20120523Ridgeline FERC.pdf

May 18, 2012
VIA US MAIL
Jean Jewell, Commission Secretary
Idaho Public Utilities Commission
472 West Washington Street
Boise, ID 83702-5918
RECEIVED
ZO2 MAY 23 PM 2:2k
IDAHO PUBLIL
UTIUTIES COMMISSION
p/:-E 1/ -o
/4-- // - o
RE: Courtesy Copy of FERC Filings
FERC Order and Joint Application for Authorization Under Section 203 of the FPA
by Goshen Phase IILLC and Ridgeline Alternative Energy LLC (Docket N6.EC12-
83-000) (Public Version)
FERC Order and Joint Application for Authorization Under Section 203 of the FPA
by Ridgeline Alternative Energy LLC and Wolverine Creek Goshen Interconnection LLC
(Docket No. EC12-82-000) (Public Version)
FERC Order and Letter to FERC re Goshen Phase II LLC Amended and Restated Shared
Facility Agreement (Docket No. ER12-1292-000) (Public Version)
FERC Order and Letter to FERC re Goshen Phase HLLC Amended Common
Facility Agreement (Docket No. ER 12-1292-000) (Public Version)
Dear Ms. Jewell,
On behalf of Ridgeline Energy LLC ("RLE"), RLE hereby submits courtesy copies of the
above mentioned Federal Energy Regulatory Commission documents on behalf of Ridgeline
Energy LLC and Meadow Creek Project Company LLC.
If you or someone at IPUC has any questions, please do not hesitate in contacting me at
[phone].
Sincerely yours,
Carolyn J. Bersch
Paralegal
1300 N. Northlake Way, 2nd Floor I Seattle, WA 198103
T: (425) 455. 9014 I F: [phone]
www.ridgelineenergy.com QVEOLIA
ENV1RONNEMENT
20120517-3064 FERC PDF (Unofficial) 05/17/2012
FEDERAL ENERGY REGULATORY COMMISSION
Washington, D.C. 20426
OFFICE OF ENERGY MARKET REGULATION
Goshen Phase II LLC
Docket No. ER12-1292-000
May 17, 2012
Morgan, Lewis and Bockius, LLP
1111 Pennsylvania Avenue, NW
Washington, DC 20004
Attention: Michael C. Griffen, Esq.
Attorney for Goshen Phase II LLC
Reference: Amended and Restated Shared Facilities Agreement
Dear Mr. Griffen:
On March 20, 2012, Goshen Phase II LLC (Goshen II) filed an unexecuted
Amended and Restated Shared Facilities Agreement (Amended SFA) among Goshen II,
Ridgeline Alternative Energy, LLC (RAE), Meadow Creek Project Company LLC
(Meadow Creek), and AE Power Services, LLC (AE Power Services).' According to the
applicant, the original SFA was between Goshen II and RAE, and this agreement detailed
each party's priority use of the Shared Facilities based on its ownership interest.2 In the
instant filing, Goshen II states that RAE has assigned to its affiliate, Meadow Creek,
certain developmental rights in the Meadow Creek Project. Thus, Meadow Creek will
obtain certain of RAE' s rights to acquire an ownership interest in the Shared Facilities,
upon commencing operations, and the right to use the Shared Facilities on apro rata
1 Goshen II states it is the designated flier of the Amended SFA, pursuant to the
requirements of Order No. 714. Goshen II also states other parties to the Amended SFA
will, if required, separately submit a tariff record and a certificate of concurrence
assenting to and concurring with this filing. The other parties to the Amended SFA are
directed to file the requisite certificates of concurrence. Please review Order No. 714 at P
63, where the Commission articulated an approach for joint fliers to minimize the burden
of multiple identical filings.
AE Power Services does not own or control the Shared Facilities governed by the
SFA, according to Goshen II, but manages, operates, and maintains the shared facilities at
the expense of the parties to the Amended SFA.
20120517-3064 FERC PDF (Unofficial) 05/17/2012
Docket No. ER12-1292-000 -2 -
basis commensurate with the capacity of the Meadow Creek Project. Goshen II also
states that its filing memorializes the inclusion and obligations of Meadow Creek under
the Amended SFA. Waiver of the Commission's notice requirements pursuant to section
35.11 of the Commission's regulations (18 C.F.R. § 35.11) is granted, and the unexecuted
Amended SFA is accepted for filing, effective when the Execution Date occurs, as
stipulated by the Applicants, subject to a subsequent filing of an executed Amended SFA
to reflect the actual effective date.
The filing was noticed on March 20, 2012 with comments, protests or
interventions due on or before April 10, 2012. No adverse comments were filed. Notices
of intervention and unopposed timely filed motions to intervene are granted pursuant to
the operation of Rule 214 of the Commission's Rules of Practice and Procedure (18 C.F.R
§ 385.214). Any opposed or untimely filed motion to intervene is governed by the
provisions of Rule 214.
This acceptance for filing shalinot be construed as constituting approval of the
referenced filing or of any rate, charge, classification, or any rule, regulation, or practice
affecting such rates or services provided for in the filed documents; nor shall such
acceptance be deemed as recognition of any claimed contractual right or obligation
associated therewith; and such acceptance is without prejudice to any findings or orders
which have been or any which may hereafter be made by the Commission in any
proceeding now pending or hereafter instituted, by or against Goshen Phase II LLC.
This action is taken pursuant to authority delegated to the Director, Division of
Electric Power Regulation - West under 18 C.F.R. § 375.307. This order constitutes final
agency action. Requests for rehearing by the Commission may be filed within 30 days of
the date of issuance of this order, pursuant to 18 C.F.R. § 385.713.
Sincerely,
Steve P Rodgers, Director
Division of Electric Power
Regulation - West
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Avenue, NW
Washington, DC 20004
Tel. [phone]
Fax: [phone]
www.morganlewis.com
Michael C. Griffen
[phone]
mgriffen©morganlewis.com
Morgan LwS
COUNSELORS AT LAW
March 19, 2012
VIA eTARIFF FILING
Hon Kimberly D Bose, Secretary
Federal Energy Regulatory Commission
888 First Street, N.E.
Washington, DC 20426
RE Goshen Phase II LLC
Docket No. ER12-__________________
Amended and Restated Shared Facilities Agreement
Dear Ms. Bose:
Pursuant to Section 205 of the Federal Power Act ("FPA")' and Part 35 of the Federal
Energy Regulatory Commission's ("Commission") regulations,2 Goshen Phase II LLC ("Goshen
H"), hereby submits for filing an unexecuted form of Amended and Restated Shared Facilities
Agreement ("Amended SFA") among Goshen II, Ridgeline Alternative Energy, LLC ("RAE"),
Meadow Creek Project Company LLC ("Meadow Creek"), and AE Power Services, LLC ("AE
Power Services"). The Amended SFA will become effective upon its execution, which will not
occur until after certain conditions described in Section IV, below, are satisfied (the "Execution
The original Shared Facilities Agreement ("SFA") among Goshen II, RAE, and AE
Power Services, dated as of December 1, 2009, was submitted for filing to the Commission by
Goshen II on its own behalf and on behalf of RAE in Docket No. ER1O-2510-000 on August 31,
2010, and was accepted for filing by the Commission on October 28, 2010, with an effective date
of September 1, 201 0.3 The Amended SPA proposes to amend and restate the SFA as described
in Section III below.
1.16 U.S.C. § 824d (2011).
2.18C.F.R.35.13(2011).
3.Goshen Phase II, LLC, et al., 133 FERC ¶ 61,090 (2010) (the "Original SFA Order"). In
addition, the Commission granted Goshen II and RAE waivers of the Commission's requirements under
Order Nos. 888, 889, and 890 and Section 35.28 and Parts 37 and 358 of the Commission's regulations.
Hon. Kimberly D. Bose
March 19, 2012
Page 2
The following materials are included with this transmittal letter:
(1)The Amended SFA in clean format; and
(2)The Amended SPA in redline format.
Goshen II respectfully requests the Commission to issue an order by May 3, 2012,
accepting the Amended SPA for filing, without modification, to become effective on the
Execution Date requested in Section IV below. As explained in Section IV, the parties to the
Amended SFA will execute the Amended SPA upon the occurrence of certain conditions,
including the issuance of orders by the Commission on other applications and filings filed with
the Commission under Sections 203 and 205 of the FPA. Goshen II understands that prompt
action has been or will be requested in such other filings in connection with financing being
arranged by Meadow Creek for its wind energy generating facility (described in more detail
below). Goshen II further understands that, as part of the financing documentation, Meadow
Creek expects to be required to show that its interconnection arrangements, including those
addressed by the Amended SFA, have the necessary Commission approvals. Goshen II requests
Commission action on the instant filing of the Amended SFA by May 3, 2012, so the parties to
the Amended SPA may execute it and make it effective promptly upon receipt of those other
PERC orders and other consents and approvals.
In compliance with the joint tariff filing requirements identified in Order No. 714 at P 63,
Goshen II has been designated as the single filer of the Amended SFA. Other parties to the
Amended SFA will, if required, separately submit a tariff record with respect to the Amended
SPA and a certificate of concurrence assenting to and concurring with this filing.
I. COMMUNICATIONS
The names and address of persons authorized to receive notices and communications with
respect to this filing are as follows:
Gretchen Schott
Senior Counsel
BP Wind Energy North America Inc.
700 Louisiana Street, 33rd Floor
Houston, TX 77002
T: [phone]
[e-mail]
Michael C. Griffen
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
T: [phone]
mgriffenmorganlewis.com
Please place each of the foregoing representatives on the service list established pursuant
to Rule 2010.
18 C.F.R. § 385.2010.
Hon. Kimberly D. Bose
March 19, 2012
Page 3
II. BACKGROUND
Goshen II owns a 124.5 MW wind-powered generating facility (the "Goshen II Facility")
located in Bonneville County, Idaho RAE has been developing wind-powered generation
facilities to be located near the Goshen II Facility. The Goshen II Facility is, and RAE's
proposed generation facilities are planned to be, located near an existing wind-powered
generating facility owned and operated by Wolverine Creek Energy, LLC ("Wolverine Creek") 6
The Wolverine Creek generating facility and the Goshen II Facility are interconnected with the
PacifiCorp transmission system through interconnection facilities owned by Wolverine Creek
Goshen Interconnection, LLC ("WCGI"),7 which includes an approximately 18-mile generator
tie-line that interconnects to the PacifiCorp transmission system (the "WCGI Interconnection
Facilities"). The proposed generating facilities under development by RAE (the "Goshen Phase
III Facility") are also to be interconnected to the PacifiCorp transmission system through the
WCGI Interconnection Facilities.
Due to the location of the Goshen II Facility and RAE's proposed Goshen Phase III
Facility, Goshen II and RAE developed a shared set of interconnection facilities consisting of a
substation, an approximately seven-mile 34 .5 kV generator tie-line, and associated facilities (the
"Shared Facilities") through which the Goshen II Facility interconnects, and RAE's proposed
Goshen Phase III Facility are intended to interconnect, with the WCGI Interconnection Facilities.
Through the interconnection with the WCGI Interconnection Facilities via the Shared Facilities,
Goshen II has, and RAE's projects are expected to, achieve interconnection with the PacifiCorp
transmission system.
In connection with the development of the Shared Facilities, Goshen II and RAE entered
into the original SFA. The SFA sets forth the rights and obligations under which the Shared
Facilities are owned, utilized, operated, and maintained by Goshen II and RAE for the purpose of
interconnecting their generating facilities with the transmission system. Under the SFA, Goshen
II currently owns the Shared Facilities and RAE has rights to acquire an ownership interest in the
Shared Facilities once RAE's proposed Goshen Phase III facility commences operations, with
Goshen II and RAE jointly owning the Shared Facilities as tenants in common thereafter.
Neither Goshen II nor RAE are to pay the other for services under the SFA or their use of the
Shared Facilities; rather, they will share the costs of managing, operating, and maintaining the
Shared Facilities.8
5.Goshen II has market-based rate authority and the waivers and blanket authorizations that
the Commission routinely grants to entities with market-based rate authority. See Goshen Phase II LLC,
Letter Order in Docket Nos. ER1O-1821-000 and -001 (Oct. 7, 2010). Goshen II is also an EWG. See
Eagle Creek Hydro Power, LLC, et al., Docket Nos. EG1 0-48-000, et al., Notice of Effectiveness of
Exempt Wholesale Generator Status, (Oct. 1, 2010).
6.Wolverine Creek is not affiliated with Goshen II or RAE.
7.Wolverine Creek, Goshen II, and RAE each have an ownership interest in WCGI.
8.AE Power Services was retained to manage, operate, and maintain the Shared Facilities,
with Goshen II and RAE sharing the costs of the services of AE Power Services. AE Power Services is a
party to the SFA in its capacity as the provider of management, operations, and maintenance services to
Hon. Kimberly D. Bose
March 19, 2012
Page
Under the SPA, Goshen II has priority rights to use and access the Shared Facilities to the
extent of 130 MW, and RAE, after interconnecting the Goshen Phase III Facility, is to be
responsible for incremental costs and line losses and will have access rights to the remaining
capacity of the Shared Facilities.
RAE had originally planned to develop an approximately 85 MW wind-powered
generating facility but now plans to assign to Meadow Creek, a wholly-owned subsidiary of
RAE, certain developmental rights to wind energy electric generation facilities totaling
approximately 119.7 MW (collectively, the "Meadow Creek Project").9 The rights that Meadow
Creek will acquire from RAE will include rights under the SFA to acquire an ownership interest
in the Shared Facilities. 10 To effectuate the assignment of these rights under the SPA, RAE has
requested Goshen II to agree to the admission of Meadow Creek as a party to the Amended SPA.
As a party to the Amended SPA, Meadow Creek will obtain certain of s rights to acquire an
ownership interest in the Shared Facilities upon commencing operations and the right to use the
Shared Facilities on a pro rata basis commensurate with the capacity of the Meadow Creek
Project. RAE's rights correspondingly will be reduced. Goshen II, RAE, and Meadow Creek
have agreed to amend and restate the SFA to account for the priority of use of the Shared
Facilities and to memorialize the obligations of Meadow Creek, as described more fully below.
Goshen II and RAE under the SFA. AE Power Services does not own or control the shared facilities
governed by the SFA. AE Power Services also did not request the waivers which the Commission
granted to Goshen II and RAE in the Original SFA Order.
9.The Meadow Creek Project will consist of two "qualifying small power production
facilities" within the meaning of the Commission's regulations at 18 C.F.R. § 292.203(a) ("QE"): the
approximately 77.7 MW North Point Project and the approximately 38.8 MW Five Pine Project. See
Notice of Self-Certification of QF status, filed by Meadow Creek for North Point Project, Docket No.
QF 12-175-000 and Notice of Self-Certification of QF status, filed by Meadow Creek for Five Pine
Project, Docket No. QF12-176-000, (Jan. 26, 2012). Goshen II understands that given the early stage of
the Meadow Creek Project's development, Meadow Creek has not yet applied to the Commission for
market-based rate authority, waivers of the Commission's open access transmission requirements relating
to its interest in the Shared Facilities (similar to the waivers granted to Goshen II and RAE in the Original
SFA Order), or EWG status, but that it will do so prior to the initial generation of electric energy by the
Meadow Creek Project.
10.Goshen II and RAE will file with the Commission in a separate docket an application
under Section 203 of the FPA requesting Commission authority for Meadow Creek's acquisition of a
partial ownership interest in the Shared Facilities (the "Shared Facilities Transaction").
Hon. Kimberly D. Bose
March 19, 2012
Page 5
III. DESCRIPTION OF PROPOSED AMENDED SFA
Once the Amended SPA becomes effective on the Execution Date, as described in
Section IV below, it will supersede and replace the existing SFA. Under the Amended SPA,
once Meadow Creek acquires a partial ownership interest in the Shared Facilities, Goshen II and
Meadow Creek will jointly own the Shared Facilities as tenants in common, with RAE retaining
residual rights to acquire an ownership interest in and utilize the Shared Facilities in connection
with generating facilities to be developed in the future. The Amended SPA proposes to (1)
revise the calculation of the Goshen II's rights to use the Shared Facilities to reflect the current
capacity of the Goshen II Facility as 124.5 MW, rather than the 130 MW currently in effect; (2)
provide Meadow Creek with rights to use the Shared Facilities reflecting ownership of the
Meadow Creek Project with a capacity of 119.7 MW; (3) reduce RAE's rights to use the Shared
Facilities proportionately by the new Meadow Creek share, such that RAE will retain the
residual rights to interconnect another wind energy generation project to be built by RAE (or its
successors and assigns) (such new project, the "Phase IV Project").
Under the Amended SFA, neither Goshen II, RAE, nor Meadow Creek will pay the other
for services under the Amended SFA or for their use of the Shared Facilities; rather, Goshen II
and Meadow Creek and RAE, after it interconnects a Phase IV Project, will share the costs of
managing, operating, and maintaining the Shared Facilities."The Amended SPA does not
establish rates, terms, or conditions for the provision of a FERC-jurisdictional service, and none
of Goshen II, RAE, nor Meadow Creek has collected revenues from the other for the provision of
FERC-jurisdictional services under the SPA or the Amended SPA.
Other than as described above, the terms and conditions of the Amended SFA are
substantially similar to the SFA.12
11.AE Power Services will continue to manage, operate, and maintain the Shared Facilities,
with Goshen II, RAE, and Meadow Creek sharing the costs of the services of AE Power Services.
12.As noted in note 3, supra, in the Original SFA Order, the Commission granted Goshen II
and RAE waivers of the Commission's requirements under Order Nos. 888, 889, and 890 and Section
35.28 and Parts 37 and 358 of the Commission's regulations, finding, among other things, that the Shared
Facilities are limited and discrete, do not constitute an integrated transmission system, and will be utilized
only to deliver power from the respective wind-power projects to the transmission grid via the WCGI
Interconnection Facilities. See Original SFA Order at P 16. Meadow Creek is an affiliate of RAE and,
once Meadow Creek acquires a partial ownership interest in the Shared Facilities, it will utilize the Shared
Facilities only to deliver power from its wind-power projects to the transmission grid via the WCGI
Interconnection Facilities. Meadow Creek's proposed acquisition of a partial ownership interest in, and
proposed utilization of, the Shared Facilities will not materially change the facts upon which the open
access waivers were granted and will not trigger any open access transmission requirements. E.g., Terra-
Gen Dixie Valley, etal., 132 FERC ¶ 61,215, P47 (2010).
Hon. Kimberly D. Bose
March 19, 2012
Page 6
IV. REQUESTED EFFECTIVE DATE
The Amended SFA will not become effective until the Amended SFA is executed by
Goshen II, RAE, and Meadow Creek on Execution Date, which will not occur until the following
conditions have been satisfied: (a) the Commission has accepted, without modification, the
Amended SFA for filing under Section 205 of the FPA; (b) the Commission has issued an order
under Section 203 approving the Shared Facilities Transaction; (c) RAE and WCGI have
obtained authorizations from the Commission under FPA Section 203 authorizing a separate
transaction affecting the upstream ownership of WCGI (the "RAE! WCGI Transaction") pursuant
to which RAE will transfer to Meadow Creek a percentage of RAE's membership interest in
WCGI; (d) the Commission has accepted, without modification, under FPA Section 205 an
Amended Common Facilities Agreement ("Amended CFA") submitted for filing by Wolverine
Creek and WCGI;'3 (e) Goshen II has notified Wolverine Creek, WCGI, Meadow Creek, and
RAE in writing that Goshen II has obtained any third-party consents or approvals that it
determines it requires (or that no such consents or approvals are required) to execute the
Amended SFA, Amended CFA, and the Amended WCGI LLC Agreement; (f) Wolverine Creek
has notified RAE, Goshen II, Meadow Creek, and WCGI in writing that Wolverine Creek has
obtained any third-party consents or approvals that it determines it requires (or that no such
consents or approvals are required) to execute the Amended CFA and the Amended WCGI LLC
Agreement; (g) RAE has paid, or caused to be paid, to Wolverine Creek the amount RAE has
agree to pay Wolverine Creek to waive its rights under Section 3.2 of the original CFA and
certain costs and expenses incurred in by Wolverine Creek in connection with the Amended CFA
and Amended LLC Agreement; and (h) RAE has paid, or caused to be paid, to Goshen II all of
Goshen II's costs and expenses incurred in connection with the Amended SFA, Amended CFA,
and the Amended WCGI LLC Agreement.
Goshen II requests the Commission to accept the Amended SFA, without modification, to
become effective on the Execution Date. Goshen II does not yet know when the Execution Date
will occur because the parties' obligation to execute the Amended SFA is contingent on the
satisfaction of the conditions identified above. Goshen II requests the Commission to accept the
Amended SFA effective as of the Execution Date and commits to make a compliance filing
within ten (10) days after the Execution Date in which it will notify the Commission of the
Effective Date and refile the executed Amended SFA with the actual Effective Date
memorialized in the refiled agreement. 14 Goshen II requests the Commission to confirm in its
13.The Amended CFA will amend and restate a Common Facilities Agreement in order to
effectuate the RAE/WCGI Transaction. Wolverine Creek and WCGI are only parties to the CFA (and the
Amended CFA), and not to the SFA (or the proposed Amended SFA). Nor do they own any interests in
or control the Shared Facilities. Also, Wolverine Creek and WCGI are not involved in the transactions
relating to Meadow Creek's proposed acquisition of rights to the Shared Facilities. Thus, Wolverine
Creek and WCGI are not applicants in the Section 203 proceeding involving the Shared Facilities
Transaction or this Section 205 filing relating to the Amended SFA.
