operate wind
farms now and for more than 30 years into the future. Each of the leases and amendments to
those leases are recorded under memoranda fied in Power County Idaho under the Instrment
numbers listed below.
1. Memorandum of Lease, Kopp et ai, instrument # 195132
2. Memorandum of Lease, Deeg et aI, instrument #185679
3. Memorandum of Lease Amendment, Deeg et ai, instrument # 195134
4. Memorandum of Lease, Isaak et ai, instrument # 185678
5. Memorandum of Lease Amendment, Isaak et aI, instrument # 195136
6. Memorandum of Lease, Meadows et ali instrument # 194226
7. Memorandum of Lease Amendment, Meadows et ai, instrument # 195131
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EXHIBITD
ENERGY DELIVERY SCHEDULE
Power County Wind Park
North, Average Monthly
Production (KWH)
Power County Wind Park
South, Average Monthly
Production (KWH)
6,919,152 6,221,422
6,387,656 5,743,522
6,912,781 6,215,694
5,924,079 5,326,692
5,239,214 4,710,890
5,048,629 4,539,524
3,831,940 3,445,526
3,694,149 3,321,630
4,575,147 4,113,788
5,276,801 4,744,687
6,250,831 5,620,495
7,251,062 6,519,863
G- 8
EXHIBITE
START-UP TESTING
Required factory testing includes such checks and tests necessar to determne that the
equipment systems and subsystems have been properly manufactued and instaled, fuction
properly, and are in a condition to perit safe and effcient star-up of the Facility, which may
include but are not limited to:
1. Test of mechanical and elecmcal equipment;
2. Calibration of all monitoring instrents;
3. Operating test of all motors;
4. Alars, signals, and fail-safe or system shutdown control test;
5. Point-to-point continuity test;
6. Bench test of protective devices; and
7. Tests required by manufacturer of equipment
Required star-up tests are those checks and tests necessar to determine that all features and
equipment, systems, and subsystems have been properly instaled and adjusted, fuction
properly, and are capable of operating simultaneously in such condition that the Facilty is
capable of continuous delivery into PacifiCorp's electrical system, which may include but are not
limited to:
1. Turbine/generator mechanical runs and fuctionality;
2. System operation test;
3. Brake test;
4. Energization of transformers;
5. Synchronizing tests (manual and auto);
6. Excitation and voltage regulation option tests;
7. Auto stop/star sequence;
8. Tests required by manufacturer of equipment;
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EXHIBITF-l
MOTIVE FORCE PLAN
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Windland has collected wind data at the sites of Power County Wind Park North and Power
County Wind Park South since 2002. Data have been collected on multiple met masts and site
analyses have been performed by Garad Hassan, WindLogics, 3Tier, Ron Nierenberg and V -bar
LLC. The l2x24 tables displayed below were based on an analysis of wind data collected on site
between Januar 2005 and December 2009. The basic analytical method employed was
Measur-Correlate-Predict (MCP). The on site observations were correlated across met masts to
develop produce an site wide distribution. They were subsequently correlated with data
collected at the Pocatello airport to provide long term wind speed adjustments. Monthly
averages, diural variations and long term averages were used to produce site frequency
distributions including the 12x24 arays shown below.
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12x24 Production (KWH) for Power County Wind
Park South
(MST) Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
8426 9331 8481 7742 6634 6781 5303 5155 6745 7151 8481 9313
8740 8648 8703 7835 6375 6855 4915 4767 6689 6301 8371 9258
8925 8703 8759 7631 6560 6412 4693 5026 6356 6504 8112 8722
9073 8408 8666 7336 6523 6190 4453 4897 5950 6560 7410 8204
8555 8241 8537 7354 6042 6005 4195 4231 5784 6449 7077 8260
8888 9036 8888 7059 6098 6079 3474 3973 5691 6209 7206 8223
8740 8796 8574 6689 5617 5562 3936 3751 5470 6412 7299 8703
8796 8796 8149 6412 5063 5118 3363 3696 4638 5821 6966 8685
8648 8999 7890 6264 4860 5045 2716 3104 4195 5710 6855 8555
8537 8925 7576 6079 5266 5118 3049 2975 4158 5285 7170 8722
8297 8500 8278 6948 5765 5248 3474 2975 3917 5045 7133 8906
8241 8112 9036 7299 6172 5839 3418 3400 4010 5211 7225 8334
7724 8093 9091 7558 6393 6024 3862 4361 4509 5470 7354 8167
7613 7853 8814 7798 6467 6430 4379 4268 5285 6246 7317 7613
7336 7761 8537 7502 6726 6874 4934 5229 5580 6301 7354 8093
7428 7299 8648 7539 7077 7391 5617 5377 5895 6430 7170 7890
7705 7299 8463 7280 7003 7724 5303 5673 5728 6831 7391 8555
8204 7613 7909 7631 6560 7040 5525 5063 5433 6781 8149 9331
8075 8334 7964 7798 6320 6652 5562 4749 6356 7262 8592 9368
8056 8592 7872 7798 6671 5987 5580 5155 6689 7539 8906 9221
8297 9054 7798 7927 7114 6726 6098 5691 7114 7243 8814 9424
8518 9609 7816 7853 7354 6781 6005 6190 7022 7206 9073 9701
8962 9516 8149 8241 6874 6818 5636 5691 6745 6634 9128 9313
8906 9609 7909 7983 6430 6615 5654 5322 7170 6449 8796 9756
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EXHIBITF-2
ENGINEER'S CERTIFICATION
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01 The Engineer's Certification wil be provided before the Scheduled Initial Delivery Date
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EXHmlTG
SAMPLE ENERGY PURCHASE PRICE CALCULATION
The following are samples of calculations of energy purchase pnces using the formula and tables
in Section 5.1.
The calculation for the purchase price dunng an On-Peak Hour in May of 2009 is $65.15/MWh
(the 2009 annual rate for Conforming Energy) multiplied by 92% (0.92) (the May On-Peak Hour
multiplier), which equals $59.94/MWh.
Table 3: Sample Calculations for Conforming Energy in 2009 (Purchase Price = anual rate *
monthly On-PeakOtl-Peak multiplier).
Calculated Calculated
Conforming Purchase Price Purchase Price
Energy for 2009 On-for 2009 Off-
Annual Peak Peak
Rate for On-Peak Conforming Off-Peak Conforming
2009 Hour Energy Hour Energy
Month (pet MWh) Multiplier (per MWh) Multiplier (per,MWh)
Januar $65.15 103%$67.10 94%$61.24
February $65.15 105%$68.41 97%$63.20
March $65.15 95%$61.89 80%$52.12
Apnl $65.15 95%$61.89 76%$49.51
May $65.15 92%$59.94 63%$41.04
June $65.15 94%$61.24 65%$42.35
July $65.15 121%$78.83 92%$59.94
August $65.15 121%$78.83 106%$69.06
September $65.15 109%$71.01 99%$64.50
October $65.15 115%$74.92 105%$68.41
November $65.15 110%$71.67 96%$62.54
December $65.15 129%$84.04 120%$78.18
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EXHIBITH
SELLER AUTHORIZATION TO RELEASE GENERATION DATA TO PACIFICORP
The Seller will authonze release of Seller generation data to PacifiCorp before the Scheduled
Initial Delivery Date
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EXHIBIT A-9
F')t::
r::::._,.April 1, 2010 email with attached letter from Ken Kaufmann
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Case: PAC-E-10-0S
Exhibit A to Rocky Mountain
Power's First Production
Request to Windland, Inc.
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From: Ken Kaufmann c:kaufmannêlklaw.com::
Subject: Windland QF PPA Request (Power County Wind Park North and South
Projects)
Date: April 1, 2010 4:53:06 PM PDT
To: Peter Richardson c:Peterê richardsonandoleary.com::
Cc: Greg Adams c:Gregêrichardsonandoleary.com::, Bruce Griswold
c:Bruce.Griswoldêpacificorp.com::, Jeff Erb c:eff. Erbê PacifiCorp.com::,
Daniel Solander c:Daniel.Solanderê PacifiCorp.com::
., 1 Attachment, 395 KB
Hello Peter,
Here is a copy of a letter J sent you in today's maiL. Bruce Griswold wil forward to
Michael Heckler. Please feel free to call me to discuss.
Sincerely,
Ken Kaufmann
01 Ap-r 2010....p-df (395 KB)
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LOVINGER I KAUFMANN LLP
825 NE Multnomah . Suite 925
Portland, OR 97232-2150
offce [phone]
fax [phone]
Ken Kaufmann
kaufmann(tlklaw.com
April i, 2010
Via U.S. Mail and electronic mail
Mr. Peter Richardson
P.O. Box n18
Boise, ID 83707
Peter~richardsonandoleary .com
Re: Status of Power County Wind Park North and Power County Wind Park South
Power Purchase Agreement requests
Dear Peter:
On behalf of PacifiCorp Energy's merchant business unit (PacifiCorp Merchant, or
PacifiCorp), I am writing you-PURP A legal counsel for Windland Inc. (Windland)-
concerning the March 29, 2010 letter from Windland Director of Marketing and Development,
Michael Heckler. In that letter Mr. Heckler enclosed two power purchase agreements
(PPAs)-ne for Power County Wind Park Nort LLC and one for Power County Wind Park
South LLC ("north" and "south" project, respectively). Mr. Hecker stated in the letter that he
would ask the Idaho PUC to compel PacifiCorp to execute those PPAs unless PacifiCorp
executed them or provided "suitable, executable substitute agreements * * * by April 1, 2010,
with the avoided cost rates in effect prior to March 12".
Before I respond to Mr. Hecker's demand, J want to acknowledge Windlands March 12
response to my March 10 letter and enclosed list of additional information requested by
PacifiCorp. The information provided does not eliminate all of PacifiCorp's concerns, and
those concerns (discussed furter below) wil need to be resolved before PacifiCorp wil
execute a final Power Purchase Agreement (PPA). However, with that submittal, Wind land
has provided sufficient information needed by PacifiCorp to prepare a draft PP A for the nort
and south projects. i PacifiCorp wil be forwarding a complete draf PPA for each project to
your client for comment by April 2, 2010.
i PacifiCorp agrees with your position that a QF need not provide certain information related to
creditworthiness requested by PacifiCorp (item (0) in PacifiCorp's information request) in order to
qualify for an Idaho small QF PPA. Perhaps I should have been clearer, in my March 10 letter, that
provision of such information is voluntary, but may enable PacifiCorp to reduce the amount of delay
security it otherwise requires. PacifiCorp has noted that Windland does not wish to provide such
information and PacifiCorp will therefore determine delay security requirements without such
information.
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Mr. Peter Richardson
April 1,2010
Page 2
A. Remaining Concerns.
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Windland denied, in its March 12 letter, that it must post security in consideration of the PPA
except in the case that the PP A contains levelized rates. The Idaho PUC declared that delay
security is "reasonable and necessary in order to protect an electric utilty against any potential
default or failure by a PURPA supplier in meeting its scheduled operation date". IPUC Order
No. 30608, p. 3. Please affrm that Windland is prepared to post delay securty as permitted
by the Idaho PUC. Wind land and PacifiCorp need to resolve this issue pnor to execution of a
final PP A for either project.
B. Contract Prices and Windland's tendered PP A.
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In Mr. Heckler's March 29 letter, he demands that PacifiCorp offer Windland's north and
south projects a PP A containing the published avoided cost prices in effect prior to March 12.
2010. His demand is ,contrary to ¡PUC Order No.3 i 025, which directs PacifiCorp to use the
revised published avoided cost rates for all new PURP A contracts entered into on or after
March 15, 2010. Unless the Idaho PUC tells PacifiCorp otherwise, PacifiCorp wil, in
accordance with Order No. 31025, offer Windlands north and south projects the curent
published avoided cost rates. In addition to the prices, PacifiCorp does not agree to other
terms and conditions contained in the PPA proposed by Windland. Specifically, PacifiCorp
will insist on delay security and delay liquidated damages terms that are not in the PPA
Windland provided.2 There may be other differences between the PP A tendered by Windland
and PacifiCorp's standard wind PPA. Therefore, PacifiCorp wil, in accordance with its long-
standing practice, prepare the first draft PP A containing all proposed terms and conditions
along with project specific information provided by Windland.
C. Recap of QF application process.
Windland first made a written request for QF power purchase agreements for its Power
County Wind Park North and Power County Wind Park South projtcts on Februar 26, 2010.
On March 10, PacifiCorp, through its attorney, requested additional information necessar to
prepare two draft PPAs. On March 12, Windland provided most of the information PacifiCorp
requested, allowing PacifiCorp to complete its due dilgence and prepare the initial draft
PPAs. On or before April 2, PacifiCorp wil send Windland two nearly complete3 draft PPAs
for its review. From the time Windland substantially provided information requested
information (March 12) to the time PacifiCorp provided two draft PP As (April 2), only fifteen
business days wil have elapsed. Windlands continuing responsiveness to information
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2 Windland stated in its March 29 letter that it based the PPA it tendered to PacifiCorp from two
PacifiCorp PPAs recently approved by the Idaho PUC. However, neither of those PPAs, which are for
small hydroelectric facilities, are appropriate for application to Windlands Idaho standard wind
lrojects which have nameplate capacity in excess of20 megawatts.The drafts may not be entirely complete if additional details and/or information about the projects is
missing. Wind land wil be required to provide any final details as noted in the draft PPA. Furthermore,
terms and conditions of the PPA are subject to change by either party until the PPA has been executed.
Mr. Peter Richardson
April 1, 2010
Page 3
requests and dilgence in complying with the QF PPA requirements wil mimmize the
remaining time necessar to finalize a PPA. Windland may wish to schedule a meeting with
PacifiCorp and its attorney to discuss any comments or issues it may have with the draft PPAs.
Once any remaining issues have been resolved, and provided that Windland has addressed the
potential issue listed above, in Section A, PacifiCorp wil prepare executable PPAs and send
them to Windland for execution. The PP As wil not become effective, however, until
approved by the Idaho PUC.
PacifiCorp requests that all written communications from Windland's attorney be copied to
my email address, above. If you, or any other attorney for Windland, wish to talk with
PacifiCorp regarding this matter, please schedule an appointment in advance so that
PacifiCorp may have an attorney present. PacifiCorp continues to welcome direct
communication between Windland's non-attrney representatives. Please let me know if you
have not received a draf PPA by close of business on Friday, Apnl 2.
Sincerely,~~
Lovinger Kaufman LLP
cc (e-mail):
Greg Adams
Michael Heckler, Director of Marketing and Development, Windland
Bruce Griswold, PacifiCorp Energy
Jeff Erb, PacifiCorp Energy
Daniel Solander, Rocky Mountain Power
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Case: PAC-E-10-0S
Exhibit A to Rocky Mountain
Power's First Production
Request to Wind land, Inc.
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1 EXHIBIT A-tO
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April 2, 2010 email from Ken Kaufmann with two attched draft power purchase
agreements
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Date:
To:
li
Ken Kaufmann c:kaufmannêlklaw.com::
Fwd: Windland Inc--Power County Wind Park North LLC and Power
County Wind Park South LLC
April 2, 2010 4:02:04 PM PDT
Greg Adams c:Gregêrichardsonandoleary.com::
2 Attachments, 660 KB
"1.:
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From:
Subject:
Greg,
I forgot to cc you. Here it is.
Ken
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Begin forwarded message:
From: Ken Kaufmann c:kaufmannêlklaw.com::
Date: April 2, 20103:46:24 PM PDT
To: Peter Richardson c:Peterêrichardsonandoleary.com::
Cc: Bruce Griswold c:Bruce.Griswoldêpacificorp.com::, John Younie
c:John.Younieêpacificorp.com::, Daniel So lander c:DanieI.SolanderêPacifiCorp.com::,
Charles von Reis c:vonreisêlklaw.com::
Subject: Windland Inc--Power County Wind Park North LLC and Power County
Wind Park South LLC
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Peter,
Attached please find a complete draft of each of the PPAs, above. Bruce Griswold wil
forward to Michael Heckler. Please feel free to call me to discuss. We look forward to
receiving Wind land's response.
Sincerely,
Ken
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Kenneth Kaufmann
Lovinger Kaufmann LLP
825 NE Multnomah, Suite 925
Portland, OR 97232-2150
[phone] (offce)
[phone] (fax)
[phone] (direct)
www.LKLaw.com
kaufmann (g LKLaw.com
THIS COMMUNICATION MAY CONTAIN CONFIDENTIAL INFORMATION AND MAY BE SUBJECT TO
ATIORNEY-CLIENT PRIVILEGE, THE ATIORNEY WORK PRODUCT DOCTRINE, THE JOINT DEFENSE
PRIVILEGE, ANDIOR OTHER PRIVILEGES. If you are not the intended recipient(s), or the employee or agent
responsible for delivery of this message to the intended recipient(s), you are hereby notified that any dissemination,
distribution or copying of this e-mail message is strictly prohibited. If you have received this message in error, please
immediately notify the sender and delete this e-mail message from your computer.
Kenneth Kaufmann
Lovinger Kaufmann LLP
825 NE Multnomah, Suite 925
Portland, OR 97232-2150
[phone] (office)
[phone] (fax)
[phone] (direct)
ww.LKLaw.com
kaufmann (g LKLaw.com
THIS COMMUNICATION MAY CONTAIN CONFIDENTIAL INFORMATION AND MAY BE SUBJECT TO ATIORNEY-
CLIENT PRIVILEGE, THE ATIORNEY WORK PRODUCT DOCTRINE, THE JOINT DEFENSE PRIVILEGE, ANDIOR
OTHER PRIVILEGES. If you are not the intended recipient(s), or the employee or agent responsible for delivery of this
message to the intended recipient(s), you are hereby notified that any dissemination, distribution or copying of this e-
mail message is strictly prohibited. If you have received this message in error, please immediately notify the sender
and delete this e-mail message from your computer.
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Tms WORKNG DRAFT DOES NOT CONSTITUTE A BINDING OFFR, SHALL NOT FORM TH
BASIS FOR AN AGREEMENT BY ESTOPPEL OR OTHERWISE; AND IS CONDmONED 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 WORKNG DRAFT SHALL BE AT THT
PARTY'S OWN RISK. UNTIL THIS AGREEMENT IS NEGOTITED, APPROVED BY MANAGEMENT,
SIGNED, DELIVERED AND APPROVED BY ALL REQUIRED REGULATORY BODIES, NO PARTY
SHALL HAVE ANY OTHER LEGAL OBLIGATIONS, EXPRESSED OR IMPLIED, OR ARISING IN ANY
OTHER MANNR UNDER TmS WORKG DRAFT OR IN THE COURSE OF NEGOTIATIONS.
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POWER PURCHASE AGREEMENT
BETWEEN
POWER COUNTY WIND PAR NORTH, LLC
(a non-fueled, on-system, Intermittent Resource with Mechanical Availabilty Guarantee,
Idaho Qualifying F acilty-l OaMW!Month or less)
AND
PACIFICORP
Section 1: Definitions .... ........................ ... ......... ........ ......................... .................. .............. 1
Section 2: Term, Commercial Operation Date ................:.................................................. 9
Section 3: Representations and Warranties.......................................................................10
Section 4: Delivery of Power; Availabilty Guaranty.......................................................13
Section 5: Purchase Prices .. ...... ..... ... ........ ...... ................... ....................... ..... ................... 15
Section 6: Operation and Control ..................................................................................... 17
Section 7: Motive Force....................................................................................................20
Section 8: Generation Forecasting Costs .......................................................................... 21
Section 9: Metering; Reports and Records ....................................................................... 21
Section 10: Bilings, Computations and Payments ........................................................... 23
Section 11: Security ............ ........... ........ ............ ................. ................. ...... ........ ............... 24
Section 12: Defaults and Remedies .................................................................................. 25
Section 13: Indemnification.............................................................................................. 27
Section 14: Liabilty and Insurance ..................................................................................29
Section 15: Force Majeure................................................................................................30
Section 16: Several Obligations........................................................................................30
Section 17: Choice of Law..... .............. .............. ............... ......... ................... ..... ... ............ 31
Section 18: Partial Invalidity ............................................................................................ 31
Section 19: Waiver............................................................................................................31
Section 20: Governental Jurisdiction and Authorizations ...... ..... ........ ... ... ..... ... ............ 31
Section 21: Successors and Assigns ........ .............. ...... ... .................... .................. ....... ..... 31
Section 22: Entire Agreement...........................................................................................32
Section 23: Notices ........................................................................................................... 32
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Last printed 4/2/1 0 3: 11 PM
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PO~R PURCHASE AGREEMENT
THIS POWER PURCHASE AGREEMET, entered into this day of , 20_,
is between Power County Wind Park North, LLC, an Idaho limited liabilty company (the
"Seller") and PacifiCorp, an Oregon corporation acting in its merchant function capacity
("PacifiCorp"). Seller and PacifiCorp are referred to collectively as the "Parties" and
individually as a "Party".
RECITALS
A. Seller intends to constrct, own, operate and maintain a wind facilty, including
Seller's Interconnection Facilties, for the generation of electrc power located in Power, County,
Idaho with an expected Facilty Capacity Rating of 21,600-kilowatt (kW) as further described
in Exhibit A and Exhibit B (ltFaciltylt).
B. Seller intends to operate the Facilty as a Qualifying Facilty, as such term is
defined in Section 1.55 below, and to sell Net Output to PacifiCorp in Idaho.
C. Seller estimates that the average annual Net Output to be delivered by the Facilty
to PacifiCorp is 67,311,441 kilowatt-hours (kWh) ("Average Annual Net Output") pursuant to
the monthly Energy Delivery Schedule in Exhibit D hereto, which amount of energy PacifiCorp
wil include in its resource planning.
D. Seller intends to sell and PacifiCorp intends to purchase all the Net Output from
the Facilty in accordance with the terms and conditions of this Agreement.
E. PacifiCorp intends to designate Seller's Facility as a Network Resource for the
purposes of serving Network Load.
F. This Agreement is a "New QF Contract" under the PacifiCorp Inter-Jurisdictional
Cost Allocation Revised Protocol.
G. Seller (R has U has not authorized Transmission Provider to release generation
data to PacifiCorp. If yes, the authorization is attched as Exhibit H.
NOW, THEREFORE, the Paries mutually agree as follows:
SECTION 1: DEFINITIONS
When used in this Agreement, the following terms shall have the following meanings:
1.1 "As-built Supplement" shall be a supplement to Exhibit A, provided by Seller
following completion of construction of the Facilty, accurately describing the completed
Facility.
1.2 "Availabilty" means, for any Biling Period, the ratio, expressed as a percentage,
of (x) the aggregate sum of the turbine-minutes in which each of the Wind Turbines at the
Facility was available to generate at the Maximum Facilty Delivery Rate during the Billng
Period over (y) the product of the number of Wind Turbines that compnse the Facilty Capacity
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Rating as of Commercial Operation multiplied by the number of minutes in such Billng Period.
A Wind Turbine shall be deemed not available to operate during minutes in which it is (a) in an
emergency, stop, service mode or pause state; (b) in "run" status and faulted; or (c) otherwise not
operational or capable of delivering at the Maximum Facilty Delivery Rate to the Point of
Delivery; unless if unavailable due solely to (i) a default by PacifiCorp; (ii) to the extent not
caused by Seller's actions, a curtilment in accordance with Section 6.3; or (ii) insuffcient wind
(including the normal amount of time required by the generating equipment to resume operations
following a period when wind speed is below the Cut-In Wind Speed).
1.3 "Biling Period" means the time period between PacifiCorp's reading of its power
purchase meter at the Facilty and for this Agreement shall coincide with calendar months.
1.4 "Commercial Operation" means that not less than the 90% of the expected
Facilty Capacity Rating is fully operational and reliable and the Facilty is fully interconnected,
fully integrated, and synchronized with the System, all of which shall be Seller's responsibilty to
receive or obtain, and which occurs when all of the following events (i) have occurred, and (ii)
remain simultaneously true and accurate as of the date and moment on which Seller gives
PacifiCorp notice that Commercial Operation has occurred:
1.4.1 PacifiCorp has received a certificate addressed to PacifiCorp from a
Licensed Professional Engineer (a) stating the Facility Capacity Rating of the Facilty at
the anticipated time of Commercial Operation and (b) stating that the Facilty is able to
generate electric power reliably in amounts required by this Agreement and in accordance
with all other terms and conditions of this Agreement.
1.4.2
with Exhibit E.
Start-Up Testing of the Facilty has been completed in accordance
1.4.3 PacifiCorp has received a certificate addressed to PacifiCorp from a
Licensed Professional Engineer, an attorney in good standing in Idaho, or a letter from
Transmission Provider, stating that, in accordance with the Generation Interconnection
Agreement, all required interconnection facilities have been constrcted, all required
interconnection tests have been completed and the Facilty is physically interconnected
with the System in conformance with the Generation Interconnection Agreement and able
to deliver energy consistent with the terms of this Agreement, and the Facilty is fully
integrated and synchronized with the System.
1.4.4 PacifiCorp has received a certificate addressed to PacifiCorp from a
Licensed Professional Engineer, or an attorney in good standing in Idaho, stating that
Seller has obtained all Required Facilty Documents and, if requested by PacifiCorp in
writing, Seller shall have provided copies of any or all such requested Required Facilty
Documents.
1.4.5 Seller has complied with the secutity requirements of Section 11.
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1.4.6 Network Resource Designation and Transmission Service Request.
(a) Seller has provided all data required by the Transmission Provider
to enable the Facilty to be designated as a Network Resource in
accordance with the Tariff.
(b) PacifiCorp has received confirmation from the Transmission
Provider that the Facilty has been designated as a Network
Resource.