14.See, e.g., Bishop Hill Energy LLC, et al., Letter Order in Docket Nos. ER12-847-000, et
al. (March 5, 2012), as corrected by the Errata to the Letter Order (March 5, 2012) (granting a FERC rate
schedule effective date that was tied to an execution date that would not occur until future conditions
were satisfied and allowing subsequent informational compliance filing to submit a signed agreement and
Hon. Kimberly D. Bose
March 19, 2012
Page 7
order accepting the Amended SFA for filing that, to the extent the executed Amended SFA
submitted in such informational compliance filing has no changes other than its execution date,
signatures, and the completion of other placeholders for dates, no further action will be required
by the Commission for the Amended SFA to become effective.
Goshen II requests waiver of the Commission's sixty day prior notice requirement under
Section 35.3 of the Commission's regulations to the extent that the Execution Date occurs less
than sixty days after the date this filing is submitted to the Commission. Waiver is consistent
with Central Hudson Gas & Electric Corp., 60 FERC 161,106, order on reh 'g, 61 FERC ¶
61,089 (1992) because there will be no rate impact associated with an Execution Date that occurs
less than sixty days from the date of this filing Also, to the extent the Execution Date occurs
more than 120 days after the date of this filing, Goshen II requests waiver of Section 35315
V. FILING REQUIREMENTS UNDER PART 3516
1.List of documents submitted - 18 C.F.R. 35.13(b)(1). A list of documents
submitted is provided in the second paragraph of this letter.
2.Proposed effective date -18 C.F.R. § 35.13(b)(2). See Section IV of this letter.
3.Persons to whom a copy of the rate schedule change has been posted - 18 C.F.R. §
35.13(b)(3). In accordance with 18 C.F.R. § 35.2(e)(2), copies of this filing have
been served on RAE and Meadow Creek.
4.Brief description of the rate change and statement of the reasons for the rate
schedule change -18 C.F.R. 35.13(b)(4) and (5). See Section III of this letter.
notify of the actual effective date); Grand Ridge Energy IVLLC, Letter Order in Docket No. ER1 1-128-
000 (Dec. 2, 2010) (unpublished letter order accepting rate schedule tied to satisfaction of future
conditions and allowing for subsequent informational compliance filing to submit signed agreement and
provide notification of actual effective date). See also Potomac Electric Power Co., Letter Order in
Docket No. ER08-1 152-000 (June 23, 2008) (granting a FERC rate schedule effective date of a contract
that was tied to the satisfaction of future conditions and allowing a subsequent informational compliance
filing to incorporate actual effective date); see also Potomac Electric Power Co., 93 FERC ¶ 61,240, at
61,799 (2000). (The Commission granted request to accept interconnection agreements with effective
date tied to a future date and with certain information omitted because it would not be known until such
closing date and to make an informational filing after closing).
15.See, e.g., Southern California Edison Co., 106 FERC ¶ 61,183 at PP 5 and 46 (2004)
(Commission granted waiver of the 120 day requirement finding good cause where effective date was tied
to closing of related transaction).
16.18 C.F.R. § 35.1 3(a)(iii) (rate schedule changes that do not involve a rate increase).
Hon. Kimberly D. Bose
March 19, 2012
Page 8
5.Showing that all requisite agreements to the rate change have been obtained -18
C.F.R. 35.13(b)(6). The Amended SFA will be executed by the parties to the
SFA and Meadow Creek after the Commission accepts the Amended SFA for
filing without condition or modification and the Execution Date occurs.
Thereafter, as described above, Goshen II will file an executed copy of the
Amended SFA with the Commission.
6.A statement concerning costs included in Period I and II cost of service -18
C.F.R.35. 1 3(b)(7). Not applicable. Accordingly, no cost of service statements
are included in the filing.
7.Revenue comparison demonstrating the impact of rate change and maps and
diagrams for specifically assignable facilities to be installed in connection with
rate change -18 C. F. R. § 35.13(c. No rate change is proposed. Also, no
facilities are being installed in connection with the Amended SFA
VI. CONCLUSION
Goshen II respectfully requests the Commission to accept the Amended SFA for filing
effective as of the Execution Date and grant the waivers requested of FERC '5 prior notice
requirements identified above. Goshen II also respectfully requests FERC to issue an order not
later than May 3, 2012.
Respectfully submitted,
'U.'4 4
Michael C. Griffen
Attorney for Goshen Phase II LLC
Enclosures
20120418-3025 FERC PDF (Unofficial) 04/18/2012
UNITED STATES OF AMERICA 139 FERC ¶ 62,047
FEDERAL ENERGY REGULATORY COMMISSION
Goshen Phase II LLC Docket No. EC12-83-000
Ridgeline Alternative Energy, LLC
ORDER AUTHORIZING DISPOSITION OF
JURISDICTIONAL FACILITIES
(Issued April 18, 2012)
On March 19, 2012, as amended March 21, 2012, Goshen Phase II LLC (Goshen
II) and Ridgeline Alternative Energy, LLC (RAE) (collectively, Applicants) filed an
application under section 203(a)(1) of the Federal Power Act (FPA)1 requesting
Commission authorization for Meadow Creek Project Company LLC (Meadow Creek) to
acquire a partial ownership interest in a 7 mile generation tie-line (Tie-Line) (Proposed
Transaction). The jurisdictional facilities consist of the Shared Facilities Agreement
(Shared Facilities Agreement), Tie-Line facilities, agreements, and various books and
record.
Goshen Ii, a Delaware limited liability company, owns and operates a 124.5
megawatt (MW) wind-powered generating facility (Goshen Phase II Project) located in
Bonneville County, Idaho. The Goshen Phase II Project is interconnected with the
transmission system of PacifiCorp in the PacifiCorp East balancing authority area (BAA).
Goshen II does not own directly or indirectly any electric transmission facilities other
than the limited interconnection generator Tie-Line facilities. Goshen II currently owns
the Tie-Line which Goshen II utilizes to interconnect the Goshen Phase II Project to
PacifiCorp's transmission system. Goshen II's rights to own and utilize the Tie-Line are
addressed in the Shared Facilities Agreement by and between Goshen II and RAE. The
Goshen Phase II Project also interconnects to PacifiCorp's transmission system via an
approximately 18-mile generator tie line owned and operated by Wolverine Creek
Goshen Interconnection, LLC (Wolverine Creek Goshen Interconnection). Goshen II
holds an ownership interest in Wolverine Creek Goshen Interconnection and has
corresponding rights to utilize the Wolverine Creek Goshen Interconnection generator tie
line pursuant to the terms of a Common Facilities Agreement by and among Wolverine
Creek Goshen Interconnection and its owners. Goshen II is authorized by the
Commission to make wholesale sales at market-based rates.
116 U.S.C. § 824b (2006).
20120418-3025 FERC PDF (Unofficial) 04/18/2012
Docket No. EC12-83-000 -2 -
Goshen II is owned directly by AR Goshen II Wind Farm LLC (AE Goshen II)
and Goshen Ridge Wind Farm LLC (Goshen Ridge), each of which holds a 50 percent
ownership interest in Goshen II. AE Goshen II is an indirect, wholly-owned subsidiary
of BP Wind Energy North America Inc. which, in turn, is an indirect, wholly-owned
subsidiary of BP p.l.c., a company organized under the laws of England and Wales with
its international headquarters in London, UK and its U.S. headquarters in Houston,
Texas. Goshen Ridge is a direct, wholly-owned subsidiary of Goshen Phase II Holdings
LLC (Goshen Holdings). RAE indirectly holds a 25 percent ownership interest in
Goshen Holdings, with Diamond Generating Corporation (Diamond) indirectly holding
the remaining 75 percent. Diamond is a wholly-owned subsidiary of Mitsubishi
Corporation, a Japanese corporation.
RAE is a Delaware limited liability company that was formed for the purpose of
developing wind energy projects. RAE is in the early stage of developing a wind farm in
Idaho, referred to as the Goshen Phase III Project. RAE is a "holding company" due to
its indirect ownership of one or more exempt wholesale generators (EWG) and qualifying
facilities (QF), but currently owns directly no physical assets and has neither applied for
nor received market-based rate authority from the Commission. RAE currently owns,
through intermediate companies, an indirect 12.5 percent interest in Goshen II. RAE also
owns 100 percent of Meadow Creek, a Delaware limited liability company that is
developing a wind energy project located adjacent to the Goshen Phase II Project in
Bonneville County, Idaho (Meadow Creek Project). The Meadow Creek Project will be
located in the PacifiC orp East BAA and will consist of two separate QFs, each located
more than one mile apart: the 77.7 MW North Point Project and the 38.8 MW Five Pine
Project.2 Given the early stage of the Meadow Creek Project's development, Meadow
Creek has not yet applied to the Commission for market-based rate authority for sale of
electric energy from the Meadow Creek Project, waivers of the Commission's open
access transmission requirements relating to Meadow Creek's proposed rights to acquire
an interest in the Tie-Line (similar to the waivers granted to Goshen II and RAE), or filed
notice of EWG status, but will do so prior to the initial generation of electric energy by
the Meadow Creek Project.
RAE does not own directly or indirectly any electric transmission facilities other
than the limited interconnection generator tie-line facilities. RAE holds rights to acquire
an ownership interest in the Tie-Line pursuant to the terms of the Shared Facilities
Agreement. RAE also owns directly a 32.3 percent interest in, and through its 12.5
percent interest in Goshen II, an additional 5.6 percent interest in Wolverine Creek
Goshen Interconnection, for an aggregate interest in Wolverine Creek Goshen
Interconnection of 37.9 percent. RAE is indirectly owned 100 percent by EOLFI S.A., a
French Corporation (EOLFI), which in turn, is owned 71.49 percent by Veolia S.A.,
2 These projects are currently in development and construction has not yet begun.
20120418-3025 FERC PDF (Unofficial) 04/18/2012
Docket No. EC12-83-000 -3-
which specializes through its various subsidiaries in the areas of water cycle
management, waste management, public transportation and energy services, 9.46 percent
by Asah Lm, a French civil partnership, and 19.02 percent by Transvers, a French private
investment corporation. Applicants state that none of EOLFI, Asah Lm or Transvers, or
their subsidiaries, currently owns, operates or controls any electric generation or
transmission facilities in the United States.
The Proposed Transaction involves an assignment by RAE to Meadow Creek, its
wholly-owned subsidiary, of certain rights that RAE has under the Shared Facilities
Agreement, including rights to acquire an ownership interest in the Tie-Line when the
Meadow Creek Project commences operations; and a corresponding reduction in Goshen
II's ownership interest in the Tie-Line. In order to effectuate the Proposed Transaction,
the Shared Facilities Agreement would be amended and restated to include Meadow
Creek as a party to the Shared Facilities Agreement and address the corresponding
reallocation of Goshen II's and RAE's rights and obligations under the Shared Facilities
Agreement to own and use the Tie-Line as tenants in common. The Shared Facilities
Agreement would also be amended and restated to: (1) revise the calculation of the
Goshen II's rights to use the Tie-Line to reflect the actual capacity of the Goshen Phase II
Project as 124.5 megawatt (MW), rather than the 230 MW currently set forth in the
Shared Facilities Agreement; (2) provide Meadow Creek with rights to use the Tie-Line
reflecting ownership of the Meadow Creek Project with a capacity of 119.7 MW; and (3)
reduce RAE's rights to acquire ownership in the Tie-Line proportionately by the new
Meadow Creek share, such that RAE will retain the residual rights to interconnect
another wind energy generation project to be built by RAE (or its successors and assigns)
(such new project, the "Phase IV Project").
Applicants state that the Proposed Transaction is consistent with the public interest
and will have no adverse effect on competition, rates, or regulation, nor will it result in
any cross-subsidization or the pledge or encumbrance of utility assets to any associated
company. With regard to horizontal competition, Applicants state that the Proposed
Transaction will not have an adverse effect on competition in the relevant market, which
is the PacifiCorp East BAA, where the Tie-Line is located (and where the Goshen Phase
II Project is, the Meadow Creek Project will be, and a Phase IV Project, if constructed,
would be located). Applicants state that the Proposed Transaction does not involve the
transfer of interests in generation. Applicants state that the Proposed Transaction only
involves a change in the ownership of, and in the rights to use, the Tie-Line.
With respect to vertical market power issues, Applicants state that neither Goshen
II or RAE, nor any of their affiliates, own or control electric transmission facilities in the
relevant market other than through their respective interests in the Tie-Line and their
interests in the Wolverine Creek Goshen Interconnection generator tie line. The
application states that none of the Applicants or their affiliates own or control fuel
supplies or fuel delivery systems in the relevant market.
20120418-3025 FERC PIJF (Unofficial) 04/18/2012
Docket No. EC12-83-000 -4 -
With regard to rates, Applicants state that since the Proposed Transaction involves
a change in the ownership of, and in the rights to use, the Tie-Line, it will not have an
adverse effect on any wholesale rates for sales of electric power. Applicants note that
Goshen II has been granted market-based rate authority and sells the entire output of the
Goshen Phase II Project on a long-term basis to an unaffiliated power purchaser.
Applicants state that neither Meadow Creek nor RAE has received or applied for market-
based rate authority, although Meadow Creek will do so prior to commencing any
deliveries of electric energy from the Meadow Creek Project. Similarly, the application
states that none of the Applicants currently provide any transmission services.
Applicants state that under the existing Shared Facilities Agreement, Goshen II owns and
has rights to use the Tie-Line to connect the Goshen Phase II Project to the transmission
grid, and RAE has rights to acquire an ownership interest in and use the Tie-Line to
connect projects it has under development to the transmission grid.
With respect to the effect of the Proposed Transaction on regulation, the
application states that the Commission will continue to have jurisdiction over the
Applicants and their jurisdictional facilities, including the Tie-Line and the amended and
restated Shared Facilities Agreement, after the Proposed Transaction is consummated.
Similarly, the application states that the Proposed Transaction will have no effect on state
commission regulation and is not subject to approval by any state commission.
Applicants assert that based on facts and circumstances known to them or that are
reasonably foreseeable, the Proposed Transaction will not result in, at the time of the
closing or in the future, cross-subsidization of a non-utility associate company or the
pledge or encumbrance of assets of a traditional public utility that has captive customers
or that owns or provides transmission service over jurisdictional facilities for the benefit
of an associate company. Applicants state that the Proposed Transaction will not result
in, now or in the future: (1) any transfers of facilities between a traditional public utility
associate company that has captive customers or that owns or provides transmission
service over jurisdictional transmission facilities, and an associate company; (2) any new
issuances of securities by a traditional public utility associate company that has captive
customers or that owns or provides transmission service over jurisdictional transmission
facilities, for the benefit of an associate company; (3) any new pledge or encumbrance of
assets of a traditional public utility associate company that has captive customers or that
owns or provides transmission service over jurisdictional transmission facilities, for the
benefit of an associate company; or (4) any new affiliate contracts between a non-utility
associate company and a traditional public utility associate company that has captive
customers or that owns or provides transmission service over jurisdictional transmission
facilities, other than non-power goods and service agreements subject to review under
sections 205 and 206 of the FPA.
Information and/or systems connected to the bulk system involved in this
transaction may be subject to reliability and cybersecurity standards approved by the
20120418-3025 FERC PDF (Unofficial) 04/18/2012
Docket No. EC12-83-000 -5 -
Commission pursuant to FPA section 215. Compliance with these standards is
mandatory and enforceable regardless of the physical location of the affiliates or
investors, information database, and operating systems. If affiliates, personnel or
investors are not authorized for access to such information and/or systems connected to
the bulk power system, a public utility is obligated to take the appropriate measures to
deny access to this information and/or the equipment/software connected to the bulk
power system. The mechanisms that deny access to information, procedures, software,
equipment, etc., must comply with all applicable reliability and cybersecurity standards.
The Commission, North American Electric Reliability Corporation or the relevant
regional entity may audit compliance with reliability and cybersecurity standards.
Order No. 652 requires that sellers with market-based rate authority timely report
to the Commission any change in status that would reflect a departure from the
characteristics the Commission relied upon in granting market-based rate authority.3 The
foregoing authorization may result in a change in status. Accordingly, Applicants are
advised that they must comply with the requirements of Order No. 652. In addition,
Applicants shall make any necessary filings under section 205 of the FPA to implement
the transaction.
When a controlling interest in a public utility is acquired by another company,
whether a domestic company or a foreign company, the Commission's ability to
adequately protect public utility customers against inappropriate cross-subsidization may
be impaired absent access to the parent company's books and records. Section 301 (c) of
the FPA gives the Commission authority to examine the books and records of any person
who controls, directly or indirectly, a jurisdictional public utility insofar as the books and
records relate to transactions with or the business of such public utility. The approval of
this transaction is based on such examination ability.
The filing was noticed on March 22, 2012, with comments, protests, or
interventions due on or before April 9, 2012. None were received. Notices of
intervention and unopposed timely filed motions to intervene are granted pursuant to the
operation of Rule 214 of the Commission's Rules of Practice and Procedure (18 C.F.R.
§ 385.2 14). Any opposed or untimely filed motion to intervene is governed by the
provisions of Rule 214.
After consideration, it is concluded that the Proposed Transaction is consistent
with the public interest and is authorized, subject to the following conditions:
3 Reporting Requirement for Changes in Status for Public Utilities with Market-
Based Rate Authority, Order No. 652, 70 Fed. Reg. 8,253 (Feb. 18, 2005), FERC Stats. &
Regs.J31,175, order onreh'g, 111 FERCJ 61,413 (2005).
20120418-3025 FERC PDF (Unofficial) 04/18/2012
Docket No. EC12-83-000 -6 -
(1)The Proposed Transaction is authorized upon the terms and conditions and
for the purposes set forth in the application;
(2)The foregoing authorization is without prejudice to the authority of the
Commission or any other regulatory body with respect to rates, service,
accounts, valuation, estimates or determinations of costs, or any other
matter whatsoever now pending or which may come before the
Commission;
(3)Nothing in this order shall be construed to imply acquiescence in any
estimate or determination of cost or any valuation of property claimed or
asserted;
(4)The Commission retains authority under sections 203(b) and 309 of the
FPA to issue supplemental orders as appropriate;
(5)If the Transaction results in changes in the status or upstream ownership of
Applicants' affiliated qualifying facilities, if any, an appropriate filing for
recertification pursuant to 18 C.F.R. § 292.207 shall be made;
(6)Applicants shall make appropriate filings under section 205 of the FPA, as
necessary, to implement the Proposed Transaction;
(7)Applicants must inform the Commission of any change in circumstances
that would reflect a departure from the facts the Commission relied upon in
authorizing the Proposed Transaction; and
(8)Applicants shall notify the Commission within 10 days of the date that the
disposition of jurisdictional facilities has been consummated.
This action is taken pursuant to the authority delegated to the Director, Division of
Electric Power Regulation - West, under 18 C.F.R. § 375.307. This order constitutes
final agency action. Requests for rehearing by the Commission may be filed within 30
days of the date of issuance of this order, pursuant to 18 C.F.R. § 385.713.
Steve P. Rodgers
Director
Division of Electric Power Regulation - West
20120418-3025 FERC PDF (Unofficial) 04/18/2012
Document Content (s)
EC12-83-000.DOC .......................................................1-6
•**PUfflJC VERSION: PRIVJLEGEI) AND CONFIDENTIAL INFORMATION
HAS BEEN REMOVED PURSUANT TO 18 C.F.R. .388.112**
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
Goshen Phase IILLC )
Ridgeine Alternative Energy, LLC ) Docket No. ECl2- -000
JOINT APPLICATION FOR AUTHORIZATION UNDER SECTION 203
OF THE FEDERAL POWER ACT AND REQUEST FOR
CONFIDENTIAL TREATMENT, EXPEDITED CONSIDERATION AND WAIVERS
Pursuant to Sect on 203(a)(1) of the Federal Power Act ("FPA"), as :amended by the
Energy Policy Act of 2005,1 and Part 33 of the Federal Energy Regulatory Commission's
("Commission") regulations.,2 Goshen Phase II LLC ("Goshen II") and Ride1ine Alternative
Energy, LLC, ("RAE" and together with Goshen II, the "Applicants") hereby request
Commission authorization for a transaction pursuant to which Meadow Creek Project Company
LLC ("Meadow Creek") will acquire a partial ownership interest in a generator tie-line, as
described more fully below.(the "Proposed Transaction").
The Proposed Transaction relates to interconnection of a wind farm which will be owned
and operated by Meadow Creek.. As .described more fully below, the Meadow Creek project will
interconnect to an approximately 7-mile generator tie line (the "Tie-Line) currently owned by
Goshen Hand in which RAE 'has rights to acquire ownership wider a Shared Facilities
Agreement that has been accepted by the Commission for filing as a rate schedule of Goshen II
and RAE.
16 U.SC. J 824b.
2 .18 C.F,R. §33.1 erseq. (2008) tv amended by the Commission's Order NO. 669, Transactions Subject to
FPA Section 203, FERC Stats & Re s., Regulalions Preambles ¶ 31,200(2005) ("Order No 669"), order on re/z 'g,
Order 669-A, 115 FERC ¶ 61,097(20M) 'Order No. 669-A"1, order on reh'g, Order 6694, 116 EERC ¶61,076
2006) "Order No. 669-B").
As explained more fully below, the Proposed Transaction will not have an adverse effect
on competition, rates, or regulation, and will not result in cross-subsidization of a non-utility
associate company or pledge or encumbrance of utility assets for the benefit of an associate
company. Accordingly, the Proposed Transaction should be approved by the Commission
pursuant. to FPA Section 203(a)(1), Applicants respectfully request a 21-day comment period,
expedited consideration of this Application and that the Commission issue an order authorizing
the Proposed Transaction by or before April 18, 2011
L .REOUEST FOR EXPEDITED CONSIDERATh).N.AND APPROVAL
This Application qualifies for expedited consideration, as it does not involve a merger or
consolidation of a traditional utility with a franchised service area, is consistent with
Commission precedent and the public interest, and involves a transaction that does not require an
Appendix A analysis, as set forth in Section 33.1 1(c)(2) of the Commission's regulations.3
Accordingly, consistent with Order No. 669, Applicants request that the Commission establish a
21-day notice period for comments on the App licati on. 4 Applicants flirt. her request that the
Commission issue an order approving the Proposed Transaction no later than April 19, 2012.
Good cause exists for requesting expedited action because. Meadow Creek is arranging financing
:for its wind energy project described herein, e.:pects as part of the financing documentation to be
required to show that its interconnection arrangements;, including the Proposed Transaction, have
obtained all required regulatory approvals.5
18C.F.R. § 33.l.lc)c2).
Order NO. at P 194.
The Meadow Creek project will also interconnect to the transmission grid via an approximately 18-mile
generator tie line owned and operated by Wolverine Creek Goshen Intereonnection, LLC ('WCGI") Through a
separate transaction, Meadow Creek will acquire a partial ownership interest in WCGJ from RAE and corresponding
rights to utilize the WCGI generator tie line (the "WCGI Transaction') Existing owners of WCGI are RAE
:Goshen II, and Wolverine Creek Energy .LLC. Wolverine Creek Energy LLC is not affiliated with RAE, Meadow
-2-
II. REQUEST FOR cONFmENUAL TREATMENT
Pursuant to Sections 33.9 and 388.112(b) of the Commission's regulatons,6 the
Applicants request privileged and confidential treatment for the transaction agreements contained
in confidential Exhibit!. The information in confidential Exhibit I is commercially sensitive
and, therefore, not publicly available. The release of such information would likely cause
substantial harm tothe competitive position of the Applicants., including an 'impediment in future
negotiations ofsirnilar transactions not'just for the Applicants but for other parties that might
engage in similar transactions.
The Applicants submit a confidential version of this Application, marked "Contains
Privileged and Confidential Information - Do Not Release Pursuant to 18 C.F.R.
§ 388.122," and ask that the confidential version be placed in the Commissionts non-public files.
The Applicants also submit: a public version of this Application with, the confidential agreements
removed. The Applicants understand that the Commission Staff will notify them inadvance of
any public disclosure of any information contained in confidential Exhibit L Any questions
'concerning this request for confidential treatment should be directed to counsel listed in Section
V'I..B below.. A proposed protective order that includes a restriction of the ability of competitive
duty personnel to view the confidential material, should it be needed is included as
Attachment I.
M. DECRIPTICN OF APPLICANTS
Goshen TI. Goshen II is a Delaware limited liability company that owns and operates a
1.24.5 MW wind-powered generating facility ("GO:Sbefl Phaseil Project") located in Bonneville
County., .Idaho. The Goshen Phase II Project is interconnected with the transmission system of
Creek, or Goshen IL Regulatory approvals related to the separate WCGI Ti.' cton are described in more detail in
note 14 infra.
6 18C.F,R.*.33..9. and 388.j12(b)
-3-
PaeifiCorp in the PacifiCorp East balancing authority area
Goshen II is owned directly by AE Goshen H Wind Farm LLC ("AE Goshen II") and
Goshen Ridge Wind Farm LLC ("Goshen Ridge"), each of which holds a 50% ownership
interest in Goshen IL
AE Goshen H is an indirect, wholly-owned subsidiary of UP Wind Energy North
America Inc. which, in turn, is an indirect, wholly-owned subsidiary of B? p.l.c., a company
organized under the laws of England and Wales with its international headquarters in London,
UK and its U.S.. headquarters in Houston, Texas.
Goshen Ridge is a direct, wholly-owned subsidiary of Goshen Phase II Holdings LLC
("Goshen Holdings"). RAE indirectly holds a 25% ownership interest in Goshen Holdings, with
Diamond Generating Corporation ("Diamond") indirectly holding the remaining 75%. RAE is
described in more detail below. Diamond is a wholly-owned subsidiary of Mitsubishi
Corporation, a Japanese corporation.
Goshen H has received market-based rate authority from the Commission and is an
exempt wholesale generator as defined in Section .1262(6) of the Public Utility Holding
Company Act of 2005 ("PUHCA 2005")!
Goshen II does not own directly or indirectly any electric transmission facilities other
than the limited interconnection generator tie-line facilities described herein. Specifically,
Goshen II currently owns the Tie Line which Goshen II utilizes to interconnect the Goshen Phase
II Project to PacifiCorp's transmission system. Goshen U's rights to own and utilize the Tie-
Line are addressed in a Shared Facilities Agreement ("f".) by and between Goshen II and
See Goshen Phase I1LLC Docket Nos. ERIO-I821..000 and ERIO-1821-001 (Oct. 7, 2010) (unpublished
letter order granting market-based rate authority) and Eagle Creek Hydra Power, LLC, at al., Docket Nos. EG 1048-
000, etaL , (Oct. 1, 2010) (notice of effectiveness of exempt wholesale generator status).
MI
RAE. The Commission accepted the SFA. for filing by order dated October 28,2010. The
Goshen Phase II Project also interconnects to PaciflCorp's transmission system via an
approximately 18-mile generator tie line owned and operated by Wolverine Creek Goshen
Interconnection,LLC ("WCGI"), Goshen II holds an ownership interest in WCGI and has
corresponding rights to utilize the WCGI. generator tie line pursuant to the terms of a Common
Facilities Agreement ("A") by and among WOCI and its owners. The Commission accepted
the CFA filing by order dated January 13, 2006, with an amendment of the CPA accepted by the
Commission for filing by order dated April 7, 2010.10
RAE. RAE is a Delaware limited liability company that was formed for the purpose Of
.developing wind energy projects. RAE is in the early stage of developing a wind., farm in Idaho.,
referred to herein as the "Goshen Phase III Projc." RAE is a "holding company" as defined in
Section 1262(8) of PUHCA, solely due to its indirect ownership of one or more EWOs and
"qualifying facilities" as defined in the Commission's regulations at 18 C.F.R. § 292-101 (b)(1),
("Q"), but currently owns no physical assets and has neither applied for nor received market-
based rate authority from the Commission."
As noted above, RAE currently owns, through intermediate companies, an indirect 1.2.5%
See Goshen Phase if LW, et al, 133 FERC ¶61,090(2010). The Commission also granted Goshen II and
RitE waivers of Comm. ission Ord..er Nos 888 889 and 890 and Section 35.28 and Parts 37 and 358 of the
Commission's regulations.
Wolverine creek Goshen interconnection LLC et al., Letter Order, Docket Nos. ER06267-000, et al., and
Errata Notice, Docket Nos. ER06-267-000, et al., (Jan. 27,2006) (collectively, the "WCGI.Order").
Wolverine Creek Goshen Interconnection LLC, et at, Letter Order, Docket No. ERIO-793-000 (Apr. 7,
2010). The Commission granted WCGI waivers of the Commission's Order Nos. 888, 889 and Part 358 of the
Commission's regulations, and the same types of waivers and blanket authorizations granted to market-based rate
entities with respect to rate and financial regulation under Parts 35, 141 and 34 of the Commission's regulations. See
WCGI Order, supra. WCGI is also an EWO. Wolverine Creek Goshen interconnection LLC, 111 FERC 162,209
(2005).
11 The Proposed Transaction does not involve any purchase, acquisition or taking by RAE of any security in :a
transmitting utility, an electric utility company or a holding company, and does not involve a merger or
consolidation with such entities. Thus, the Commission's jurisdiction under Section 203(aX2) of the FPA is not
implicated.
-5-
interest in Goshen IL RAE also owns 100 0/6 of Meadow Creek a Delaware limited liability
company that is developing a wind energy project located adjacent to the Goshen Phase II
Project in Bonneville County, Idaho ("Meadow Creek Project"). The Meadow Creek Project
will be located in the PacifiCorp East BAA and will consist of two separate QFs, each located
more than one mile apart: the approximately 77.7 MW North Point Project 12 and the
approximately .388 MW Five Pine Project. u These projects are currently in development and
construction has not yet begun. Given the early stage of the Meadow Creek Project's
development, Meadow Creek has not yet applied to the Commission for market-based rate
authority for sale of electric energy from the Meadow Creek Project, waivers of the
Commission's .open access transmission requirements relating to Meadow Creek's proposed
rights to acquire an interest in the Tie-Line (similar to the waivers, granted to Goshen II and
RAE), or filed notice of EWO status, but will do so prior to the initial generation of electric
energy by the Meadow Creek Project. 14
In addition to its interest in Goshen II 'and Meadow Creek, RAE also owns a 20% indirect
interest in Rockland Wind Farm •LLC ("Rockland"'), 11 Rockland is a Delaware limited liability
company that owns a 79.86 MW wind energy project located in the Idaho Power Company BAA
See Notice of Self-Certification of QF status, filed by Meadow Creek for North Point Project, Docket No.
QP1-175-000, Jan. 26, 2012,
See Notice of Self-Certification of QE status, filed by Meadow Creek for Five Pine Project, Docket No.
QF12-176-000, Jan. 26,2012.
As noted supra, the Meadow creek Project will also interconnect to the transmission grid via the WCOI
generator tie line and, through the WCGI Transaction described above in note 5, Meadow Creek will acquire a
partial ownership interest in WCGI from RAE and corresponding rights to utilize the WCGI generator tie line. In
connection with the WCGI Transaction, separate requests Will be filed with the Commission, asking that the
Commission (I) accept for filing without modification a form of an amended and restated CFA ("Amended CFA "I),
which will amend and restate the CFA in order to effectuate Meadow Creek's acquisition of an ownership interest in
WCGI and corresponding rights to utilize the WCGI generator tie line, and (ii) authorize the WCGI Transaction
under Section 203 of the FPA.
The balance of the membership interests in Rockland is held 50% by Diamond (indirectly, through
intermediate holding companies), and 30 1/1 a by Atlantic Power Corporation. ("Atlantic Power") (indirectly, through
intermediate holding companies). Neither Diamond nor Atlantic Power is affiliated with RAE.
-6-
("Rockland Project"). Rockland has received market-based rate authority from the
Commission 6 and is an EWG. " The Rockland Project is" a QF.Ls Rockland is not
participating in the Proposed Transaction,
RAE does not own directly or indirectly any electric transmission facilities other than the
limited interconnection generator tie-line facilities described herein. Specifically, RAE holds
rights to acquire an ownership interest in the Tie-Line pursuant to the terms of the SFA. R).
Also owns directly an approximately 32.3% interest in, and through its 12.5% interest in Goshen
II, an additional approximately 5,6% interest in WCGI, for an aggregate interest in WCGI of
approximately 37.9%.
RAE is indirectly owned l00% by EOLFI S A a French Corporation ("EOLFI")
EOLFI is owned 71.49% by Veclia S.A. rVeolia"), a French corporation specializing through
its various subsidiaries in the areas of water cycle management, waste management, public
transportation and energy services, 9.46% by Asah Lm, a French civil partnership (sociét
civile), and 19.02 11/o by Transvers, a French private investment corporation. Other than the
subsidianes aforementioned in this Section III A., none ofEOLFI, Asah Lm or Transvers, or
their subsidiaries, currently owns operates or controls: electric generation or transmission
facilities: in the United States.
Through its affiliate, Dailcia 8-A.S., Veolia's energy operations include the operation of
biomass (wood) facilities, combined heat and power plants, and local district heating and cooling
systems in Europe, Latjn America, China, the United States, Canada, the Middle East and the
Si: Rockland Wind Farm LLC, 137 FERC 161,102 (2011).
See Paulding Wind Farm II LW, et al, Docket Nosi EGI 1-61-000, at al, Notice of Effectiveness of
Exempt Wholesale Generator Status, June 13, 2011.
is See Letter Order, Docket No QFIO-574-000, Oct 5, 2010, notice of self-recertification Docket No QFIO-
574-001 ,fiied Sept. 14,2011,
Asia Pacific Region. Veolia has an approximately 500A indirect interest in Dálkia North
America Holdings, Inc., which in turn, owns several U.S. subsidiaries, none of which is a
traditional public utility or an electric generator.
IV. DESCRIPTION OF PROPOSED TRANSACTION
The Proposed Transaction involves an assignment by RAE to Meadow Creek, its wholly-
owned subsidiary, of certain rights that RAE has under the SFA, including rights to acquire an
ownership interest in the Tie-Line; the acquisition by Meadow Creek of a partial ownership
interest in the Tie-Line when the Meadow Creek Project commences operations; and a
corresponding reduction in Goshen 11's ownership interest in the Tie-Line, in order to effectuate
the Proposed Transaction, the SPA would be amended and restated to include Meadow Creek as
a party to the SPA and address the corresponding reallocation of Goshen II's and RAEs rights
and obligations under the SPA to own and USC the Tie-Line as tenants in comrnon The SFA
would also be amended and restated to: (1) revise the calculation of the Goshen II's rights to use
the Tie-Line to reflect the actual capacity of the Goshen. ..Phase II Project as 124.5 MW, rather
than the 130 MW currently set forth in the SFA; (2) provide Meadow Creek with rights to use
the Tie-Line reflecting ownership of the Meadow Creek Project with a capacity of 119.7 MW;
(3) reduce RAE'.s rights to acquire ownership in the Tic-Line proportionately by the new
Meadow Creek share, such that RAE will retain the residual rights to interconnect another wind
energy generation project to be built by RAE (or its successors and assigns) (such newproject,
the 'Phase IV Project"),
Upon completion of the Proposed Transaction, Goshen II and Meadow Creek would own
the Tie-Line as tenants in common in proportion to the capacity of their respective projects and
Because the Proposed Transaction will require the SFA to be amended and restated, an amended and
restated SEA will be filed separately with the Commission pursuant to Section 20 of the EPA.
have corresponding rights to utilize the Tie-Line , to interconnect :their projects to the trnission
grid..
Exhibit I contains the transaction agreements for the Proposed Transaction, which are
described below. The public version of Exhibit I contains the form of SFA as amended and
restated (the "Amended SF A") to effectuate the Proposed Transaction, which will not be
executed or become effective until certain conditions are met, including the issuance by the
Commission of an order under. Section'2t15 accepting the Amended SFA for filing without
modification and an order under Section. 203: authorizing' the Proposed Transaction Confidential..
Exhibit I also contains (1) an agreement among RAE, Goshen .H, Meadow Creek, WCGI,
Wolverine Creek Energy LLC ("Wolverine Creek".). regarding, inter al lab the conditions required
to be satisfied before the Amended SFA will be executed by RA Goshen II, and Meadow
Cree00 and (11) a Bill of Sale and Assignment and Assumption Agreement among RAE and
Ridgeline Energy .LLC, as Assignor, and Meadow Creek as Assignee, that will be entered into at
the time of the closing of the Proposed Transaction to effectuate the transferto Meadow Creek of
certain rights that RAE has under the SFA, including rights to acquire an ownership interest in
the Tie-Line as ...relates to the Meadow Creek Project.
V.

THE COMMISSION SHOULD APPROVE THE PROPOSED
TRANSACTION PURSUANT TO SECTION 203-61T. THE FPA
A. Legal Standard
Commission approval under Section 2:03(a)(1.) of the FPA is required priorto the
disposition of jurisdictional facilities with a value in excess of $10,000,000. Section 203(o)(4) (4) of
the .FPA :reqiires that the Comnuission approve. jurisdictional. transactions that are "consistent
20 The agreement also addresses the conditions required to be satisfied before the Amended CFA and other
related agreements will be executed by WCGI, the existing owners of WCGI (:e ,RAE, Goshen II, and Wolverine
Creek) and Meadow Creek, which is required to effectuate, the separate WCGI Transaction described 'earlier.
in
with the public interest.." When analyzing the effects of jurisdictional transactions on the public
interest under Section 203 of the FPA, the Commission relies upon the analysis set forth in Order
No. 592, the Commission's Merger Poiicy.Stateme,tt,2l and Order No. 642,22 The Commission
generally considers the following three factors in analyzing applications pursuant to Section 203
of the EPA (1) the effect on competition; (2) the effect on rates; and (3) the effect on
regulation?' In addition, FPA Section 203(a)(4) requires a showing that a proposed transactiOn
will not result in :cross.subsidization of a non-utility associate company or pledge or
encumbrance of utility assets for the benefit of an associate company.
As demonstrated below, the Proposed Transaction is consistent with the public interest
and will not result in cross-subsidization of anon-utility associate company or the pledge or
encumbrance of utility .assets for the benefit of an associate company.
B. The Proposed Transaction is Consistent with the Public Interest
As explained in Section III above, the Proposed Transaction involves an assignment by
RAE to Meadow Creek of certain rights that RAE has under the existing SFA (including rights to
acquire an ownership interest in the Tie-Line) and the acquisition by Meadow Creek of a partial
ownership interest in the Tie-Line when the Meadow Creek Project commences operations such
that, upon completion of the Proposed Transaction, Goshen II and Meadow Creek would own the
Tie-Line as tenants in common in. proportion tci the capacity of their respective projects and have
corresponding rights to utilize the Tie-Line to interconnect their projects to the transmission grid,
21 inquiry Concerning the commission's Merger Policy Under the Federal Power Act: Policy Statement,
Order 4o 592, FERC Stats. & Regs., Regs. Preambles ¶ 31,044 (1996) ("Merger Policy Statement"),
reconsideration denied, Order 592-A, 79 FERC 161,321 (1997) (codified at 18: C.F.R. Part 2)
Revised Filing Requirements Under Part 33 of the Commission's Regulations, Order No. 642, PERC Stats.
& Reg., Regs. Preambles 13 1,111, at 31,879(2000) ("Order No. 642"), on reh 'g, Order No. 642-A, 94 FERC ¶
612892001) (codified az 18C.F.R. §33.2g,
See OrderNo. 642, at p. 31,872; Order.No. 592 at p. 30111.
go
with 'RAE holding residual tights under an amended and restated SFA to interconnect a Phase IV
Project to the Tie-Line. Thus, the Proposed Transaction involves a change in the ownership of,
and in the: to use, the Tie-Line, which is a facility subject to the Commission's jurisdiction.
As demonstrated below, the Proposed Transaction is consistent with the public interest, because
it will not have an adverse effect on competition, rates or regulation and does not raise cross
subsidy concerns.
1. The Proposed Transaction will not have an adverse effect on
competition in the relevant markets
The Proposed Transaction will not have an adverse effect on competition in the relevant
market, which is the PacifiCorp East BAA ('PacifiCorp East"), where the Tie-Line is located
(and where the Goshen Phase II Project is, the Meadow Creek Project will be, and a Phase IV
Project, if constructed, would be, located).24 Specifically, as demonstrated below, the Proposed
Transaction raises neither horizontal nor vertical market poi.er concerns in the relevant markets.
A. The Proposed Transaction raises no horizontal market power
concerns
Section 33.3(a)(1.) of the Commission's regulations requires the filing of a horizontal
competitive screen analysis in order to determine whether a proposed transaction will have an
adverse effect on competition?' However, Section 33.3(a)(2)(i) of the Commission's regulations
provides that a horizontal competitive analysis is not required if the applicants affirmatively
demonstrate that they do not currently conduct business in the same geographic markets or that
the extent of their business transactions in the same geographic markets is de minirnis.26
24 See Pacffi Corp. et al., "Order Authorizing Merger and Disposition of Jurisdictional Facilities," 124 FER.0
161,046 at P 6 (July 18, 2008) C. . . PaeifiCorp East includes Paci:fiCorp's leads and resources in the States of
idaho, Utah. and Wyoming...
25 18 C.F.R. § 33.3(aXl).
26 19 CFAI. §. 33.3(à)(2)(i).
Ste
The Proposed Transaction does not involve the transfer of interests in generation. The
Proposed Transaction involves a change in the ownership of, and in the rights to us; the Tie-
Line. Therefore, the Proposed Transaction does not require a horizontal competitive screen
analysis, and raises no horizontal market power concerns.
b. The Proposed Transaction raises no vertical market power
concerns
Section 33.4(a)(1) of the Commission's regulations requires the filing of a. vertical
competitive screen analysis in order to determine whether a proposed transaction will have an
adverse effect on competition, 7 However, Section 33.4(a)(2) of the Commission's regulations
provides that a vertical competitive analysis need not be filed if the applicants affirmatively
demonstrate that they do not currently provide electricity products and inputs to electricity
products in the same geographic markets or that the extent of their business transactions in the
same geographic markets is de minlmls.28
Neither Goshen II or RAE, nor any of their affiliates, own or control electric transmission
facilities in the relevant market other than through their respective interests in the Tie-Line and
their interests in the WCGI generator tie line, as described in more detail in Section III above.
As noted above, Goshen H and RAE have been granted waivers of Commission Order Nos 888,
889 and .890 and Section 35•.28 and Parts 37 and 358 of the Commission's regulations in
connection with their activities under the SFA, and WCGI has been gran.ted similar waivers.
Additionally, none of the Applicants or their affiliates own or control fuel supplies or fuel
18 C.F.R. § 33.4(a)(1).
2 18 C.F.R. § 33.4(a)(2Xi),
42-
delivery systems in the relevant market? Accordingly, the Proposed Transaction does not
require a vertical competitive screen analysis, and raises no vertical market power concerns.