(c) Seller has provided all data required for PacifiCorp to submit a
transmission service request for the Facilty pursuant to the Tariff.
(d) PacifiCorp has received confirmation from the TransmissionProvider that the transmission service request has been granted in
sufficient capacity to meet or exceed the Maximum Facilty
Delivery Rate and the Seller has paid all costs associated with any
requirements of the transmission service request.
1.5 "Commercial Operation Date" means the date, as designated by PacifiCorp
pursuant to Section 2.4, the Facility first achieves Commercial Operation.
1.6 "Commission" means the Idaho Public Utilties Commission.
1.7 "Conforming Energy" means all Net Energy except Non-Conforming Energy.
1.8 "Conforming Energy Purchase Price" means the applicable price for
Conforming Energy and capacity, specified in Section 5.1.
1.9 "Contract Year" means a twelve (12) month penod commencing at 00:00 hours
Mountain Prevailng Time ("MPT") on Januar 1 and ending on 24:00 hours MPT on
December 31; provided, however, that the first Contract Year shall commence on the
Commercial Operation Date and end on the next succeeding December 31, and the last Contract
Year shall end on the Expiration Date, unless earlier terminated as provided herein.
1.10 "Cut-in Wind Speed" means the wind speed at which a stationary wind turbine
begins producing Net Energy, as specified by the turbine manufacturer and set forth in Exhibit
A.
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1.11 "Delay Liquidated Damages", "Delay Daily Minimum", "Delay Period",
"Delay Price" and "Delay Volume" shall have the meanings set forth in Section 2.5 of this
Agreement. "Delay Security" shall have the meaning set fort in Section 11.1.1 of this
Agreement.
1.12 "Default Security" shall have the meaning set forth in Section 1 1.2 of this
Agreement.
1.13 "Effective Date" shall have the meaning set fort in Section 2.1 of this
Agreement.
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1.14 "Energy Delivery Schedule" shall have the meaning set forth in Section 4.3 of
this Agreement.
1.15 "Environmental Attributes" means any and all claims, credits, benefits,
emissions reductions, offsets, and allowances, howsoever entitled, resulting from the avoidance
of the emission of any gas, chemical, or other substace to the air, soil or water, which are
deemed of value by PacifiCorp. Environmental Attibutes include but are not limited to: (1) 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; and (2) any
avoided emissions of carbon dioxide (C02), methane (CH4), and other greenhouse gases
(GHGs) that have been determined by the United Nations Intergovernmental Panel on Climate
Change to contribute to the actual or potential threat of altering the Earth's climate by trapping
heat in the atmosphere. Environmental Attibutes do not include (i) Production Tax Credits or
certain other tax incentives existing now or in the future associated with the constrction,
ownership or operation of the Facilty, (ii) matters designated by PacifiCorp as sources of
liabilty, or (ii) adverse wildlife or environmental impacts.
1.1 6 "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 matenal risk
under federal, state or local laws and regulations that the Premises wil not be available or usable
for the purposes contemplated by this Agreement.
1.17 "Expiration Date" shall have the meaning set forth II Section 2.1 of this
Agreement.
1.18 "Facilty" is defined in Recital A of this Agreement.
1.19 "Facilty Capacity Rating" means the sum of the Nameplate Capacity Ratings for
all generators comprising the Facilty.
1.20 "Force Majeure" has the meaning set fort in Section 15.1.
1.21 "Forced Outage" means an outage that requires removal of one or more Wind
Turbines from service, another outage state or a reserve shutdown state before the end of the next
weekend. Maintenance Outages and Planned Outages are not Forced Outages.
1.22 "Generation Interconnection Agreement" means the generation interconnection
agreement entered into separately between Seller and Transmission Provider, as applicable,
specifying the Point of Delivery and providing for the constrction and operation of the
Interconnection Facilties.
1.23 "Governmental Authority" means any supranational, federal, state or other
political subdivision thereof, having jurisdiction over Seller, PacifiCorp 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.
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1.24 "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.
1.25 "Inadvertent Energy" means: (l) energy delivered to the Point of Delivery in
excess of the Maximum Monthly Purchase Obligation; and (2) energy delivered to the Point of
Delivery at a rate exceeding the Maximum Facilty Delivery Rate on an hour-averaged basis.
Inadvertent Energy is not included in Net Energy.
1.26 "Index Price", for each day, shall mean the weighted average of the average Peak
and Off-Peak firm energy market prices, as published in the Intercontinental Exchange (ICE)
Day Ahead Power Price Report for the Palo Verde Hub. For Sunday and NERC holidays, the
24-Hour Index Price shall be used, unless ICE shall publish a Firm On-Peak and Firm Off-Peak
Price for such days for Palo Verde, in which event such indices shall be utilzed for such days. If
the ICE index or any replacement of that index ceases to be published dunng the term of this
Agreement, PacifiCorp shall select as a replacement a substantially equivalent index that, after
any appropriate or necessary adjustments, provides the most reasonable substitute for the index
in question. PacifiCorp's selection shall be subject to Seller's consent, which Seller shall not
unreasonably withhold, condition or delay.
1.27 "Initial Year Energy Delivery Schedule" shall have the meaning set forth in
Section 4.3.1.
1.28 "Interconnection Facilties" means all the facilities and ancilary equipment used
to interconnect the Facilty to the System, as defined in the Generation Interconnection
Agreement.
1.29 "Letter of Credit" means an irrevocable standby letter of credit in a form
reasonably acceptable to PacifiCorp, naming PacifiCorp as the pary entitled to demand payment
and present draw requests thereunder. Such letter of credit shall be provided by an institution
that is a 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, with a credit rating on its long-
term senior unsecured debt of at least "A" from Standard & Poor's and "A2" from Moody's
Investor Services, and having assets of at least $10,000,000,000 (net of reserves).
1.30 "Licensed Professional Engineer" means a person acceptable to PacifiCorp in its
reasonable judgment who is licensed to practice engineering in the state of Idaho, who has
training and experience in the engineenng discipline(s) relevant to the matters with respect to
which such person is called to provide a certification, evaluation and/or opinion, who has no
economic relationship, association, or nexus with the Seller, and who is not a representative of a
consulting engineer, contractor, designer or other individual involved in the development of the
Facilty, or of a manufacturer or supplier of any equipment installed in the Facility. Such
Licensed Professional Engineer shall be licensed in an appropriate engineering discipline for the
required certification being made. The engagement and payment of a Licensed Professional
Engineer solely to provide the certifications, evaluations and opinions required by this
Agreement shall not constitute a prohibited economic relationship, association or nexus with the
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Seller, so long as such engineer has no other economic relationship, association or nexus with the
Seller.
1.3 1 "Maintenance Outage" means any outage of one or more Wind Turbines that is
not a Forced Outage or a Planned Outage. A Maintenance Outage is an outage that can be
deferred until after the end of the next weekend, but that requires that the Wind Turbine(s) be
removed from service before the next Planned Outage. A Maintenance Outage may occur any
time during the year and must have a flexible start date.
1.32 "Material Adverse Change" shall mean, with respect to the Seller, if the Seller,
in the reasonable opinion of PacifiCorp, has experienced a material adverse change in abilty to
fulfill its obligations under this Agreement.
1.33 "Maximum Facilty Delivery Rate" means the maximum instantaneous rate (kW)
at which the Facilty is capable of delivering Net Output at the Point of Delivery, as specified in
Exhibit A, and in compliance with the Generation Interconnection Agreement.
1.34 "Maximum GIA Delivery Rate" means the maximum rate (kW) at which the
Generator Interconnection Agreement allows the Facilty to deliver energy to the Point of
Delivery and is set forth in Exhibit A.
1.35 "Maximum Monthly Purchase Obligation" means the maximum amount of
energy PacifiCorp is obligated to purchase under this Agreement in a calendar month. In
accordance with Commission Order No. 29632, the Maximum Monthly Purchase Obligation for
a given month, in kWh, shall equal 10,000 kW multiplied by the total number of hours in that
month and prorated for any partial month.
1.36 "Nameplate Capacity Rating" means the maximum instantaneous generating
capacity of any qualifying small power or cogeneration generating unit supplying all or par of
the energy sold by the Facilty, expressed in MWor kW, when operated consistent with the
manufacturer's recommended power factor and operating parameters, as set forth in a notice
from Seller to PacifiCorp delivered before the Commercial Operation Date and, if applicable,
updated in the As-built Supplement.
1.37 "NERC" means the North American Electric Reliabilty Corporation.
1.38 "Net Energy" means the energy component, in kWh, of Net Output. Net Energy
does not include Inadvertent Energy.
1.39 "Net Output" means all energy and capacity produced by the Facilty, less station
use and less transformation and transmission losses and other adjustments, if any. For puroses
of calculating payment under this Agreement, Net Output of energy shall be the amount of
energy flowing through the Point of Delivery, less any station use not provided by the Facilty.
Net Output does not include Inadvertent Energy.
1.40 "Network Resource" shall have the meaning set forth in the Tariff.
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1.41 "Network Service Provider" means PacifiCorp Transmission, as a provider of
network service to PacifiCorp under the Tarff.
1.42 "Non-Conforming Energy" means Net Output produced by the Facilty prior to
the Commercial Operation Date.
1.43 "Non-Conforming Energy Purchase Price" means the applicable price for Non-
Conforming Energy and capacity, specified in Section 5.1.
1.44 "Off-Peak Hours" means all hours of the week that are not On-Peak Hours.
1.45 "On-Peak Hours" means hours from 7:00 a.m. to 11 :00 p.m. Mountain Prevailng
Time, Monday though Saturday, excluding Western Electricity Coordinating Council (WECC)
and Nort American Electrc Reliabilty Corporation (NRC) holidays.
1.46 "Output Shortfall" and "Output Shortfall Damages" shall have the meanings
set fort in Section 4.5 of this Agreement.
1.47 "PacifiCorp" is defined in the first paragraph of this Agreement, and excludes
PacifiCorp Transmission.
1.48 "PacifCorp Transmission" means PacifiCorp, an Oregon corporation, acting in
its interconnection and transmission function capacity.
1.49 "Planned Outage" means an outage of predetermined duration that is scheduled in
Seller's Energy Delivery Schedule. Boiler overhauls, turbine overhauls or inspections are typical
planned outages. Maintenance Outages and Forced Outages are not Planned Outages.
1.50 "Point of Delivery" means the high side of the generation step-up transformer(s)
located at the point of interconnection between the Facilty and the System, as specified in the
Generation Interconnection Agreement and in Exhibit B.
1.51 "Premises" means the real propert on which the Facility is or wil be located, as
more fully described on Exhibit A.
1.52 "Prime Rate" means 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 JPMorgan Chase & Co. If a JPMorgan Chase & Co. 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 ban with $10 bilion or more in assets in New York
City, N.Y., selected by the Part to whom interest based on the prime rate is being paid.
1.53 "Production Tax Credits" means production tax credits under Section 45 of the
Internal Revenue Code as in effect from time to time during the term hereof or any successor or
other provision providing for a federal tax credit determined by reference to renewable electric
energy produced from wind resources and any correlative state tax credit determined by
reference to renewable electric energy produced from wind resources for which the Facilty is
7
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eligible. Production Tax Credits do not include any ta credit determined by reference to
investment.
1.54 "Prudent Electrical Practices" means any of the practices, methods and acts
engaged in or approved by a significant portion of the electrcal utilty industr 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 reliabilty, safety and expedition. Prudent Electrcal
Practices is not intended to be limited to the optimum practice, method or act to the exclusion of
all others, but rather to be a spectrm of possible practices, methods or acts.
1.55 "QF" means "Qualifying Facilty", as that term is defined in the version of
FERC Regulations (codified at 18 CFR Part 292) in effect on the date of this Agreement.
1.56 "Required Facilty Documents" means all deeds, titles, leases (including Wind
l"l.. Leases), licenses, permits, authorizations, and agreements demonstrating that seller controls theL necessar propert rights and governent authorizations to construct, operate, and maintain the
Facility, including without limitation those set forth in Exhibit C.
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1.57 "Requirements of Law" means any applicable and mandatory (but not merely
advisory) federal, state and local law, statute, regulation, rule, code or ordinance enacted,
adopted, issued or promulgated by any federal, state, local or other Governental Authonty or
regulatory body (including those pertaining to electrical, building, zoning, environmental and
occupational safety and health requirements).
1.58 "Scheduled Commercial Operation Date" means the date by which Seller
promises to achieve Commercial Operation, as specified in Section 2.2.6.
1.59 "Scheduled Monthly Energy Delivery" means the Net Energy scheduled to be
delivered during a given calendar month, as specified by Seller in the Energy Delivery Schedule.
1.60 "Seller's Forecast-Cost Share" and "Seller's Capped Forecast-Cost Share"
shall have the meanings set forth in Sections 8.2 and 8.3 respectively.
1.61 "Subsequent Energy Delivery Schedule" shall have the meaning set forth in
Section 4.3.3.
1.62 "System" means the electric transmission substation and transmission or
distribution facilties owned, operated or maintained by Transmission Provider, which shall
include, after construction and installation of the Facility, the circuit reinforcements, extensions,
and associated terminal facilty reinforcements or additions required to interconnect the Facilty,
all as set forth in the Generation Interconnection Agreement.
1.63 "Tariff' means the PacifiCorp Transmission FERC Electric Tarff Seventh
Revised Volume No.ll Pro Forma Open Access Transmission Tariff or the Transmission
Provider's corresponding FERC tariff or both, as revised from time to time.
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1.64 "Transmission Provider" means PacifiCorp Transmission or a successor,
including any regional trnsmission organization ("RTO").
1.65 "Wind Leases" means the memoranda of wind lease and redacted wind leases
recorded in the county in which the Facilty is located in connection with the development of the
Facilty, as the same may be supplemented, amended, extended, restated, or replaced from time
to time.
1.66 "Wind Turbine" means a Vestas VlOO, 1.8 megawatt wind turbine. At its full
Facilty Capacity Rating, the Facilty wil consist of 12 Wind Turbines.
SECTION 2: TERM. COMMERCIAL OPERATION DATE
2.1 This Agreement shall become effective after execution by both Parties and after
approval by the Commission ("Effective Date"); provided, however, this Agreement shall not
become effective until the Commission has determined that the prices to be paid for energy and
capacity are just and reasonable, in the public interest, and that the costs incurred by PacifiCorp
for purchases of capacity and energy from Seller are legitimate expenses, all of which the
Commission wil allow PacifiCorp to recover in rates in Idaho in the event other jurisdictions
deny recovery of their proportionate share of said expenses.
Unless earlier terminated as provided herein, the Agreement shall remain in effect until
November 30, 2031 ("Expiration Date").
2.2 Time is of the essence of this Agreement, and Seller's abilty to meet certain
requirements prior to the Commercial Operation Date and to achieve Commercial Operation by
the Scheduled Commercial Operation Date is critically important. Therefore,
2.2.1 By May 1,2011, Seller shall obtain and provide to PacifiCorp copies
of all governental permits and authorizations necessary for constrction of the Facilty.
2.2.2 By the date 30 calendar days after the Effective Date, Seller shall
provide Delay Security required under Section 1 1.1.1, as applicable.
2.2.3 At least ten business days prior to delivery of any energy from the
Facility to PacifiCorp, Seller shall provide PacifiCorp with an executed Generation
Interconnection Agreement.
2.2.4 Prior to Commercial Operation Date, Seller shall provide Default
Security required under Section 11.2, as applicable.
2.2.5 Prior to Commercial Operation Date, Seller shall provide PacifiCorp
with an As-built Supplement acceptable to PacifiCorp.
2.2.6 By November 30, 2011, Seller shall achieve Commercial Operation
("Scheduled Commercial Operation Date").
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2.3 Beginning June 1, 2010, Seller shall provide PacifiCorp a one-page monthly
update bye-mail on the progress of the milestones in Section 2.2.
2.4 Establishing Commercial Operation. To achieve Commercial Operation, Seller
must provide, subject to PacifiCorp's written approval which wil not be unreasonably withheld,
written notice to PacifiCorp stating when Seller believes that the Facilty has achieved
Commercial Operation accompanied by the certificates descnbed in Section 1.4. PacifiCorp's
approval, if given, shall designate the Commercial Operation Date. In no event wil delay in
achieving the Scheduled Commercial Operation Date postpone the Expiration Date specified in
Section 2.1.
2.5 Delay Damages. Seller shall cause the Facilty to achieve Commercial Operation
on or before the Scheduled Commercial Operation Date. If Commercial Operation occurs after
the Scheduled Commercial Operation Date, Seller shall be liable to pay PacifiCorp delay
damages for the number of days ("Delay Period") the Commercial Operation Date occurs after
the Scheduled Commercial Operation Date, until the earlier of occurrence of the Commercial
Operation Date or the termination of this Agreement ("Delay Liquidated Damages"). Bilings
and payments for Delay Liquidated Damages shall be made in accordance with Section 11.1.
2.5.1 Delay Liquidated Damages. Delay Liquidated Damages equals the sum
of: for each day in the Delay Period, the greater of (1) the Delay Daily Minimum or (2)
the Delay Price times the Delay Volume
Where:
"Delay Daily Minimum" equals (a) for the first 90 calendar days
following the Scheduled Commercial Operation Date: one-ninetieth
(l/9Ot) of fort-five dollars ($45) multiplied by the Maximum Facilty
Delivery Rate with the Maximum Facilty Delivery Rate being measured
in kW; (b) after the 90th calendar day following the Scheduled
Commercial Operation date: $0.
"Delay Price" equals the positive difference, if any, of the Index Price
minus the weighted average of the On-Peak and Off-Peak monthly
Conforming Energy Purchase Prices; and
"Delay Volume" equals the applicable Scheduled Monthly Energy
Delivery divided by the number of days in that month.
2.5.2 Appropriateness of Damages. The Parties agree that the damages
PacifiCorp would incur due to delay in the Facilty achieving Commercial Operation on
or before the Scheduled Commercial Operation Date would be diffcult or impossible to
predict with certinty, and that the Delay Liquidated Damages are an appropnate
approximation of such damages.
SECTION 3: REPRESENTATIONS AND WARRANTIES
3.1 PacifiCorp represents, covenants, and warrants to Seller that:
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3.1.1 PacifiCorp is duly organized and validly existing under the laws of
the State of Oregon.
3.1.2 PacifiCorp has the requisite corporate power and authority to enter
into this Agreement and to perform according to the terms of this Agreement.
3.1.3 PacifiCorp has taen all corprate actions required to be taken by it
to authonze the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby.
3.1.4 Subject to Commission approval, the execution and delivery of this
Agreement does not contravene any provision of, or constitute a default under, any
indenture, mortgage, or other material agreement binding on PacifiCorp or any valid
order of any court, or any regulatory agency or other body having authority to which
PacifiCorp is subject.
3.1.5 Subject to Commission approval, this Agreement is a valid and
legally binding obligation of PacifiCorp, enforceable against PacifiCorp in accordance
with its terms (except as the enforceabilty of this Agreement may be limited by
bankptcy, insolvency, bank moratorium or similar laws affecting creditors' rights
generally and laws restricting the availabilty of equitable remedies and except as the
enforceabilty of this Agreement may be subject to general pnnciples of equity, whether
or not such enforceabilty is considered in a proceeding at equity or in law).
3.2 Seller represents, covenants, and warants to PacifiCorp that:
3.2.1 Seller is a limited liability company duly organized and validly
existing under the laws ofIdaho.
3.2.2 Seller has the requisite power and authority to enter into this
Agreement and to perform according to the terms hereof, including all required
regulatory authority to make wholesale sales from the Facilty.
3.2.3 Seller's shareholders, directors, and offcers have taken all actions
required to authorize the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby.
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3.2.4 The execution and delivery of this Agreement does not contravene
any provision of, or constitute a default under, any indentue, mortgage, or other material
agreement binding on Seller or any valid order of any court or any regulatory agency or
other body having authority to which Seller is subject.
3.2.5 This Agreement is a valid and legally binding obligation of Seller,
enforceable against Seller in accordance with its terms (except as the enforceabilty of
this Agreement may be limited by bankptcy, insolvency, bank moratorium or similar
laws affecting creditors' rights generally and laws restricting the availability of equitable
remedies and except as the enforceabilty of this Agreement may be subject to general
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principles of equity, whether or not such enforceabilty is considered in a proceeding at
equity or in law).
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3.2.6 The Facility is and shall for the term of this Agreement continue to
be a QF. Seller has provided the appropriate QF certification, which may include a
Federal Energy Regulatory Commission self-certification to PacifiCorp prior to
PacifiCorp's execution of this Agreement. At any time PacifiCorp has reason to believe
during the term of this Agreement that Seller's status as a QF is in question, PacifiCorp
may require Seller to provide PacifiCorp with a written legal opinion from an attorney in
good standing in the state of Idaho and who has no economic relationship, association or
nexus with the Seller or the Facility, stating that the Facilty is a QF and providing
suffcient proof (including copies of all documents and data as PacifiCorp may request)
demonstrating that Seller has maintained and wil continue to maintain the Facilty as a
QF.
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3.2.7 Neither the Seller nor any of its principal equity owners is or has
within the past two (2) years been the debtor in any bankptcy proceeding, is unable to
pay its bils in the ordinary course of its business, or is the subject of any legal or
regulatory action, the result of which could reasonably be expected to impair Seller's
abilty to own and operate the Facilty in accordance with the terms of this Agreement.
3.2.8 Seller has not at any time defaulted in any of its payment obligations
for electricity purchased from PacifiCorp.
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3.2.9 Seller is not in default under any of its other agreements and is
curent on all of its financial obligations.
3.2.10 Seller owns, and wil continue to own for the term of this
Agreement, all right, title and interest in and to the Facilty, free and clear of all liens and
encumbrances other than liens and encumbrances related to third-party financing of the
Facilty.
3.2.11 In entering into this Agreement and the undertaking by Seller of the
obligations set fort herein, Seller has investigated and determined that it is capable of
pedorming liereunder and has not relied upon the advice, experience or expertise of
PacifiCorp in connection with the transactions contemplated by this Agreement.
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3.2.12 All professionals or experts including, but not limited to, 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.
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3.2.13 All leases of real propert required for the operation of the Facilty
or the pedormance of any obligations of Seller hereunder are set forth and accurately
described in Exhibit C. Upon request by PacifiCorp, Seller shall provide copies of the
Wind Leases to PacifiCorp.
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3.2.14 All information about the Facilty set forth in Exhibit A, Exhibit B,
and Exhibit C has been venfied by Seller and is accurate to the best of its knowledge.
3.3 Notice. If at any time dunng this Agreement, any Part obtains actual knowledge
of any event or information which would have caused any of the representations and warranties
in this Section 3 to have been materially untre or misleading when made, such Par shall
provide the other Par with written notice of the event or information, the representations and
warranties affected, and the action, if any, which such Par intends to take to make the
representations and warranties tre and correct. The notice required pursuant to this Section
shall be given as soon as practicable after the occurrence of each such event.
SECTION 4: DELIVERY OF POWER; AVAILABILITY GUARANTY
4.1 Delivery and Acceptance of Net Output. Unless otherwise provided herein,
PacifiCorp wil purchase and Seller wil sell all Net Output from the Facilty.
4.2 No Sales to Third Parties. Dunng the term of this Agreement, Seller shall not sell
any Net Output from the Facilty to any entity other than PacifiCorp.
4.3 Energy Delivery Schedule. Seller shall prepare and provide to PacifiCorp, on an
ongoing basis, a written schedule of Net Energy expected to be delivered by the Facilty
("Energy Delivery Schedule"), in accordance with the following:
4.3.1 During the first twelve full calendar months following the
Commercial Operation Date, Seller predicts that the Facilty wil produce and deliver the
following monthly amounts ("Initial Year Energy Delivery Schedule"):
Month
Januar
Februar
March
April
May
June
Energy Delivery (kWh)
6,919,152
6,387,656
6,912,781
5,924,079
5,239,214
4,048,629
3,831,940
3,694,149
4,575,147
5,276,801
6,250,831
7,251,062
July
August
September
October
November
December
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4.3.2 Seller may revise the Initial Year Energy Delivery Schedule any
time prior to the Commercial Operation Date.
4.3.3 Beginning at the end of the ninth full calendar month of operation,
and at the end of every third month thereafter, Seller shall supplement the Energy
Delivery Schedule with thee additional months of forward estimates (which shall be
appended to this Agreement as Exhibit D) ("Subsequent Energy Delivery Schedule"),
such that the Energy Delivery Schedule wil provide at least thee months of scheduled
energy estimates at all times. Seller shall provide Subsequent Energy Delivery Schedules
no later than 5 :00 pm of the 5th day after the due date. If Seller does not provide a
Subsequent Energy Delivery Schedule by the above deadline, scheduled energy for the
omitted period shall equal the amounts scheduled by Seller for the same thee-month
penod during the previous year.
4.3.4 Upon and after the Commercial Operation Date, Seller may no
longer revise the Energy Delivery Schedule for the first six full calendar months of
Commercial Operation. After 5:00 p.m. MPT of the fift business day following the end
of the third full calendar month of Commercial Operation and the end of each third
calendar month thereafter, Seller may no longer revise the Energy Delivery Schedule for
the six calendar months immediately following such third month. Subject to the
foregoing restrictions in this Section 4.3.4, Seller may revise the Energy Delivery
Schedule for any unrestrcted month by providing wrtten notice to PacifiCorp. Failure to
provide timely wrtten notice of changed amounts wil be deemed to be an election of no
change.
4.4 Minimum Availabilty Obligation. Seller shall cause the Facility to achieve an
Availability of at least 85% during each month ("Guaranteed Availabilty").