2. The Proposed Transaction will not have an adverse effect on rates
In assessing the effect that a proposed jurisdictional transaction could have on rates, the
Commission's primary concern is "the protection of wholesale ratepayers and transmission
customers."30 in the Merger Policy Statement, the Commission made clear that its concern with
the effect of a proposed transaction on rates is to protect ratepayers from rate increases Iresulting
from a proposed disposition ofjur.isdictional assets. 3,1
Since the Proposed Transaction involves a change in the Ownership of, and in the rights
to use, the Tie-Line, it will not have an adverse effect on any wholesale rates for sales of electric
power.. Moreover, none of the Applicants has any captive: customers receiving electric power
under cost-based rates. Goshen II has been granted market-based rate authOrity by the
Commission and., pursuant to its market-based rate authorization, sells the entire output of the
Goshen Phase II Project on a long-term basis to an unaffiliated power purchaser. Neither
Meadow Creek nor RAE has received or applied for market-based rate authority, although
Meadow Creek will do so prior, to commencing any deliveries ofelectric energy from the
Meadow Creek Project.. RAE. is subject to the COrn 'ssion's jurisdiction as a public utility only
29 Trigon-Kansas City, an affiliate of Veolia has anon-performing long-term coal purchase agreement for
100,000 tons per year out of a mine in southeastern Kansas Moreover, affiliates of Goshen own interests in the
Ferndale Pipeline in Washington state and an industrial fuel use line in California but neither of these facilities is
used to transport natural gas for non-owners, and neither is regulated by the states as intrastate pipelines conducting
transportation for third parties In addition, several affiliates of Goshen engage in natural gas and oil production and 1.
Own or control petroleum products production and disttibution assets but FERC has previously found that these: fuel
input markets are sufficiently competitive so as to not raise concerns that these type ..of assets could be used to erect
barriers to en tiy E g, Intercoart Power Marketing Company, 68 FERC 161 ,248,order clarifying prior order, 68
FERC 161,314 (1994) (explaining that FERC has previously determined that involvement in oil and gas ventures,
excluding natural gas distribution, does not constitute barrier to entry sufficient to preclude inarket-ba.drate
8uthorization).
New England Power CO3 et al., 82 FERC ¶ 161;179, at p.61,659, order On reh'g, 83 FERC16i,27s (1998).
See Merger Policy Statement at p. 30,123.
-13-
because the SFA is. on file with the Commission as a rate schedule, and Meadow Creek is not yet
a public utility.
The Proposed Transaction will have no adverse effect on transmission rates. None of the
Applicants currently provide any transmission services to other persons. Under the existing
SFA,. Goshen ii oWns and has rights to use the Tie-Line to 'connect the Goshen Phase II Project
to the transmission.grid, and RAE has rights 'to acquire an ownership interest in and use the Tie-
Line to connect projects it has under development to the transmission grid. Nor will any
Applicant provide any transmission serv .ice to other persons upon completion of the Proposed
Transaction. Upon completion of the Proposed Transaction, pursuant to the amended and
restated SFA, Goshen II will continue to have an ownership interest in the Tie-Line and will
continue to have rights to use the Tie-Line to connect the Goshen .Phase II project to the
transmission grid, Meadow Creel will acquire a partial ownership interest in the Tie-Line when
the Meadow :Creek Project commences operations, and RAE will continue, to hold residual rights
to acquire an ownership interest in and use the Tie-Line to connect a Phase IV PrOject. None
Would be providing transmission service to the otheror to other persons.. Moreover,, as noted
above, the SFA, amended and restated in order to effectuate the Proposed Transaction, will be
filed contemporaneously with the Commission under Section 205 o ''fthe FPA. Thus, the SFA as
amended and restated, will continue to be a rate schedule subject to the Commission's
jurisdiction and have no adverse affect on rates.
3. The Proposed Transaction will not have an adverse effect on regulation
The Proposed Transaction will not impair the ability -of the Commission or any state
regulatory authority to regulate Applicants or any of their affiliates. The Commission will
continue to have jurisdiction over the Applicants and their FPA-jurisdictional facilities, including
-14-
the TleLine and the amended and restated SPA, after the Proposed. Transaction is consummated.
No facilities that are currently subject to the Commission's jurisdiction will be removed from the
Commission'..s jurisdiction. The Proposed Transaction will have no effect on state commission
regulation and is not subject to approval by any state commission. Therefore, Proposed
Transaction will not have an adverse effect on regulation.
C. The Proposed Transaction Will Not Result m Cross-Subsidization
Under Section 203(a)(4) of the FPA and Section 226(f) of its regulations, the
Commission considers whether .a proposed transaction will result in a cross-subsidization of a
non-utility associate company by a utility .company, or in a pledge or encumbrance of utility
assets for the benefit Of an associate company. The Proposed Transaction does not pose a risk of
cross-subsidization and does not pledge or otherwise encumber utility assets. in the 203
Supplemental Policy Statement, the Commission stated that it will recognize three classes of
transactions that are unlikely to raise the cross-subsidization concerns described in the Order
No. 669 rulemaking proceeding.2 The first such class involves "transactions where the
applicant shows that a franchised public utility with captive customers is not involved. If no
captive customers are involved, then there is no potential for harm .to customers. . Therefore,
compliance with Exhibit M could be :a showing that: no franchised public utility with captive
customers is involved in the transctions.03
The proposed Transactions fall within the above: described "safe harbor" adopted by the
Commission because no franchised public utilities with captive customers are involved. As
described herein, the Proposed Transaction invOlves a than .ge in ownership., and in rights to use,
203 Supplemental Policy Statement at P 16.
201 Supplemental Policy Statement at P .tl (foothote omitted).
-15-
the Tie-Line. None of the Applicants is or will be a. franchised public utility with captive
customers.
Because the Proposed Transaction falls within the Commission's safe harbor, an Exhibit
M containing a detailed explanation and evidentiary support to demonstrate lack of cross-
subsidization is not required. While attaching an Exhibit M may not be required, the Applicants
provide Exhibit M out of an abundance of caution but, Consistent with the Commission's policy,
do not provide any further evidence to demonstrate 'lack of cross-subsidization because, as shown
above, the Proposed Transaction does not involve franchised public utilities with captive
customers.
VI. INFORMATION REQUIRED BY SECTION 33.2 OF THE
COMMISSION'S REGULATIONS AND REQUESTS FOR
CERTAIN WAIVERS OF THE INFORMATION REQUIREMENTS
Applicants submit the following information pursuant to Part 33 of the Commission's
regulations Applicants have provided all information necessary to determine that the Proposed
Transaction is consistent with the public interest, as required under Section 203 of the FPA
However, because certain information is not relevant to the Commission's consideration of
whether the Proposed Transaction is consistent with the public interest Applicants respectfully
request that the Commission waive certain of the filing requirements in Part 33 of its regulations,
as discussed below.
Subject to the foregoing, Applicants provide the fo llowing information pursuant to :Part
33 of the Commission's regulations:
-16-
A. Name and principal business office of Applicants
I. Ridgeline. Alternative Energy, LLC
do Ridgeline Energy LLC
1300 North Northiake Way, Second Floor
Seattle, WA 98103
2. Goshen Phase H LLC
do BP Wind Energy North America Inc
700 Louisiana Street, 33 Floor:
Houston, TX 77002
B Names and addresses of the person authorized to receive notices and
communications35
The names and address of persons authorized to receive notices and commuthcations with
respect to this Application are:
For RAE: For Goshen H:
Robert M. Ellis*
General Counsel
Ri4góiine Energy LLC
1300 North Northiake Way, 2nd Floor
Seattle, WA 98103
Karen B. Wong*
Milbank, Tweed, Hadley & McCloy LU
601 South Figueroa Street, 30th Floor
Los Angeles, CA 90017
Tel: [phone]
1cwongmilbank.com.
James C. Liles*
Regulatory Advisor
Milbank, Tweed,. Hadley & M cCloy LLP
1850 K Street, IN.W., S uite: 1100
Washington, D.C. 20006
Tel: [phone]
jliles®rrilbank.com
18 C.F.R. §. 332(a)
18 cFR. §332(b).
Gretchen S chott*
Senior Counsel
BP Wind Energy North America Inc
700 Louisiana Street 33rd Floor
Houston,TX 77002
-17.
Persons denoted with an asterisk (*) are Those designated for service pursuant to Rule
2010"
C Description of Applicants 37
1. All business activities of the applicants, including authorizations
by charter or regulatory approval (Exhibit A)
The descriptions of the business activities of Applicants are set forth in Section ill above.
Therefore, Applicants request waiver of the requirement to file .Ehibit .A
2 A list of all energy subsidiaries and energy affiliates, percentage
ownership interest in such subsidiaries and affiliates, and a
description of the primary business in which each is engaged
(Exhibit B)39
The Applicants' relevant energy subsidiaries and affiliates are described in Exhibit B.
Applicants request waiver of the requirement to list in Exhibit B the energy affiliates of Goshen
II through BPWENA and Diamond because the Proposed Transaction does not involve either a
merger or consolidation with such entities or any increase in concentration with respect to
generating facilities, and therefore such energy subsidiaries and affiliates are not relevant to the
Commission's analysis of this Application under Section 203 of the FPA Accordingly, the
Commission should grant Applicants a waiver of the requirement to list such subsidiaries and
affiliates in Exhibit B
36 18C:,F,L385.2010.
18C.F.R.33.2(c).
18 CF.R. § 33.2(c)(1).
18 C.F.R. § 332(c)(2),
-: 18-
3.Organizational charts depicting the applicants' current and
proposed post-Transaction corporate: structures (Exhibit C)4°
The Proposed Transaction does not involve any changes to Applicant? current corporate
structures. Therefore, Applicants request that the Commission waive the requirement to submit
organizational charts depicting the pre-aid post-Transaction ownership of the Applicants.
4.Description of all .Joint ventures, strategic alliances, tolling
arrangements or other business arrangements, including transfers
of operational control of transmission facilities to Commission
approved Regional Trans ission Organizations, both current, and
planned to occur within a year from the date of filing, to which the
applicants or their parent companies, energy subsidiaries, and
energy affiliates are parties, Unless the applicants demonstrate
that the proposed Transaction does not affect any of their business
interests (Exhibit D 4'
Other than the matters described in this Application, the Proposed Transaction will not
have any effect on joint ventures, Strategic alliances or other business arrangements of
Applicants or their parent companies, energy subsidiaries and energy affiliates, separate from th
Proposed Transaction. Therefore, Applicants request waiver of the requirement to file Exhibit D.
5.Identity of common officers or directors of parties to the proposed
Transaction (Exhibit E)42
Goshen II., RE and Meadow Creek are all affiliated parties. The Proposed Transaction
will not change these relationships.. Accordingly. Applicants request waiver of the requirement.
to file Exhibit E.
40 18 C.ER § 33.2c)3)
1. C.F.R. § 332c)(4).
42 18 C.F.R. § 33.2(c)(5).
-19-
6. Description and location of wholesale power sales customers
and unbundled transmission services customers served by the
applicants or their parent companies, subsidiaries, affiliates, and
associatevompaities ''Exhibit )43
As noted in Section V.B.2., only Goshen II currently makes wholesale power Sales to an
unaffiliated power purchaser under a long-term power purchase agreement, and none of the
Applicants provide 'any transmission service to any person. The Applicants request a limited
waiver of the information requirements of 118 C.F.R. 33.2(c)(6)., to the extent waiver may be
deemed necessary to provide any additional information including the wholesale power
customers of their public, utilities affiliates., because that , information is not necessary or relevant
to evaluating the Proposed Transaction and would be unduly burdensome to provide. Therefore,
Applicants request waiver of the requirement to file Exhibit F.
D. Description of Jurisdictional Facilities Owned, Operated Or Controlled by
the Applicants or their Parent Companies, Subsidiaries, Affiliates and
Associate Companies (Exhibit G"
A description of the Applicants' jurisdictional facilities owned, operated or controlled by
the Applicants or the relevant parent companies is provided in. Section III, above.
The Applicants request a limited waiver of the information requirements of 18 CIF.L
§33.2(4), to the extent waiver may be deemed necessary, to provide information On the FPA
jurisdictional facilities of their public utility affiliates because that information is not necessary
or relevant to evaluating the Proposed Transaction and would be unduly burdensome to provide.
Therefore, Applicants request waiver of the requirement to file Exhibit G.
18 C.F.R. § 312(c)(6).
it CF.R. § 33.2(4).
-20-
E. A. Narrative Description of the Proposed Transaction for Which
Commission Authorization i. Requested .(Exhibit 1K)
A. narrative description of the Proposed Transaction is provided in Section IV, above.
Therefore, Applicants request waiver of the requirement to file Exhibit H.
1.The.identity of all parties involved in the Transaction
The parties involved in the Proposed Transaction are Goshen fl RAE j Meadow
Creek,
2.All jurisdictional facilities and securities associated with or affected
by the Transaction
The jurisdictional facilities associated with or affected by the Proposed Transaction are:
(a) the SFA and (b) the Tie-Line
3 The consideration for the Transaction
The consideration for the Proposed Transaction was reached through are s-length
negotiations among the parties to the Proposed Transaction..
4. The effect of the Transaction on such jurisdictional facilities, and
securities
The Proposed Transaction will result in a change in the ownership of, and rights to use,
the Tie-Line and in changes to the existing. SFA necessary. . to effectuate the Proposed
Transaction.
F. Contracts Relating to the Proposed Transaction (Exhibit 1)46
The transaction agreements: related to the Proposed Transaction are described in Section.
IV above, copies of which are contained in Exhibit I hereto
18C.F.R §312(t).
-21-
G.Statement Explaining the Facts Relied Upon to Demonstrate that the
Proposed Transaction is Consistent with the Public Interest (Exhibit Jf'
A statement regarding the consistency of the Proposed Transaction with the public
interest j: provided in Section V of this Application. Therefore. Applicants request waiver of the
requirement to file Exhibit J.
H.General or Key Map Showing the Properties of Each Party to the
Transaction (Exhibit K)48
The Proposed Transaction does not involve the merger or other combination of any
public utilities with franchised service territories. Therefore. Applicants request waiver of the
requirement to file Exhibit K
I Licenses, Orders or Other Approvals Required from Other Regulatory
Bodies in Connection with the Proposed Transaction, and the Status of Other
Regulatory Actions (Exhibit L)4
The Applicants do not require regulatory approvals from other regulatory bodies in
connection with the Proposed Transaction Apart from this Application, the Proposed
Transaction will require the Commission's acceptance of the Amended SFA without
modification. under Section 205 of the FPA. Additionally, the Applicants have agreed, along
with Wolverine Creek and Meadow Creek, that the Proposed Transaction will not be
consummated until certain other conditions are met, including the issuance by the Commission
of the following orders relating to the separate WCG1 Transaction.described ..n footnotes 5 and
14 above:. (i). the issuance of an order accepting for filing without modification the proposed.
Amended CFA among WCGI, Wolverine Creek, Goshen II,. RAE and Meadow; and (ii) the
I8C.F.R. § 332(g.
49 1. & C.F.R. § 332(h).
1 C.F.R. . 332(1).
-22-
issuance of an order by the Commission authorizing the WCOI Transaction under Section 203 of
the FPA.
J. Cross-Subsidization (Exhibit M)5°
See Section V.C q supra, and Exhibit M.
\pfl PROPOSED ACCOUNTING ENTRIES"
None of the Applicants is required to maintain their books of accounts in accordance with
the Commission's Uniform System of Accounts in Part 101. Therefore, the Applicants are not
required pursuant to 18 C F R §33.5 to present proposed accounting entries to their books or
financial statement showing the effects of the Proposed Transaction to the extent there may be
any such effects
VIII. VFRIF1CAflONS 52
Signed verifications by authorized representatives of each of the Applicants are included
as Attachment 2 to this Application
18 C.F.R. § 3320.
1.8 C.F.R. § 335.
18 C.F.R. 33..7•.
-23-
IX. CONCLUSION
WHEREFORE, for the reasons stated above, Applicants request that the Commission
issue an order under Section 203(a)(1) of the FPA authorizing the Proposed TransactIon.
Applicants further request that the Commission consider this Application on an expedited basis,
establish a 21-day comment period, and issue an order approving the Proposed Transaction by
April 18, 2012 Applicants also request that the Commission grant any necessary waivers of the
Commission's regulations as described herein
Respectfully submitted,
Is/Robert M. Ellis
Robert M. Ellis
General Counsel
Ridgeline Energy LLC
1300 North Northlake Way, 2 nd Floor
Seattle, WA 98103
Karen B Wong
Milbank,, Tweed, Hadley & McCloy
601 South Figueroa Street, 30th Floor
Los Angeles, CA 90017
Tel [phone]
Fax': [phone]
kwongCi.miIbank.com
Counsel for Ridgeline Alternative Energy,
LLC:
/5/ Gretchen Schott
'Gretchen Schott
Senior Counsel
B? Wind Energy North America Inc
700 Louisiana Street, 33 Floor
Houston, TX 77002
Counsel for Goshen Phase II LLC
Dated: March 19,2012
-24-
'EXHIBIT B
EXHIBIT B
Energy Subsidiaries and Affiliates
The energy affiliates of Goshen Ii and RAE are described below:. In Section
VLC.2.ofthe Application, Applicants have requested waiver of the requirement to list the energy
affiliates of Goshen II through BPWE NA and Diamond.
Affiliates of RAE and Goshen II
Ridgeline Alternative Energy, .LLC
FERC Order No. 697 Appendix B Table of Energy Affiliates
Market-Based Rate Authority and Generation Assets through Veolla
Rockland ' ER1 1- Rockland 1ock1and Rockland Wind N/A - l Idaho Power' Northwest 'Expected ' 79.86 MW
Wind Farm 4475-000 Wind Farm Wind Farm Farm LLC Company 12/2011
LLC LLC
Goshen Phase ERIO-1821 Goshen Phase Goshen Phase Goshen Phase 9/1/2010 PACE Northwest 9/1/2010 124.3 MW
IILLC II II LLC U LLC
Grays Ferry ERI 0-852 Grays Ferry Grays Ferry Grays Ferry N/A PJM Northeast 1998 1926 MW
Cogeneration Cogeneration Cogeneration Cogeneration
Partnership Facility Partnership Partnership
MATEP, ERIO-1655 MATEP MATE?, MATE!', N/A ISO-NE Northeast 1986 87.8 MW
Limited ERI0-1370 Facility Limited Limited
Partnership E".84-192 Partnership Partnership
MATEP, LLC ER06-1 143 N/A NIA N/A N/A N/A N/A N/A 0 (power
marketer)
Montenay N/A Montenay Montenay Montenay N/A Progress Southeast 125 MW
Charleston Charleston Charleston Charleston Energy, (currently
Resource Facility Resource Resource Carolinas- out of
Recovery, Inc Recovery, Inc Recovery, Inc East service)
Veolia Energy N/A Veoha Energy VeohaEnergy Veoha Energy N/A PM Northeast 1983 6MW
Trenton, Li' Trenton Trenton, LP Trenton, LP
Facility
Tngen-St ER07471 Trigen-St Thgen St Thgen-St N/A MISO Central 1999 33 MW
Louis Energy Lows Energy Louis Energy Louis Energy
Corp Facility Corp Corp
Veolla Energy N/A Grand Avenue Veoha Energy Veolia Energy N/A KCP&L SPP 1991 5 MW
Kansas City, Steam Plant Kansas City, Kansas City,
Inc. Inc Inc.
#48444$0O55'vI
#4844$OO-055y1
.Ridgeline Alternative Energy, LLC•
Electric Transmission Assets and/or Natural Gas Intrastate Pipelines and/or Gas Storage Facilities through Veoha
Applicant is including any relevant generator tie-lihes , herein out of an abundance of caution. Applicant does not believe or concede that generator tie-lines
should be included in the instant electric transmission asset chart because such assets are not networked transmission facilities, are not designed or
coiistnjcted.to serve as transrnissionfacilities, and are not intended to serve as transmission facilities for third party transmission customers.
2 As explained in the instant Application, WCOI is a pubHc utility that owns and operates an approximately 117-mile electric :jnrconnect1on line and:related
equipment that currently connects wind farms owned by Wolverine Creek Energy LLC, an entity not affiliated with the Applicant, and Goshen Phase II,
LLC to the transmission system of PacifiCorp The WCGI hue is limited and discrete and does not comprise an integrated transmission system, and WCGI
has been granted waivers of the Commission's open access transmission requirements under Order Nos 888 and 889 and Part 358 of the Commission's
regulations See Wolverine Creek Goshen Interconnection LLC, Letter Order, Docket No ER06-267 (Jan 13, 2006), Errata Notice, Docket No RRO6-267
(Jan 27,2006) WCGI is also an EWG See Wolverine Creek Goshen interconnection LW, 111 FERC ¶ 62,209:(2005)
ff48444800-0655v1
EXHIBIT C.