4.5 Liquidated Damages for Output Shortfall. If the Availability in any given month
falls below the Guaranteed Availabilty, the resulting shortfall shall be expressed in kWh as the
"Output ShortfalL." The Output Shortfall shall be calculated in accordance with the following
formula:
Output Shortfall = (Guaranteed Availabilty - Availabilty) *
Scheduled Monthly Energy Delivery
Seller shall pay PacifiCorp for any Output Shortfall at the lower of (1) the positive difference, if
any, of the Index Price minus the weighted average of the On-Peak and Off-Peak monthly
Conforming Energy Purchase Prices; or (2) the weighted average of the On-Peak and Off-Peak
monthly Conforming Energy Purchase Prices ("Output Shortfall Damages").
Output Shortfall Damages = Output Shortfall * Output Shortfall Price
Where:
Output Shortfall Price =(Index Price - Weighted Average CEPP), except
that if Output Shortfall Price -0 0, then Output
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Shortfall Price = 0, and except that if Output
Shortfall Price:; Weighted Average CEPP, then
Output Shortfall Price = Weighted Average CEPP
Weighted Average CEPP = the weighted average On-Peak and Off-Peak
Conforming Energy Puchase Prices for the month
of Output Shortall
If an Output Shortall occurs in any given month, Seller may owe PacifiCorp liquidated
damages. Each Part agrees and acknowledges that (a) the damages that PacifiCorp would incur
due to the Facilty's failure to achieve the Guaranteed Availability would be diffcult or
impossible to predict with certainty, and (b) the liquidated damages contemplated in this Section
4.5 are a fair and reasonable calculation of such damages.
4.6 Audit Rights. In addition to data provided under Sections 9.3 and 9.4, PacifiCorp
shall have the right, but not the obligation, to audit the Facilty's compliance with its Guaranteed
Availability using any reasonable methods. Seller agrees to retain all pedormance related data
for the Facilty for a minimum of thee years, and to cooperate with PacifiCorp in the event
PacifiCorp decides to audit such data.
SECTION 5: PURCHASE PRICES
5.1 Energy Purchase Price. Except as provided in Section 5.3, PacifiCorp wil pay
Seller Conforming Energy or Non-Conforming Energy Purchase Prices for Net Output adjusted
for the month and On-Peak Hours or Off-Peak Hours and the wind integration cost using the
following formulae, in accordance with Commission Order Nos. 30423, 31025, and 31021:
Conforming Energy Purchase Price = (ARr * MPM) - WIC
Non-Conforming Energy Purchase Price = (ARnce * MPM) - WIC
Where:
ARce =Conforming Energy annual rate from Table 1, below, for the year
of the Net Output.
the lower of:
85% of the Conforming Energy annual rate from Table 1
below, for the year of Net Output
ARnce =
or
MPM =
85% of average of the daily Index Price for each day of the
month, or portion of month, of Net Output.
monthly On-Peak or Off-Peak multiplier from Table 2, below, that
corresponds to the month of the Net Output and whether the Net
Output occurred during On-Peak Hours or Off-Peak Hours.
$6.50/Mh, the wind integration cost prescribed in Commission
Order No. 31021.
WIC =
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Example calculations are provided in Exhibit G.
Table 1: Conforming Energy Annual Rates (from Commission Order No. 31025)*
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Conforming Energy
Annual Rate (ARe)
Year $/MWh
2010 56.85
2011 60.24
2012 63.97
2013 67.51
2014 71.32
2015 75.40
2016 77.76
2017 80.07
2018 82.58
2019 85.05
2020 87.61
2021 90.63
2022 93.78
2023 97.05
2024 100.44
2025 103.98
2026 106.98
2027 110.07
2028 113.26
2029 116.56
2030 119.95
2031 124.51
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Table 2: Monthly On-Peak/Off-Peak Multipliers (from Commission Order No. 30423)
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Month On-Peak Off-Peak
Hours Hours
Januar 103%94%
Februar 105%97%
March 95%80%
April 95%76%
May 92%63%
June 94%65%
July 121%92%
August 121%106%
September 109%99%
October 115%105%
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· If Seller has elected levelized pricing for Net Output, additional security requirements in
i Section i i.2 apply.
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November
December
110%
129%
96%
120%
5.2 Payment.
For each Biling Period in each Contract Year, PacifiCorp shall pay Seller as follows:
F or delivery of Conforming Energy:
Payment = (CEnergyOn_Peak * CEPPriceon-Peak / 1000) +
(CEnergyoff-Peak * CEPPriceoff-Peak / 1000)
For delivery of Non-Conforming Energy:
Payment = (NCEnergyon-Pea * NCEPPriceon-Peak / 1000) +
(NCEnergyoff-Pea * NCEPPriceoff_Peak / 1000)
Where:
CEnergy =
CEPPrice =
NCEnergy =
NCEPPrice =
On-Peak =
Off-Peak =
Conforming Energy in kWh
Conforming Energy Purchase Price in $/MWh
Non-Conforming Energy in kWh
Non-Conforming Energy Purchase Price in $/Mh
the corresponding value for On-Peak Hours
the corresponding value for Off.Peak Hours
5.3 Inadvertent Energy. PacifiCorp may accept Inadvertent Energy at its sole
discretion, but wil not purchase or pay for Inadvertent Energy.
SECTION 6: OPERATION AND CONTROL
6.1 As-Built Supplement. Upon completion of any constrction affecting the Facilty,
Seller shall provide PacifiCorp an As-built Supplement beanng the stamp of a Licensed
Professional Engineer that accurately depicts the Facilty as built. The As-built Supplement must
be reviewed and approved by PacifiCorp, which approval shall not unreasonably be withheld,
conditioned or delayed.
6.2 Seller shall operate and maintain the Facilty in a safe manner in accordance with
the Generation Interconnection Agreement, Prudent Electrical Practices and in accordance with
the requirements of all applicable federal, state and local laws and the National Electric Safety
Code as such laws and code may be amended from time to time. PacifiCorp shall have no
obligation to purchase Net Output from the Facilty to the extent the interconnection between the
Facility and PacifiCorp's electric system is disconnected, suspended or interrpted, in whole or
in part, pursuant to the Generation Interconnection Agreement, or to the extent generation
curtilment is required as a result of Seller's non-compliance with the Generation
Interconnection Agreement. PacifiCorp shall have the right to inspect the Facilty to confirm
that Seller is operating the Facility in accordance with the provisions of this Section 6 upon
reasonable notice to Seller. Seller is solely responsible for the operation and maintenance of the
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Facilty. PacifiCorp shall not, by reason of its decision to inspect or not to inspect the Facilty, or
by any action or inaction taken with respect to any such inspection, assume or be held
responsible for any liabilty or occurrence arising from the operation and maintenance by Seller
of the Facilty.
6.3 Curtilment. PacifiCorp shall not be obligated to purchase, receive, pay for, or pay
any damages associated with, Net Output (or associated Production Tax Credits or
Environmental Attributes) if such Net Output (or associated Production Tax Credits or
Environmental Attibutes) is not delivered to the System or Point of Delivery due to any of the
following: (a) the interconnection between the Facilty and the System is disconnected,
suspended or interrpted, in whole or in part consistent with the terms of the Generation
Interconnection Agreement, (b) the Transmission Provider directs a general curtilment,
reduction, or redispatch of generation in the area (which would include the Net Output) for any
reason, even if such curtilment or redispatch directive is carred out by PacifiCorp, which may
fulfill such directive by acting in its sole discretion; or ifPacifiCorp curtails or otherwise reduces
the Net Output in order to meet its obligations to the Transmission Provider to schedule within
system limits, (c) the Facilty's Output is not received because the Facilty is not fully integrated
or synchronized with the System, or (d) an event of Force Majeure prevents either Part from
delivering or receiving Net Output. Seller shall reasonably determine the MWh amount of Net
Output curtiled pursuant to this Section 6.3 after the fact based on the amount of energy that
could have been generated at the Facilty and delivered to PacifiCorp as Net Output but that was
not generated and delivered because of the curtailment. Seller shall determine the quantity of
such curtiled energy based on (x) the time and duration of the curailment penod and (y) wind
conditions recorded at the Facilty during the period of curtailment and the tested and verified
power curve for the Wind Turbines. Seller shall promptly provide PacifiCorp with access to
such information and data as PacifiCorp may reasonably require to confirm to its reasonable
satisfaction the amount of energy that was not generated or delivered because of a curtailment
described in this Section 6.3.
6.4 PacifiCorp . as Merchant. Seller acknowledges that PacifiCorp, acting in its
merchant capacity function as purchaser under. this Agreement, has no responsibility for or
control over PacifiCorp Transmission or any successor Transmission Provider.
6.5 Outages.
6.5.1 Planned Outages. Except as otherwise provided herein, Seller shall
not schedule Planed Outage during any portion of the months of Wist peak months)
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 in a situation in which the vendor is not otherwise able to perform the
guarantee work at a time other than dunng one of the months specified above. Seller
shall, in Exhibit D, provide PacifiCorp with an annual forecast of Planned Outages for
each Contract Year at least one (1) month, but no more that 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 more than one
hundred fift (150) hours of Planned Outages for each calendar year. Seller shall not
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schedule any maintenance of Interconnection Facilties during such months, without the
prior wrtten approval of PacifiCorp, which approval may be witheld by PacifiCorp inits sole discretion. .
6.5.2 Maintenance Outages. If Seller reasonably determines that it is
necessar to schedule a Maintenance Outage, Seller shall notify PacifiCorp 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 PacifiCorp may
reasonably consent in light of then existing wind conditions). Upon such notice, the
Paries shall plan the Maintenance Outage to mutually accommodate the reasonable
requirements of Seller and the service obligations of PacifiCorp. Seller shall take all
reasonable measures and use best efforts consistent with Prudent Electncal Practices to
not schedule any Maintenance Outage during the following penods: (June 15 through
June 30, July, August, and September 1 through September 15). Seller shall include in
such notice of a proposed Maintenance Outage the expected start date and time of the
outage, the amount of generation capacity of the Facilty that wil not be available, and
the expected completion date and time of the outage. Seller may provide notices under
this Section 6.5.2 orally. Seller shall confirm any such oral notification in writing as soon
as practicable. PacifiCorp 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 PacifiCorp's request to modify the schedule for a Maintenance
Outage if such modification has no substantial impact on Seller. Seller shall notify
PacifiCorp of any subsequent changes in generation capacity of the Facility during such
Maintenance Outage and any changes in the Maintenance Outage completion date and
time. Seller shall take all reasonable measures and exercise its best effort consistent with
Prudent Electrical Practices to minimize the frequency and duration of Maintenance
Outages.
6.5.3 Forced Outages. Seller shall promptly provide to PacifiCorp an oral
report, via telephone to a number specified by PacifiCorp, of any Forced Outage of the
Facilty. Such report shall include the amount of generation capacity of the Facility that
wil not be available because of the Forced Outage and the expected return date and time
of such generation capacity. Seller shall promptly update the report as necessary to
advise PacifiCorp of changed circumstances. If the Forced Outage resulted in more than
15% of the Facilty Capacity Rating of the Facility being unavailable, Seller shall confirm
the oral report in wrting as soon as practicable. Seller shall take all reasonable measures
and exercise its best efforts consistent with Prudent Electrical Practices to avoid Forced
Outages and to minimize their duration.
6.5.4 Notice of Deratings and Outages. Without limiting other notice
requirements, Seller shall notify PacifiCorp, via telephone to a number specified by
PacifiCorp, of any limitation, restriction, derating or outage known to Seller that affects
the generation capacity of the Facility in an amount greater than five percent (5%) of the
Facilty Capacity Rating for the following day. Seller shall promptly update such notice
to reflect any material changes to the information in such notice.
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6.5.5 Effect of Outages on Estimated Output. Seller shall factor Planned
Outages and Maintenance Outages that Seller reasonably expects to encounter in the
ordinary course of operating the Facilty into the Scheduled Monthly Energy Delivery
amounts in the Energy Delivery Schedule set fort in Exhibit D.
6.6 Scheduling.
6.6.1 Daily Scheduling. (provide if applicable)
6.6.2 Cooperation and Standards. With respect to any and all scheduling
requirements in this Agreement, (a) Seller shall cooperate with PacifiCorp with respect to
scheduling Net Output, and (b) each Part shall designate authorized representatives to
communicate with regard to scheduling and related matters arising hereunder.
6.6.3 Schedule Coordination. If, as a result of this Agreement, PacifiCorp
is deemed by an R TO 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 (a)
Seller shall acquire such RTO recognized stading (or shall contract with a third par
who has such RTO recognized standing) such that PacifiCorp is no longer responsible for
Seller's performance under the Generation Interconnection Agreement, and (b) Seller
shall defend, indemnify and hold PacifiCorp harmless against any liabilty arising due to
Seller's performance or failure to perform under the Generation Interconnection
Agreement or RTO requirement.
6.7 Delivery Exceeding the Maximum GIA Delivery Rate. Seller shall not deliver
energy from the Facilty to the Point of Delivery at a rate that exceeds the Maximum GIA
Delivery Rate. Seller's failure to limit such deliveries to the Maximum GIA Delivery Rate shall
be a breach of a material obligation subject to Section 12.1.8.
6.8 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 PacifiCorp and its authorized agents, employees and inspectors ("PacifiCorp
Representatives") with reasonable access to the Facilty: (a) for the purpose of reading or testing
metenng equipment, (b) as necessary to witness any acceptance tests, (c) for purposes of
implementing Section 4.6, and (d) for other reasonable purposes at the reasonable request of
PacifiCorp. PacifiCorp shall release Seller against and from any and all any and all loss, fines,
penalties, claims, actions or suits, including costs and attorney's fees, both at tnal and on appeal
resulting from actions or omissions by any of the PacifiCorp Representatives in connection with
their access to the Facility, except to the extent that such damages are caused or by the
intentional or grossly negligent act or omission of Seller.
SECTION 7: MOTIVE FORCE
Prior to the execution of this Agreement, Seller provided to PacifiCorp Wind Leases and
a motive force plan including an hourly wind profie acceptable to PacifiCorp in its reasonable
discretion and attached hereto as Exhibit F-l, together with a certification from a Licensed
20
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Professional Engineer to PacifiCorp attched hereto as Exhibit F -2, certifying that the
implementation of the fuel or motive force plan can reasonably be expected to provide fuel or
motive force to the Facilty for the duration of this Agreement adequate to generate power and
energy in quantities necessary to deliver the Average Annual Net Output.
SECTION 8: GENERATION FORECASTING COSTS
8.1 Forecast Service Election. PacifiCorp may, in its discretion, add forecasting
services for Seller's Facilty to PacifiCorp's existing contract with a qualified wind-energy-
production forecasting vendor, which contract and vendor may change during the tenn of this
Agreement.
8.2 Seller's Forecast-Cost Share. Pursuant to Commission Order No. 30497, Seller
shall be responsible for 50% of PacifiCorp's cost of adding such forecasting services ("Seller's
Forecast-Cost Share") up to Seller's Capped Forecast-Cost Share.
8.3 Cap on Seller's Forecast-Cost Share. Seller's Forecast-Cost Share for a given
Contract Year is capped at 0.1 % of total payments made by PacifiCorp to Seller for Net Output
during the previous Contract Year ("Seller's Capped Forecast-Cost Share"). If the last
Contract Year of this Agreement is shorter than a full calendar year, the cap wil be prorated for
that shortened year. For the year(s) pnor to the second Contract Year of this agreement that
equals a full calendar year, Seller's Forecast-Cost Share is capped at 0.1 % of estimated payments
for Net Output based on the Energy Delivery Schedule.
8.4 Payment. Seller shall pay to PacifiCorp Seller's Forecast-Cost Share uncapped by
Section 8.3 for each Contract Year in equal payments for each month of such year except the last
month of such year. (For example, in a Contract Year equaling a full calendar year, Seller would
pay 1/11 th of Seller's Forecast-Cost Share dunng each of the first 11 months.) In the last month
of each Contract Year, PacifiCorp shall refund to Seller the amount paid by Seller under this
Section in excess, if any, of Seller's Capped Forecast-Cost Share. For a Contract Year
encompassed by just one calendar month, Seller's payment to PacifiCorp and PacifiCorp's
refund to Seller shall be calculated and paid simultaneously. To the extent practicable, payments
and refunds under this Section shall be included in monthly payments and invoices under Section
10.
SECTION 9: METERING: REPORTS AND RECORDS
9.1 Metering Adjustment. Metering wil be perfonned at the location and in the
manner specified in Exhibit B and the Generator Interconnection Agreement. All quantities of
energy purchased hereunder shall be adjusted to account for electrical losses, if any, between the
point of metering and the Point of Delivery, so that the purchased amount reflects the net amount
of power flowing into the System at the Point of Delivery.) The loss adjustment shall be a
) If station service is supplied via separate facilties, PacifiCorp wil deduct station service from
the metered facility output to calculate Net Output.
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reduction of 2% of the kWh energy production recorded on the Facilty output meter until
actually measured and calibrated at the meter by PacifiCorp Transmission and documented. in a
signed letter to Seller from PacifiCorp's QF Contracts Administrator.
9.2 Metering Errors. If any inspections or tests made pursuant to the Generator
Interconnection Agreement discloses an error exceeding two percent (2%), either fast or slow,
proper correction, based upon the inaccuracy found, shall be made of previous readings for the
actual period dunng which the metering equipment rendered inaccurate measurements if that
period can be ascertined. If the actual period cannot be ascertained, the proper correction shall
be made to the measurements taken during the time the metering equipment was in service since
last tested, but not exceeding thee Billng Periods, in the amount the metering equipment shall
have been shown to be in error by such test. Any correction in bilings or payments resulting
from a correction in the meter records shall be made in the next monthly billng or payment
rendered.
9.3 Telemetering. In accordance with the Generation Interconnection Agreement,
Seller shall provide telemetering equipment and facilties capable of transmitting to
Transmission Provider (who wil share it with PacifiCorp as authorized by Exhibit H, "Seller
Authorization to Release Generation Data to PacifiCorp") the following information concerning
the Facilty on a real-time basis, and wil operate such equipment when requested by PacifiCorp
to indicate:
(a) instantaneous MW output at the Point of Delivery;
(b) Net Output;
(c) the Facilty's total instantaneous generation capacity; and
(d) wind velocity at turbine hub height.
Seller shall also transmit to PacifiCorp any other data from the Facility that Seller receives on a
real-time basis, including meteorological data, wind speed data, wind direction data and gross
output data. Seller shall provide such real-time data to PacifiCorp in the same detail that Seller
receives the data (e.g., if Seller receives the data in four second intervals, PacifiCorp shall also
receive the data in four second intervals). PacifiCorp shall have the right from time to time to
require Seller to provide additional telemetering equipment and facilties to the extent necessar
and reasonable.
9.4 Monthly Report and Logs and Other Information.
9.4.1 Reports. Within thirt (30) calendar days after the end of each
Biling Period, Seller shall provide to PacifiCorp a report in electronic format, which
report shall include (a) summanes of the Facilty's wind and output data for the Biling
Penod in intervals not to exceed one hour (or such shorter period as is reasonably
possible with commercially available technology), including information from the
Facilty's computer monitoring system; (b) summaries of any other significant events
related to the construction or operation ofthe Facilty for the Billng Period; (c) details of
Availabilty of the Facilty for the Biling Period suffcient to calculate Availabilty and
including hourly average wind velocity measured at turbine hub height and ambient air
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temperature; and (d) any supporting information that PacifiCorp may from time to time
reasonably request (including histoncal wind data for the Facilty).
9.4.2 Electronic Fault Log. Seller shall maintain an electronic fault log of
operations of the Facilty dunng each hour of the term of this Agreement commencing on
the Commercial Operation Date. Seller shall provide PacifiCorp with a copy of the
electronic fault log within thirt (30) calendar days after the end of the Billng Period to
which the fault log applies.
9.4.3 Upon the request of PacifiCorp, Seller shall provide PacifiCorp the
manufacturers' guidelines and recommendations for maintenance of the Facilty
equipment.
9.4.4 By each Januar 10 following the Commercial Operation Date,
Seller shall provide to PacifiCorp written certification that Seller has completed all the
manufacturers' guidelines and recommendations for maintenance of the Facilty
equipment applicable to the previous calendar year.
9.4.5 At any time from the Effective Date, one (1) year's advance notice
of the termination or expiration of any agreement, including Wind Leases, pursuant to
which the Facilty or any equipment relating thereto is upon the Facilty site; provided
that the foregoing does not authorize any early termination of any land lease.
9.4.6 As soon as it is known to Seller, Seller shall disclose to PacifiCorp,
the extent of any material violation of any environmental laws or regulations arising out
of the construction or operation of the Facilty, or the presence of Environmental
Contamination at the Facilty 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.
9.5 Maintenance of Metering Equipment. To the extent not otherwise provided in the
Generator Interconnection Agreement, PacifiCorp shall inspect, test, repair and replace the
metering equipment periodically, or at the request of Seller if Seller has reason to believe
metering may be off and requests an inspection in writing. To the extent not otherwise provided
in the Generator Interconnection Agreement, all PacifiCorp's costs relating to designing,
installng, maintaining, and repainng metenng equipment installed to accommodate Seller's
Facilty shall be borne by Seller.
SECTION 10: BILLINGS. COMPUTATIONS AND PAYMENTS
10. i Payment for Net Output. On or before the thirtieth (30th) day following the end of
each Biling Period, PacifiCorp shall send to Seller payment for Seller's deliveries of Net Output
to PacifiCorp, together with computations supporting such payment. PacifiCorp may offset any
such payment to reflect amounts owing from Seller to PacifiCorp pursuant to this Agreement, the
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Generation Interconnection Agreement, and any other agreement(s) between the Parties. Any
such offsets shall be separately itemized on the statement accompanying each payment to Seller.
10.2 Corrections. PacifiCorp shall have up to thirty-six (36) months to adjust any
payment made pursuant to Section 10.1. In the event PacifiCorp determines it has overpaid
Seller (for Inadvertent Energy, calibration error, or otherwise), PacifiCorp may adjust Seller's
future payment accordingly in order to correct the error in a reasonable time.
10.3 Annual Invoicing for Output Shortfall. Thirt calendar days after the end of each
Contract Year, PacifiCorp shall deliver to Seller an invoice showing PacifiCorp's computation of
Output Shortall, if any, for all Billng Periods in the prior Contract Year and Output Shortfall
Damages, if any. In preparing such invoices, PacifiCorp shall utilize the meter data provided to
PacifiCorp for the Contract Year in question, but may also rely on historical averages and such
other information as may be available to PacifiCorp at the time of invoice preparation if the
meter data for such Contract Year is then incomplete or otherwise not available. To the extent
required, PacifiCorp shall prepare any such invoice as promptly as practicable following its
receipt of actual results for the relevant Contract Year. Seller shall pay to PacifiCorp, by wire
transfer of immediately available funds to an account specified in writing by PacifiCorp or by
any other means agreed to by the Parties in wóting from time to time, the amount set fort as due
in such invoice, and shall within thir (30) days after receiving the invoice raise any objections
regarding any disputed portion of the invoice. Objections not made by Seller within the thirt-
day period shall be deemed waived.
10.4 Interest on Overdue Amounts. Any amounts owing after the due date thereof shall
bear interest at the Prime Rate plus two percent (2%) from the date due until paid; provided,
however, that the interest rate shall at no time exceed the maximum rate allowed by applicable
law.
10.5 Disputed Amounts. If either Part, in good faith, disputes any amount due
pursuant to an invoice rendered hereunder, such Part shall notify the other Part 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 10.2, 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 Part is determined to
be due to the other Part, or if the Parties resolve the payment dispute, the amount due shall be
paid within five (5) days after such determination or resolution, along with interest in accordance
with Section 10.4.
SECTION 11: SECURITY
11.1 Delay Security:
11.1.1 Duty to Post Security. By the date provided in Section 2.2.2, Seller
shall post a Letter of Credit, cash or a parental guaranty, each in a form acceptable to
PacifiCorp, in the amount of $ , as calculated pursuant to Section 11.1.2 ("Delay
Security"). To the extent PacifiCorp receives payment from the Delay Security, Seller
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shall, within fifteen (15) calendar days, restore the Default Security as if no such
deduction had occurred.
11.1.2 Calculation of Delay Security. The dollar value of Delay Security
shall equal the greater of: (1) fort-five dollars ($45) multiplied by the Maximum Facility
Delivery Rate with the Maximum Facilty Delivery Rate being measured in kW; or (2)
the sum of the products, for each of the first three calendar months after the Scheduled
Commercial Operation Date, of:
the energy in the Initial Year Energy Delivery Schedule for the month (kWh)
multiplied by the monthly weighted average On-Peak and Off-Peak Conforming
Energy Purchase Pnce for the months ($/Mh) divided by 1000.
Such amount shall be fixed upon execution of this Agreement.
11.1.3 Right to Draw on Security. PacifiCorp shall have the right to draw
on the Delay Security to collect Delay Liquidated Damages. Commencing on or about
first of each month, PacifiCorp wil invoice Seller for Delay Liquidated Damages
incurred, if any, during the preceding month. If insuffcient Delay Secunty is available,
Seller shall pay PacifiCorp for invoiced Delay Liquidated Damages no later than five
business days after receiving such invoice. The Paries wil make bilings and payments
for Delay Liquidated Damages in accordance with Section 10.
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11.1.4 Release of Delay Security. Unless PacifiCorp disputes whether
Seller has paid all Delay Liquidated Damages, PacifiCorp shall release the Delay
Security on the earlier of the 30th calendar day following commencement of Commercial
Operation or the 60th calendar day following PacifiCorp's termination of this Agreement.