Exhibit C-i and Exhibit c-2
Applicants have requested waiver of the requirement to submit Exhibits C-i and C-2 because the
Proposed Transaction does not involve any change in the existing corporate structure of any of
the Applicants
AMENDED AND RESTATED SHARED FACiLITIES AGREEMENT
among
GOSIIEN.P!IASE U LLC
as Goshen Ii
RIDGELINE ALTERNATIVE ENERGY, LLC
as RAE
MEADOW CREEK PROJECT COMPANY LLC
as MCP
and
AE POWER SERVICES LLC
as Shared Facilities Manager
in connection with the
GOSHEN WIND FARM
located near Idaho Falls, Idaho
dated as of
1% 2012
IfloU:3186256.7
TABLE OF CONTENTS
ge
1. DefinitionsandJnterpretation.,.....,... ........ ............ .................... ..... ............ 2
1.1 Definitions .............. ............................ ........... .2
1.2 Interpretation 10
2. Term ................. .•. ............ .,.... .......... 11
3. Shared Assets ................ .................... .. ........ .. ................... ... .................. . ... ... ......................... 11
3 1 Shared Real Property Rights 11
3.12 Shared Facilities 11
3.3 Partial Conveyance of Cotenancy 1nterest 12
3.4 Contnuaneof Shared Real PropertyRights ...................................................12
3.5 Access ... ................... ............................................................................. ............................ 12
3 6 Maintenance of the Shared Land 13
3 7 No Interference 13
3 8 Additional Real Property Rights and Facilities 13
39 Conditions to Installation of Additional Facilities or Connecting Phases to the
Shared Facilities 14
3.10 Covenants Running with the Land 14
4. Shared Expenses . ........ .. ...................... . .................... .......................... ......................................... 14
4.1 Liabilities for the Account of the Co-Owners No Charging of Fees Premiums
orProfits .................................................. .................................... . .......................... ... 15.
42 Shared Expenses 15
43 Invoicing Late Payments 16
44 Rights of Other C9-Owners fbr Non-Payment 16
5. Use of Shared Assets.. ........... . ...... ............................ ....,............. ........ .... . .............. ..... .......... 16
51 j 16
5.2 Shared Facilities Representatives 17
5 3 No Waste or Nuisance Maintenance No Interference 17
5.4 No Public Access 18
5.5 Liens..................................................... .......................................................................... 18.
6 Obligations of the Co-Owners ....................,............................................. 1.8
6.1 Standards of Performance Action Omission or Failure to Perform an
Obligation that Results in .aMatjp1 Adverse Effect on Another Co-Owner or
thatCo-Owners Phase .................................................................................................. 18
6.2 Taxes...,.................... ... ........ . ................................ 18
6.3 EnvirornentalConipliance. ...... ..........."_ ................................19
64 Interconnection 19
6.5 Wind Data ........................................ ..................... . ................... ...................... ............ 19
66 Voting or Anproval Rights 20
.1
HOU:3I862567
6.7 Relationship of the Co-Owners 20
6.8 Regulatory Status . 20
6.9 No Dedication of Propey...............................................................................................20
610 Additional Partial Assignments. Subeasernents and Suhleases...............................20
6.11, Cooperation.............. ............ .............................. ................... .......................................20
6.12 Co-Owners.. to Shared Facilities Manager........................ .............21
7. Appointment of Shared Facilities Manager.. ......................................................... .........21
7.1. Engagement. of the Shared Facilities Manager ., .................................... .................. 21
7.2 Relationship......................................................................................... .... 21
7.3 Shared Facilities Manager Indemnification............. ....................................... 22
7.4 Co-Owner Indemnification: Disclaimer .................... ................................................ 23
7.5 Removal of the Shared Facilities. Manager .................................................................. 24
7.6 Shared Facilities .Manaer Fees, .............................................. ....................... 27
7.7 Limitation of Liability............ ............................................................................ . ...... 28
7.8 Waiver of Consequential Dam-ores ............. ............. ............ ................... ... ............. 28
8.Duties of the Shared Facilities Manager ..............................................................................29
8.1 In Cieneral.. .... ..................... ....... ............. ..29
82 Specific Authority ....... ................................... .................... ....................................... ......
8.3 Limitation on Authority ..................................... .............................................. 30
.8.4 Curtailment of Delivery ............. ..................... 31
8.5 Disconnection of Shared Facilities............................................................................. 31
8.6 Additional Real Prooerty Rightsor Fact lities........32
8.7 Reporting: Notices: Records ..................... .. ..... ...... .............. .. ............. ...........32
8.8 Access: Audit. Rights......................... 33
8.9 Shared Facilities O&M Budget .......... ........................... .34
8.10 Emergencies ..... . ................. ................... ........................................................................35
8.11 Cooneration with Lenders................... .......................... .... .................. ............ .................35
8.12 Obligations............... ..
8.13 Inspection.bv.Co-Oers ....................... ............" .........................................................36
8.14 Risicof Los s........................... ..........................36
8.15 Shared Facilities Manager Representative...................................... ................. .......36
8.16 Standards of Performance.................. ... ............................ ............. ........................ 36
8 .17 Assignment of Warranties................................... ....................... .................... .... ..... .... 37
8.18 Rights of Co-Owners: License of Co-Owner Property . ...... .....................................37
9.Representations and Warranties... ....... ......... ............... ............ ......... ....................... .............. 38
9.1 Representations and Warranties............................................................................. 38
9.2 Exclusivity of Warranties..............................................................................................., 39
10.. Force Iviajeure... ...... ............................ ..............................39
11. Indemnification.......................................................................................... .................. 39
11.1 Co-Owner Indemnification , ...................... .... ....... ...... ........................ ...... .......... ...................39
1162 Notice and Legal Defense. ..................... .......................... .39
11.3 Failure to Defend Action.............................................................................................40
11
HOU:31 86256.7
11.4 Indemnification Amount .40
11.5 .4
12. insurance ........... ... . .......... . . ......................... ..+........... ....,... 40
12.1 Co-Owners' Insurance Requirements...............................................................................40
.12.2 Shared Facilities Manager's Insurance Requirernents..•............... . .......................40
12.3 Evidence Terms and Modification oflnsurance Self-Insurance 41
13, Confidentiality 42
13.1 Confidentiality 42
14. Co-Owner Events of Default, Termination, Remedies, Limitation of Liability, Survival 43
K 1 Events of Default 43
142
143
Remedies 44
Reimbursement of Expenses to Cure Lien 44
144 Remedies Cumulative 45
145 Waiver of Partition 45
14.6 Limitation of Liability........................ ...........................45
15. Dispute Resolution........ ....... ........... .............. ...
16 Notices 45
17 Miscellaneous Provisions 47
17.1
172
Transfers....... ........... ............................. .....................47
Assignment by Shared Facilities Manager 48
17.3 FERC Approval ...........................................................................................................48
174 Governing Law 48
175 ComDllance with Laws 49
176 Survival 49
177 Effect of Waiver, 49
17.8 Severability 49
179 Entire ARreement Amendments 49
17 10 Not for the Benefit of Third Parties .............. 49
17,11 Counterparts 49
17.1.2
17.13
Further Assurances ....... ...........49
No Recourse to Affihiaies........... .... ................................ .... ......................................... 50
17.14 Successors and Assigns. ............................................................................... . ......... :50
17.15
17.14
17.17
competing Ventures 50
Memorandum 50
FERC Approval ................, ..................................................50
iii
ROth 31 8626.7
EXHU ITS
Exhibit A Shared Real Property Rights
Exhibit B - Maintenance Responsibilities
Exhibit C Billable Rate Schedule
Exhibit D . Shared Facilities Manager HSSE Policy
Exhibit E - Insurance Requirements
Exhibit F Dispute Resolution Procedures
In
FIOtJ:3186256.7
AMENDED AND RESTATED SHARED FACILITIES AGREEMENT
This AMENDED AND RESTATED SHARED FACILITIES AGREEMENT (the
"Agreement"), dated as of L 1,2012 (the "Effective Date"), is entered into by and among
GOSHEN PHASE II LLC, a Delaware limited liability company ("Goshen 11"), RIDGELINE
ALTERNATIVE ENERGY, LLC, a Delaware. limited liability company (formerly known as
Ridgelme Airtrieaty Energy, LLC) ("RAE"), MEADOW CREEK PROJECT COMPANY
LLC, a Delaware limited liability company ("MC?"), and AE POWER SERVICES LLC, a
Delaware limited liability company ("Shared Facilities Manager") Each of Goshen II, RAE,
MCP and the Shared Facilities Manager are referred to herein as a "Party" and collectively as the
"Parties".
RECITALS:
WHEREAS, Wolverine Creek Energy, LLC, a Delaware limited liability company
("WCE") owns and operates a 645 MW wind powered electricity generating facility near Idaho
Falls, .khiho ("Phase I");
WHEREAS, Goshen II owns and operates a 1243 MW wind powered electricity
generating facility near Idaho Falls, Idaho and adjacent to Phase I ("Phase II"),
WHEREAS, RAE is planning to develop one or more wind powered electricity
generating facilities in the vicinity of Phase II and has, to that end, assigned to its affiliate, MCP,
effective as of the Effective Date, that portion of RAE's Project Controlled Assets comprising
Phase III (as defined below) and RAE's corresponding rights and obligations hereunder in
respect thereof;
WHEREAS, RAE has retained therights to, and IS: planning to develop, one or more
wind powered electricity generating facilities in the vicinity of Phase II and the corresponding
rights and obligations hereunder in respect thereof (collectively, and as further defined below,
"Phase IV";
WHEREAS, WCE, Goshen II, RAE and MC? each hold membership interests in
Wolverine Creek Goshen Interconnection LLC, a Delaware limited liability company ("WCGI"),
which owns a substation, transmission line, and other facilities (collectively; the "WCGI
Common Facilities") that are available for use by each of Phase 1, Phase II, Phase III, and Phase
IV pursuant to the Amended and Restated Common Facilities Agreement dated F 1,2012
among WCE, Goshen II, RAE, MCP, and WCGI ("WCGI Common Facilities Aeemenf'),
WHEREAS, Phase I is connected directly to the WCGI Common Facilities, but Phase. II,.
Phase III and Phase IV, due to their location, cannot be connected directly to the WCGI
Common Facilities without the construction of a transmission line and related facilities,
WHEREAS, for their mutual benefit and the operation of the Phases, Goshen II and
RAE constructed a transmission line and related facilities connecting the WCG1 Common
Facilities to the Phases and have entered into that certain Shared Facilities Agreement, dated
December 1, 2009 (the "Original Shared Facilities Agreement"), and therein agreed, among
HOU:3 162S6.7
other things, to share certain real property rights, personal property, services, and other items, to
share in the cost of such items, and to engage the Shared Facilities Manager to operate and
maintain such items, all subject to the terms and conditions of this Agreement; and
\VIIEREAS, the Parties wish to amend and restate in its entirety the Original Shared
Facilities Agreement to, among other things, reflect the joinder of MCP hereto and the separation
of Phase II! from Phase IV, in each case as provided herein.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement and other good and valuable consideration, the receipt and sufficiency of which the
Parties acknowledge, the Patties hereby agree as follows:
I. DEFINITIONS AND INTERPRETATION
1.1 .Definitions Unless otherwise noted, capitalized terms not defined in the body of
this Agreement have the following meanings.
"Additional Facilities" has the meaning set forth in Section 3.8.
"Additional Real Property Rights:" has the meaning set forth in Section 3.8.
"Additional Real Property Rights .or Facilities" has the meaning set forth in Section 18..
"Affiliate" means, with respect to any Party, any Person directly or indirectly controlling,
controlled by or under common control with such Party. The term "cntro1" and correlative
terms includes the possession, directly or indirectly and whether acting alone or in conjunction
with others, of the authority to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting seurities, by contract, or otherwise
Notwithstanding the foregoing, none of the Co-Owners shall be considered anAffiliate of any
Party for purposes of this Agreement.
"Agreement" has the meaning set forth in the preamble.
"Amendment" means an amendment or modification of or revision to this Agreement,
which will be in writing and will be executed and delivered by the Parties.
"Approved Shared Facilities O&M Bud gef' has the meaning set forth in Section 8.9.
"Business Day" means any day other than Saturday, Sunday or Other day on which
commercial banks in Idaho are required or authorized to be closed.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superflmd Amendments and Reauthorization Act of
1986 (42 U.SC. Sections 9601 et
HOU:31862567
"Claim" means claims, actions, damages, expenses (including, reasonable attorneys' fees
and court costs), fines, penalties, losses and liabilities, including any tax assessments from
applicable Governmental Authorities
"Confidential Information", with respect to a given Disclosing Party and the respective
Receiving Party, means, collectively and individually, all data, materials and 'information
(including software, data, technology, know-how, trade secrets, processes, ideas, inventions
(whether patentable or not), prototypes, schematics, design plans, drawings, pricing information,
customer and service provider lists, business arrangements, business information, financial
information, financial results, technical information, analyses, forecasts, compilations, studies,
contracts, agreements, and planning or strategy information) provided by or on behalf of a Party
(each Party in such capacity, a "Disclosmg Party") to the other Party (each Party in such
capacity, a "Receiving Party") or the Receiving Party's Representatives, or to which the
Receiving Party or the Receiving Party's Representatives aregiven access by or on behalf of the
Disclosing Party, whether verbally or in written or electronic form, related to the Disclosing
Party, the Wind Plant or the Co-Owners in connection with this Agreement
Notwithstanding the foregoing, Confidential Information under this Agreement does not
include any information that (A) the Receiving Party can demonstrate is now publicly available,
or that later becomes publicly available through no action by the Receiving Party or the
Receiving Party's Representatives in violation of this Agreement, (B) the Receiving Party can
demonstrate is already in the possession of the Receiving Party or the Receiving Party's
Representatives and is not subject to a confidentiality or fiduciary obligation at the time of the
information's disclosure under this Agreement, (C) the Receiving Party can demonstrate is
lawfully received from any source other than the Disclosing Party or the Disclosing Party's
Representatives under circumstances not involving, to the Receiving Party's knowledge, a
breach of any fiduciary or confidentiality obligation, or (D) the Receiving Party can demonstrate
is independently developed by or for the Receiving Party or the Receiving Party's
Representatives without reference to, or the use of, any portion of the Confidential Information
"Co-Owner Protierty" has the meaning set forth m Section 8.18. 1
"Co-Owner Related Parties" shall mean, for eaöh Co-Owner, such Co-Owner and its
Affiliates, and their respective members, directors, officers, employees, agents and
representatives (other than the Shared Facilities Manager)
"Co-Owners" means all or any of•Goshen II,. MCP and RAE, as the context requires.
"Default Rate" means a rate per annum equal to the lesser of (a) a varying rate per annum
equal to the sum of (i) the 3-month LIBOR as published in The Wall Street Journal, with
adjustments in that varying rate to be made on the same date as any change in that rate is so
published, plus (ii) six percent (60/*) per annum, and (b) the maximum rate permitted by Law.
"Disclosing: Pad" has the meaning set forth in the definition of "Confidential
Information".
3 ,
HOU 3185256.7
"Dispute" means any controversy, Claim or dispute that arises out of or in connection
with this Agreement or the construction, interpretation, performance, breach, termination,
enforceability or validity of this Agreement, whether the same is based on rights, privileges or
interests recognized by or based upon statute, contract, agreement (whether written or oral), tort,
common law or other Law.
"Effective Date" has the meaning given in the preamble to this Agreement.
"Environmental Laws" means all Laws relating to the protection Of the environment,
health or safety or the use, generation, release, treatment, storage, disposal or exposure to
Hazardous Materials, including the CERCLA, the Clean Water Act, the RCRA, the Occupational
Safety and Health Act of 1970, the Clean Air Act and equivalent State of Idaho laws and
regulations.
"Event of Default" has the meaning set forth in Section 14.1.
"Excluded Facilities" means, with respect to any Co-Owner, the assets and properties of
such Co-Owner located on the Land that are not Shared d Assets.
"EWG" means an "exempt wholesale generator," as such term is defined in Section
1262(6) of the Public Utility Holding Company Act of-2005 and the FERC's rules a.. 18 C.F.R. §
366.1 (2006).
"FERC" means the Federal Energy Regulatory Commission and any Successor thtreof.
"Financing Party" means, with respect to each Co-Owner, the agent or lead bank and any
other financial institutions party to a loan agreement hedge agreement, tax equity financing
documents or other financing instrument with such Co-Owner secured in part by such Co-
Owner's share of the Shared Assets or all or a portion of such Co-Owner's Undivided Interest.
"Fixed Fee" has the meaning set forthin Section 7.6. 1.
"Force Maieure" means acts of God or any other casualty or occurrence, condition, event
or circumstance of any kind or nature not reasonably within the excused Party's control and
which could not have been avoided by reasonable measures, including strikes, slow downs or
labor difficulties (other than any such action by or in relation to the Shared Facilities Manager or
any of its subcontractors), fires, flood, earthquakes, explosions or other hazards, acts of public
enemies, riots, civil commotions, or insurrection. Force Majeure expressly does not include any
delay in performing or failure of performance of any contractual provision by a Party (except to
the extent caused by a Force. Majeure event); late delivery or breakage of equipment or materials
(except to the extent caused by a Force Majeure event); or economic hardship.
means the Federal Power Act, as amended.
"Full Capaciy" means the maximum actual interconnection capacity of the
Interconnection Facilities.
4.
HOU31865&7
"GDPIPD" means the Gross Domestic Product Implicit Price Deflator, as published by
the Department of Commerce: Bureau of Economic Analysis immediately preceding the
applicable date of adjustment, or such other index as mutually agreed upon between the Shared
Facilities Manager and the Co-Owne rs,
"Goshenij" has the meaning set forthin the preamble.
"Governmental Aporoval" means any: (a) permit, certificate, concession,
approval, consent, ratification, permission, clearance, confirmation, exemption, waiver,
franchise, certification, designation, rating, registration, variance, qualification, accreditation or
authorization issued, granted, given or otherwise made available by or under the authority of any
Governmental Authority or pursuant to any Law; or (b) right under any contract with any
Governmental Authority.
"Governmental Authority" means any court, tribunal, authority, agency., commission,
official or other instrumentality, including regulatory authorities and bodies, of the United States
or any state, county, city or other political subdivision, any quasi-governmental regulatory
authority, such as NERC or WECC, acting under delegated authority, arbitrator or any judicial or
quasi judicial tribunal of competent jurisdiction.
"Hazardous Materials" means any hazardous or toxic substance or waste, pollutant or
contaminant as defined under applicable Environmental Laws, including petroleum products,
asbestos, polychlorinated biphenyls and radioactive materials.
"Incremental Costs" means Phase III Incremental Costs or Phase IV Incremental Costs.
"Indemnified Parties" has the meaning set forth in. Section 11.1.
"Indemnifvina Parties" has the meaning set forth in Section 11.1.
"Interconnection Agreements" means all or any of the Phase II Interconnection
Agreement, the Phase III Interconnection Agreement and the Phase IV Interconnection
Agreement, as the context requires.
"Interconnection Facilities" means the JV Substation, the Transmission Line, and any
other facilities pursuant to which the Phases are connected to the applicable Points of
Interconnection in. accordance with the Interconnection Agreements.
"Interconnection Provider" means any Person providing interconnection services with
respect to the Shared Facilities at one or more interconnection points.
"JV Substation" means any electric substation that is used by Phase II, Phase .111 and
Phase IV, including the substation commonly referred to as the Jolly Hill Substation.
"Land" means all or any of the Phase II Land, the Phase III Land and the Phase IV Land,
as the context may require.
HOU;3 1862561
"Laws" means :Sfly applicable constitutional provisions, statutes, acts, codes, law., rules,
regulations, ordinances, orders, decrees, rulings, judgments or decisions of a Governmental
Authority or arbitral body.
"Liabilities" means any and all debts, losses, liabilities, damages, expenses, awards,
judgments, settlement payments, fines, costs, royalties, proceedings, deficiencies or obligations
(including those arising out of any action or claim, such as any settlement or compromise thereof
or judgment or award therein), of any nature, whether known or unknown, absolute, accrued,
contingent or otherwise and whether due or to become due, and whether or not resulting from
third party claims, and any out-of-pocket costs and expenses (including reasonable legal
counsel?., accountants.', or other fees and expenses incurred in defending any action or claim or
in investigating any of the same or in asserting any rights hereunder)
"Liens" means all mortgages, deeds of trust, liens, debentures, security interests, pledges,
conditional sale contracts, proceedings, judgment liens, orders, rights of first refusal, charges and
other encumbrances or restrictions of any kind, whether recorded or unrecorded.
"Loss" means any loss, liabjflty, damage, claim, demand, cause of action, fine, penalty,
expense and cost (including reasonable attorney's fees and expenses and court costs) whether
based in tort, breach of contract or any other cause of action.
"MBR. Authority" means authorization by FERC to sell electric energy, capacity and
certain ancillary services at market-based rates, and approval by FERC of such regulatory
waivers and blanket authorizations :as& customarily granted by FERC to persons with market-
based rate authority, including blanket authorization to issue securities and assume liabilities
pursuant to Section 204 of the ..FPA.
"MCP" has the meaning set forth in the preamble.
"NERC" means the North American Electric Reliability Corporation.
"Non-Paving Party" has the meanh g set forth in Section 4.4.
"Original Shared Fad lities Agreement" has the meaning set forth in the recitals.
"Other Co-Owners" has the meaning set forth in Section 17.1.2.
"Partieiating Co-Owners" means each Co-Owner wtho sharing in the Shared Expenses
or will share in the Shared. Expenses at the time the event, act or vote occurs.
"Parties" and "Party" have the respective meani.ngs set.forth .in, the. preamble
"?ercentae Interest" means (except as otherwise Set forth in the Agreement), as of any
tame, the ratio as of such time of (i) MW installed nameplate capacity of a Co-Owner's Phase to
(ii) the aggregate MW installed nameplate capacity of all Co-Owners' Phases, provided that the
Percentage interest of each Co-Owner, except as otherwise agreed in writing by all other affected
Co-Owners, will not be reduced or adjusted as the result of any loss in output of or reduction in
HOU:3 I86256,7
Wind Turbities of the Co-Owner (including as the result of Force Majeure) after the date such
Co-Owner became a party to this Agreement
"Person" means any individual!, partnership, joint stock company, corporation, trust,
unincorporated association or joint venture, any .Governmental Authority, or any other entity.