11.1.5 Default. Seller's failure to post and maintain Delay Security in
accordance with Section 11.1 wil constitute an event of default, unless cured in
accordance with Section 12.1.1 of this Agreement.
11.2 Default Security (Levelized Pricing Only). If Seller has adopted levelized pricing
for Net Output, Seller wil provide security to PacifiCorp pursuant to Commission Order Nos.
21690,21800,29482,29587 and related orders ("Default Security") as set forth in Addendum
_(add addendum if Seller elects levelized pncing).
SECTION 12: DEFAULTS AND REMEDIES
12.1 The following events shall constitute defaults under this Agreement:
12.1.1 Non-Payment. Seller's failure to make a payment when due under
this Agreement or post and maintain security in conformance with the requirements of
Section 11 or maintain insurance in conformance with the requirements of Section 14 of
this Agreement, if the failure is not cured within ten (10) business days after the non-
defaulting Part gives the defaulting Part a notice of the default.
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12.1.2 Breach of Representation. Breach by a Part of a representation or
warnty set forth in this Agreement, if such failure or breach is not cured within thirt
(30) days following written notice.
12.1.3 Default on Other Agreements. Seller's failure to cure any default
under any commercial or financing agreements or instrument (including the Generation
Interconnection Agreement) within the time allowed for a cure under such agreement or
instrument.
12.1.4 Insolvency. A Part (a) makes an assignment for the benefit of its
creditors; (b) fies a petition or otherwise commences, authorizes or acquiesces in the
commencement of a proceeding or cause of action under any bankptcy or similar law
for the protection of creditors, or has such a petit jon fied against it and such petition is
not withdrawn or dismissed within sixty (60) days after such fiing; (c) becomes
insolvent; or (d) is unable to pay its debts when due.
12.1.5 Material Adverse Change. A Material Adverse Change has occured
with respect to Seller and Seller fails to provide such performance assurances as are
reasonably requested by PacifiCorp, within fifteen (15) days from the date of such
request.
12.1.6 Sale to Third-Par. Seller's sale of Net Output to an entity other
than PacifiCorp, as prohibited by Section 4.2.
12.1.7 Non-Delivery. Unless excused by an event of Force Majeure,
Seller's failure to deliver any Net Energy for three consecutive calendar months.
12.1.8 A Part otherwise fails to perform any material obligation (including
but not limited to failure by Seller to meet any deadline set fort in Section 2.2) imposed
upon that Part by this Agreement if the failure is not cured within thirt (30) days after
the non-defaulting Part gives the defaulting Part notice of the default; provided,
however, that, upon written notice from the defaulting Part, this thirt (30) day period
shall be extended by an additional ninety (90) days if (a) the failure cannot reasonably be
cured within the thirt (30) day period despite dilgent efforts, (b) the default is capable
of being cured within the additional ninety (90) day period, and (c) the defaulting Part
commences the cure within the original thirt (30) day period and is at all times thereafter
dilgently and continuously proceeding to cure the failure.
12.2 In the event of any default hereunder, the non-defaulting Par must notify the
defaulting Par in writing of the circumstances indicating the default and outlning the
requirements to cure the default. If the default has not been cured within the prescribed time,
above, the non-defaulting Par may terminate this Agreement at its sole discretion by delivering
written notice to the other Part and may pursue any and all legal or equitable remedies provided
by law or pursuant to this Agreement. The rights provided in this Section 12 are cumulative such
that the exercise of one or more rights shall not constitute a waiver of any other rights.
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12.3 In the event this Agreement is terminated because of Seller's default and Seller
wishes to again sell Net Output from the facilty using the same motive force to PacifiCorp
following such termination, PacifiCorp in its sole discretion may require that Seller do so subject
to the terms of this Agreement, including but not limited to the purchase prices as set forth in
(Section 5), until the Expiration Date (as set fort in Section 2.1). At such time Seller and
PacifiCorpagree to execute a wntten document ratifying the terms of this Agreement.
12.4 If this Agreement is terminated as a résult of Seller's default, in addition to and
not in limitation of any other right or remedy under this Agreement or applicable law (including
any right to set-off, counterclaim, or otherwise withold payment), Seller shall pay PacifiCorp
Output Shortall Damages for a penod of twenty-four (24) months from the date of termination
plus the estimated administrative cost to acquire the replacement power. The Parties agree that
the damages PacifiCorp would incur due to termination resulting from Seller's default would be
diffcult or impossible to predict with certainty, and that the .damages in this Section 12.4 are an
appropnate approximation of such damages.
12.5 Recoupment of Damages.
(a) Default Security Available. If Seller has posted Default Security,
PacifiCorp may draw upon that secunty to satisfy any damages, above.
(b) Default Secunty Unavailable. If Seller has not posted Default Security, or
if PacifiCorp has exhausted the Default Security, PacifiCorp may collect
any remaining amount owing by partially withholding future payments to
Seller over a reasonable period of time. PacifiCorp and Seller shall work
together in good faith to establish the period, and monthly amounts, of
such withholding so as to avoid Seller's default on its commercial or
financing agreements necessary for its continued operation of the Facilty.
12.6 Upon an event of default or termination event resulting from default under this
Agreement, in addition to and not in limitation of any other right or remedy under this
Agreement or applicable law (including any right to set-off, counterclaim, or otherwise withhold
payment), the non-defaulting Part may at its option set-off, against any amounts owed to the
defaulting Part, any amounts owed by the defaulting Part under any contract(s) or
agreement(s) between the Paries. The obligations of the Parties shall be deemed satisfied and
discharged to the extent of any such set-off. The non-defaulting Part shall give the defaulting
Part written notice of any set-off, but failure to give such notice shall not affect the validity of
the set-off.
12.7 Amounts owed by Seller pursuant to this Section 12 shall be due within five (5)
business days after any invoice from PacifiCorp for the same.
SECTION 13: INDEMNIFICATION; LIABILITY
13.1 Indemnities.
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13.1.1 Indemnity by Seller. Seller shall release, indemnify and hold
harless PacifiCorp, its directors, offcers, agents, and representatives against and from
any and all loss, fines, penalties, claims, actions or suits, including costs and attorney's
fees, both at trial and on appeal, resulting from, or arising out of or in any way connected
with (a) the energy delivered by Seller under this Agreement to and at the Point of
Delivery, (b) any facilities on Seller's side of the Point of Delivery, (c) Seller's operation
and/or maintenance of the Facilty, or (d) arising from this Agreement, including without
limitation any loss, claim, action or suit, for or on account of injury, bodily or otherwise,
to, or death of, persons, or for damage to, or destrction or economic loss of propert
belonging to PacifCorp, Seller or others, excepting only such loss, claim, action or suit
as may be caused solely by the fault or gross negligence of PacifiCorp, its directors,
offcers, employees, agents or representatives.
13.1.2 Indemnity by PacifiCorp. PacifiCorp shall release, indemnify and
hold harmless Seller, its directors, offcers, agents, lenders and representatives against
and from any and all loss, fines, penalties, claims, actions or suits, including costs and
attorney's fees, both at mal and on appeal, resulting from, or arising out of or in any way
connected with the energy delivered by Seller under this Agreement after the Point of
Delivery, including without limitation any loss, claim, action or suit, for or on account of
injury, bodily or otherwise, to, or death of, persons, or for damage to, or destrction or
economic loss of propert, excepting only such loss, claim, action or suit as may be
caused solely by the fault or gross negligence of Seller, its directors, offcers, employees,
agents, lenders or representatives.
13.2 No Dedication. Nothing in this Agreement shall be constred to create any duty
to, any standard of care with reference to, or any liabilty to any person not a Par to this
Agreement. No undertaking by one Part to the other under any provision of this Agreement
shall constitute the dedication of that Par's system or any portion thereof to the other Part or
to the public, nor affect the status of PacifiCorp as an independent public utilty corporation or
Seller as an independent individual or entity.
13.3 No Waranty. Any review, acceptance or failure to review Seller's design,
specifications, equipment or facilties shall not be an endorsement or a confirmation by
PacifiCorp and PacifiCorp makes no warranties, expressed or implied, regarding any aspect of
Seller's design, specifications, equipment or facilties, including, but not limited to, safety,
durabilty, reliabilty, strength, capacity, adequacy or economic feasibility.
13.4 CONSEQUENTIAL DAMGES. EXCEPT TO THE EXTENT SUCH
DAMAGES AR INCLUDED IN TH LIQUInA TED DAMGES, DELAY DAMAGES, OR
OTHR SPECIFIED MEASUR OF DAMAGES EXPRESSLY PROVIDED FOR IN THS
AGREEMENT, NEITHR PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR
SPECIAL, PUNTIVE, INIRECT, EXEMPLARY OR CONSEQUENTIAL DAMGES,
WHETHER SUCH DAMGES AR ALLOWED OR PROVIDED BY CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRCT LIABILITY, STATUTE OR OTHERWISE.
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SECTION 14: INSURANCE
14.1 Certificates. Pnor to connection of the Facilty to the System, Seller shall secure
and continuously car insurance in compliance with the requirements of this Section. Seller
shall provide PacifiCorp insurance certificate(s) (of "ACORD Form" or the equivalent)
certifying Seller's compliance with the insurance requirements hereunder. Commercial General
Liabilty coverage written on a "claims-made" basis, if any, shall be specifically identified on the
certificate. If requested by PacifiCorp, a copy of each insurance policy, certified as a true copy
by an authorized representative of the issuing insurance company, shall be furnished to
PacifiCorp.
14.2 Required Policies and Coverages. Without limiting any liabilties or any other
obligations of Seller under this Agreement, Seller shall secure and continuously carr with an
insurance company or companies rated not lower than "A-:VII" by the A.M. Insurance Reports
the insurance coverage specified below:
14.2.1 Commercial General Liabilty insurance, to include contractual
liabilty, with a minimum single limit of$I,OOO,OOO per occurrence to protect against and
from all loss by reason of injury to persons or damage to propert based upon and arising
out of the activity under this Agreement.
14.2.2 All Risk Propert insurance providing coverage in an amount at least
equal to 80% of the replacement value of the Facility against "all nsks" of physical loss
or damage, including coverage for eart movement, flood, and boiler and machinery.
The Propert policy may contain separate sub-limits and deductibles subject to insurance
company underwting guidelines. The Risk Policy wil be maintained in accordance
with terms available in the insurance market for similar facilties.
14.3 The Commercial General Liabilty policy required herein shall include (i)
provisions or endorsements naming PacifiCorp, its Board of Directors, Offcers and employees
as additional insureds, and (ii) cross liabilty coverage so that the insurance applies separately to
each insured against whom claim is made or suit is brought, even in instances where one insured
claims against or sues another insured.
14.4 All liability policies required by this Agreement shall include provisions that such
insurance is primary insurance with respect to the interests of PacifiCorp and that any other
insurance maintained by PacifCorp is excess and not contnbutory insurance with the insurance
required hereunder, and provisions that such policies shall not be canceled or their limits of
liabilty reduced without (i) ten (l0) business days prior wrtten notice to PacifiCorp if canceled
for nonpayment of premium, or (ii) thirt (30) business days pnor written notice to PacifiCorp if
canceled for any other reason.
14.5 Commercial General Liabilty insurance coverage provided on a "claims-made"
basis shall be maintained by Seller for a minimum period of five (5) years after the completion of
this Agreement and for such other length of time necessary to cover liabilties arising out of the
activities under this Agreement.
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SECTION 15: FORCE MAJEURE
15.1 As used in this Agreement, "Force Majeure" or "an event of Force Majeure"
means any cause beyond the reasonable control of the Seller or of PacifiCorp which, despite the
exercise of due diligence, such Part is unable to prevent or overcome. By way of example,
Force Majeure may include but is not limited to acts of God, flood, storms, wars, hostilities, civil
strife, strikes, and other labor disturbances, earthquakes, fires, lightning, epidemics, sabotage,
restraint by. court order or other delay or failure in the pedormance as a result of any action or
inaction on behalf of a public authonty which is in each case (i) beyond the reasonable control of
such Party, (ii) by the exercise of reasonable foresight such Party could not reasonably have been
expected to avoid and (ii) by the exercise of due dilgence, such Par shall be unable to prevent
or overcome. Force Majeure, however, specifically excludes the cost or availability of fuel or
motive force to operate the Facilty or changes in market conditions that affect the price of
energy or transmission. If either Part is rendered wholly or in part unable to pedorm its
obligation under this Agreement because of an event of Force Majeure, both Paries shall be
excused from whatever pedormance is affected by the event of Force Majeure, provided that:
15.1.1 the non-pedorming Part, shall, within two (2) weeks after the
occurrence of the Force Majeure, give the other Part written notice descnbing the
particulars of the occurrence, including the star date of the Force Majeure, the cause of
Force Majeure, whether the Facilty remains partially operational and the expected end
date of the Force Majeure;
15.1.2 the suspension of pedormance shall be of no greater scope and of no
longer duration than is required by the Force Majeure;
15.1.3
to perform; and
the non-pedorming Part uses its best efforts to remedy its inabilty
15.1 .4 the non-performing Par shall provide prompt written notice to the
other Part at the end of the Force Majeure event detailng the end date, cause there of,
damage caused there by and any repairs that were required as a result of the Force
Majeure event, and the end date of the Force Majeure.
15.2 No obligations of either Par which arose before the Force Majeure causing the
suspension ofpedormance shall be excused as a result of the Force Majeure.
15.3 Neither Part shall be required to settle any strike, walkout, lockout or other labor
dispute on terms which, in the sole judgment of the Part involved in the dispute, are contrar to
the Par's best interests.
SECTION 16: SEVERAL OBLIGATIONS
Nothing contained in this Agreement shall ever be constred to create an association, trst,
partnership or joint venture or to impose a trust or partnership duty, obligation or liabilty
between the Parties. If Seller includes two or more parties, each such part shall be jointly and
severally liable for Seller's obligations under this Agreement.
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DRAFT
SECTION 17: CHOICE OF LAW
This Agreement shall be interpreted and enforced in accordance with the laws of the state of
Idaho, excluding any choice of law rules which may direct the application of the laws of another
jurisdiction.
SECTION 18: PARTIAL INVALIDITY
It is not the intention of the Parties to violate any laws governing the subject matter of this
Agreement. If any of the terms of the Agreement are finally held or determined to be invalid,
ilegal or void as being contrar to any applicable law or public policy, all other terms of the
Agreement shall remain in effect. If any terms are finally held or determined to be invalid,
ilegal or void, the Paries shall enter into negotiations concerning the terms affected by such
decision for the purpose of achieving conformity with requirements of any applicable law and
the intent of the Parties to this Agreement.
SECTION 19: WAIVER
Any waiver at any time by either Par of its nghts with respect to a default under this
Agreement or with respect to any other matters arising in connection with this Agreement must
be in writing, and such waiver shall not be deemed a waiver with respect to any subsequent
default or other matter.
SECTION 20: GOVERNMENTAL JURISDICTION AND
AUTHORIZATIONS
PacifiCorp's compliance with the terms of this Agreement is conditioned on Seller's submission
to PacifiCorp prior to the Commercial Operation Date and Seller's maintenance thereafter of
copies of all local, state and federal licenses, permits and other approvals as then may be required
by law for the construction, operation and maintenance of the Facilty.
SECTION 21: SUCCESSORS AND ASSIGNS
This Agreement and all of the terms and provisions hereof shall be binding upon and inure to the
benefit of the respective successors and assigns of the Parties hereto, except that no assignent
hereof by either Part shall become effective without the written consent of both Paries being
first obtained. Such consent shall not be unreasonably witheld. Notwithstanding the foregoing,
any entity with which PacifiCorp may consolidate, or into which it may merge, or to which it
may conveyor transfer substantially all of its electric utilty assets, shall automatically, without
further act, and without need of consent or approval by the Seller, succeed to all ofPacifiCorp's
rights, obligations, and interests under this Agrement. This article shall not prevent a financing
entity with recorded or secured nghts from exercising all rights and remedies available to it
under law or contract. PacifiCorp shall have the right to be notified by the financing entity that it
is exercising such rights or remedies.
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SECTION 22: ENTIRE AGREEMENT
22.1 This Agreement supersedes all prior agreements, proposals, representations,
negotiations, discussions or letters, whether oral or in writing, regarding PacifiCorp's purchase of
Net Output from the Facility. No modification of this Agreement shall be effective unless it is in
writing and signed by both Parties.
22.2 By executing this Agreement, each Par releases the other from any claims,
known or unkown, that may have arisen prior to the execution date of this Agreement with
respect to the Facilty and any predecessor facilty proposed to have been constrcted on the site
of the Facilty.
SECTION 23: NOTICES
All notices except as otherwise provided in this Agreement shall be in writing, shall be directed
as follows and shall be considered delivered if delivered in person or when deposited in the u.s.
Mail, postage prepaid by certified or registered mail and return receipt requested.
Notices PacifiCorp Seller
All Notices PacifiCorp Power County Wind Park Nort
825 NE Multnomah Street Portland,Att: Roald Doskeland
OR 97232 Windland Inc.
Attn: Contract Administration,7669 W. Riverside DriveSuite 600
Phone: (503) 813 - 5952 Suite 102
Facsimile: (503) 813 - 6291 Boise, Idaho 83714Duns: 00-790-9013
Federal Tax ID Number: 93-0246090 Phone: [phone]
Fax: [phone]
All Invoices:Att: Back Office, Suite 700 Same as above
Phone: (503) 813 - 5578
Facsimile: (503) 813 - 5580
Scheduling:Attn: Resource Planning, Suite 600 Same as above
Phone: (503) 813 - 6090
Facsimile: (503) 813 - 6265
Payments:Att: Back Offce, Suite 700 Same as above
Phone: (503) 813 - 5578
Facsimile: (503) 813 - 5580
Wire Transfer:Bank One N.A.To be provide in a separate letter
To be provided in separate letter from
PacifiCorp to Seller
Credit and Att: Credit Manager, Suite 700 Same as above
Phone: (503) 813 - 5684
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DRAT
Notices PacifiCorp Seller
Collections:Facsimile: [phone]
With Additional Att: PacifiCorp General Counsel Same as above
Notices of an Phone: [phone]
Event of Default Facsimile: [phone]
or Potential
Event of Default
to:
The Parties may change the person to whom such notices are addressed, or their addresses, by
providing written notices thereof in accordance with this Section.
IN WITNSS WHREOF, the Parties hereto have caused this Agreement to be executed
in their respective names as of the date first above written.
PacifiCorp Seller
By:By:
Name: Bruce Griswold Name: Roald Doskeland
Title: Director, Short Term Origination
and QF Contracts
Title: President, Wind land Inc.
Manager, Power County Wind Park
North, LLC
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EXHIBIT A
DESCRIPTION OF SELLER'S FACILITY
(Seller to Complete)
Seller's Facilty consists of twelve (12) wind turbine generator(s) manufactured by Vestas.
More specifically, each generator at the Facilty is described as:
Type (synchronous or inductive):
Model: Vestas VI00, 1.8 MW
Number of Phases: 3
Rated Output (kW): 21,600
Rated Voltage (line to line):
Rated Current (A): Stator: A; Rotor: A
Maximum kW Output: _kW Maximum kVA Output:
Minimum kW Output: kW
Manufacturer's Guaranteed Cut-in Wind Speed (if applicable):
Facilty Capacity Rating: kW at
Maximum Facilty Delivery Rate:
Maximum GIA Delivery Rate:
hour-averaged)
Identify the maximum output of the generator(s) and describe any differences between that
output and the Nameplate Capacity Rating:
Rated Output (kV A):
kVA
kWat
kW (specify whether rate is instantaneous or
Station service requirements, and other loads served by the Facilty, if any, are described
as follows: Station Service is estimated to be 220kW, line losses and transformer losses are
estimated to be 1,100 kW.
Location of the Facilty: The Facilty is located in Power County, Idaho. The location is more
particularly described as follows:
Nort: T8S, R31E, Section 13 and T8S, R31E, Sections 6,7,8,17,18
Attched is a topographic site map of the Facility
Power factor requirements:
Rated Power Factor (PF) or reactive load (kVAR):
Attach documentation of the power curve for the generator(s).
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EXHmITB
POINT OF DELIVERY / PARTIES' INTERCONNCTION FACILITffS
(Seller to provide its own diagram and description)
Instrctions to Seller:
1. Include description of point of metenng, and Point of Delivery
2. Provide interconnection single line drawing of Facilty including any transmission
facilties on Seller's side of the Point of Delivery.
Point of Delivery - Wil be detennined dunng the interconnection process. Preliminary review
shows interconnection wil be between strctures 53 and 55 on the Brady- Treasureton
transmission line, see attached one-line diagram.
A one-line diagram of the Facilty (attched) was provide on March 12,2010.
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EXHIBITC
REQUIRED FACILITY DOCUMNTS
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Qualifying Facilty Number from FERC: Nort - QF 10-349-000
The following Documents are required to complete this project:
Generation Interconnection Agreement
Easements:
Options for Land and wind leases with four (4) landowners for a term of30 years was
provided on March 12,2010
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Permits:
Special Use Permit from Power County Planning and Zoning
Power County Highway District Access Permit
Southeast District Health Departent Septic Permit
Idaho Division of Building Safety Electrical Permit
Idaho Transportation Deparent, Division of Aeronautics, FAA Form 7460
Idaho Transportation Deparent, Overlegal load Permit
Idaho Deparent of Environmental Quality, Dredge and Fil Permit
FAA Form 7460-1 and 7460-2 for each turbine
US Ary Corp of Engineers, Section 404 Clean Water Act
US Environmental Protection Agency, Constrction General Permit/otice ofIntent
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EXHIBITD
ENRGY DELIVERY SCHEDULE
Power County Wind Park North, LLC
Scheduled Monthly
Energy Delivery AvekW/mo
Januar 6,919,152 9,300
February 6,387,656 9,505
March 6,912,781 9,291
April 5,924,079 8,228
May 5,239,214 7,042
June 5,048,629 7,012
July 3,831,940 5,150
August 3,694,149 4,965
September 4,575,147 6,354
October 5,276,801 7,092
November 6,250,831 8,682
December 7,251,062 9,746
TOTAL:67,311,441 7,684
Planned Outages. Seller wil provide a Planed Outage schedule annually not to exceed _
hours per per year.
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EXHIBITE
START-UP TESTIG
Required factory testing includes such checks and tests necessary to determine that the
equipment systems and subsystems have been properly manufactured and installed, function
properly, and are in a condition to permit safe and effcient start-up of the Facilty, which may
include but are not limited to:
1. Test of mechanical and electncal equipment;
2. Calibration of all monitoring instruents;
3. Operating tests of all valves, operators, motor starters and motor;
4. Alars, signals, and fail-safe or system shutdown control tests;
5. Point-to-point continuity tests;
6. Bench tests of protective devices; and
7. Tests required by manufacturer(s) and designer(s) of equipment.
Required start-up tests are those checks and tests necessary to determine that all features
and equipment, systems, and subsystems have been properly installed and adjusted, function
properly, and are capable of operating simultaneously in such condition that the Facilty is
capable of continuous delivery into PacifiCorp's electrical system, which may include but are
not limited to:
1. Turbine/generator mechanical runs and functionality;
2. System operation tests;
3. Brake tests;
4. Energization of transformers;
5. Synchronizing tests (manual and auto);
6. Excitation and voltage regulation operation tests;
7. Auto stop/start sequence;
8. Completion of any state and federal environmental testing requirements; and
9. Tests required by rnanufacturer(s) and designer(s) of equipment.
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For wind projects only, the following Wind Turbine Generator Installation Checklists are
required documents to be signed off by Manufacturer or Subcontract Category Commissioning
Personnel as part of the Commissioning and startp testing:
Turbine Installation
Foundation Inspection
Controller Assembly
Power Cables
Cable Installation Checklists including: Controller
Top Deck / Yaw Deck
Tower Top Section / Saddle
Mid Section Cables or buss bars
Base Section
Tower Base Section
Tower Lights and Outlets
Tower Mid Section
Tower Top Section
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Nacelle
Rotor
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EXHIBITF-l
MOTIVE FORCE PLAN
WIND SPEED DATA SUMMARIES & HOURLY WIN PROFILE
Windland has collected wind data at the sites of Power County Wind Park North and South since
2002. Data have been collected on multiple met masts and site analyses have been performed by
Garrad Hassan, WindLogics, 3 Tier, Ron Nierenburg and V-bar LLC. The attached 12x24 table
was based on an analysis of wind data collected on site between Januar 2005 and December
2009. The basic analytical method employed was Measure-Correlate-Predict (MCP). The site
observations were correlated with data collected at the Pocatello airport to provide long term
wind speed adjustments. Monthly averages, diurnal variations and long term averages were used
to produce site frequency distributions including the i 2x24 array attached.
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EXHIBITF-2
ENGINER'S CERTIFICATION
(1) THAT TH WIN DATA SUMMAES IN EXHIIT F-l AR ACCURTE;
(Licensed Professional Engineer' s certification)
(2) THAT TH AVERAGE ANAL NET OUTPUT ESTIMATE IS 67,311,441 KWH
PER YEAR IN EACH FULL CALENDAR YEAR OF THS AGREEMENT BASED ON
TH MOTIVE FORCE PLAN IN EXIDBIT F-l;
(Licensed Professional Engineer's certification)
(3) THT TH FACILITY, UNER AVERAGE DESIGN CONDITIONS, LIKELY WILL
GENERATE NO MORE TH 10 aMW IN ANY CALENAR MONTH.
(Licensed Professional Engineer's certification)
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EXHmITG
SAMPLE ENERGY PURCHASE PRICE CALCULA nONS
The following are samples of calculations of energy purchase prices using the formula and tables
in Section 5.1.
The calculation for the non-levelized purchase price during an On-Peak Hour in May of 2011
equals $60.24/MWh (the 2011 annual rate for Conforming Energy) multiplied by 92% (0.92)
(the May On-Peak Hour multiplier) minus $6.501M (the wind integration cost), which equals
$48.92/MWh.
Table 1: Sample calculations for non-Ievelized On-Peak Conforming Energy in 2011: Purchase
Price = (annual rate * monthly On-Peak multiplier) - wind integration cost.
Conforming
Energy Calculated Purchase
Annual Rate On-Peak Wind Price for 2011 On-
for 2011 Hour Integration Peak Conforming
Month (per MWh) Multiplier Cost Energy (per MWh)
January $60.24 103%$6.50 $55.55
Februar $60.24 105%$6.50 $56.75
March $60.24 95%$6.50 $50.73
April $60.24 95%$6.50 $50.73
May $60.24 92%$6.50 $48.92
June $60.24 94%$6.50 $50.13
July $60.24 121%$6.50 $66.39
August $60.24 121%$6.50 $66.39
September $60.24 109%$6.50 $59.16
October $60.24 115%$6.50 $62.78
November $60.24 110%$6.50 $59.76
December $60.24 129%$6.50 $71.21
Table 2: Sample calculations for non-levelized Off-Peak Conforming Energy in 2011: Purchase
Price = (anual rate * monthly Off-Peak multiplier) - wind integration cost.
Conforming .
Energy Calculated Purchase
Annual Rate Off-Peak Wind Price for 2011 Off-
for 2011 Hour Integration Peak Conforming
Month (per MWh) Multiplier Cost Energy (per MWh)
January $60.24 94%$6.50 $50.13
February $60.24 97%$6.50 $51.93
March $60.24 80%$6.50 $41.69
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Conforming
Energ Calculated Purchase
Annual Rate Off-Peak Wind Price for 2011 Off-
for 2011 Hour Integration Peak Conforming
Month (perMWh)Multiplier Cost Energy (per MWh)
April $60.24 76%$6.50 $39.28
May $60.24 63%$6.50 $31.45
June $60.24 65%$6.50 $32.66
July $60.24 92%$6.50 $48.92
August $60.24 106%$6.50 $57.35
September $60.24 99%$6.50 $53.14
October $60.24 105%$6.50 $56.75
November $60.24 96%$6.50 $51.33
December $60.24 120%$6.50 $65.79
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EXIDBITH
Seller Authorization to Release Generation Data to PacifiCorp
(Interconnection Customer Letterhead)
Pl
Transmission Services
Attn: Director, Transmission Services
825 NE Multnomah, Suite 1600
Portland, OR 97232
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RE: Power County Wind Park North LLC Interconnection Request
DRAFT
Dear Sir:
Power County Wind Park North LLC hereby voluntarily authorizes PacifiCorp's Transmission
business unit to share Power County Wind Park Nort LLC's generator interconnection
information and generator meter data relating to Power County Wind Park North LLC
Qualifying Facilty located in the town of American Falls, Power County, Idaho with Marketing
Affliate employees ofPacifiCorp Energy, including, but not limited to those in the Commercial
and Trading group. Power County Wind Park North LLC acknowledges that PacifiCorp did not
provide it any preferences, either operational or rate-related, in exchange for this voluntary
consent.
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THis WORKG DRAFf 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 TilS WORKNG DRAFf OR ON STATEMENTS
MADE DURING NEGOTIATIONS PURSUANT TO THS WORKNG DRAFf SHALL BE AT THAT
PARTY'S OWN RISK. UNTI THIS AGREEMENT is NEGOTIATED, APPROVED BY MANAGEMENT,
SIGNED, DELIVERED AND APPROVED BY ALL REQUID REGULATORY BODIES, NO PARTY
SHALL HAVE ANY OTHER LEGAL OBLIGATIONS, EXPRESSED OR IMPLIED, OR ARISING IN ANY
OTHER MANNER UNDER THIS WORKNG DRAFf OR IN THE COURSE OF NEGOTITIONS.
POWER PURCHASE AGREEMENT
BETWEEN
POWER COUNTY WIND PAR SOUTH, LLC
(a non-fueled, on-system, Intermittent Resource with Mechanical Availabilty Guarantee,
Idaho Qualifying Facilty-l0aMW/Month or less)
AND
PACIFICORP
Section 1: Definitions ......................................................................................................... 1
Section 2: Term, Commercial Operation Date ...................................................................9
Section 3: Representations and Warranties..... ...................................... ............ ... ............. 10
Section 4: Delivery of Power; Availabilty Guaranty.......................................................13
Section 5: Purchase Prices... .............................. ............. ............. ........... ... ...... ..... ............ 15
Section 6: Operation and Control ..................................................................................... 17
Section 7: Motive Force....................................................................................................20
Section 8: Generation Forecasting Costs ..........................................................................21
Section 9: Metering; Reports and Records ....................................................................... 21
Section 10: Billngs, Computations and Payments ........................................................... 23
Section 11: Security... ....... ...... ...... ........ ....... ............. .... ............. .............. ............. ............ 24
Section 12: Defaults and Remedies ..................................................................................25
Section 13: Indemnification.............................................................................................. 27
Section 14: Liabilty and Insurance ..................................................................................29
Section 15: Force Majeure ................................................................................................30
Section 16: Several Obligations........................................................................................30
Section 17: Choice of Law.................................................. ..............................................31
Section 18: Parial Invalidity ............................................................................................31
Section 19: Waiver............................................................................................................31
Section 20: Governmental Jurisdiction and Authorizations ............................................. 31
Section 21: Successors and Assigns .................................................................................31
Section 22: Entire Agreement...........................................................................................32
Section 23: Notices ........................................................................................................... 32
Last printed 4/2/10 3: 1 0 PM
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POWER PURCHASE AGREEMENT
THIS POWER PURCHASE AGREEMENT, entered into this day of ,20_,
is between Power County Wind Park South, LLC, an Idaho limited liabilty company (the
"Seller") and PacifiCorp, an Oregon corporation acting in its merchant function capacity
("PacifiCorp"). Seller and PacifiCorp are referred to collectively as the "Parties" and
individually as a "Part".
RECITALS
A. Seller intends to construct, own, operate and maintain a wind facilty, including
Seller's Interconnection Facilties, for the generation of electrc power located in Power, County,
Idaho with an expected Facilty Capacity Rating of 21,600-kilowatts (kW) as further described
in Exhibit A and Exhibit B ("Facilty").
B. Seller intends to operate the Facilty as a Qualifying Facilty, as such term is
defined in Section 1.55 below, and to sell Net Output to PacifiCorp in Idaho.
C. Seller estimates that the average annual Net Output to be delivered by the Facilty
to PacifiCorp is 60,523,733 kilowatt-hours (kWh) ("Average Annual Net Output") pursuant to
the monthly Energy Delivery Schedule in Exhibit D hereto, which amount of energy PacifiCorp
wil include in its resource planning.
D. Seller intends to sell and PacifiCorp intends to purchase all the Net Output from
the Facilty in accordance with the terms and conditions of this Agreement.
E. PacifiCorp intends to designate Seller's Facilty as a Network Resource for the
purposes of serving Network Load.
F. This Agreement is a ''New QF Contract" under the PacifiCorp Inter-Jurisdictional
Cost Allocation Revised Protocol.
G. Seller lI has U has not authorized Transmission Provider to release generation
data to PacifiCorp. If yes, the authorization is attched as Exhibit H.
NOW, THREFORE, the Paries mutually agree as follows:
SECTION 1: DEFINITIONS
When used in this Agreement, the following terms shall have the following meanings:
1.1 "As-built Supplement" shall be a supplement to Exhibit A, provided by Seller
following completion of construction of the Facilty, accurately describing the completed
Facilty.
1.2 "Availabilty" means, for any Biling Period, the ratio, expressed as a percentage,
of (x) the aggregate sum of the turbine-minutes in which each of the Wind Turbines at the
Facility was available to generate at the Maximum Facility Delivery Rate during the Biling
Period over (y) the product of the number of Wind Turbines that comprise the Facilty Capacity
1
DRAFT
Rating as of Commercial Operation multiplied by the number of minutes in such Biling Period.
A Wind Turbine shall be deemed not available to operate during minutes in which it is (a) in an
emergency, stop, service mode or pause state; (b) in "run" status and faulted; or (c) otherwise not
operational or capable of delivenng at the Maximum Facilty Delivery Rate to the Point of
Delivery; unless if unavailable due solely to (i) a default by PacifiCorp; (ii) to the extent not
caused by Seller's actions, a curtilment in accordance with Section 6.3; or (ii) insufficient wind
(including the normal amount of time required by the generating equipment to resume operations
following a period when wind speed is below the Cut-In Wind Speed).
1.3 "Biling Period" means the time period between PacifiCorp's reading of its power
purchase meter at the Facility and for this Agreement shall coincide with calendar months.
1.4 "Commercial Operation" means that not less than the 90% of the expected
Facility Capacity Rating is fully operational and reliable and the Facilty is fully interconnected,
fully integrated, and synchronized with the System, all of which shall be Seller's responsibilty to
receive or obtain, and which occurs when all of the following events (i) have occurred, and (ii)
remain simultaneously true and accurate as of the date and moment on which Seller gives
PacifiCorp notice that Commercial Operation has occurred:
1.4.1 PacifiCorp has received a certificate addressed to PacifiCorp from a
Licensed Professional Engineer (a) stating the Facilty Capacity Rating of the Facilty at
the anticipated time of Commercial Operation and (b) stating that the Facilty is able to
generate electric power reliably in amounts required by this Agreement and in accordance
with all other terms and conditions of this Agreement.
1.4.2
with Exhibit E.
Start-Up Testing of the Facilty has been completed in accordance
1.4.3 PacifiCorp has received a certificate addressed to PacifiCorp from a
Licensed Professional Engineer, an attorney in good standing in Idaho, or a letter from
Transmission Provider, stating that, in accordance with the Generation Interconnection
Agreement, all required interconnection facilties have been constrcted, all required
interconnection tests have been completed and the Facilty is physically interconnected
with the System in conformance with the Generation Interconnection Agreement and able
to deliver energy consistent with the terms of this Agreement, and the Facility is fully
integrated and synchronized with the System.
1.4.4 PacifiCorp has received a certificate addressed to PacifiCorp from a
Licensed Professional Engineer, or an attorney in good standing in Idaho, stating that
Seller has obtained all Required Facilty Documents and, if requested by PacifiCorp in
writing, Seller shall have provided copies of any or all such requested Required Facilty
Documents.
1.4.5 Seller has complied with the security requirements of Section i 1.
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1.4.6 Network Resource Designation and Transmission Service Request.
(a)Seller has provided all data required by the Transmission Provider
to enable the Facilty to be designated as a Network Resource in
accordance with the Tariff.
PacifiCorp has received confirmation from the Transmission
Provider that the Facility has been designated as a Network
Resource.
(c) Seller has provided all data required for PacifiCorp to submit a
transmission service request for the Facilty pursuant to the Tanff.
(d) PacifiCorp has received confirmation from the TransmissionProvider that the transmission service request has been granted in
suffcient capacity to meet or exceed the Maximum Facilty
Delivery Rate and the Seller has paid all costs associated with any
requirements of the transmission service request.
(b)
1.5 "Commercial Operation Date" means the date, as designated by PacifiCorp
pursuant to Section 2.4, the Facility first achieves Commercial Operation.
1.6 "Commission" means the Idaho Public Utilties Commission.
1.7 "Conforming Energy" means all Net Energy except Non..Conforming Energy.
1.8 "Conforming Energy Purchase Price" means the applicable price for
Conforming Energy and capacity, specified in Section 5.1.
1.9 "Contract Year" means a twelve (12) month period commencing at 00:00 hours
Mountain Prevailng Time ("MPT") on January 1 and ending on 24:00 hours MPTon
December 31; provided, however, that the first Contract Year shall commence on the
Commercial Operation Date and end on the next succeeding December 31, and the last Contract
Year shall end on the Expiration Date, unless earlier terminated as provided herein.
1.12 "Default Security" shall have the meaning set forth in Section 11.2 of this
Agreement.
1.13 "Effective Date"shall have the meaning set fort in Section 2.1 of this
Agreement.
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1.14 "Energy Delivery Schedule" shall have the meaning set forth in Section 4.3 of
this Agreement.
1.15 "Environmental Attributes" means any and all claims, credits, benefits,
emissions reductions, offsets, and allowances, howsoever entitled, resulting from the avoidance
of the emission of any gas, chemical, or other substance to the air, soil or water, which are
deemed of value by PacifiCorp. Environmental Attibutes include but are not limited to: (1) 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; and (2) any
avoided emissions of carbon dioxide (C02), methane (CH4), and other greenhouse gases
(GHGs) that have been determined by the United Nations Intergovernmental Panel on Climate
Change to contribute to the actual or potential threat of altering the Earth's climate by trapping
heat in the atmosphere. Environmental Attributes do not include (i) Production Tax Credits or
certain other tax incentives existing now or in the future associated with the constrction,
ownership or operation of the Facilty, (ii) matters designated by PacifiCorp as sources of
liabilty, or (ii) adverse wildlife or environmental impacts.
1.16 "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 wil not be available or usable
for the purposes contemplated by this Agreement.
1.17 "Expiration Date" shall have the meaning set forth in Section 2.1 of this
Agreement.
1.18 "Facilty" is defined in Recital A of this Agreement.
1.19 "Facilty Capacity Rating" means the sum of the Nameplate Capacity Ratings for
all generators comprising the Facility.
1.20 "Force Majeure" has the meaning set forth in Section 15.1.
1.21 "Forced Outage" means an outage that requires removal of one or more Wind
Turbines from service, another outage state or a reserve shutdown state before the end of the next
weekend. Maintenance Outages and Planned Outages are not Forced Outages.
1.22 "Generation Interconnection Agreement" means the generation interconnection
agreement entered into separately between Seller and Transmission Provider, as applicable,
specifying the Point of Delivery and providing for the constrction and operation of the
Interconnection Facilities.
1.23 "Governmental Authority" means any supranational, federal, state or other
political subdivision thereof, having jurisdiction over Seller, PacifiCorp 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.
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1.24 "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.
1.25 "Inadvertent Energy" means: (1) energy delivered to the Point of Delivery in
excess of the Maximum Monthly Purchase Obligation; and (2) energy delivered to the Point of
Delivery at a rate exceeding the Maximum Facilty Delivery Rate on an hour-averaged basis.
Inadvertent Energy is not included in Net Energy.
1.26 "Index Price", for each day, shall mean the weighted average of the average Peak
and Off-Peak firm energy market prices, as published in the Intercontinental Exchange (ICE)
Day Ahead Power Price Report for the Palo Verde Hub. For Sunday and NERC holidays, the
24-Hour Index Price shall be used, unless ICE shall publish a Firm On-Peak and Firm Off-Peak
Price for such days for Palo Verde, in which event such indices shall be utilzed for such days. If
the ICE index or any replacement of that index ceases to be published during the term of this
Agreement, PacifiCorp shall select as a replacement a substantially equivalent index that, after
any appropriate or necessary adjustments, provides the most reasonable substitute for the index
in question. PacifiCorp's selection shall be subject to Seller's consent, which Seller shall not
unreasonably withhold, condition or delay.
1.27 "Initial Year Energy Delivery Schedule" shall have the meaning set forth in
Section 4.3.1.
1.28 "Interconnection Facilties" means all the facilties and ancilary equipment used
to interconnect the Facilty to the System, as defined in the Generation Interconnection
Agreement.
1.29 "Letter of Credit" means an irrevocable standby letter of credit in a form
reasonably acceptable to PacifiCorp, naming PacifiCorp as the part entitled to demand payment
and present draw requests thereunder. Such letter of credit shall be provided by an institution
that is a United States offce of a commercial bank or trust company organized under the laws of
the United States of America or a political subdivision thereof, with a credit rating on its long-
term senior unsecured debt of at least "A" from Standard & Poor's and "A2" from Moody's
Investor Services, and having assets of at least $10,000,000,000 (net of reserves).
1.30 "Licensed Professional Engineer" means a person acceptable to PacifiCorp in its
reasonable judgment who is licensed to practice engineering in the state of Idaho, who has
training and experience in the engineering discipline(s) relevant to the matters with respect to
which such person is called to provide a certification, evaluation and/or opinion, who has no
economic relationship, association, or nexus with the Seller, and who is not a representative of a
consulting engineer, contractor, designer or other individual involved in the development of the
Facility, or of a manufacturer or supplier of any equipment installed in the Facility. Such
Licensed Professional Engineer shall be licensed in an appropriate engineering discipline for the
required certification being made. The engagement and payment of a Licensed Professional
Engineer solely to provide the certifications, evaluations and opinions required by this
Agreement shall not constitute a prohibited economic relationship, association or nexus with the
5
DRAFT
Seller, so long as such engineer has no other economic relationship, association or nexus with the
Seller.
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1.31 "Maintenance Outage" means any outage of one or more Wind Turbines that is
not a Forced Outage or a Planned Outage. A Maintenance Outage is an outage that can be
deferred until after the end of the next weekend, but that requires that the Wind Turbine(s) be
removed from service before the next Planned Outage. A Maintenance Outage may occur any
time during the year and must have a flexible start date.
1.32 "Material Adverse Change" shall mean, with respect to the Seller, if the Seller,
in the reasonable opinion of PacifiCorp, has experienced a material adverse change in ability to
fulfill its obligations under this Agreement.
1.33 "Maximum Facility Delivery Rate" means the maximum instantaeous rate (kW)
at which the Facilty is capable of delivering Net Output at the Point of Delivery, as specified in
Exhibit A, and in compliance with the Generation Interconnection Agreement.
1.34 "Maximum GIA Delivery Rate" means the maximum rate (kW) at which the
Generator Interconnection Agreement allows the Facility to deliver energy to the Point of
Delivery and is set fort in Exhibit A.
1.35 "Maximum Monthly Purchase Obligation" means the maximum amount of
energy PacifiCorp is obligated to purchase under this Agreement in a calendar month. In
accordance with Commission Order No. 29632, the Maximum Monthly Purchase Obligation for
a given month, in kWh, shall equal 10,000 kW multiplied by the total number of hours in that
month and prorated for any parial month.
1.36 "Nameplate Capacity Rating" means the maximum instataneous generating
capacity of any qualifying small power or cogeneration generating unit supplying all or par of
the energy sold by the Facility, expressed in MW or kW, when operated consistent with the
manufactuer's recommended power factor and operating parameters, as set forth in a notice
from Seller to PacifiCorp delivered before the Commercial Operation Date and, if applicable,
updated in the As-built Supplement.
1.37 "NERC" means the North American Electric Reliability Corporation.
1.38 "Net Energy" means the energy component, in kWh, of Net Output. Net Energy
does not include Inadvertent Energy.
1.39 "Net Output" means all energy and capacity produced by the Facilty, less station
use and less transformation and transmission losses and other adjustments, if any. For purposes
of calculating payment under this Agreement, Net Output of energy shall be the amount of
energy flowing through the Point of Delivery, less any station use not provided by the Facility.
Net Output does not include Inadvertent Energy.
1.40 "Network Resource" shall have the meaning set forth in the Tariff.
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1.41 "Network Service Provider" means PacifiCorp Transmission, as a provider of
network service to PacifiCorp under the Tariff.
1.42 "Non-Conforming Energy" means Net Output produced by the Facilty prior to
the Commercial Operation Date.
1.43 "Non-Conforming Energ Purchase Price" means the applicable price for Non-
Conforming Energy and capacity, specified in Section 5.1.
1.44 "Off-Peak Hours" means all hours of the week that are not On-Peak Hours.
1.45 "On-Peak HOlaTs" means hours from 7:00 a.m. to 11 :00 p.m. Mountain Prevailng
Time, Monday though Saturday, excluding Western Electricity Coordinating Council (WECC)
and Nort American Electric Reliability Corporation (NRC) holidays.
1.46 "Output Shortfall" and "Output Shortfall Damages" shall have the meanings
set forth in Section 4.5 of this Agreement.
1.47 "PacifCorp" is defined in the first paragraph of this Agreement, and excludes
PacifiCorp Transmission.
1.48 "PacifCorp Transmission" means PacifiCorp, an Oregon corporation, acting in
its interconnection and transmission function capacity.
1.49 "Planned Outage" means an outage of predetermined duration that is scheduled in
Seller's Energy Delivery Schedule. Boiler overhauls, turbine overhauls or inspections are typical
planned outages. Maintenance Outages and Forced Outages are not Planed Outages.
1.50 "Point of Delivery" means the high side of the generation step-up transformer(s)
located at the point of interconnection between the Facility and the System, as specified in the
Generation Interconnection Agreement and in Exhibit B.
1.51 "Premises" means the real propert on which the Facility is or wil be located, as
more fully described on Exhibit A.
1.52 "Prime Rate" means the rate per annum equal to the publicly anounced pnme
rate or reference rate for commercial loans to large businesses in effect from time to time quoted
by JPMorgan Chase & Co. If a JPMorgan Chase & Co. 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 bilion or more in assets in New York
City, N.Y., selected by the Part to whom interest based on the prime rate is being paid.
1.53 "Production Tax Credits" means production tax credits under Section 45 of the
Internal Revenue Code as in effect from time to time during the term hereof or any successor or
other provision providing for a federal tax credit determined by reference to renewable electric
energy produced from wind resources and any correlative state tax credit determined by
reference to renewable electric energy produced from wind resources for which the Facilty is
7
DRAFT
eligible. Production Tax Credits do not include any tax credit determined by reference to
investment.
1.54 "Prudent Electrical Practices" means any of the practices, methods and acts
engaged in or approved by a significant portion of the electncal utilty industr 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 reliabilty, safety and expedition. Prudent Electrical
Practices is not intended to be limited to the optimum practice, method or act to the exclusion of
all others, but rather to be a spectrm of possible practices, methods or acts.
1.55 "QF" means "Qualifying Facilty", as that term is defined in the version of
FERC Regulations (codified at 18 CFR Par 292) in effect on the date of this Agreement.
1.56 "Required Facilty Documents" means all deeds, titles, leases (including Wind
Leases), licenses, permits, authorizations, and agreements demonstrating that seller controls the
necessary propert rights and governent authorizations to construct, operate, and maintain the
Facilty, including without limitation those set fort in Exhibit C.
1.57 "Requirements of Law" means any applicable and mandatory (but not merely
advisory) federal, state and local law, statute, regulation, rule, code or ordinance enacted,
adopted, issued or promulgated by any federal, state, local or other Governental Authority or
regulatory body (including those pertining to electrical, building, zoning, environmental and
occupational safety and health requirements).
1.58 "Scheduled Commercial Operation Date" means the date by which Seller
promises to achieve Commercial Operation, as specified in Section 2.2.6.
1.59 "Scheduled Monthly Energy Delivery" means the Net Energy scheduled to be
delivered during a given calendar month, as specified by Seller in the Energy Delivery Schedule.
1.60 "Seller's Forecast-Cost Share" and "Seller's Capped Forecast-Cost Share"
shall have the meanings set forth in Sections 8.2 and 8.3 respectively.
1.61 "Subsequent Energy Delivery Schedule" shall have the meaning set forth in
Section 4.3.3.
1.62 "System" means the electric transmission substation and transmission or
distribution facilties owned, operated or maintained by Transmission Provider, which shall
include, after construction and installation of the Facilty, the circuit reinforcements, extensions,
and associated terminal facilty reinforcements or additions required to interconnect the Facility,
all as set forth in the Generation Interconnection Agreement.
1.63 "Tariff' means the PacifiCorp Transmission FERC Electric Tarff Seventh
Revised Volume No.ll Pro Forma Open Access Transmission Tariff or the Transmission
Provider's corresponding FERC taff or both, as revised from time to time.
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1.64 "Transmission Provider" means PacifiCorp Transmission or a successor,
including any regional transmission organization ("RTO").
1 .65 44Wind Leases" means the memoranda of wind lease and redacted wind leases
recorded in the county in which the Facilty is located in connection with the development of the
Facility, as the same may be supplemented, amended, extended, restated, or replaced from time
to time.
1.66 "Wind Turbine" means a Vestas V100, 1.8 megawatt wind turbine. At its full
Facilty Capacity Rating, the Facilty wil consist of 12 Wind Turbines.
SECTION 2: TERM. COMMERCIAL OPERATION DATE
2.1 This Agreement shall become effective after execution by both Parties and after
approval by the Commission (44Effective Date"); provided, however, this Agreement shall not
become effective until the Commission has determined that the prices to be paid for energy and
capacity are just and reasonable, in the public interest, and that the costs incurred by PacifiCorp
for purchases of capacity and energy from Seller are legitimate expenses, all of which the
Commission wil allow PacifiCorp to recover in rates in Idaho in the event other jurisdictions
deny recovery of their proportionate share of said expenses.
Unless earlier terminated as provided herein, the Agreement shall remain in effect until
November 30, 2031 C4Expiration Date").
2.2 Time is of the essence of this Agreement, and Seller's abilty to meet certin
requirements prior to the Commercial Operation Date and to achieve Commercial Operation by
the Scheduled Commercial Operation Date is cntically important. Therefore,
2.2.1 By May 1,2011, Seller shall obtain and provide to PacifiCorp copies
of all governmental permits and authorizations necessary for constrction of the Facilty.