"Phase" means Phase. II, Phase III and Phase IV.
"PhaseI" has the meaning set forth in the recitals.
'Phae.Ii" has the meaning set: forth in the recitals.
"Phase II Interconnection Agreement" means the Large Generator interconnection
Agreement dated October 11, 2006, between WCGI (as :operator of the interconnection facilities
and as agent of Goshen II) and PacifiCorp, an Oregon corporation, and to which Goshen U is
also a signatory as guarantor, and any other mterconnection agreement with the Transmission
Owner and/or Transmission Provider pursuant to which power is delivered from Phase II to the
Transmission Owner and/or Transmission Provider at the applicable Point of Interconnection
"Phase II Land" means any land on which Phase II will be located.
"Phase III" means the wind powered electric generating facilities located in the vicinity
of Phase II and to be owned by MCP and having Wind Turbines with a combined nameplate
capacity of up to 119.7 MW and all related interconnection facilities and all other rights
necessary for the ownership and operation of Phase III and the sale of power from Phase III..
"Phase III incremental Costs" has the meaning set forth in Section 5 1
"Phase Hi Interconnection. Agreement" means the Standard Large Generator
Interconnection Agreement for Qualifying Facilities, dated F 1, 2012, between WCGI
(as operator of the interconnection facilities and as agent of RAE) and PacifiCorp, an Oregon
corporation, and to which MCP is also a signatory as guarantor, and any other interconnection
agreement with the Transmission Owner and/or Transmission Provider pursuant to which power
is delivered from.. Phase III to the Transmission Owner and/or Transmission Provider at the
applicable Point of Interconnection.
"Phase III Land" means any land on which Phase III is located.
"Phase IV" means one or more wind powered electric generating facilities in the vicinity
of Phase II to be owned by RAE and having Wind Turbines with a combined nameplate capacity
to be determined and all related interconnection facilities and all other rights necessary for the
ownership and operation of Phase IV and the sale of power from Phase IV
"Phase IV Incremental Costs" has the meaning set forth in Section 5.1
Phase IV Interconnection Ag eement" means the interconnection agreement with the
Transmission Owner and/or Transmission Provider pursuant to which power is delivered from
7
14OU:3186256.7
Phase the Transmission Owner and/or Transmission Provider at the applicable Point of
Interconnection.
"Phase IV Land" means any land on which Phase IV will be located.
"Point of Interconnection" means the point of interconnection under the applicable
Interconnection Agreement pursuant to winch a Phase interconnects with the contiguously
interconnected electric transmission and sub-transmission facilities over which the Transmission
Owner and/or Transmission Provider have rights to provide bulk transmission of capacity and
energy from such point of interconnection.
"Project .Compames" means, (i) with respect. to Phase II, Goshen Ii; (ii) with respect to
Phase III, MCP, and (iii) with respect to Phase IV, RAE
"Project Controlled Assets" means, for each Phase, any of the assets comprising such
Phase, the Land underlying such Phase and the agreements and contractual arrangements related
to such Phase (including the interconnection Agreement of such Phase). For the avoidance of
doubt, the Project Controlled Assets shall exclude any of the Shared Facilities
"Prudent Wind. Industry Practices" means any of the practices, methods, equipment,
specifications, and standards of care, skill, safety and diligence, as the same may change from
time to time, but applied in light of the facts known at the time, as are generally applied or
utilized under comparable circumstances by reasonably experienced and prudent professionals in
respect of the design, development, construction, .commissioning, maintenance,, and
operation of wind generating facilities located in the Unites States of America of comparable
type and complexity to the applicable Phase "Prudent Wind Industry Practices" do not
necessarily mean the best practice,: method, or standard of care, skill,, safety and in all
cases, but is instead intended to encompass a range of acceptable practices, methods, and
standards.
"QISE . Provider" means any qualified scheduling entity engaged by a Co-Owner, to
schedule energy generation for its Phase
"RAF' has the meaning set :.forth in the preamble.
"RCRA" means the Resoure.e,. Conservation and Recovery Act of 1976, as amended, 42
U.S.C. § 6901 etseg.
"Receiving Party" has the meaning set forth in the definition of "Confidential:
Information"..
"Representatives" means, with respect to a Party, such Party's Affiliates, officers,
directors, managers, shareholders, partners, employees, lenders, contractors, vendors, suppliers,
advisors,, consultants, agents and representatives.
"Right -of First Refusal" has the meaning set forth in. Section 17.1.2.
1400:3I562567"
" —Shared Assets" has the meaning set forth in Section 32.
"Shared Expenses" has the meaning set forth an Section 42
"Shared Facilities"has the meaning Set forth in Section 3.2
"Shared Facilities Manager" has the meaning set forth in the preamble
"Shared Facilities Manager Related Parties" shall mean, the Shared Facilities Manager
and its Affiliates, and their respective members, directors, officers, employees agents and
representatives (other than the Co-Owners)
"Shared Facilities Manager Representative" has the meaning set forth in Section 8.15.
"Shared Facilities O&M Budget" has the meaning set forth in Section I8.9
"Shared Facilities Percentage Interest" means for (i) Goshen II, the quotient (expressed as
a percentage) of 124.5 MW divided by the Full Capacity (such percentage referred to in this
definition as the "Goshen II Percentage"), (n) MCP, the quotient (expressed as a percentage) of
1197 MW divided by the Full Capacity (such percentage referred to in this definition as the
"MCP Percent age-), and (iii) RAE, 100%minus the sum of the Goshen 11 Percentage and the
MC? Percentage.
"Shared Facilities Representative" has the meaning set forth in Section 5.2.
"Shared Land" has the meaning set forth in Section 3. I.
"Shared Real Pronertv Rights" has the meaning set forth in Section 3.1 .
"f" means all federal, state, provincial, territorial, municipal, local or foreign income,
profits, franchise, gross receipts, environmental (including taxes under Internal Revenue Code §
59A), customs, duties, net worth, sales, use, goods and services, withholding, value added, ad
valorem, employment, social security, disability, occupation, pension, real property, personal
property (tangible and intangible), stamp, transfer, conveyance, severance, production, excise
and other taxes, withholdings, duties, levies, Imposts and other similar charges and assessments
(including any and all fines, penalties and additions attributable to or otherwise imposed on or
with respect to any such taxes, charges, fees, levies or other assessments, and interest thereon)
imposed by or on behalf of any Governmental Authority, in each case whether such Tax arises
bylaw, contract Or otherwise.
"Transfer" means to grant, sell, transfer, assign, set over, deliver, convey, dispose of or
otherwise demise an interest in tangible or intangible assets.
"Transferring co-Owner" has the meaning set forth in Section .17.1.1.
H01k3186256.7
"Transmission Line" means the approximately 7-mile 161 1kV transmission line with a
design capacity of approximately 250 MW that will run between the JV Substation and the point
Of interconnection at the WCGI Substation in Bonneville County, Idaho
"Undbided Interest" has the meaning set forth in Section 33
'MCC" means the Western Electric Coordinating Council, .a regional entity of NERC.
"WCE" has the meaning set forth in the recitals.
"WCGF'has the meaning set forth in the recitals.
"WCGI Common Facilities" has the .meaning set forth in the recitals.
"WCGI Common Facilities Agreement" has the meaning set forth in the recitals.
"WCGI Substation" leans the substation :owned and operated by WCGL
"Wind Plant" means Phase II, Phase III and Phase IV.
"Wind Plant Site" has the meaning set forth in the recitals.
:Wind Ti bine" means a wind turbine generator, each including the following
components a tower, a nacelle, turbine blades, controller/low voltage distribution panel console
(including interconnecting cabling from the nacelle to the ground controller), control panels,
wind vanes, FAA lighting, grounding and anemometers
1.2 Interj,retation.
1 2 1 Headings The titles, captions and headings in this Agreement are inserted
for convenience only and will not be used for the purposes of construing
or interpreting this Agreement
1.2.2 References in this Agreement. In this Agreement, unless a clear, contrary
Intention appears (a) the singular includes the plural and vice versa, (I,)
reference to any Person includes such Person's successors and assigns but,
in the case of a Party, only if such assigns are permitted by this
Agreement, and reference: to :a Person in a particular capacity excludes
such Person in any other capacity; :() pronouns and reference to any
gender includes each other gender, (d) reference to any agreement
(including this Agreement), document or instrument means such
agreement, document or instrument as amended or modified and in effect
from time to time in accordance with the terms thereof and, If applicable,
the terms of this Agreement; (e) reference to any Law means such Law as
amended, modified, codified or reenacted, in whole or in part, and in
effect from time to time, including, if applicable, rules and regulations
promulgated thereunder, (f) reference to any Section means such Section
10
HOJ3186256.7
of this Agreement, and references in any , Section or definition to any
clause means such clause of such Section or definition; (g) "hereunder,"
"hereof," "hereto" and words of similar import will be deemed references
to this Agreement as a whole and not to any particular Section or other
provision of this Agreement; (h) "including" (and with correlative
meaning "include") means including without limitation; and (i) relative to
the determination of any period of time, "from" means "from and
including", "to" means "to but excluding" and "through" means "through
and including"..
IL 2.3 1dustrv Meanings. Words and abbreviations not defined in this
Agreement that have well-known technical or wind power industry
meanings in the United States are used in this Agreement in accordance
with those recognized meanings.
11,4 Joint Responsibility for Drafting. This Agreement was negotiated and
prepared by the Parties with advice of counsel to the extent deemed
necessary by each Party. The Parties have agreed to the wording of this
Agreement, and none of the provisions Of this Agreement will be
construed against one Party on the ground that such Party is the author of
this Agreement or any part of this Agreement
1.2.5 Incorporation of Exhibits. The Exhibits attached to this Agreement are
incorporated into this Agreement by reference for all purposes.
2.TERM
This Agreement will commence on the Effective .Date and remain in full force and effect
following the Effective Date until the first occurrence of one of the following: (a) a single Co-
Owner becomes the owner of the entire ownership interest in all of the Shared Assets, (b) the
mutual agreement of all the Co-Owners or (c) otherwise as provided under this Agreement,
subject, in each case, to obtaining any necessary prior FERC approvals for termination.
3.SHARED ASSETS
3.1 Shared Real Property Rights. Goshen II holds the easement, lease or fee interests
described on Exhibit A (together with any obligations or restrictions therein and any Additional
Real Property Rights, the "Shared Real. Property Rights"). Under no circumstances will the
rights under any easement, lease, fee or other real property interests, including any Land, of
Goshen II not specifically listed on Exhibit A be deemed Shared. Real Property Rights. The
Shared Real Property Rights allow for otherwise do not prohibit, the shared use of the Shared
Facilities by the Co-Owners over, in, through, on and upon the land described in Exhibit A (the
"Shared Land") as applicable to such Shared Real Property Rights.
3.2. Shared Facilities., The Co-Owners plan to procure, install, and construct certain
electrical, interconnection, transmission or communications facilities, including the
Interconnection Facilities, for the common use by the Co-Owners for the transmission of
ii
HOU3196256.7
electricity and for communications over, in, through, on and upon the Shared Land (collectively,
the "Shared Facilities" and together with the Shared Real Property Rights, the "Shared Assets").
The Shared Facilities will not include any site access. roads built by any Phase, which roads each
Co-Owner shall have the right to use at no cost.
33 Partial Conveyance of Cotenancv Interests. Effective upon the date a Phase
commences deliveries of energy using the Shared Facilities, subject to any required regulatory
approvals (including any that may be required by FERC), and upon and subject to the terms,
conditions, restrictions and reservations set forth. in this Agreement and in the Shared Real
Property Rights, the Co-Owner that owns such Phase, as applicable, shall be GRANTED, SOLD,
TRANSFERRED., ASSIGNED, AND CONVEYED, AND hereby GRANTS.., SELLS,
TRANSFERS, ASSIGNS., AND CONVEYS as of such date an undivided ownership interest in
and to the Shared Assets owned or hereafter acquired by the transferring Co-Owner, in eac case
in proportion to the Shared Facilities Percentage interest of the transferee Co-Owner i. I n the
Shared Assets, AS IS WITH ALL FAULTS AND . WITHOUT WARRANTY.
TITLE. INSURANCE POLICY HELD BY. ANY OF THE PARTIES, while at the same time
reserving to itself an undivided ownership interest in and to such Shared Assets; provided, in any
case, that each Co-Owner will own. an individual interest in the Shamed Assets, jointly, aitenants-
in-cOmmon, equal to and in accordance with its Shared Facilities Percentage intere.t in the
Shared Assets, for the joint use of the Shared Assets (the undivided interest of each such Co-
Owner so owned in the Shared Assets is referred to in this Agreement as the Co-Owner's
"Undivided Interest"), Without limiting the generality of the foregoing, the foregoing Transfers
will include (i) the joint exercise of the Shared Real Property Rights on, over, tinder, across and
through the Shared Land, and (ii) the joint use of those certain Shared Facilities located on or
under the Shared Land or the Shared Real Property Rights (whether now existing or hereafter
constructed), to the extent such Shared Facilities (whether now existing or hereafter constructed)
constitute fixtures under applicable Law. Each Co-Owner will have the right to own, hold, and
use such Co-Owner's Shared Facilities Percentage Interest in each Shared Asset in accordance
with the terms of this Agreement.
3.4 Continuance of :Shared Real Property Rights. Each Co*Owner will be responsible
for keeping in full force and effect, and not violating the terms of, the Shared Real Property
Rights. Any amounts due under the terms of the Shared Real Property Rights will be paid by the
Shared Facilities Manager, subject to reimbursement bythe Co-Owners in accordance with
Section 4 below. No Shared Real Property Rights may be terminated, modified or amended
without the consent of all of the to-Owners.
3.5 Access. Each CO-Owner and its Representatives will have access over the Shared
Land and to any Shared Assets (a) for inspection of such Shared Assets, (b) for maintenance of
the Shared Facilities not .performed by the Shared Facilities Manager in: accordance with this
Agreement, and (c) for maintenance or repair of any Shared Facility in the event of an
12
HOtJ:3186256.7
emergency and the failure or unavailability of the Shared Facilities Manager or its
representatives to respond timely to such emergency. Notwithstanding the foregoing, except in
the event of an emergency, each Co-Owner will provide twenty-four (24) hours' prior written
notice of its intent to enter upon the Shared Land, and such Co-Owner or its Representatives will
follow all applicable written safety, security and site rules established by the Shared Facilities
Manager, except to the extent following any such rule would violate applicable Law or otherwise
not be consistent with Prudent Wind Industry Practices. In the event of an emergency, prior
notice is not required to access the Shared Land to respond to such emergency, but the Co-
Owner will provide notice of entry onto the Shared Land as soon as reasonably practicable
thereafter.
3.6 Maintenance of the Shared Land. The Shared Facilities Manager will be
responsible for the maintenance of the Shared Assets in accordance with this Agreement. Costs
and expenses incurred by the Shared Facilities Managers to maintain the Shared Assets will be
incurred and shared by the Co-Owners in accordance with Section 4.
3.7 No Interference. Except as set forth in this Agreement,, each Co-Owner's use of
the Shared Land or any Shared Facilities will not in any way interfere with the use and
enjoyment by the other Co-Owners of their respective Shared Real Property Rights, rights in
such Shared Facilities or other rights arising under this Agreement.
38 Additional Real Property Rights and Facilities. To the extent that any additional
real property rights ('Additional Real Property Rights") or facilities ("Additional Facilities" and
together with the Additional Real Property Rights, the "Additional Real Property Rights or
Facilities") are required by any Co-Owner that relate to the Shared Facilities or operation
thereof, or that are needed or would materially benefit, in the reasonable belief of the Shared
Facilities Manager, the interconnection or operation of the Phases, a Co-Owner or the Shared
Facilities Manager will give written notice. to the other Co-Owners of such requirement, with a
reasonable explanation of why such Additional Real Property Rights or Facilities are needed.
Each Co-Owner receiving such notice .will have thirty (30) days after receiving such notice to
determine if such Additional Real Property Rights or Facilities are also needed for its Phase and
to So notify the other Co-Ownem in writing of its election to participate in such Additional Real
Property Rights or Facilities. Failure to notify the other Co-Owners of its election to participate
will be deemed an election not to participate. Any Additional Real Property Rights or Facilities
needed by only one of the Co-Owners may be acquired and held in the name of such Co-Owner
or if such rights relate to the Shared Facilities, may be added as a Shared. Real Property Right or
as Shared Facilities of the Co-Owner under this Agreement, subject to obtaining any necessary
approval from FERC. Any Additional Real Property Rights or Facilities that the Co-Owners
agree are needed by more than one CoOwner will be (a) procured by a Co-Owner for itself and
on. behalf of the other Co-Owners intending to use such Additional Real Property Rights or
Facilities, (b) added as Shared Real Property Rights or Shared Facilities, as applicable, under this
Agreement, .(c) held in undivided ownership interests, in accordance with each Co-Owner's
Percentage Interest, and (d) deemed Shared Real Property Rights or Shared Facilities under this
Agreement for all purposes and be incorporated into, and governed by, the terms of this
Agreement.. Should the Shared Facilities Manager reasonably believe that the Additional Real
Property Rights or Facilities are needed or would materially benefit a Co-Owner and that the Co-
13
HO1J:3 1S6256.7
Owner should participate therein, but such Co-Owner has refused to participate, the Shared
Facilities Manager may submit such dispute for dispute resolution under Section 15 Without
limiting the generality of the foregoing, upon each Phase commencing operation, the Co Owners
shall work together in good faith to revise Exhibit A to reflect the real property rights actually
used by, required by or beneficial to such Phase.
19 Conditions tonstallation, of Additional facilities-or Connecting Pba:s.. to the
Shared Facilities Any Co-Owner rnstallrng Additional Facilities or connecting its Phase to the
Shared Facilities will (a) not interfere with the use or access by the other Co-Owners. of the
Shared Facilities, except as may be necessary during the installation, repair, or replacement of
Shared Facilities, subject to the indemnification provided in Section 11 . 1 (b) to the extent
commercially reasonable, schedule during an off-peak and/or low wind down-tune period any
required disconnection of the Shared Facilities to conduct construction activities to minimize the
impact on the Phases of the other Co-Owners, (c) provide at least ninety (90) days' prior written
notice of commencement of such construction activities together with a reasonably detailed
description thereof, (d) provide at least ninety (90) days' prior notice of any planned outages, and
the durations thereof, of the Shared Facilities that would result in a disconnection of another Cc-
Owner's Phase, (e) take into consideration, to the extent commercially reasonable, any changes
in the construction plans or timing of construction required by another Co-Owner, provided that
the other Co-Owner does not attempt to interfere with the installation of the proposed Additional
Facilities, unless such installation can reasonably be expected to result in an .einergecy or
violate the terms of the Shared Real Property Rights or this Agreement or the Interconnection
Agreements, and (f) be responsible for obtaining and complying with any necessary FERC
approvals, provided, however, in the case of clauses) through Up above, that the Co-Owner
installing the Additional Facilities that are needed or would hmaterially benefit less than all Of the
Co-Owners, or connecting its own Phase to the Shared Facilities, will. indemnify, defend and
hold harmless the other Co-Owners from all Liabilities, including third party claims, property
and revenue losses incurred, as a result of such construction or installation activities, to the
extent such claims and damages are not covered by the insurance required by Section 12
Installation of Additional Facilities that are needed or would materially benefit all Co-Owners
will be at the risk of the Co-Owners, and each Co-Owner will have the right to filly participate,
advise and approve all actions to be taken in connection with such installation, and will bear any
loss thereof in accordance with Its Percentage Interest, to the extent such loss is not covered by
the insurance required by Section 12
3.10 Covenants Running with the Land. Each obligation of the Co-Owners under this
Agreement will, for so long as and only for so long as such obligation will be in effect under this
Agreement, be a covenant running with the land and will inure to the benefit of and be binding
1.upon, as applicable, the successors and assigns of the Co-Owners, with respect to all such
Persons" respective interests in the Shared Facilities and the Shared Real Estate Rights.
Notwithstanding the foregoing, upon the termination of this Agreement, each such obligation of
the CO-Owners will no longer be a covenant running with the land and will no longer be for the
benefit of or binding on any such successors or assigns
4. SHARED EXPENSES
14
HOU:31862$6.7

4.1 Liabilities for the Account of the Co-Ownrs:. No Charging I of Fees, Premiums or
Profits. Except as specifically Set forth in this Agreement, each Co-Owner will be solely
responsible for its Liabilities relating to its Phase and the operation and maintenance of its Phase.
Each Co-Owner will, at its sole cost and expense, maintain in' good. working order and repair at
all times each part of its Phase that connects with or may affect the Shared Assets, Further, a
Co-Owner will be solely responsible for all Liabilities relating to the acquiring, designing,
installing, constructing, use, operating, maintaining and repairing of any of its respective
Excluded Facilities. Each Co-Owner (or Co-Owners, if the Additional Real Property Rights or
Facilities are, being acquired or installed at the joint expense of two or more Co-Owners)
acquiring or intalling any Additional Real Property Rights or Facilities will be responsible for,
and pay, all Liabilities relating to the acquisition or installation, as applicable, of the Additional
Real Property Rights :QT Facilities, except to the extent otherwise provided in Section 3.9.