2.2.2 By the date 30 calendar days after the Effective Date, Seller shall
provide Delay Security required under Section 11.1.1, as applicable.
2.2.3 At least ten business days prior to delivery of any energy from the
Facility to PacifiCorp, Seller shall provide PacifiCorp with an executed Generation
Interconnection Agreement.
2.2.4 Prior to Commercial Operation Date, Seller shall provide Default
Security required under Section 11.2, as applicable.
2.2.5 Prior to Commercial Operation Date, Seller shall provide PacifiCorp
with an As-built Supplement acceptable to PacifiCorp.
2.2.6 By November 30, 2011, Seller shall achieve Commercial Operation
C4Scheduied Commercial Operation Date").
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2.3 Beginning June 1, 2010, Seller shall provide PacifiCorp a one-page monthly
update bye-mail on the progress of the milestones in Section 2.2.
2.4 Establishing Commercial Operation. To achieve Commercial Operation, Seller
must provide, subject to PacifiCorp's written approval which wil not be unreasonably withheld,
written notice to PacifiCorp stating when Seller believes that the Facilty has achieved
Commercial Operation accompanied by the certificates described in Section 1.4. PacifiCorp's
approval, if given, shall designate the Commercial Operation Date. In no event wil delay in
achieving the Scheduled Commercial Operation Date postpone the Expiration Date specified in
Section 2.1.
2.5 Delay Damages. Seller shall cause the Facilty to achieve Commercial Operation
on or before the Scheduled Commercial Operation Date. If Commercial Operation occurs after
the Scheduled Commercial Operation Date, Seller shall be liable to pay PacifiCorp delay
damages for the number of days ("Delay Period") the Commercial Operation Date occurs after
the Scheduled Commercial Operation Date, until the earlier of occurence of the Commercial
Operation Date or the termination of this Agreement ("Delay Liquidated Damages"). Bilings
and payments for Delay Liquidated Damages shall be made in accordance with Section 11.1.
2.5.1 Delay Liquidated Damages. Delay Liquidated Damages equals the sum
of: for each day in the Delay Period, the greater of (l) the Delay Daily Minimum or (2)
the Delay Price times the Delay Volume
Where:
"Delay Daily Minimum" equals (a) for the first 90 calendar days
following the Scheduled Commercial Operation Date: one-ninetieth
(l/9Oth) of fort-five dollars ($45) multiplied by the Maximum Facilty
Delivery Rate with the Maximum Facilty Delivery Rate being measured
in kW; (b) after the 90th calendar day following the Scheduled
Commercial Operation date: $0.
"Delay Price" equals the positive difference, if any, of the Index Price
minus the weighted average of the On-Peak and Off-Peak monthly
Conforming Energy Purchase Prices; and
"Delay Volume" equals the applicable Scheduled Monthly Energy
Delivery divided by the number of days in that month.
2.5.2 Appropriateness of Damages. The Parties agree that the damages
PacifiCorp would incur due to delay in the Facility achieving Commercial Operation on
or before the Scheduled Commercial Operation Date would be diffcult or impossible to
predict with certinty, and that the Delay Liquidated Damages are an appropriate
approximation of such damages.
SECTION 3: REPRESENTATIONS AND WARRANTIES
3.1 PacifiCorp represents, covenants, and warrants to Seller that:
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3.1.1 PacifiCorp is duly organized and validly existing under the laws of
the State of Oregon.
3.1.2 PacifiCorp has the requisite corporate power and authority to enter
into this Agreement and to perform according to the terms of this Agreement.
3.1.3 PacifiCorp has taken all corporate actions required to be taken by it
to authorize the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby.
3.1.4 Subject to Commission approval, the execution and delivery of this
Agreement does not contravene any provision of, or constitute a default under, any
indenture, mortgage, or other material agreement binding on PacifiCorp or any valid
order of any court, or any regulatory agency or other body having authority to which
PacifiCorp is subject.
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3.1.5 Subject to Commission approval, this Agreement is a valid and
legally binding obligation of PacifiCorp, enforceable against PacifiCorp in accordance
with its terms (except as the enforceabilty of this Agreement may be limited by
bankptcy, insolvency, ban moratorium or similar laws affecting creditors' rights
generally and laws restricting the availabilty of equitable remedies and except as the
enforceabilty of this Agreement may be subject to general principles of equity, whether
or not such enforceabilty is considered in a proceeding at equity or in law).
3.2 Seller represents, covenants, and warants to PacifiCorp that:
3.2.1 Seller is a limited liability company duly organized and validly
existing under the laws of Idaho.
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3.2.2 Seller has the requisite power and authority to enter into this
Agreement and to perform according to the terms hereof, including all required
regulatory authority to make wholesale sales from the Facilty.
3.2.3 Seller's shareholders, directors, and offcers have taken all actions
required to authorize the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby.
3.2.4 The execution and delivery of this Agreement does not contravene
any provision of, or constitute a default under, any indenture, mortgage, or other material
agreement binding on Seller or any valid order of any court, or any regulatory agency or
other body having authority to which Seller is subject.
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3.2.5 This Agreement is a valid and legally binding obligation of Seller,
enforceable against Seller in accordance with its terms (except as the enforceabilty of
this Agreement may be limited by bankrptcy, insolvency, bank moratorium or similar
laws affecting creditors' rights generally and laws restncting the availability of equitable
remedies and except as the enforceabilty of this Agreement may be subject to general
11
DRAFT
principles of equity, whether or not such enforceability is considered in a proceeding at
equity or in law).
3.2.6 The Facility is and shall for the term of this Agreement continue to
be a QF. Seller has provided the appropriate QF certification, which may include a
Federal Energy Regulatory Commission self-certification to PacifiCorp prior to
PacifiCorp's execution of this Agreement. At any time PacifiCorp has reason to believe
during the term of this Agreement that Seller's status as a QF is in question, PacifiCorp
may require Seller to provide PacifiCorp with a written legal opinion from an attorney in
good standing in the state of Idaho and who has no economic relationship, association or
nexus with the Seller or the Facilty, stating that the Facilty is a QF and providing
suffcient proof (including copies of all documents and data as PacifiCorp may request)
demonstrating that Seller has maintained and wil continue to maintain the Facility as a
QF.
3.2.7 Neither the Seller nor any of its principal equity owners is or has
within the past two (2) years been the debtor in any bankptcy proceeding, is unable to
pay its bils in the ordinar course of its business, or is the subject of any legal or
regulatory action, the result of which could reasonably be expected to impair Seller's
abilty to own and operate the Facilty in accordance with the terms of this Agreement.
3.2.8 Seller has not at any time defaulted in any of its payment obligations
for electricity purchased from PacifiCorp.
3.2.9 Seller is not in default under any of its other agreements and is
current on all of its financial obligations.
3.2.1 0 Seller owns, and wil continue to own for the term of this
Agreement, all right, title and interest in and to the Facilty, free and clear of all liens and
encumbrances other than liens and encumbrances related to third-party financing of the
Facilty.
3.2.1 1 In entering into this Agreement and the undertaking by Seller of the
obligations set fort herein, Seller has investigated and determined that it is capable of
performing hereunder and has not relied upon the advice, experience or expertise of
PacifiCorp in connection with the transactions contemplated by this Agreement.
3.2.12 All professionals or experts including, but not limited to, 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.
3.2.13 All leases of real propert required for the operation of the Facilty
or the performance of any obligations of Seller hereunder are set forth and accurately
described in Exhibit C. Upon request by PacifiCorp, Seller shall provide copies of the
Wind Leases to PacifiCorp.
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3.2.14 All information about the Facilty set forth in Exhibit A, Exhibit B,
and Exhibit C has been verified by Seller and is accurate to the best of its knowledge.
3.3 Notice. If at any time during this Agreement, any Part obtains actual knowledge
of any event or information which would have caused any of the representations and warranties
in this Section 3 to have been materially untre or misleading when made, such Par shall
provide the other Par with written notice of the event or information, the representations and
warranties affected, and the action, if any, which such Part intends to take to make the
representations and warranties true and correct. The notice required pursuant to this Section
shall be given as soon as practicable after the occurrence of each such event.
SECTION 4: DELIVERY OF POWER; AVAILABILITY GUARANTY
4.1 Delivery and Acceptance of Net Output. Unless otherwise provided herein,
PacifiCorp wil purchase and Seller wil sell all Net Output from the Facilty.
4.2 No Sales to Third Parties. During the term of this Agreement, Seller shall not sell
any Net Output from the Facilty to any entity other than PacifiCorp.
4.3 Energy Delivery Schedule. Seller shall prepare and provide to PacifiCorp, on an
ongoing basis, a written schedule of Net Energy expected to be delivered by the Facilty
("Energ Delivery Schedule"), in accordance with the following:
4.3.1 During the first twelve full calendar months following the
Commercial Operation Date, Seller predicts that the Facilty wil produce and deliver the
following monthly amounts ("Initial Year Energy Delivery Sch-edule"):
Month
Januar
February
Marh
April
May
June
Energy Delivery (kWh)
6,221,422
5,743,522
6,215,694
5,326,692
4,710,890
4,539,524
3,445,526
3,321,630
4,113,788
4,744,687
5,620,495
6,519,863
July
August
September
October
November
December
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4.3.2 Seller may revise the Initial Year Energy Delivery Schedule any
time prior to the Commercial Operation Date.
4.3.3 Beginning at the end of the ninth full calendar month of operation,
and at the end of every third month thereafter, Seller shall supplement the Energy
Delivery Schedule with three additional months of forward estimates (which shall be
appended to this Agreement as Exhibit D) ("Subsequent Energy Delivery Schedule"),
such that the Energy Delivery Schedule wil provide at least thee months of scheduled
energy estimates at all times. Seller shall provide Subsequent Energy Delivery Schedules
no later than 5:00 pm of the 5th day after the due date. If Seller does not provide a
Subsequent Energy Delivery Schedule by the above deadline, scheduled energy for the
omitted period shall equal the amounts scheduled by Seller for the same three-month
period during the previous year.
4.3.4 Upon and after the Commercial Operation Date, Seller may no
longer revise the Energy Delivery Schedule for the first six full calendar months of
Commercial Operation. After 5 :00 p.m. MPT of the fifth business day following the end
of the third full calendar month of Commercial Operation and the end of each third
calendar month thereafter, Seller may no longer revise the Energy Delivery Schedule for
the six calendar months immediately following such third month. Subject to the
foregoing restrictions in this Section 4.3.4, Seller may revise the Energy Delivery
Schedule for any unrestncted month by providing written notice to PacifiCorp. Failure to
provide timely written notice of changed amounts wil be deemed to be an election of no
change.
4.4 Minimum Availabilty Obligation. Seller shall cause the Facilty to achieve an
Availabilty of at least 85% during each month ("Guaranteed Availabilty").
4.5 Liquidated Damages for Output Shortfall. If the Availabilty in any given month
falls below the Guaranteed Availabilty, the resulting shortall shall be expressed in kWh as the
"Output Shortfall." The Output Shortfall shall be calculated in accordance with the following
formula:
Output Shortfall = (Guaranteed Availabilty - Availabilty) *
Scheduled Monthly Energy Delivery
Seller shall pay PacifiCorp for any Output Shortfall at the lower of (1) the positive difference, if
any, of the Index Price minus the weighted average of the On-Peak and Off-Peak monthly
Conforming Energy Purchase Pnces; or (2) the weighted average of the On-Peak and Off-Peak
monthly Conforming Energy Purchase Prices ("Output Shortfall Damages").
Output Shortfall Damages = Output Shortfall * Output Shortfall Price
Where:
Output Shortfall Price =(Index Price - Weighted Average CEPP), except
that if Output Shortfall Price .( 0, then Output
14
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Shortfall Price = 0, and except that if Output
Shortfall Pnce:; Weighted Average CEPP, then
Output Shortfall Price = Weighted Average CEPP
Weighted Average CEPP = the weighted average On-Peak and Off-Peak
Conforming Energy Purchase Prices for the month
of Output Shortfall
If an Output Shortfall occurs in any given month, Seller may owe PacifiCorp liquidated
damages. Each Part agrees and acknowledges that (a) the damages that PacifiCorp would incur
due to th~. Facilty's failure to achieve. the Guaranteed Availabilty would be diffcult or
impossiblelo predict with certainty, and (b) the liquidated damages contemplated in this Section
4.5 are a fair and reasonable calculation of such damages.
. 4.6 Audit Rights. In addition to data provided under Sections 9.3 and 9.4, PacifiCorp
shall have the right, but not the obligation, to audit the Facilty's compliance with its Guaranteed
A vailabil~J using any reasonable meth04s. Seller agrees to retain all performance related data
for the Faêilty for a minimum of three years, and to cooperate withPacifiCorp in the event
PacifiCorp decides to audit such data.
,...,
SECTION 5:PURCBASE PRICES
5.1: Energy Purchase Price. EKcept as provided in Section ~.3, PacifiCorp wil pay
Seller Conforming Energy or Non-Conforming Energy Purchase Prices for Net Output adjusted
for the mql;th and On-Peak Hours or Off-Peak Hours and the wind integration cost using the
following fòrmulae, in accordance with Commission Order Nos. 30423, 31025, and 31021:
Where:
AR.ce
MPM
WIC
Conforming Energy Purchase Price = (ARce * MPM) - WIC
Non':Conforming Energ Purchase Price = (ARnce * MPM) - WIC
=Conforming Energy annual rate from Table 1, below, for the year
of the Net Output.
the lower of.
85% of the Conforming Energy annual rate from Table ,
below, for the year of Net Output
=
or
=
85% of average of the daily Index Price for each day of the
month, or portion of month, of Net Output.
monthly On-Peak or Off-Pèak multiplier from Table 2, below, that
corresponds to the month of the Net Output and whether the Net
Output occurred during On-Peak Hours or Off-Peak Hours.
$6.50IMWh, the wind integration cost prescribed in Commission
Order No. 31021.
=
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Example calculations are provided in Exhibit G.
Table 1: Conforming Energy Annual Rates (from Commission Order No. 31025)*
Conforming Energy
Annual Rate (ARc)
Year S/Mh
2010 56.85
.2011 60.24
2012 63.97
2013 67.51
2014 71.32
2015 75.40
2016 77.76
2017 80.07
2018 82.58
2019 85.05
2020 87.61
2021 90.63
2022 93.78
2023 97.05
2024 100.44
2025 103.98
2026 106.98
2027 110.07
2028 113.26
2029 116.56
2030 119.95
2031 124.51
Table 2: Monthly On-PeaklOff-Peak Multipliers (from Commission Order No. 30423)
Month On-Peak Off-Peak
Hours Hours
Januar 103%94%
Februar 105%97%
March 95%80%
April 95%76%
May 92%63%
June 94%65%
July 121%92%
August 121%106%
September 109%99%
October 115%105%
* If Seller has elected levelized pricing for Net Output, additional security requirements in
Section 11.2 apply.
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November
December
110%
129%
96%
120%
5.2 Payment.
For each Biling Period in each Contract Year, PacifiCorp shall pay Seller as follows:
For delivery of Conforming Energy:
Payment = (CEnergyon-Peak * CEPPriceon-Peak / i 000) +
(CEnergyotT-Peak * CEPPriceotT-Peak / i 000)
For delivery of Non-Conforming Energy:
Payment = (NCEnergyon-Peak * NCEPPriceo_Pea /1000) +
(NCEnergyotT-Peak * NCEPPriceotT-Peak / 1000)
Where:
CEnergy =
CEPPrice =
NCEnergy =
NCEPPrice =
On-Peak =
Off-Peak =
Conforming Energy in kWh
Conforming Energy Purchase Price in $/MWh
Non-Conforming Energy in kWh
Non-Conforming Energy Purchase Price in $/MWh
the corresponding value for On-Peak Hours
the corresponding value for Off-Peak Hours
5.3 Inadvertent Energy. PacifiCorp may accept Inadvertent Energy at its sole
discretion, but wil not purchase or pay for Inadvertent Energy.
SECTION 6: OPERATION AND CONTROL
6.1 As-Built Supplement. Upon completion of any constrction affecting the Facilty,
Seller shall provide PacifiCorp an As-built Supplement bearing the stap of a Licensed
Professional Engineer that accurately depicts the Facilty as built. The As-built Supplement must
be reviewed and approved by PacifiCorp, which approval shall not unreasonably be withheld,
conditioned or delayed.
6.2 Seller shall operate and maintain the Facilty in a safe manner in accordance with
the Generation Interconnection Agreement, Prudent Electrical Practices and in accordance with
the requirements of all applicable federal, state and local laws and the National Electric Safety
Code as such laws and code may be amended from time to time. PacifiCorp shall have no
obligation to purchase Net Output from the Facilty to the extent the interconnection between the
Facilty and PacifiCorp's electric system is disconnected, suspended or interrpted, in whole or
in part,. pursuant to the Generation Interconnection Agreement, or to the extent generation
curtailment is required as a result of Seller's non-compliance with the Generation
Interconnection Agreement. PacifiCorp shall have the right to inspect the Facilty to confirm
that Seller is operating the Facilty in accordance with the provisions of this Section 6 upon
reasonable notice to Seller. Seller is solely responsible for the operation and maintenance of the
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Facilty. PacifiCorp shall not, by reason of its decision to inspect or not to inspect the Facilty, or
by any action or inaction taken with respect to any such inspection, assume or be held
responsible for any liability or occurence arising from the operation and maintenance by Seller
of the Facility.
6.3 Curtilment. PacifiCorp shall not be obligated to purchase, receive, pay for, or pay
any damages associated with, Net Output (or associated Production Tax Credits or
Environmental Attributes) if such Net Output (or associated Production Tax Credits or
Environmental Attibutes) is not delivered to the System or Point of Delivery due to any of the
following: (a) the interconnection between the Facilty and the System is disconnected,
suspended or interrpted, in whole or in part, consistent with the terms of the Generation
Interconnection Agreement, (b) the Transmission Provider directs a general curtailment,
reduction, or redispatch of generation in the area (which would include the Net Output) for any
reason, even if such curtilment or redispatch directive is carried out by PacifiCorp, which may
fulfill such directive by acting in its sole discretion; or ifPacifiCorp curails or otherwise reduces
the Net Output in order to meet its obligations to the Transmission Provider to schedule within
system limits, (c) the Facility's Output is not received because the Facilty is not fully integrated
or synchronized with the System, or (d) an event of Force Majeure prevents either Par from
delivering or receiving Net Output. Seller shall reasonably determine the MWh amount of Net
Output curailed pursuant to this Section 6.3 after the fact based on the amount of energy that
could have been generated at the Facility and delivered to PacifiCorp as Net Output but that was
not generated and delivered because of the curtilment. Seller shall determine the quantity of
such curailed energy based on (x) the time and duration of the curailment period and (y) wind
conditions recorded at the Facilty during the period of curtailment and the tested and verified
power cure for the Wind Turbines. Seller shall promptly provide PacifiCorp with access to
such information and data as PacifiCorp may reasonably require to confrm to its reasonable
satisfaction the amount of energy that was not generated or delivered because of a curilment
described in this Section 6.3.
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6.4 PacifiCorp as Merchant. Seller acknowledges that PacifiCorp, acting in its
merchant capacity function as purchaser under this Agreement, has no responsibility for or
control over PacifiCorp Transmission or any successor Transmission Provider.
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6.5 Outages.
f6.5.1 Planned Outages. Except as otherwise provided herein, Seller shall
not schedule Planned Outage durng any portion of the months of ((ist peak months)
November, December, January, Februar, June, July, and August), except to the extent a
Planned Outage is reasonably required to enable a vendor to satisfy a guarantee
requirement in a situation in which the vendor is not otherwise able to perform the
guarantee work at a time other than during one of the months specified above. Seller
shall, in Exhibit D, provide PacifiCorp with an annual forecast of Planed Outages for
each Contract Year at least one (1) month, but no more that thee (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 more than one
hundred fift (150) hours of Planed Outages for each calendar year. Seller shall not
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schedule any maintenance of Interconnection Facilties during such months, without the
prior wrtten approval of PacifiCorp, which approval may be withheld by PacifiCorp in
its sole discretion.
1"").I.,:1',.;,
t".?
6.5.2 Maintenance Outages. If Seller reasonably determines that it is
necessary to schedule a Maintenance Outage, Seller shall notify PacifiCorp 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 PacifiCorp may
reasonably consent in light of then existing wind conditions). Upon such notice, the
Paries shall plan the Maintenance Outage to mutually accommodate the reasonable
requirements of Seller and the service obligations of PacifiCorp. Seller shall take all
reasonable measures and use best efforts consistent with Prudent Electrical Practices to
not schedule any Maintenance Outage during the following periods: (June 15 through
June 30, July, August, and September 1 through September 15). Seller shall include in
such notice of a proposed Maintenance Outage the expected star date and time of the
outage, the amount of generation capacity of the Facilty that wil not be available, and
the expeqted completion date and time of the outage. Seller may provide notices under
this Section 6.5.2 orally. Seller shall confirm any such oral notification in writing as soon
as practicable. PacifiCorp 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 PacifiCorp's request to modifY the schedule for a Maintenance
Outage if such modification has no substatial impact on Seller. Seller shall notify
PacifiCorp of any subsequent changes in generation capacity of the Facilty during such
Maintenance Outage and any changes in the Maintenance Outage completion date and
time. Seller shall take all reasonable measures and exercise its best effort consistent with
Prudent Electrical Practices to minimize the frequency and duration of Maintenance
Outages.
J
d 6.5.3 Forced Outages. Seller shall promptly provide to PacifiCorp an oral
report, via telephone to a number specified by PacifiCorp, of any Forced Outage of the
Facilty. Such report shall include the amount of generation capacity of the Facilty that
wil not be available because of the Forced Outage and the expected return date and time
of such generation capacity. Seller shall promptly update the report as necessary to
advise PacifiCorp of changed circumstances. If the Forced Outage resulted in more than
15% of the Facilty Capacity Rating of the Facilty being unavailable, Seller shall confirm
the oral report in wrting as soon as practicable. Seller shall take all reasonable measures
and exercise its best efforts consistent with Prudent Electrical Practices to avoid Forced
Outages and to minimize their duration.
6.5.4 Notice of Deratings and Outages. Without limiting other notice
requirements, Seller shall notifY PacifiCorp, via telephone to a number specified by
PacifiCorp, of any limitation, restriction, derating or outage known to Seller that affects
the generation capacity of the Facilty in an amount greater than five percent (5%) of the
Facilty Capacity Rating for the following day. Seller shall promptly update such notice
to reflect any material changes to the information in such notice.
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6.5.5 Effect of Outages on Estimated Output. Seller shall factor Planned
Outages and Maintenance Outages that Seller reasonably expects to encounter in the
ordinary course of operating the Facilty into the Scheduled Monthly Energy Delivery
amounts in the Energy Delivery Schedule set forth in Exhibit D.
6.6 Scheduling.
6.6.1 Daily Scheduling. (provide if applicable)
6.6.2 Cooperation and Standards. With respect to any and all scheduling
requirements in this Agreement, (a) Seller shall cooperate with PacifiCorp with respect to
scheduling Net Output, and (b) each Part shall designate authorized representatives to
communicate with regard to scheduling and related matters arising hereunder.
6.6.3 Schedule Coordination. If, as a result of this Agreement, PacifiCorp
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 (a)
Seller shall acquire such R TO recognized standing (or shall contract with a third par
who has such RTO recognized standing) such that PacifiCorp is no longer responsible for
Seller's pedormance under the Generation Interconnection Agreement, and (b) Seller
shall defend, indemnify and hold PacifiCorp harmless against any liabilty arising due to
Seller's performance or failure to pedorm under the Generation Interconnection
Agreement or R TO requirement.
6.7 Delivery Exceeding the Maximum GIA Delivery Rate. Seller shall not deliver
energy from the Facilty to the Point of Delivery at a rate that exceeds the Maximum GIA
Delivery Rate. Seller's failure to limit such deliveries to the Maximum GIA Delivery Rate shall
be a breach of a material obligation subject to Section 12. i .8.
6.8 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 PacifiCorp and its authorized agents, employees and inspectors ("PacifiCorp
Representatives") with reasonable access to the Facilty: (a) for the purpose of reading or testing
metering equipment, (b) as necessary to witness any acceptance tests, (c) for purposes of
implementing Section 4.6, and (d) for other reasonable purposes at the reasonable request of
PacifiCorp. PacifiCorp shall release Seller against and from any and all any and all loss, fines,
penalties, claims, actions or suits, including costs and attorney's fees, both at trial and on appeal
resulting from actions or omissions by any of the PacifiCorp Representatives in connection with
their access to the Facilty, except to the extent that such damages are caused or by the
intentional or grossly negligent act or omission of Seller.
SECTION 7: MOTIVE FORCE
Prior to the execution of this Agreement, Seller provided to PacifiCorp Wind Leases and
a motive force plan including an hourly wind profie acceptable to PacifiCorp in its reasonable
discretion and attached hereto as Exhibit F-l, together with a certification from a Licensed
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Professional Engineer to PacifiCorp attached hereto as Exhibit F-2, certifying that the
implementation of the fuel or motive force plan can reasonably be expected to provide fuel or
motive force to the Facilty for the duration of this Agreement adequate to generate power and
energy in quantities necessary to deliver the Average Annual Net Output.
SECTION 8: GENERATION FORECASTING COSTS
8.1 Forecast Service Election. PacifiCorp may, in its discretion, add forecasting
services for Seller's Facilty to PacifiCorp's existing contract with a qualified wind-energy-
production forecasting vendor, which contract and vendor may change during the term of this
Agreement.
8.2 Seller's Forecast-Cost Share. Pursuant to Commission Order No. 30497, Seller
shall be responsible for 50% of PacifiCorp's cost of adding such forecasting services ('~Seller's
Forecast-Cost Share") up to Seller's Capped Forecast-Cost Share.
8.3 Cap on Seller's Forecast-Cost Share. Seller's Forecast-Cost Share for a given
Contract Year is capped at 0.1 % of total payments made by PacifiCorp to Seller for Net Output
during the previous Contract Year ("Seller's Capped Forecast-Cost Share"). If the last
Contract Year of this Agreement is shorter than a full calendar year, the cap wil be prorated for
that shortened year. For the year(s) prior to the second Contract Year of this agreement that
equals a full calendar year, Seller's Forecast-Cost Share is capped at 0.1 % of estimated payments
for Net Output based on the Energy Delivery Schedule.
8.4 Payment. Seller shall pay to PacifiCorp Seller's Forecast-Cost Share uncapped by
Section 8.3 for each Contract Year in equal payments for each month of such year except the last
month of such year. (For example, in a Contract Year equaling a full calendar year, Sdler would
pay 1/1lth of Seller's Forecàst-CostShare during each of the first 11 months.) In the last month
of each Contract Year, PacifiCorp shall refund to Seller the amount paid by Seller under this
Section in excess, if any, of Seller's Capped Forecast-Cost Share. For a Contrct Year
encompassed by just one calendar month, Seller's payment to PacifiCorp and PacifiCorp's
refund to Seller shall be calculated and paid simultaneously. To the extent practicable, payments
and refunds under this Section shall be included in monthly payments and invoices under Section
10.
SECTION 9: METERING; REPORTS AND RECORDS
9.1 Metering Adjustment. Metering wil be performed at the location and in the
manner specified in Exhibit B and the Generator Interconnection Agreement. All quantities of
energy purchased hereunder shall be adjusted to account for electrical losses, if any, between the
point of metering and the Point of Delivery, so that the purchased amount reflects the net amount
of power flowing into the System at the Point of Delivery. i The loss adjustment shall be a
i If station service is supplied via separate facilties, PacifiCorp wil deduct station service from
the metered facilty output to calculate Net Output.
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reduction of 2% of the kWh energy production recorded on the Facilty output meter until
actually measured and calibrated at the meter by PacifiCorp Transmission and documented in a
signed letter.to Seller from PacifiCorp's QF Contracts Administrator.i!
9.2 Metering Errors. If any inspections or tests made pursuant to the Generator
Interconnection Agreement discloses an error exceeding two percent (2%), either fast or slow,
proper correction, based upon the inaccuracy found, shall be made of previous readings for the
actual period during which the metering equipment rendered inaccurate measurements if that
period can be ascertined. If the actual period cannot be ascertined, the proper correction shall
be made to the measurements taken dunng the time the metering equipment was in service since
last tested, but not exceeding three Biling Periods, in the amount the metering equipment shall
have been shown to be in error by such test. Any correction in bilings or payments resulting
from a correction in the meter records shall be made in the next monthly biling or payment
rendered.
9.3 Telemetering. In accordance with the Generation Interconnection Agreement,
Seller shall provide telemetering equipment and facilties capable of transmitting to
Transmission Provider (who wil share it with PacifiCorp as authonzed by Exhibit H, "Seller
Authorization to Release Generation Data to PacifiCorp") the following information concerning
the Facilty on a real-time basis, and wil operate such equipment when requested by PacifiCorp
to indicate:
(a)
(b)
(c) the Facilty's total instantaneous generation capacity; and
(?) wind velocity at turbine hub height.
Seller shall also transmit to PacifiCorp any other data from the Facilty that Seller receives on a
real-time basis, including meteorological data, wind speed data, wind direction data and gross
output data. Seller shall provide such real-time data to PacifiCorp in the same detail that Seller
receives the data (e.g., if Seller receives the data in four second intervals, PacifiCorp shall also
receive the data in four second intervals). PacifiCorp shall have the right from time to time to
require Seller to provide additional telemetenng equipment and facilties to the extent necessar
and reasonable.
instantaneous MW output at the Point of Delivery;
Net Output;
9.4 Monthly Reports and Logs and Other Information.
9.4.1 Reports. Within thirt (30) calendar days after the end of each
Biling Period, Seller shall provide to PacifiCorp a report in electronic format, which
report shall include (a) summaries of the Facilty's wind and output data for the Biling
Period in intervals not to exceed one hour (or such shorter period as is reasonably
possible with commercially available technology), including information from the
Facilty's computer monitoring system; (b) summaries of any other significant events
related to the constrction or operation of the Facilty for the Biling Period; (c) details of
Availabilty of the Facility for the Billng Period suffcient to calculate Availabilty and
including hourly average wind velocity measured at turbine hub height and ambient air
22
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temperature; and (d) any supporting information that PacifiCorp may from time to time
reasonably request (including historical wind data for the Facilty).
9.4.2 Electronic Fault Log. Seller shall maintain an electronic fault log of
operations of the Facilty during each hour of the term of this Agreement commencing on
the Commercial Operation Date. Seller shall provide PacifiCorp with a copy of the
electronic fault log within thirt (30) calendar days after the end of the Billng Period to
which the fault log applies.
9.4.3 Upon the request of PacifiCorp, Seller shall provide PacifiCorp the
manufacturers' guidelines and recommendations for maintenance of the Facilty
equipment.
9.4.4 By each January 10 following the Commercial Operation Date,
Seller shall provide to PacifiCorp wrtten certification that Seller has completed all the
manufacturers' guidelines and recommendations for maintenance of the Facilty
equipment applicable to the previous calendar year.
9.4.5 At any time from the Effective Date, one (1) year's advance notice
of the termination or expiration of any agreement, including Wind Leases, pursuant to
which the Facilty or any equipment relating thereto is upon the Facility site; provided
that the foregoing does not authorize any early termination of any land lease.
9.4.6 As soon as it is known to Seller, Seller shall disclose to PacifiCorp,
the extent of any material violation of any environmental laws or regulations arising out
of the constrction or operation of the Facilty, or the presence of Environmental
Contamination at the Facilty 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 penod
of time that Seller has occupied the Premises.
9.5 Maintenance of Metering Equipment. To the extent not otherwise provided in the
Generator Interconnection Agreement, PacifiCorp shall inspect, test, repair and replace the
metering equipment periodically, or at the request of Seller if Seller has reason to believe
metering may be .off and requests an inspection in writing. To the extent not otherwise provided
in the Generator Interconnection Agreement, all PacifiCorp's costs relating to designing,
installng, maintaining, and repairing metering equipment installed to accommodate Seller's
Facility shall be borne by Seller.
SECTION 10: BILLINGS, COMPUTATIONS AND PAYMENTS
10.1 Payment for Net Output. On or before the thirtieth (30th) day following the end of
each Biling Period, PacifiCorp shall send to Seller payment for Seller's deliveries of Net Output
to PacifiCorp, together with computations supporting such payment. PacifiCorp may offset any
such payment to reflect amounts owing from Seller to PacifiCorp pursuant to this Agreement, the
23
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Generation Interconnection Agreement, and any other agreement(s) between the Paries. Any
such offsets shall be separately itemized on the statement accompanying each payment to Seller.
10.2 Corrections. PacifiCorp shall have up to thirt-six (36) months to adjust any
payment made pursuant to Section 10.1. In the event PacifiCorp determines it has overpaid
Seller (for Inadvertent Energy, calibration error, or otherwise), PacifiCorp may adjust Seller's
future payment accordingly in order to correct the error in a reasonable time.
10.3 Annual Invoicing for Output ShortfalL. Thirt calendar days after the end of each
Contract Year, PacifiCorp shall deliver to Seller an invoice showing PacifiCorp's computation of
Output Shortfall, if any, for all Biling Periods in the prior Contract Year and Output Shortfall
Damages, if any. In preparing such invoices, PacifiCorp shall utilze the meter data provided to
PacifiCorp for the Contract Year in question, but may also rely on historical averages and such
other information as may be available to PacifiCorp at the time of invoice preparation if the
meter data for such Contrct Year is then incomplete or otherwise not available. To the extent
required, PacifiCorp shall prepare any such invoice as promptly as practicable following its
receipt of actual results for the relevant Contract Year. Seller shall pay to PacifiCorp, by wire
transfer of immediately available funds to an account specified in writing by PacifiCorp or by
any other means agreed to by the Parties in writing from time to time, the amount set fort as due
in such invoice, and shall within thirty (30) days after receiving the invoice raise any objections
regarding any disputed portion of the invoice. Objections not made by Seller within the thirt-
day period shall be deemed waived.
10.4 Interest on Overdue Amounts. Any amounts owing after the due date thereof shall
bear interest at the Prime Rate plus two percent (2%) from the date due until paid; provided,
however, that the interest rate shall at no time exceed the maximum rate allowed by applicable
law.
10.5 Disputed Amounts. If either Part, in good faith, disputes any amount due
pursuant to an invoice rendered hereunder, such Part shall notify the other Part 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 10.2, 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 Part is determined to
be due to the other Part, or if the Parties resolve the payment dispute, the amount due shall be
paid within five (5) days after such determination or resolution, along with interest in accordance
with Section 10.4.
SECTION 11: SECURITY
1 1.1 Delay Security:
11.1.1 Duty to Post Security. By the date provided in Section 2.2.2, Seller
shall post a Letter of Credit, cash or a parental guaranty, each in a form acceptable to
PacifiCorp, in the amount of $ , as calculated pursuant to Section 11. 1.2 ("Delay
Security"). To the extent PacifiCorp receives payment from the Delay Security, Seller
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shall, within fifteen (15) calendar days, restore the Default Security as if no such
deduction had occurred.
11.1.2 Calculation of Delay Security. The dollar value of Delay Security
shall equal the greater of: (1) fort-five dollars ($45) multiplied by the Maximum Facility
Delivery Rate with the Maximum Facilty Delivery Rate being measured in kW; or (2)
the sum of the products, for each of the first three calendar months after the Scheduled
Commercial Operation Date, of:
the energy in the Initial Year Energy Delivery Schedule for the month (kWh)
multiplied by the monthly weighted average On-Peak and Off-Peak Conforming
Energy Purchase Price for the months ($/Mh) divided by 1000.
Such amount shall be fixed upon execution of this Agreement.
1 1.1.3 Right to Draw on Security. PacifiCorp shall have the right to draw
on the Delay Security to collect Delay Liquidated Damages. Commencing on or about
first of each month, PacifiCorp wil invoice Seller for Delay Liquidated Damages
incured, if any, during the preceding month. If insuffcient Delay Security is available,
Seller shall pay PacifiCorp for invoiced Delay Liquidated Damages no later than five
business days after receiving such invoice. The Parties wil make bilings and payments
for Delay Liquidated Damages in accordance with Section 10.
11.1.4 Release of Delay Security. Unless PacifiCorp disputes whether
Seller has paid all Delay Liquidated Damages, PacifiCorp shall release the Delay
Security on the earlier of the 30th calendar day following commencement of Commercial
Operation or the 60th calendar day following PacifiCorp's termination of this Agreement.
11.1.5 Default. Seller's failure to post and maintain Delay Secunty in
accordance with Section 11.1 wil constitute an event of default, unless cured in
accordance with Section 12.1.1 of this Agreement.
1 1.2 Default Security (Levelized Pricing Only). If Seller has adopted levelized pricing
for Net Output, Seller wil provide security to PacifiCorp pursuant to Commission Order Nos.
21690,21800, 29482, 29587 and related orders ("Default Security") as set fort in Addendum
_(add addendum if Seller elects levelized pricing).
SECTION 12: DEFAULTS AND REMEDIES
12.1 The following events shall constitute defaults under this Agreement:
12.1.1 Non-Payment. Seller's failure to.make a payment when. due under
this Agreement or post and maintain security in conformance with the requirements of
Section 11 or maintain insurance in conformance with the requirements of Section 14 of
this Agreement, if the failure is not cured within ten (10) business days after the non-
defaulting Party gives the defaulting Part a notice of the default.
25
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12.1.2 Breach of Representation. Breach by a Part of a representation or
waranty set forth in this Agreement, if such failure or breach is not cured within thirt
(30) days following written notice.
12.1.3 Default on Other Agreements. Seller's failure to cure any default
under any commercial or financing agreements or instrument (including the Generation
Interconnection Agreement) within the time allowed for a cure under such agreement or
instrument.
12.1.4 Insolvency. A Par (a) makes an assignment for the benefit of its
creditors; (b) fies a petition or otherwise commences, authonzes or acquiesces in the
commencement of a proceeding or cause of action under any bankrptcy or similar law
for the protection of creditors, or has such a petition fied against it and such petition is
not withdrawn or dismissed within sixty (60) days after such filing; (c) becomes
insolvent; or (d) is unable to pay its debts when due.
12.1.5 Material Adverse Change. A Matenal Adverse Change has occurred
with respect to Seller and Seller fails to provide such performance assurances as are
reasonably requested by PacifiCorp, within fifteen (15) days from the date of such
request.
12.1.6 Sale to Third-Part. Seller's sale of Net Output to an entity other
than PacifiCorp, as prohibited by Section 4.2.
12.1.7 Non-Delivery. Unless excused by an event of Force Majeure,
Seller's failure to deliver any Net Energy for three consecutive calendar months.
12.1.8 A Par otherwise fails to perform any material obligation (including
but not limited to failure by Seller to meet any deadline set fort in Section 2.2) imposed
upon that Part by this Agreement if the failure is not cured within thirt (30) days after
the non-defaulting Part gives the defaulting Part notice of the default; provided,
however, that, upon written notice from the defaulting Part, this thirt (30) day period
, shall be extended by an additional ninety (90) days if (a) the failure cannot reasonably be
cured within the thirt (30) day period despite dilgent effort, (b) the default is capable
of being cured within the additional ninety (90) day period, and (c) the defaulting Part
commences the cure within the onginal thirt (30) day period and is at all times thereafter
diligently and continuously proceeding to cure the failure.
12.2 In the event of any default hereunder, the non-defaulting Par must notify the
defaulting Party in writing of the circumstances indicating the default and outlining the
requirements to cure the default. If the default has not been cured within the prescribed time,
above, the non-defaulting Part may terminate this Agreement at its sole discretion by delivering
written notice to the other Part and may pursue any and all legal or equitable remedies provided
by law or pursuant to this Agreement. The rights provided in this Section 12 are cumulative such
that the exercise of one or more rights shall not constitute a waiver of any other rights.
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12.3 In the event this Agreement is terminated because of Seller's default and Seller
wishes to again sell Net Output from the facilty using the same motive force to PacifiCorp
following such termination, PacifiCorp in its sole discretion may require that Seller do so subject
to the terms of this Agreement, including but not limited to the purchase prices as set forth in
(Section 5), until the Expiration Date (as set fort in Section 2.1). At such time Seller and
PacifiCorp agree to execute a written document ratifYing the terms of this Agreement.
12.4 If this Agreement is terminated as a result of Seller's default, in addition to and
not in limitation of any other right or remedy under this Agreement or applicable law (including
any right to set-off, counterclaim, or otherwise withhold payment), Seller shall pay PacifiCorp
Output Shortall Damages for a penod of twenty-four (24) months from the date of termination
plus the estimated administrative cost to acquire the replacement power. The Parties agree that
the damages PacifCorp would incur due to termination resulting from Seller's default would be
difficult or impossible to predict with certinty, and that the damages in this Section 12.4 are an
appropnate approximation of such damages.
12.5 Recoupment of Damages.
(a) Default Security Available. If Seller has posted Default Security,
PacifiCorp may draw upon that security to satisfY any damages, above.
(b) Default Security Unavailable. If Seller has not posted Default Security, or
if PacifiCorp has exhausted the Default Security, PacifiCorp may collect
any remaining amount owing by parially withholding futue payments to
Seller over a reasonable period of time. PacifiCorp and Seller shall work
together in good faith to establish the period, and monthly amounts, of
such withholding so as to avoid Seller's default on its commercial or
financing agreements necessary for its continued operation of the Facilty.
12.6 Upon an event of default or termination event resulting from default under this
Agreement, in addition to and not in limitation of any other right or remedy under this
Agreement or applicable law (including any rightto set-off, counterclaim, or otherwise withhold
payment), the non-defaulting Part may at its option set-off, against any amounts owed to the
defaulting Part, any amounts owed by the defaulting Part under any contract(s) or
agreement(s) between the Parties. The obligations of the Parties shall be deemed satisfied and
discharged to the extent of any such set-off. The non-defaulting Part shall give the defaulting
Part written notice of any set-off, but failure to give such notice shall not affect the validity of
the set-off.
12.7 Amounts owed by Seller pursuant to this Section 12 shall be due within five (5)
business days after any invoice from PacifiCorp for the same.
SECTION 13: INDEMNIFICATION; LIABILITY
13.1 Indemnities.
27
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13.l.l Indemnity by Seller. Seller shall release, indemnify and hold
harmless PacifiCorp, its directors, officers, agents, and representatives against and from
any and all loss, fines, penalties, claims, actions or suits, including costs and attorney's
fees, both at tral and on appeal, resulting from, or arising out of or in any way connected
with (a) the energy delivered by Seller under this Agreement to and at the Point of
Delivery, (b) any facilities on Seller's side of the Point of Delivery, (c) Seller's operation
and/or maintenance of the Facility, or (d) arising from this Agreement, including without
limitation any loss, claim, action or suit, for or on account of injury, bodily or otherwise,
to, or death of, persons, or for damage to, or destrction or economic loss of propert
belonging to PacifiCorp, Seller or others, excepting only such loss, claim, action or suit
as may be caused solely by the fault .or gross negligence of PacifiCorp, its directors,
offcers~ employees, agents or representatives.
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13.1.2 Indemnity by PacifiCorp. PacifiCorp shall release, indemnify and
hold harmless Seller, its directors, offcers, agents, lenders and representatives against
and from any and all loss, fines, penalties, claims, actions or suits, including costs and
attorney's fees, both at tral and on appeal, resulting from, or arising out of or in any way
connected with the energy delivered by Seller under this Agreement after the Point of
Delivery, including without limitation any loss, claim, action or suit, for or on account of
injur, bodily or otherwise, to, or death of, persons, or for damage to, or destrction or
economic loss of propert, excepting only such loss, claim, action or suit as may be
caused solely by the fault or gross negligence of Seller, its directors, offcers, employees,
agents, lenders or representatives.
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13.2 No Dedication. Nothing in this Agreement shall be constred to create any duty
to, any stadard of care with reference to, or any liabilty to any person not a Part to this
Agreement. No undertaking by one Part to the other under any provision of this Agreement
shall constitute the dedication of that Par's system or any portion thereof to the other Par or
to the public, nor affect the status of PacifiCorp as an independent public utility corporation or
Seller as an independent individual or entity.
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13.3 No Warranty. Any review, acceptance or failure to review Seller's design,
specifications, equipment or facilities shall not be an endorsement or a confirmation by
PacifiCorp and PacifiCorp makes no waranties, expressed or implied, regarding any aspect of
Seller's design, specifications, equipment or facilities, including, but not limited to, safety,
durabilty, reliability, strengt, capacity, adequacy or economic feasibilty.
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13.4 CONSEOUENTIA DAMGES. EXCEPT TO THE EXTENT SUCH
DAMGES AR INCLUDED IN TH LIQUIDATED DAMGES, DELAY DAMGES, OR
OTHER SPECIFIED MEASUR OF DAMAGES EXPRESSLY PROVIED FOR IN THS
AGREEMENT, NEITHR PARTY SHALL BE LIALE TO THE OTHER PARTY FOR
SPECIA, PUNTIV, INIRCT, EXEMPLARY OR CONSEQUENTI DAMGES,
WHTHR SUCH DAMGES AR ALLOWED OR PROVIED BY CONTRCT, TORT
(INCLUDING NEGLIGENCE), STRCT LIAILITY, STATUTE OR OTHERWISE.
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SECTION 14: INSURANCE
14.1 Certificates. Prior to connection of the Facilty to the System, Seller shall secure
and continuously carr insurance in compliance with the requirements of this Section. Seller
shall provide PacifiCorp insurance certificate(s) (of "ACORD Form" or the equivalent)
certifying Seller's compliance with the insurance requirements hereunder. Commercial General
Liabilty coverage wrtten on a "claims-made" basis, if any, shall be specifically identified on the
certificate. If requested by PacifiCorp, a copy of each insurance policy, certified as a tre copy
by an authorized representative of the issuing insurance company, shall be furnished to
PacifiCorp.
14.2 Required Policies and Coverages. Without limiting any liabilties or any other
obligations of Seller under this Agreement, Seller shall secure and continuously carr with an
insurance company or companies rated not lower than "A-:VII" by the A.M. Insurance Reports
the insurance coverage specified below:
14.2.1 Commercial General Liabilty insurance, to include contractual
liabilty, with a minimum single limit of $1,000,000 per occurrence to protect against and
from all loss by reason of injury to persons or damage to propert based upon and ansing
out of the activity under this Agreement.
14.2.2 All Risk Propert insurance providing coverage in an amount at least
equal to 80% of the replacement value of the Facility against "all risks" of physical loss
or damage, including coverage for ear movement, flood, and boiler and machinery.
The Propert policy may contain separate sub-limits and deductibles subject to insurance
company underwiting guidelines. The Risk Policy wil be maintained in accordance
with terms available in the insurance market for similar facilties.
14.3 The Commercial General Liabilty policy required herein shall include (i)
provisions or endorsements naming PacifiCorp, its Board of Directors, Officers and employees
as additional insureds, and (ii) cross liabilty coverage so that the insurance applies separately to
each insured against whom claim is made or suit is brought, even in instances where one insured
claims against or sues another insured.
14.4 All liabilty policies required by this Agreement shall include provisions that such
insurance is primary insurance with respect to the interests of PacifCorp and that any other
insurance maintained by PacifiCorp is excess and not contributory insurance with the insurance
required hereunder, and provisions that such policies shall not be canceled or their limits of
liabilty reduced without (i) ten (l0) business days prior written notice to PacifiCorp if canceled
for nonpayment of premium, or (ii) thirt (30) business days prior written notice to PacifiCorp if
canceled for any other reason.
14.5 Commercial General Liabilty insurance coverage provided on a "claims-made"
basis shall be maintained by Seller for a minimum period of five (5) years after the completion of
this Agreement and for such other length of time necessary to cover liabilities arising out of the
activities under this Agreement.
.
29
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SECTION 15: FORCE MAJEURE
15.1 As used in this Agreement, "Force Majeure" or "an event of Force Majeure"
means any cause beyond the reasonable control of the Seller or of PacifiCorp which, despite the
exercise of due dilgence, such Par is unable to prevent or overcome. By way of example,
Force Majeure may include but is not limited to acts of God, flood, storms, wars, hostilties, civil
strife, strikes, and other labor distubances, earhquakes, fires, lightning, epidemics, sabotage,
restraint by cour order or other delay or failure in the performance as a result of any action or
inaction on behalf of a public authority which is in each case (i) beyond the reasonable control of
such Par, (ii) by the exercise of reasonable foresight such Part could not reasonably have been
expected to avoid and (iii) by the exercise of due diligence, such Par shall be unable to prevent
or overcome. Force Majeure, however, specifically excludes the cost or availability of fuel or
motive force to operate the Facility or changes in market conditions that affect the price of
energy or transmission. If either Part is rendered wholly or in part unable to perform its
obligation under this Agreement because of an event of Force Majeure, both Parties shall be
excused from whatever performance is affected by the event of Force Majeure, provided that:
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15.1.1 the non-performing Part, shall, within two (2) weeks after the
occurence of the Force Majeure, give the other Part wrtten notice describing the
pariculars of the occurrence, including the star date of the Force Majeure, the cause of
Force Majeure, whether the Facility remains partially operational and the expected end
date of the Force Majeure;
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15.1.3
to perform; and
the non-performing Par uses its best efforts to remedy its inability
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15.1.2 the suspension of performance shall be of no greater scope and of no
longer duration than is required by the Force Majeure;
15.1.4 the non-performing Par shall provide prompt wrtten notice to the
other Part at the end of the Force Majeure event detailng the end date, cause there of,
damage caused there by and any repairs that were required as a result of the- Fòrce
Majeure event, and the end date of the Force Majeure.
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15.2 No obligations of either Par which arose before the Force Majeure causing the
suspension of performance shall be excused as a result of the Force Majeure.
15.3 Neither Par shall be required to settle any stre, walkout, lockout or other labor
dispute on terms which, in the sole judgment of the Part involved in the dispute, are contrar to
the Par's best interests.
SECTION 16: SEVERAL OBLIGATIONS
Nothing contained in this Agreement shall ever be constred to create an association, trst,
parership or joint ventue or to impose a trst or parership duty, obligation or liabilty
between the parties. If Seller includes two or more paries, each such par shall be jointly and
severally liable for Seller's obligations under this Agreement.
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SECTION 17: CHOICE OF LAW
This Agreement shall be interpreted and enforced in accordance with the laws of the state of
Idaho, excluding any choice of law rules which may direct the application of the laws of another
jurisdiction.
SECTION 18: PARTIAL INVALIDITY
It is not the intention of the Parties to violate any laws governing the subject matter of this
Agreement. If any of the terms of the Agreement are finally held or determined to be invalid,
ilegal or void as being contrary to any applicable law or public policy, all other terms of the
Agreement shall remain in effect. If any terms are finally held or determined to be invalid,
ilegal or void, the Parties shall enter into negotiations concerning the terms affected by such
decision for the purpose of achieving conformity with requirements of any applicable law and
the intent of the Parties to this Agreement.