Further, each Co-Owner will be responsible for all Liabilities arising from such Co-Owner's
actions or inactions in violation of this Agreement or the Shared Real Property Rights. The Co-
Owners agree that the purpose of this Agreement is for the Co-Owners and their respective
Phases to benefit from the cost savings, convenience and efficiencies that result from the sharing
of the Shared Assets, and no Co-Owner will charge any other Co-Owner any fee, premium or
other profit relating. to the Shared Assets or services provided under this Agreement. This
Section 4.1 will not be construed as prohibiting in any way each Co-Owner's obligations to pay
for the costs and expenses incurred in connection with the sharing of the Shared Assets or the
providing 'of any services as provided in this Agreement.

4.2 Shared. Expenses.
4.2 I Each Co-Owner will be responsible for and will reimburse the Shared
Facilities Manager (in accordance with Section 1.3) its pro rata share (in
proportion to the Co-Owners' respective Percentage Interests) of the costs,
expenses and liabilities relating to the use, maintenance, repair, and
inspection of the' Shared Land, the Shared Real Property Rights and the
Shared Facilities (the "Shared Expenses").
4.2.2 Each Co-Owner may, from time to time, propose additional categories or
types of expenses to be Shared Expenses to be administered by the Shared
Facilities Manager in accordance 'with this Section 4.2. Any such
proposed expense must be approved by an Amendment to this Agreement
and be subject to any necessary approval by FERC, provided that any Co-
Owner that would not be subject to the payment of such expense and
would not otherwise be materially affected by the incurrence of such
expense must not withhold its consent to such amendment.
4.2.3 Notwithstanding the foregoing, except as provided in Section 4.3, none of
the following shall constitute Shared Expenses:
(a) the cost of initial construction or installation of the Shared
Facilities or shared access roads of any Phase;
HOU:318626.7
(b)any other costs incurred in connection with the Shared Facilities of
any Phase prior to sharing the use thereof in accordance with this
Agreement; or
(c)any Incremental Costs
4.3 Invoicing. Late Payments. No later than twelve (12) days after the end of each
calendar month following the Effective Date, the Shared Facilities Manager shall invoice the Co-
Owners their respective pro rata share (in proportion to the Co-Owners' respective Percentage
Interests) of the Shared Expenses and any Incremental Costs The Co-Owners shall pay all
payments to the Shared Facilities Ma nager under this Section 4.3 by wire transfer of immediately
available funds to the Shared Facilities Manager at an account designated in writing by the
Shared Facilities Manager within thirty (30) days of receipt of the invoice by the Co-Owners
All sums not paid within thirty (30) days after receipt of such invoice will thereafter bear interest
at the Default Rate Each Co-Owner will have the tight to audit, and receive supporting
documentation for, any expenses or other amounts required to be paid by such Co-Owner under
this .Agreement. If there is a dispute about any amount invoiced by the Shared Facilities
Manager, the Co-Owners shall pay the amount not in dispute in accordance with this Section 43
The Co-Owners shall pay any disputed amount ultimately determined as payable plus interest
thereon at the Default Rate..
4.4 Rights : of Other Co-Owners for Non-Payment. If any Co-Owner (a "Non-?aymnn
Party") fails to timely make any required payment of amounts due under this Section 4, any other
Co-Owner may make such payment on behalf of such Non-Paying Party, and the amount so paid
will be immediately due and payable from the Non-Paying Party to such other Co-Owner,
together with interest from the date paid until paid to such other Co-Owner at the Default Rate
Such remedy will be in addition to the right of such other Co-Owner to pursue any other
remedies that may be available to it under applicable Law or this Agreement
:5 USE OF SHARED ASSETS
5.1 Use. Subject to the other requirements of this Agreement, each Co-Owner will
have the right to use those Shared Assets to the extent of such Co-Owner's Shared
Facilities Percentage Interest, including, to the extent applicable, the capacity of the
Interconnection Facilities to transmit electricity bi-directionally from and to the Phase
owned or controlled by such Co-Owner in an amount up to its Shared Facilities
Percentage Interest multiplied by the Full Capacity of the Interconnection Facilities The
Co-Owners acknowledge that (t) Goshen II shall have the first priority right to use and
access, subject to compliance with this Agreement, the Shared Facilities in connection
with Phase II to the extent of 124.5 MW and (ii) MCP shall have the second priority to
use and access, subject to compliance with this Agreement, the Shared Facilities in
connection. with Phase ill to the extent of 119.7 MW. Prior to connecting Phase III to the
Shared Facilities, MCP shall cooperate with Goshen II and the Interconnection Provider
to adjust project meters and undertake other arrangements designed to minimize or
eliminate any incremental line losses suffered by Goshen. as a result of generation MW
from Phase III. After connecting: Phase III to the Shared Facilities, if Goshen II suffers
16
IIOU:3156256.7.
any actual incremental and demonstrable economic losses as a result of line losses caused
by generation MW from Phase Ill, MCP (or its successors and assigns) shall cooperate
with Goshen 11 and the Interconnection Provider to cause an allocation of the underlying
line losses to MCP After connecting Phase Ill to the Shared Facilities, MCP will bear
other incremental expenses and other Losses that Goshen II may incur (excluding, for the
avoidance of doubt, any incremental expenses and other Losses resulting from line losses,
which are covered in the immediately preceding sentence) as a result of the use and
access of Phase III to the Shared Facilities (the "Phase III Incremental Costs"), and MCP
or (to the extent it assigns its rights hereunder in accordance with Section 17 1) its
successors and assigns, in accordance With their respective capacities as owners of Phase
III, agree, severally and not jointly, to indemnify and hold harmless Goshen II and its
successors and assigns, in their respective capacities as owners of Phase II, for and
againstany Phase Ill Incremental Costs Pnor to connectIng Phase IV to the Shared
Facilities, RAE (or its successors and assigns) shall cooperate with Goshen [I, MCP and
the Interconnection Provider to adjust project meters and undertake other arrangements
designed to minimize or eliminate any incremental line losses suffered by Goshen II and
MCP as a result of generation MW from Phase IV. After connecting Phase IV to the
Shared Facilities, if Goshen II or MCP suffer any actual incremental and demonstrable
economic losses as a result of line losses caused by generation MW from Phase IV, RAE
(or its successors and assigns) shall cooperate with Goshen II and/or MCP, as the case
may be, and the Interconnection Provider to cause an allocation of the underlying line
losses to RAE After connecting Phase IV to the Shared Facilities, RAE (or its
successors and assigns) will bear other incremental expenses and other Losses that
Goshen II or MCP may incur (excluding, for the avoidance of doubt, any incremental
expenses and other Losses resultmg from line losses, which are covered in the
immediately preceding sentence) as a result of the use and access of Phase IV to the
Shared Facilities (the 'Phase IV Incremental Costs"), and RAE or (to the extent it assigns
its rights hereunder in accordance with Section 17.1) its successors and assigns, in
accordance with their respective capacities as owners of Phase IV, agree, severally and
not jointly, to indemnify and hold harmless Goshen II and MCP and their respective
successors and assigns, in their respective capacities as owners of Phase H or Phase III, as
the case may be, for and against any Phase IV Incremental Costs No Co-Owner shall
use the Shared Facilities in connection with any projects other than its respective Phase
52 Sharçd Facilities Representatives On or promptly following the date of
commencement of operation of a Co-Owner's Phase, such Co-Owner will, by written notice to
the other Co-Owners, designate an individual (the "Shared Facilities Representative"), who will
have authority to bind the Co-Owner in all matters concerning this Agreement (other than to
amend this Agreement) Each Co-Owner may change its Shared Facilities Representative at any
tune and from time to time by written notice to the other Co-Owners
53 No Waste or Nuisance: Maintenance: No Interference. No Co-Owner will use or
permit the use of the Shared Assets in any manner that would create waste or nuisance, or that
would increase the rate, or jeopardize the issuance or maintenance, of any insurance policy
relating to the Shared Assets, nor otherwise conduct or cause to be conducted operations on its
Lands which would have similar effects on, or otherwise damage or interfere with, the Shared
17
H0th31862563
Assets. The Co-Owners will at all times while conducting their respective operations and
activities on the Wind Plant make reasonable efforts to minimize the impact of such operations
and activities upon the other Co-Owners' use of the Shared Assets.
5.4 No Public Access. The Co-Owners agree that, unless so ordered by a
Governmental Authority, there will be no general public, access to the Shared Assets. The. Q
Owners undertake to cooperate in enforcing such requirement for limiting access to the Shared
Assets., including establishing and enforcing procedures for security.
55 Liens. No Co-Owner will create, permit Or 'suffer to exist by, through or under the
Co-Owner or the Co-Owner's Representatives, and hereby ives..for itself and its
Representatives, any Liens on the Shared Assets, or on the Undivided Interests or Excluded
Facilities of any other Co-Owner, including (a) Liens for Taxes, unless such Liens with respect
to the Shared Assets only are not yet delinquent or which are being contested in good faith by
:appropriate proceedings, and (b) Liens in favor of carriers', warehouseman's, mechanics',
materialmen's, repairmen's or other like Liens, unless such Liens with respect to the Shared
Assets only arise in the ordinary course of business of such Co-Owner and for amounts that are
not yet due or which are being contested in good faith by appropriate proceedings, provided, in
the case of any such permitted Lien in clauses (a) and (j) above, so long as any such proceeding
does not involve any substantial danger of the sale, forfeiture or loss of any part of the Shared
Assets and such Co-Owner posts any bond that is required by applicable Law to avoid such sale,
forfeiture or loss while s.uch claims are being contested. Any applicable Co-Owner will take
prompt steps to discharge any unpermitted Lien fled against any such Shared Asset, or
Undivided Interest or Excluded Facilities of any other Co-Owner. if the Co-Owner fails to
discharge promptly any such unpermitted Lien, any other Co-Owner will .have the right to notify
the Co-Owner in writing and to take any reasonable action to satisfy, defend, settle or otherwise
remove the Lien at the Co-Owner's expense.
6. OBLIGATIONS OF THE CO-OWNERS
6.1 Standards of Performance: Action. Omission or Failure to Perform an Obligation
Notwithstanding any other provision of this Agreement to the contrary, each Co-Owner will
operate and maintain its Phase and perform its obligations under this Agreement in accordance
with (a) all applicable Laws, (b) Prudent Wind Industry Practices, (c) its applicable
Interconnection Agreement and the applicable terms 'of the Shared Real Property Rights, and (d)
all applicable requirements of the Interconnection Provider (including settlement of nodal costs)
Except as expressly permitted by this Agreement, no Co-Owner will take any action, omit to take
an action or fail to perform any obligation wider this Agreement, the Shared Real Property
Rights or an applicable Interconnection Agreement that materially and adversely affects any
other Co-Owner or another Co-Owner's Phase, including any action, omission or failure to
perform an obligation that results in damage tow an outage of another Co-Owner's Phase.
62 Taxes. The Shared Facilities Manager shall pay all real and personal property
Taxes, general or special, levied against the Shared Assets or the facilities and fixtures located
thereon before delinquency and before any fine, interest or penalty will become due or be
18
iIOU:31 86256.7
imposed for their non-payment except that the Shared Facilities Manager may withhold payment
of any Tax if such Co-Owner is contesting the payment of such Tax in good faith by appropriate
proceedings and such proceeding does not involve any substantial danger of the sale, forfeiture
or loss of any part of such Shared Asset, including the posting of any bond that is required by
applicable Law to avoid such sale, forfeiture or loss while the payment of such Tax is being
contested and notifies the Shared Facilities Manager thereof in writing at least 30 days before
such payment is due or paid. All such Taxes and assessments paid by the Shared Facilities
Manager shall be treated as Shared Expenses and invoiced to the Co-Owners in accordance with
Section 4.3.

6.3 Environmental Conmiiance, Each Co-Owner will, with respect to its Phase, its
Excluded Facilities, the Land under its Phase and the Shared Assets located on its Land, be
responsible for all investigations, studies, clean up, corrective action or response or remedial
action required by any Governmental Authority now or hereafter authorized to regulate
environmental or other matters or by any consent decree or court or administrative order now or
hereafter applicable to such Co-Owner's use, Operation or ownership of its Phase, its Excluded
Facilities, the Land under its Phase or the Shared Assets located on its Land. Each Co-Owner
will have the right (but not the obligation, unless otherwise required above) to participate in the
management and control of all investigations and any environmental clean up, remediation or
related activities relating to its Phase, its Excluded Facilities, the Land under its Phase or the
Shared Assets located on its Land or third party disposal sites where Hazardous Materials
generated by the Co-Owner may be released in violation of Environmental Laws. The Shared
Facilities Manager will, with respect to.. the Shared Land and the Shared Facilities located on the
Shared Land, oversee all investigations, studies., clean up, corrective action or response or
remedial action required by any Governmental Authority now or hereafter authorized to regulate
environmental or other matters or by any consent decree or court or administrative order now or
hereafter applicable to the Co-Owner's use, operation or ownership of the Shared Lands or the
Shad Facilities located on the Shared Land, and subject to Section 11. 1, each Co-Owner will be
responsible, in proportion to its Percentage Interest of the Shared Land, for all Liabilities related
to such investigations, studies, clean up, corrective action or response or remedial action,

6.4 interconnection. Each Co-Owner will be solely responsible for securing for its
own benefit, and for maintaining, such rights as are necessary to interconnect its Phase with the
transmission and interconnection system of the Interconnection Provider through the applicable
Interconnection Facilities and to deliver the electrical energy generated by its Phase, or such
portion of the electrical energy generated by its Phase, as is consistent with the termsand
conditions of this Agreement, to the applicable Point of Interconnection.

6.5 Wind Data. Each Co-Owner agrees to share with all other Co-Owners its current
and historical wind data collected from anemometers from locations on its Lands. The sharing .
Co-Owner makes no representation or warranty, express or implied, and will have no Liability
with respect to the wind data so provided, whether for completeness, accuracy or otherwise. The
receiving CO-Owner will maintain the confidentiality of the wind data, received in accordance
with the requirements of this Agreement.
19
HOU:318256.7

6.6 Voting or Apuroval, Rights.. Unless specifically provided in this Agreement, each
Participating Co-Owner shall have the right to vote or give its approval, on any matter requiring
or needing a vote or approval of the Co-Owners, in accordance with its Percentage Interest.

•6;7 Relationship of the Co-Owners. The rights, duties, obligations and liabilities of
the Co-Owners under this Agreement will be individual and not joint or collective, and no Co-
Owner will be responsible for the default of any other Co-Owner under this Agreement. It is not
the intention of the Co-Owners to create, nor will this Agreement be deemed to create, any
partnership, agency, joint venture, or trust, or to authorize any Co-Owner to act as an agent,
servant or employee for any other Co-Owner. Each Co-Owner will remain solely responsible for
the actions of its own employees.

6.8 Regulatory Status. No Co-Owner will take any action that could adversely impact
(i) any Co-Owner's ability to qualify as an EWG and (ii) any Co-Owner's MI3R Authority with
respect to the ownership and operation of such Co-Owner's Phase.
6.9 No Dedication of Property. Each Co-Owner agrees that (a) by the Co-Owner's
,performance of the Co-Owner's obligations under this Agreement, the Co-Owner does not
dedicate to public or quasi-public use or purpose any of the facilities which the Co-Owner
operates, as applicable, and (b) the execution of this Agreement will not, nor will any
performance or partial performance of this Agreement, be or ever be deemed, asserted or urged
by the Co-Owner to be a dedication to public or quasi public use of any the facilities of the other
Co-Owners.
6.10 Additional Partial. Assignments, Subeasements and Subleases. Each Co-Owner
agrees (a) to cooperate, and (b) without additional compensation, to either partially assign or
grant a subeasement or sublease over such Co-Owner's Land, in each such case, as reasonably
necessary for the development, construction, start-up, commissioning., testing, financing,
operation and maintenance of any other Co-Owner's Phase; provided, however, that such partial
assignment, subeasement or sublease will not materially and adversely affect the granting Co-
Owner's Phase (unless such material adverse effect is solely monetary, in which case, the other
Co-Owner may elect to pay to the granting Co-Owner the amount necessary to eliminate the
adverse effect, and upon such payment the granting Co-Owner will then be required to provide
the assignment, subeasement or sublease).
6.11 Cooperation. Upon reasonable request of a Co-Owner, each Co-Owner will
cooperate in the financing or refinancing of such requesting Co-Owner's Phase, including the
execution of estoppels, consents to collateral assignments for the benefit of the Financing Parties
and other similar agreements as may be reasonably requested by the requesting Co-Owner and its
Financing Parties, in the making of any filings required by such requesting Co-Owner for
regulatory compliance, and in the operation and maintenance of such requesting Co-Own" ers
other projects, all solely at the expense of the requesting Co-Owner.
20
HOtJ:186256.7
632 Co-Owners' .Responslibilities to Shared. Facilities Manager. The Co-Owners shall
do all of the following
(a)with the exception of information and data the .:Shared Facilities
Manager is required to record and collect hereunder, provide the
Shared Facilities Manager with all material information, including,
but not limited to permits, agreements, data and documents for the
'Shared Facilities that is reasonably required. for Shared Facilities
Manager to perform its obligations under this Agreement;
(b)examine all material documents submitted by Shared Facilities
Manager and render any necessary decisions pertaining thereto
promptly;:
(c)promptly make material decisions required under this Agreement
or any other agreement that the Shared Facilities Manager may be
requested to administer hereunder and respond to all reasonable
requests from Shared Facilities Manager for approval made
hereunder,
(d)promptly execute and deliver such evidence of Shared Facilities
Manager's authority as may be reasonably required by third
parties; and
(e)except where the same are being disputed in good faith, promptly
make all payments and incur all expenditures required in
connection with the Shared Facilities in accordance with this
Agreement and the Shared Facilities O&M Budget
7. APPOINTMENT OF SHARED FACILITIES MANAGER
7.1. .Enga&ement of the Shared Facilities Manager. The Co-Owners hereby engage the
Shared Facilities Manager as an independent contractor to manage, operate, and maintain the
Shared Facilities and to perform other duties pertaining to the Shared Facilities, all as set forth in
this Agreement The Shared Facilities Manager accepts such engagement and agrees to perform
such duties in accordance with the terms and conditions hereof. Shared Facilities Manager shall
be the Shared Facilities Manager as of the Effective Date and shall hold such position until it
resigns or is removed or replaced as provided by this Section 7 Notwithstanding anything to the
contrary in the foregoing, if pursuant to any provision under this Agreement, Shared Facilities
Manager is precluded from performing any service, Shared Facilities Manager shall be relieved
from its obligation to provide such service..
7.2 Relationship. The Shared Facilities manager shall act as an independent
contractor of the Co-Owners with respect to the performance of its obligations hereunder.
Neither the Shared Facilities Manager nor any of its Affiliates, employees, subcontractors,
vendors or suppliers; or any employees of any of the foregoing Persons shall be deemed to he
agents, representatives, en pioyees, r servants of the Co-Owners as a result of this Agreement or
21
UOU3186256.7
of performing any duties hereunder, and no such Person as a result of entering into this
Agreement or of performing any duties., hereunder shall have the right, authority, obligation or
duty to assume, create or incur any liability or obligation, expressor implied, against; :j the
name of, or on behalf of the Co-Owners; except that the Shared Facilities Manager has the right
and obligation to act for and on behalf of and to bind the Co-Owners to the extent expressly
contemplated by and in accordance with this Agreement. In no case shall this Agreement be
construed to create 'a relationship of partnership or any other association of profit between the
Co-Owners, on the one hand, and the Shared Facilities Manager or any of its Affiliates,
employees, subcontractors, vendors or suppliers, or any employees of any of the foregoing
Persons, on the otherhand.
7.3 Shared Facilities Manager Indemnification.
73.1 Indemnification bj Co-Owners. The Co-Owners shall severally, in
accordance with their respective Percentage Interests, indemnify, protect,
defend and hold harmless the Shared Facilities Manager and its Affiliates
and their respective members, directors, Officers, employees, agents and
representatives (other than the Co-Owners) from and against any and all
Losses of any of such Persons to the extent arising out of the gross
negligence or willful misconduct of the Co-Owners or the material breach
of a provision of this Agreement by Co-Owners.
7.3.2 Indemnification by± Shared Facilities Manaier. SHARED
FACILITIES MANAGER HEREBY AGREES TO INDEMNIFY,
PROTECT, DEFEND AND HOLD HARMLESS CO-OWNER
RELATED PARTIES FROM AND AGAINST ANY AND ALL
LOSSES OF ANY OF THE CO-OWNER RELATED PARTIES FOR
INJURY OR EAT OF NATURALPERSONS OR PHYSICAL
LOSS OF OR DAMAGE TO PROPERTY OF ANY PERSON
OTHER THAN ANY CO-OWNER RELATED PARTY TO THE
EXTENT ARISING OUT OF THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF SHARED FACILITIES MANAGER
IN CONNECTION WITH THE PERFORMANCE OF THIS /
AGREEMENT.