SECTION 19: WAIVER
Any waiver at any time by either Par of its rights with respect to a default under this
Agreement or with respect to any other matters arising in connection with this Agreement must
be in writing, and such waiver shall not be deemed a waiver with respect to any subsequent
default or other matter.
SECTION 20: GOVERNMENTAL JURISDICTION AND
AUTHORIZATIONS
PacifiCorp's compliance with the terms of this Agreement is conditioned on Seller's submission
to PacifiCorp prior to the Commercial Operation Date and Seller's maintenance thereafter of
copies of all local, state and federal licenses, permits and other approvals as then may be required
by law for the construction, operation and maintenance of the Facility.
SECTION 21: SUCCESSORS AND ASSIGNS
This Agreement and all of the terms and provisions hereof shall be binding upon and inure to the
benefit of the respective successors and assigns of the Parties hereto, except that no assignment
hereof by either Part shall become effective without the written consent of both Paries being
first obtained. Such consent shall not be unreasonably withheld. Notwithstanding the foregoing,
any entity with which PacifiCorp may consolidate, or into which it may merge, or to which it
may conveyor transfer substantially all of its electric utilty assets, shall automatically, without
further act, and without need of consent or approval by the Seller, succeed to all of PacifiCorp's
rights, obligations, and interests under this Agreement. This article shall not prevent a financing
entity with recorded or secured rights from exercising all rights and remedies available to it
under law or contract. PacifiCorp shall have the right to be notified by the financing entity that it
is exercising such rights or remedies.
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SECTION 22: ENTIRE AGREEMENT
22.1 This Agreement supersedes all prior agreements, proposals, representations,
negotiations, discussions or letters, whether oral or in wrting, regarding PacifiCorp's purchase of
Net Output from the Facilty. No modification of this Agreement shall be effective unless it is in
writing and signed by both Paries.
22.2 By executing this Agreement, each Par releases the other from any claims,
known or unknown, that may have arisen prior to the execution date of this Agreement with
respect to the Facilty and any predecessor facilty proposed to have been constructed on the site
ofthe Facilty.
SECTION 23: NOTICES
All notices except as otherwise provided in this Agreement shall 'be in writing, shall be directed
as follows and shall be considered delivered if delivered in person or when deposited in the U.S.
Mail, postage prepaid by certified or registered mail and return receipt requested.
Notices PacifiCorp Seller
All Notices PacifiCorp Power County Wind Park South
825 NE Multnomah Street Portland,Att: Roald Doskeland
OR 97232 Windland Inc.
Attn: Contract Administration,7669 W. Riverside DnveSuite 600
Phone: (503) 813 - 5952 Suite 102
Facsimile: (503) 813 - 6291 Boise, Idaho 83714
Duns: OO~ 790-9013
Federal Tax ID Number: 93~0246090 Phone: [phone]
Fax: (208) 375~2894
All Invoices:Att: Back Offce, Suite 700 Same as above
Phone: (503) 813 - 5578
Facsimile: (503) 813 - 5580
Scheduling:Attn: Resource Planning, Suite 600 Same as above
Phone: (503) 813 - 6090
Facsimile: (503) 813 - 6265
Payments:Attn: Back Offce, Suite 700 Same as above
Phone: (503) 813 - 5578
Facsimile: (503) 813 - 5580
Wire Transfer:Bank One N.A.To be provide in a separate letter
To be provided in separate letter from
PacifiCorp to Seller
Credit and Attn: Credit Manager, Suite 700 Same as above
Phone: (503) 813 - 5684
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Notices PacifiCorp Seller
Collections:Facsimile: [phone]
With Additional Att: PacifiCorp General Counsel Same as above
Notices of an Phone: (503) 813~5029
Event of Default Facsimile: [phone]
or Potential
Event of Default
to:
The Parties may change the person to whom such notices are addressed, or their addresses, by
providing written notices thereof in accordance with this Section.
IN WITNSS WHREOF, the Paries hereto have caused this Agreement to be executed
in their respective names as of the date first above written.
PacifiCorp Seller
By:By:
Name: Bruce Griswold Name: Roald Doskeland
Title: Director, Short Term Origination
and QF Contracts
Title: President, Windland Inc.
Manager, Power County Wind Park
South, LLC
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EXHIBIT A
DESCRIPTION OF SELLER'S FACILITY
(Seller to Complete)
Seller's Facilty consists of twelve (12) wind turbine generator(s) manufactured by Vestas.
More specifically, each generator at the Facilty is descnbed as:
Type (synchronous or inductive):
Model: Vestas V100, 1.8 MW
Number of Phases: 3
Rated Output (kW): 21,600
Rated Voltage (line to line):
Rated Current (A): Stator: _ A; Rotor: A
Maximum kW Output: _kW Maximum kVA Output:
Minimum kW Output: kW
Manufacturer's Guaranteed Cut-in Wind Speed (if applicable):
Facilty Capacity Rating: kWat
Maximum Facilty Delivery Rate:
Maximum GIA Delivery Rate:
hour-averaged)
Identify the maximum output of the generator(s) and describe any differences between that
output and the Nameplate Capacity Rating:
kVA
Rated Output (kV A):
kWat
kW (specify whether rate is instantaneous or
Station service requirements, and other loads served by the Facilty, if any, are described
as follows: Station Service is estimated to be 220kW, line losses and transformer losses are
estimated to be 1,100 kW.
Location of the Facilty: The Facilty is located in Power County, Idaho. The location is more
particularly described as follows:
South: T8S, R31E, Section 13 and T8S, R31E, Sections 6,7,8,17,18
Attached is a topogrphic site map of the Facilty
Power factor requirements:
Rated Power Factor (PF) or reactive load (kVAR):
Attach documentation ofthe power curve for the generator(s).
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EXHIBITB
POINT OF DELIVERY / PARTIES' INTERCONNCTION FACILITIES
(Seller to provide its own diagram and description)
Instrctions to Seller:
1. Include description of point of metering, and Point of Delivery
2. Provide interconnection single line drawing of Facilty including any transmission
facilties on Seller's side of the Point of Delivery.
Point of Delivery - Wil be determined dunng the interconnection process. Preliminary review
shows interconnection wil be between strcturesi53 and 55 on the Brady- Treasureton
transmission line, see attached one-line diagram.
A one-line diagram of the Facilty (attached) was provide on March 12,2010.
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ExmBITC
REQUIRED FACILITY DOCUMENTS
Qualifying Facilty Number from FERC: South - QF 10-350-000
The following Documents are required to complete this project:
Generation Interconnection Agreement
Easements:
Option for Land and wind leases with four (4) landowners for a term of30 years was provided
on March 12,2010 I
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Permits:
Special Use Permit from Power County Planning and Zoning
Power County Highway District Access Permit
Southeast District Health Departent Septic Permit
Idaho Division of Building Safety Electrical Permit
Idaho Transporttion Deparent, Division of Aeronautics, FAA Form 7460
Idaho Transportation Departent, Overlegalload Permit
Idaho Departent of Environmental Quality, Dredge and Fil Permit
FAA Form 7460-1 and 7460-2 for each turbine
US Ary Corp of Engineers, Section 404 Clean Water Act
US Environmental Protection Agency, Constrction General Permit/otice of Intent
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EXIDBITD
ENERGY DELIVERY SCHEDULE
Power County Wind Park South, LLC
Scheduled Monthly
Energy Deliverv AvekW/mo
Januar 6,221,422 8,362
February 5,743,522 8,547
March 6,215,694 8,354
April 5,326,692 7,398
May 4,710,890 6,332
June 4,539,524 6,305
July 3,445,526 4,631
August 3,321,630 4,465
September 4,113,788 5,714
October 4,744,687 6,377
November 5,620,495 7,806
December 6,519,863 8,763
TOTAL:60,523,733 6,909
Planned Outages. Seller wil provide a Planned Outage schedule annually not to exceed _
hours per per year.
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EXHIITE
START-UP TESTING
Required factory testing includes such checks and tests necessary to determine that the
equipment systems and subsystems have been properly manufactured and installed, function
properly, and are in a condition to permit safe and effcient start-up of the Facility, which may
include but are not limited to:
1. Test of mechanical and electrcal equipment;
2. Calibration of all monitonng instruments;
3. Operating tests of all valves, operators, motor starers and motor;
4. Alarms, signals, and fail-safe or system shutdown control tests;
5. Point-to-point continuity tests;
6. Bench tests of protective devices; and
7. Tests required by manufacturer() and designers) of equipment.
Required star-up tests are those checks and tests necessar to determine that all features
and equipment, systems, and subsystems have been properly installed and adjusted, function
properly, and are capable of operating simultaneously in such condition that the Facilty is
capable of continuous delivery into PacifiCorp's electrical system, which may include but are
not limited to:
1. Turbine/generator mechanical rus and functionality;
2. System operation tests;
3. Brae tests;
4. Energization of transformers;
5. Synchronizing tests (manual and auto);
6. Excitation and voltage regulation operation tests;
7. Auto stop/start sequence;
8. Completion of any state and federal environmental testing requirements; and
9. Tests required by manufacturer(s) and designer(s) of equipment.
For wind projects only, the following Wind Turbine Generator Installation Checklists are
required documents to be signed off by Manufacturer or Subcontract Category Commissioning
Personnel as part ofthe Commissioning and startup testing:
Turbine Installation
Foundation Inspection
Controller Assembly
Power Cables
Cable Installation Checklists including: Controller
Top Deck / Yaw Deck
Tower Top Section / Saddle
Mid Section Cables or buss bars
Base Section
Tower Base Section
Tower Lights and Outlets
Tower Mid Section
Tower Top Section
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Nacelle
Rotor
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EXHIBITF-l
MOTIVE FORCE PLAN
WIN SPEED DATA SUMMRIS & HOURLY WI PROFILE
Windland has collected wind data at the sites of Power County Wind Park North and South since
2002. Data have been collected on multiple met masts and site analyses have been pedormed by
Garrad Hassan, WindLogics, 3 Tier, Ron Nierenburg and V-bar LLC. The attached 12x24 table
was based on an analysis of wind data collected on site between January 2005 and December
2009. The basic analytical method employed was Measure-Correlate-Predict (MCP). The site
observations were correlated with data collected at the Pocatello airport to provide long term
wind speed adjustments. Monthly averages, diurnal varations and long term averages were used
to produce site frequency distributions including the 12x24 array attched.
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EXHIBITF-2
ENGINEER'S CERTIFICATION
(1) THT TH WIND DATA SUMMAES IN EXHIBIT F-I ARE ACCURTE;
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(Licensed Professional Engineer's certification)
(2) THT TH AVERAGE ANAL NET OUTPUT ESTIMATE IS 60,523,733 KWH
PER YEAR IN EACH FULL CALENDAR YEAR OF THIS AGREEMENT BASED ON
TH MOTIVE FORCE PLAN IN EXHIBIT F-I;
(Licensed Professional Engineer's certification)
(3) THT TH FACILITY, UNER AVERAGE DESIGN CONDITIONS, LIKEL Y WILL
GENERATE NO MORE THAN 10 aMW IN ANY CALENAR MONTH.
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EXHIBITG
SAMPLE ENERGY PURCHASE ProCE CALCULA nONS
The following are samples of calculations of energy purchase prices using the formula and tables
in Section 5.1.
The calculation for the non-Ievelized purchase price during an On-Peak Hour in May of 2011
equals $60.24IMWh (the 2011 annual rate for Conforming Energy) multiplied by 92% (0.92)
(the May On-Peak Hour multiplier) minus $6.50IMWh (the wind integration cost), which equals
$48.92/Mh.
Table 1: Sample calculations for non-Ievelized On-Peak Conforming Energy in 2011: Purchase
Price = (annual rate * monthly On-Peak multiplier) - wind integration cost.
Conforming
Energy Calculated Purchase
Annual Rate On-Peak Wind Price for 2011 On-
for 2011 Hour Integration Peak Conforming
Month (per MWh) Multiplier Cost Energy (per MWh)
January $60.24 103%$6.50 $55.55
February $60.24 105%$6.50 $56.75
March $60.24 95%$6.50 $50.73
April $60.24 95%$6.50 $50.73
May $60.24 92%$6.50 $48.92
June $60.24 94%$6.50 $50.13
July $60.24 121%$6.50 $66.39
August $60.24 121%$6.50 $66.39
September $60.24 109%$6.50 $59.16
October $60.24 115%$6.50 $62.78
November $60.24 110%$6.50 $59.76
December $60.24 129%$6.50 $71.21
Table 2: Sample calculations for non-Ievelized Off-Peak Conforming Energy in 2011: Purchase
Price = (anual rate * monthly Off-Peak multiplier) - wind integration cost.
Conforming
Energy Calculated Purchase
Annual Rate Off-Peak Wind Price for 2011 Off-
for 2011 Hour Integration Peak Conforming
Month (per MWh) Multiplier Cost Energy (per MWh)
January $60.24 94%$6.50 $50.13
February $60.24 97%$6.50 $51.93
March $60.24 80%$6.50 $41.69
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Conforming
Energy Calculated Purchase
Annual Rate Off-Peak Wind Price for 2011 Off-
for 2011 Hour Integration Peak Conforming
Month (per MWh) Multiplier Cost Energy (per MWh)
April $60.24 76%$6.50 $39.28
May $60.24 63%$6.50 $31.45
June $60.24 65%$6.50 $32.66
July $60.24 92%$6.50 $48.92
August $60.24 106%$6.50 $57.35
September $60.24 99%$6.50 $53.14
October $60.24 105%$6.50 $56.75
November $60.24 96%$6.50 $51.33
December $60.24 120%$6.50 $65.79
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EXHIBITH
Seller Authorization to Release Generation Data to PacifiCorp
¡Interconnection Customer Letterhead)
Transmission Services
Att: Director, Transmission Services
825 NE Multnomah, Suite 1600
Portland, OR 97232
RE: Power County Wind Park South LLC Interconnection Request
Dear Sir:
Power County Wind Park South LLC hereby voluntaly authorizes PacifiCorp's Transmission
business unit to share Power County Wind Park South LLC's generator interconnection
information and generator meter data relating to Power County Wind Park South LLC
Qualifying Facilty located in the town of American Falls, Power County, Idaho with Marketing
Affliate employees of PacifiCorp Energy, including, but not limited to those in the Commercial
and Trading group. Power County Wind Park South LLC acknowledges that PacifiCorp did not
provide it any preferences, either operational or rate-related, in exchange for this volunta
consent.
Name
Title
Date
H - 1
WIDLAND, INC.,
Complainant,
)
) Case No. PAC-E-1O-05
)
) EXHIBIT B TO ROCKY MOUNTAIN
) POWER'S FIRST PRODUCTION
) REQUEST TO WIDLAND,rnC.
)
)
vs.
PACIFICORP,
Defendant.
EXHIBIT B: Non-exclusive list of substantive differences between initial draft
PP As from the parties
3 ¡r-_ #.
~~ ~rPo -0"" ..~c --~ø :i~~) ~gi ~o-~¿.
;0rnorn:2
riio
i;;~-""".,~,.~
EXHIBIT B: Non-exclusive list of substantive differences between initial draft PPAs
from the parties
#Subject Windlands March 29, 2010 Draft PPA PacifiCorp's April 2,2010 Draft PPA
1 Definition of 1.2 "Availabilty" means, for any Billng 1.2 "Availabilty means, for any Biling"Availabilty"Period, the ratio, expressed as a percentage, of Period, the ratio, expressed as a percentage,
(x) the aggregate sum of the minutes in which of (x) the aggregate sum of the turbine-
the Facilty was available to generate at the minutes in whi.ch each of the Wind Turbines
Maximum Facilty Delivery Rate during the at the Facilty was available to generate atBiling Period divided by (y) the number of the Maximum Facilty Delivery Rate during
minutes in the Biling Period. The Facility the Biling Period over (y) the product of the shall be deemed available during time of number of Wind Turbines that comprise the
forced outages, force majeure, low wind Facilty Capacity Rating as of Commercialspeeds and scheduled maintenance.Operation multiplied by the number of
minutes in such Biling Period. A Wind
Turbine shall be deemed not available to
operate during minutes in which it is (a) in
an emergency, stop, service mode or pause
state; (b) in "run" status and faulted; or (c)
otherwise not operational or capable of
delivering at the Maximum Facilty Delivery
Rate to the Point of Delivery; unless if
unavailable due solely to (i) a default by
PacifiCorp; (ii) to the extent not caused by
Seller's actions, a curtilment in accordance
with Section 6.3; or (ii) insuffcient wind
(including the normal amount of time
required by the generating equipment to
resume operations following a period when
wind speed is below the Cut-In Wind Sneed),
2 Definition Not present 1.29 "Letter of Credit' means an
of "Letter of irrevocable standby letter of credit in a formCredit"reasonably acceptable to PacifiCorp, naming
PacifiCorp as the part entitled to demand
payment and present draw requests
thereunder.Such letter of credit shall be
provided by an institution that is a United
States offce of a commercial bank or trst
company organized under the laws of the
United States of America or a political
subdivision thereof, with a credit rating on
its long-term senior unsecured debt of at
least "A" from Standard & Poor's and "A2"
from Moody's Investor Services, and having
assets of at least $10,000,000,000 (net of
reserves).
3 Seller to . Not present 2.2.2 By the date 30 calendar days after
post Delay the Effective Date, Seller shall provide Delay
Security 30 Security required under Section 1 1.1.1, as
days from applicable.
Effective
Date
Non-exclusive list of substantive differences between initial draft PPAs from the
parties
#Subject Windland's March 29, 2010 Draft PPA PacifiCorp's April 2, 2010 Draft PPA
4 Daily Delay Delay Liquidated Damages equals the sum of 2.5.1 Delay Liquidated Damages. Delay
Liquidated the Delay Price times the Delay Volume, for Liquidated Damages equals the sum of: for
Damages each day of the Delay Period.each day in the Delay Period, the greater of
(1) the Delay Daily Minimum or (2) theWhere:Delay Price times the Delay Volume
"Delay Price" equals the positive difference,Where:
if any, of the Index Price minus the weighted "Delay Daily Minimum" equals (a) for the
average of the On-Peak and Off-Peak monthly first 90 calendar days following the
Conforming Energy Prices; and Scheduled Commercial Operation Date: one-
"Delay Volume" equals the applicable ninetieth (1/90th) offort-five dollars ($45)
Scheduled Monthly Energy Delivery divided multiplied by the Maximum Facilty Delivery
by the number of days in that month.Rate with the Maximum Facilty Delivery
Rate being measured in kW; (b) after the
90th calendar day following the Scheduled
Commercial Operation date: $0.
"Delay Price" equals the positive difference,
if any, ofthe Index Price minus the weighted
average of the On-Peak and Off.Peak
monthly Conforming Energy Purchase
Prices; and
"Delay Volume" equals the applicable
Scheduled Monthly Energy Delivery divided
by the number of days in that month.
5 Guaranteed 4.4 Minimum Availabilty Obligation. Seller 4.4 Minimum Availabilty Obligation.Project shall C3,use the Facilty to achieve an Seller shall cause the Facilty to achieve an
Availabilty Availabilty of at least 90% during each Availabilty of at least 85% during eachmonth ("Guaranteed Availabilty").month ("Guaranteed Availabilty1.
6 Calculation 4.5 Liquidated Damages for Output Shortall.4.5 liquidated Damages for Output
of Output If the Availabilty in any given month falls Shortall. If the Availabilty in any givenShortallbelow the Guaranteed Availabilty, the month falls below the Guaranteed
resulting shortfall shall be expressed in kWh Availabilty, the resulting shortfall shall beas the "Output Shortfall." The Output expressed in kWh as the "Output Shortall."
Shortall shall be calculated in accordance The Output Shortfall shall be calculated in
with the following formula:accordance with the following formula:
Output Shortfall = (Guaranteed Availabilty Output Shortfall =(Guaranteed- Availabilty) * Past Monthly Energy Availabilty - Availabilty) * ScheduledDeliveryMonthly Energy Delivery
Where:
Past Monthly Energy Delivery = the average
of the monthly total Net Output for the
calendar months of the same name as the
immediately preceding Contract Years. Until
net Output has been delivered during for at
least thee such months, Past Monthly Energy
Delivery shall equal the average of the total
monthly Net Output for the named calendar
months during preceding Contract Years, if
.any, and the Scheduled Monthly Energy
Delivery for the named month.
20fS
Non-exclusive list of substantive differences between initial draft PPAs from the
parties
#Subject Windland's March 29~ 2010 Draft PPA PacifiCorp's April 2, 2010 Draft PPA
7 Audit rie:hts Not present Present (See §4.6 Audit Rights.)
8 Trading 5.1 Energy Purchase Price.5.1 Energy Pyrchase Price.
hub for
Index Price 85% of weighted average of the daily On-85% of average ofthe daily Index Price for
calculations Peak and Off-Peak ICE Mid-Columbia index each day of the month, or portion of month,
prices for firm energy for the month, or of Net Output fed. note: "Index Price" refers
porton of month, of Net Output to Palo Verde tradin.Q hub1
9 Wind 5.1 Energy Purchase Price.5.1 Energy Pyrchase Price.
Integration
Cost ******
WIC = $S.10/MWh, the Wind Integration WIC =$6.50/MWh, the wind
Cost prescribed in Commission Order No.integration cost prescribed in Commission
30497 Order No. 31021. fed. note: Order No. 31021
effective March 12,20101
10 Energy 5.1 Energy Pyrchase Price.5.1 Energy Pyrchase Price.
Purchase fUses annual rates published in Order No.fUses annual rates published in Order No.Price 307441 31025)
11 Payment for 5.3 Inadvertent Energy. PacifiCorp may 5.3 Inadvertent Energy. PacifiCorp may
Inadvertent accept Inadvertent Energy at its sole accept Inadvertent Energy at its sole
Energy discretion or pay for Inadvertent Energy.discretion, but wil not purchase or pay for
Inadvertent EnerRY.
12 Requirement Not present Present (See §6. 1 As-Bujl Sypplement)
to send RMP
an As-Built
Supplement
13 Default for Not present 6.7 pelivery Exceediggthe Maximym GIA
exceeding pelivery Rate. Seller shall not deliver energy
maximum from the Facilty to the Point of Delivery at a
delivery rate that exceeds the Maximum GIA Delivery
rate Rate. Seller's failure to limit such deliveries
authorized to the Maximum GIA Delivery Rate shall be a
in LGIA breach of a material obligation subject to
Secton 12.1.8.
14 PacifiCorp's Not present Present (See §6.8 Access Rights.)
right to visit
the Facilty
15 PacifiCorp's Not present SECTION 8: GENERATION FORECASTING
right to COSTS
recoup 50%8.2 Seller's Forecast-Cost Share.
of its Pursuant to Commission Order No. 30497,
generation Seller shall be responsible for 50% of
forecasting PacifCorp's cost of adding such forecasting
costs for the services ("Seller's Forecast-Cost Share")
Facilty up to Seller's Capped Forecast-Cost Share.
8.3 Cap on Seller's Forecast-Cost Share.
Seller's Forecast-Cost Share for a given
Contract Year is capped at 0.1 % of total
payments made by PacifiCorp to Seller for
Net Output during the previous Contract
Year ("Seller's Capped Forecast-Cost
Share").
30fS
Non-exclusive list of substantive differences between initial draft PPAs from the
parties
#Subject Windlands March 29, 2010 Draft PPA PacifiCorp's April 2, 2010 Draft PPA
16 Requirement Not present Present (See §9.3 Telemetering.)
that
Windland
telemeter
real-time
output(MW)
and wind
velocity
17 Requirement Not present Present (See § 9.4 Monthly Reports and Logs
that and Other Information).Windland
send RMP
monthly
wind data,
output data,
and electrcal
fault 102
18 Requirement Not present 9.4.4 By each January 10 following the
that Commercial Operation Date, Seller shallWindlandprovide to PacifiCorp written certificationprovidethat Seller has completed all theproofithasmanufacturers' guidelines andconducted
maintenance recommendations for maintenance of the
on the Facilty equipment applicable to the
Facilty previous calendar year.
19 Metering:Not present Present (See §9.5 Maintenance of Metering
duty to EguipmenL)inspect: who
pays cost of
inspection
and
necessary
repairs
20 Amount of Not present 11.1.2 Calculation of Delay Security.The
Delay dollar value of Delay Security shall equal theSecuritygreater of: (1) fort-five dollars ($45)Required multiplied by the Maximum Facilty Delivery
Rate with the Maximum Facilty Delivery
Rate being measured in kW; or (2) the sum
of the products, for each of the first three
calendar months after the Scheduled
Commercial Operation Date, of:
the energy in the Initial Year Energy
Delivery Schedule for the month (kWh)
multiplied by the monthly weighted average
On-Peak and Off-Peak Conforming Energy
Purchase Price for the months ($/MWh)
divided by 1000.
Such amount shall be fixed upon execution
of this Agreement.
40fS
Non-exclusive list of substantive differences between initial draft PPAs from the
partes
#Subject Windlands March 29, 2010 Draft PPA PacifiCorp's April 2, 2010 Draft PPA
21 Default for Not present 12.1.6 Sale to Third-Part. Seller's sale of
sellng Net Output to an entity other than
project PacifiCorp, as prohibited by Section 4.2.
output to a
third part
22 Termination Windland liable for incremental cost to Windland liable for incremental cost to replace
damages replace Net Output for twelve (12) months Net Output for twenty-four (24) months after
after termination (See Section 10.4).termination (See Section 12.4).
23 Planned Not present Planned Outages. Seller wil provide a
Outages (in Planned Outage schedule annually not to
ExhibitDl exceed hours per . pervear.
SofS