7.3.3 Disclaimer. IN NO EVENT 'SHALL THE SHARED FACILITIES
MANAGER OR ITS MEMBERS, DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS AND REPRESENTATIVES BE LIABLE
TO ANY CO-OWNER RELATED PARTIES PURSUANT TO THIS
SECTION 7.33 FOR ANY LOSS THAT ARISES OUT OF,
RELATES TO, OR IS OTHERWISE ATTRIBUTABLE TO THIS
AGREEMENT OR THE PERFORMANCE OF SERVICES, OR
ANY ADDITIONAL SERVICES, HEREUNDER, EXCEPT TOME
EXTENT SUCH LOSS IS CAUSED BY THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT BY SHARED
'FACILITIES MANAGER. THIS SECTION 7.3.3 SPECIFICALLY
22
MOU:3186256.7
PROTECTS SHARED FACILITIES MANAGER AGAINST SUCH
LOSSES EVEN IF AND TO THE EXTENT THAT THEY ARE
CAUSED BY THE STRICT LIABILITY OR OTHER FAULT OR
RESPONSIBILITY (OTHER THAN GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF THIS AGREEMENT) OF SHARED
FACILITIES MANAGER, AND ALL SUCH CLAIMS FOR SUCH
LOSSES ARE HEREBY WAIVED AND RELEASED.
7.4 CgOwner Indemnification; Disclaimer.
741 Co-Owner Indemnification EACH CO-OWNER HEREBY
AGREES TO INDEMNIFY, PROTECT, DEFEND AND HOLD
HARMLESS THE SHARED FACILITIES MANAGER RELATED
PARTIES FROM AND AGAINST ANY AND ALL LOSSES FOR
INJURY OR DEATH OF NATURAL PERSONS OR PHYSICAL
LOSS OF OR DAMAGE TO PROPERTY OF ANY PERSON
OTHER THAN ANY SHARED FACILITIES MANAGER
RELATED PARTY TO THE EXTENT ARISING OUT OF THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF CO-
OWNER AND IN ANY WAY RELATED TO OR ARISING FROM
THE SERVICES, THE ADDITIONAL SERVICES OR THE
SHARED FACILITIES MANAGER'S OBLIGATIONS OR
RESPONSIBILITIES UNDER THIS AGREEMENT
7.4.2 Disclaimer IN NO EVENT SHALL ANY CO-OWNER BE LIABLE
TO ANY SHARED FACILITIES MANAGER RELATED PARTIES
PURSUANT TO THIS SECTION 74 FOR ANY LOSS THAT
ARISES OUT OF, RELATES TO, OR IS OTHERWISE
ATTRIBUTABLE TO THIS AGREEMENT OR THE
PERFORMANCE OF SERVICES, OR ANY ADDITIONAL
SERVICES, HEREUNDER, EXCEPT TO THE EXTENT SUCH
LOSS IS CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT BY SUCH CO-OWNER THIS SECTION 742
SPECIFICALLY PROTECTS EACH CO-OWNER AGAINST
SUCH LOSSES EVEN IF AND TO THE EXTENT THAT THEY
ARE CAUSED BY THE STRICT LIABILITY OR OTHER FAULT
OR RESPONSIBILITY (OTHER THAN GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT OF THIS AGREEMENT) OF SUCH
CO-OWNER, AND ALL SUCH CLAIMS FOR SUCH LOSSES ARE
HEREBY WAIVED AND RELEASED.
23
HOU:31862567
7.5 Removal of the Shared Facilities Manager.
75.1 Removal by Co-Owners.
(a) Any Co-Owner may remove the Shared Facilities Manager by
written notice to the Shared Facilities Manager and the other Co-
Owners if any of the following conditions are satisfied
(i)For Shared Facilities Manager Breach, Shared Facilities
Manager (i) breaches any provision of this Agreement, or
(11) engages in negligence or willful misconduct in the
performance of its obligations hereunder .or fails to meet its
standard of performance set forth in Section 816; and
Shared Facilities. Manager fails to cure any such breach o r
action within. thirty (30) days after receiving notice thereof
from any Co-Owner (or, if such cure cannot reasonably be
completed within the thirty (30) day period, Shared
Facilities Manager fails to undertake and promptly cure
upon receipt of such notice or fails to give adequate
assurances to the Co-Owners (m the Co-Owners' sole
discretion) that such breach or action will be so cured with
all reasonable speed, not to exceed an additional thirty (30)
days):;
(ii)For Cessation of Oierations. Shared Facilities Manager
dissolves, liquidates, or terminates its company existence,
(iii)Change of Control. At any time following the Effective
Date, if Shared Facilities Manager or any of its Affiliates
no longer owns, directly or indirectly, at least 25% of the
membership units of one of the Project Companies or the
Phases;
(iv)For Removal of Project Administrator. At any time
following the Effective Date, if Shared Facilities Manager
or any of its Affiliates no longer is the Administrator under
the Project Administration and Development Agreement.,
dated December 1, 2009, as amended or modified from
time to time; or
(v)Exceeding Liabilky Libbliow. The aggregate liability of
Shared Facilities Manager to the Co-Owners for Losses
incurred under or arising from this Agreement in a given
calendar year equals or exceeds the aggregate liability cap
of Shared Facilities Manager set forth in Section 7.7
24
HOU:3i862567
(1,) No removal of the Shared Facilities Manager by the Co-Owners
shall be effective unless and until a •successor Shared Facilities
Manager is appointed with the approval (such approval not to be
unreasonably withheld or delayed) :f all Co-Owners. In the event
of any removal of the Shared Facilities Manager by the Co-Owners
under this Section 7.5.1 Shared Facilities Manager shall provide
reasonable assistance to the Co-Owners to assure a smooth,
efficient transition of its services to the Co-Owners, or any
successor operator selected by the Co-Owners, for which Shared
Facilities Manager shall be compensated as a reimbursable
expense If so instructed by the Co-Owners, Shared Facilities
Manager shall cancel all contracts in a commercially reasonable
manner or cause them to be assigned to Co-Owners and otherwise
use reasonable efforts to mitigate costs associated with such
cancellations or assignments, provided, however, that all such
cancellation, assignment and termination costs and expenses shall
be borne by the Co-Owners, and not the Shared Facilities Manager,
as a reimbursable expense, provided further, that such amounts do
not include any sums which are disputed by reason of Shared
Facilities Manager's default, and provided further that the Co-
Owners shall be entitled to off-set any amounts owed the Co-
Owners by Shared Facilities Manager. Shared Facilities Manager
shall forthwith deliver to the Co-Owners any plans, designs,
papers, computer data, warranties or printouts or other materials
which Shared Facilities Manager has generated or has received in
the course of performing its duties hereunder. Al! parts, tools and
other equipment which is the property of the Co-Owners shall be
returned to the Co-Owners.
7.5.2 Resignation by Shared Facilities Manager .
(a) Shared Facilities Manager may resign from its position as Shared
Facilities Manager if any of the following occur:
(i)For Co-Owner Breach Any Co-Owner's failure to make
undisputed payments when such payments are due and
payable under this Agreement, unless within thirty (30)
days after written notice from Shared Facilities Manager to
the Co-Owners of such non-payment, the Co-Owners make
such payments in accordance herewith,
(ii)Chanae of Control At any time following the Effective
Date, if Shared Facilities Manager or any of its Affiliates
no longer owns directly or indirectly at least 25% of the
membership units of one of the Project Cotupames or the
Phases;
25
HOU:318625617
(iii)Change in Ownership of Wind Plant. At any time during
the term if the Co-Owners (or their permitted ass!gns
hereunder) no longer own the Wind Plant, Shared Facilities
Manager may terminate this Agreement upon no fewer than
ninety (90) days' written notice to the Co-Owners, or
(iv)For Cessation of Oper..tions. Any of the Co-Owners
dissolve, liquidate, or terminate their company existence, or
(v)Notice of Termination. The Shared Facilities Manager
provides 90 days' written notice to each Co-Owner of its intention
to resign as Shared Facilities Manager hereunder.
(b) In the event of any permitted resignation by Shared Facilities
Manager tinder this Section 7.5.2, Shared Facilities Manager shall.
provide reasonable assistance to the Co-Owners to assure a
smooth, efficient transition of its services to the Co-Owners, or any
successor Shared Facilities Manager selected by the Co-Owners,
for which Shared Facilities Manager shall he compensated as a
reasonable reimbursable expense, and Shared Facilities Manager
shall be entitled to any outstanding monthly Fixed Fee payments
and other reimbursable expenses due and payable prior to such
termination If so instructed by the Co-Owners, Shared Facilities
Manager shall cancel all contracts in a commercially reasonable
manner and otherwise use reasonable effoñs to mitigate costs
associated with such cancellations; provided, however, that all
such cancellation and termination costs and expenses shall be
borne by the Co-Owners, and not the Shared Facilities Manager, as
a reimbursable expense.
7,5.3 Obligations at End of Term or Upon Removal or Resinnation..
(a)Shared Facilities Manager shall perform all services with respect to
the Shared Facilities as required under this Agreement through the
date of termination or expiration of this Agreement or the removal
or resignation of the Shared Facilities Manager in accordance with
this Section 74, and each Co-Owner shall make all payments
required by it hereunder through such date, with such payment to
be made in full within thirty (30) days after such termination,
expiration, removal or resignation..
(b)The Shared Facilities Manager shall deliver to the Co-Osviem all
of the Co-Owner Property (including any copies thereof) upon
expiration or termination of this Agreement or the removal or
resignation of the Shared. Facilities Manager in accordance with
this Section 7.4 and Upon reasonable request of the Co-Owners
26
FIOU:3 8625&7
from time to time. Upon expiration or termination of this
Agreement or the removal or resignation of the Shared Facilities
Manager in accordance with this Section 74 the Parties shall
cooperate with one another in the orderly transfer of services,
including providing all information, service schedules, reports and
other data in the Shared Facilities Manager's possession and
relating to the Shared Facilities and, at the Co-Owners' request,
any rights under any contracts with subcontractors to the extent
assignable; nrovided, however 4 that any such efforts requested by
the Co-Owners and performed by the Shared Facilities Manager
after the date of termination or expiration of this Agreement (for
any reason) shall be a reimbursable expense and compensated in
accordance with Section 16 .3 ,
7.6 Shared Facilities Manager Fees.
76,1 Fixed Fee As consideration for the management and scheduled
maintenance services to be performed hereunder, beginning on the date
Phase ill first delivers energy using the Shared Facilities the Shared
Facilities Manager shall be paid an annual fee (as adjusted pursuant to
Section 762) equal to Thirty Eight Thousand Seven Hundred Sixty Five
Dollars ($38,765 00) (the "Fixed Fee") The Fixed Fee shall be payable
monthly in arrears at the rate of one-twelfth (1/12th) of the annual Fixed
Fee, and may be prorated for partial months at the beginning and end of
the Term hereof. If any of the Co-Owners declare Force Majeure, the Co-
Owners shall continue to pay the Shared Facilities Manager the Fixed Fee
(as adjusted pursuant to this Section 76) and the reimbursable expenses in
accordance with Section 763 The Fixed Fee shall be allocated among
the Co-Owners in proportion to their respective Percentage Interests.
7,612 Fee Adjustment The Fixed Fee shall be increased (but not decreased)
annually for each calendar year after calendar year 2012 by a factor of one
hundred percent (100 0/6) of the percentage change in the GDPIPD, if
increased, during such calendar year.
7.63 Reimbursement Expenses. In addition to the Fixed Fee, the Shared-
Facilities Manager shall be paid or reimbursed for any unscheduled
maintenance repairs to and replacements of the Shared Facilities, and any
other work not listed on Exhibit B performed by, or on behalf of, Shared
Facilities Manager in accordance with the billable rate schedule set out in
Exhibit B attached hereto (subject to Section 822) The Shared Facilities
Manager shall have the right to pre-invoice the Co-Owners for any
materials and components required to be provided hereunder, and not to
proceed with the acquisition of such materials and components unless
payment has been received by Shared Facilities Manager for such
materials and components.
27
HOU:3186256,7
7.6 .4 Untimely ?avent In the event the Co-Owners fail to make timely
payment of a properly rendered invoice in accordance with this
Agreement, then the Co-Owners shall be jointly and severally responsible
for any interest charged by a vendor or contractor as a result of:Co-
Owners' late payment.
73 L•imta, tion of Uabiiltv. EXCEPT IN THE , CASE OF FRAUDI sw&wn
FACILITIES MANAGER'S TOTAL LIABILITY INCURRED AS A RESULT OF
EVENTS OCCURRING OR CLAIMS ARISING IN ANY CALENDAR YEAR DURING
THE TERM OF THIS AGREEMENT, WHETHER BASED IN CONTRACT,
WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH OR RESULTING FROM THIS
AGREEMENT OR FROM THE PERFORMANCE OR BREACH THEREOF, OR FROM
ANY SERVICES COVERED BY OR FURNISHED DURING THE TERM OF THIS
AGREEMENT, SHALL IN NO EVENT EXCEED THE AMOUNT OF THE SHARED
FACILITIES MANAGER'S FIXED FEE UNDER THIS AGREEMENT FOR SUCH
CALENDAR YEAR. NOTWITHSTANDING THE FOREGOING, IF FACILITIES
MANAGER ELECTS TO EXERCISE ITS RIGHT TO SELF INSURE UNDER
SECIION 12.3 OF THIS AGREEMENT, ANY LIABILITY THAT FACILITIES
MANAGER WOULD NOT HAVE INCURRED BUT FOR ITS ELECTION TO SELF
INSURE UNDER SECTION 12.3 SHALL NOT BE CAPPED BY THE LIMITATION IN
THIS SECTION 77 IT BEING UNDERSTOOD THAT PAYMENTS IN RESPECT OF
DEDUCTIBLES OR EXCESS LOSSES THAT WOULD NOT HAVE BEEN COVERED
BY THIRD PARTY INSURANCE SHALL BE CAPPED BY THE LIMITATION IN THIS
SECTION 7.7.
7.8 Waiver of Conseuuentil Darnaaes. NO SHARD FAC•ILITIE$MANAGER
RELATED PARTIES SHALL BE LIABLE TO ANY CO-OWNER RELATED PARTIES,
NOR SHALL ANY CO-OWNER RELATED PARTIES (OR THEIR RESPECTIVE
FINANCING PARTIES) BE LIABLE TO ANY SHARED FACILITIES MANAGER
RELATED PARTIES OR ANY CO-OWNER RELATED PARTIES OF ANY OTHER
CO-OWNER, FOR ANY PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR SPECIAL
DAMAGES THAT ARISE OUT OF, RELATE TO, OR ARE OTHERWISE
ATTRIBUTABLE TO THIS AGREEMENT OR THE PERFORMANCE OR NON-
PERFORMANCE OF SERVICES, OR ANY ADDITIONAL SERVICES, OR OTHER
DUTIES HEREUNDER THIS SECTION 7.8 SPECIFICALLY PROTECTS SHARED
FACILITIES MANAGER RELATED PARTIES, AND CO-OWNER RELATED
PARTIES (INCLUDING THEIR RESPECTIVE FINANCING PARTIES), AGAINST
SUCH PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES EVEN IF WITH
RESPECT TO THE NEGLIGENCE, GROSS NEGLIGENCE, WILLFUL
MISCONDUCT, STRICT LIABILITY OR OTHER FAULT OR RESPONSIBILITY OF
SHARED FACILITIES MANAGER RELATED PARTIES AND CO-OWNER RELATED
PARTIES, AS THE CASE MAY BE, AND ALL RIGHTS TO RECOVER SUCH
PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARE HEREBY
WAIVED AND RELEASED, EXCEPT TO THE EXTENT SUCH DAMAGES ARE
OWED TO THIRD PARTIES IN RELATION TO A LOSS FOR WHICH ONE PARTY
28
HOU:3186256.7
OWES INDEMNITY OBLIGATIONS TO THE OTHER PARTY UNDER THIS
AGREEMENT
8. DUTIES OF THE SHARED FACILITIES MANAGER
81 In General. The Shared Facilities Manager shall cause the Shared Facilities to be
operated and maintained in alt material respect in accordance with (a) all applicable Laws (b)
Prudent Wind Industry Practices, (c) all applicable requirements of the Interconnection Provider,
and (d) the terms and provisions of this Agreement, including taking the actions described in
Exhibit B Except as expressly stated herein, all decisions with respect to the Shared Facilities
shall be taken by the Shared Facilities Manager, winch, except as expressly stated herein, shalt
have full authority to act on behalf of the Co-Owners with respect to all matters relating to the
'Shared Facilities.
8.2 Specific Authority. Without limiting the generality of the foregoing, and in
addition to the authority otherwise granted herein, the Shared Facilities Manager shall have the
power, without further consent or approval of the Co-Owners
8.2.1 to negotiate, enter into, execute, acknowledge or amend agreements
relating to the use, operation, maintenance, and repair of the Shared Assets
(as permitted by this Agreement) on behalf of the Co-Owners, in each..case
in accordance with the then-applicable Approved Shared Facilities O&M
Budget, and provided that (i) no such actions adversely affect the rights or
privileges of the Co-Owners except with respect to incurring additional
expenses for the accounts of the Co-Owners and (11) the Shared Facilities
Manager shall provide each Co-Owner with copies of any such agreement
promptly upon execution thereof;
81.2 to employ from time to time, at the expense of the Co-Owners, persons,
firms or corporations to render services generally needed to accomplish
the purposes of the Co-Owners with respect to the Shared Assets, provided
that if the Shared Facilities Manager retains any party who is an Affiliate
of the Shared Facilities Manager for any of these purposes, the fees
charged shall be based on the fair market value, for similar services, and
the Shared Facilities Manager shall not be entitled to the percentage mark-
up set forth in Exhibit C;:
8.23 to pay and collect amounts due in connection with the Shared Assets, and
to maintain one or more bank accounts wherein 'funds received by the
Shared Facilities Manager in connection with its duties hereunder shall be
maintained, In each case in accordance with the then-applicable Approved
Shared Facilities O&M Budget,
8.2.4 to expend monies' necessary for the mai'agerent, operation, maintenance,
and repair of the Shared Facilities (in accordance with the Approved
Shared Facilities O&M Budget);
29
'HOth318256.7
8.2.5 to commit to the expenditure of or spend up to and including One Hundred
Thousand Dollars ($1001000) for and on behalf of the Co-Owners to
expedite repairs to the Shared Facilities due to an emergency, provided
that the Shared Facilities Manager gives concurrent notice by facsimile to
the Co-Owners regarding the nature and amount of the expenditure;
8.26 to negotiate with, and represent the Co-Owners' interests before any
Qovernmental Authority regarding property valuation and real property
taxes (if any) related to the Shared Assets; and
8.27 to execute, acknowledge, and deliver any and all instruments, and take
such other steps as are reasonably necessary to effectuate the foregoing
and as are consistent therewith.
8.3 Limitation on Authority.
83.1 The Shared Facilities Manager shall not, without the approval of all of the
Co-Owners:
(a)Create or cause to be created any Lien on any of the Shared Assets;
(b)Amend or modify the terms of this Agreement or the Shared Real
Property Rights;
(c)Perform or omit to perform any act which would cause any person
reasonably to believe that the Shared Facilities Manager is a
partner of the Co-Owners or authorized to bind such Co-Owners,
except as expressly provided herein;
.(d) Sell, assign, mortgage, encumber, convey or otherwise transfer all
or any portion of the Undivided Interest held by any Co-Owner, or
any components of the Shared Assets (other than due to
obsolescence or upon winding up hereunder);
(e)Borrow funds or otherwise incur indebtedness for borrowed money
on behalf of a Co-Owner,
(f)Procure any insurance coverage that is less than the coverages
required by Section 12; or
(g)Adopt any Shared Facilities O&M Budget or amend or modify any
Approved Shared Facilities O&M Budget.
83.2 The Shared Facilities Manager shall not, without the approval of all of the
Participating Co-Owner:
.30
14OU:3186256-7
(a)Commit to expenditures in excess of One Hundred Thousand
Dollars ($100,000) for and on behalf of the Participat Co- U19
for repairs to the Shared Facilities due to an emergency.
(b)Compromise or settle (I) any single claim, demand, class action
proceeding, or debt in which the amount of damages is in excess of
One Hundred Thousand Dollars ($100,000), or (ii) claims,
demands, class action proceedings or debt in which the aggregate
amount of damages during any calendar year is in excess of Two
Hundred Fifty Thousand Dollars ($250,000), or
(c)Incur cumulative expenses l of more than One Hundred Thousand
Dollars ($100,000) in any instance
(exclusive of the Fixed Fee) that is not included in the Approved Shared
Facilities O&M Budget
84 Curtailment of Delivery The Shared Facilities Manager may, in accordance with
the following provisions, direct the Co-Owners to interrupt or reduce deliveries of electrical
power (i) when necessary in order to maintain, repair, replace, remove, investigate, inspect or
test any part of the Shared Assets, (ii) if the Shared Facilities Manager determines, in its
reasonable discretion, that interruption or reduction is necessary due to an emergency, or (in) at
the direction of the Interconnection Provider, a QSE Provider or a Governmental Authority.
With respect to any interruption or reduction of deliveries of electrical power pursuant to clauses
(i) or (ii) of the preceding sentence, the Shared Facilities Manager shall lund the length of any
such interruption or curtailment to that time strictly necessary to correct the problem.,Any
interruption or curtailment made pursuant to clause (i) of the preceding sentence shall be made to
the extent commercially reasonable during periods of low or no winds or low energy prices
Unless directed otherwise by the Interconnection Provider, a QSE Provider or a Governmental
Authority, the Shared Facilities Manager shall curtail each Co-Owner such that (a) Phase W
shall be first Phase, Phase III shall be the second Phase, and Phase II shall be the last Phase, to be
curtailed, interrupted or reduced from the JV Substation, and (b) Phase II shall be the first Phase,
Phase III shall be the second Phase, and Phase IV shall be the last Phase, to be permitted to use
the Shared Facilities, provided, however, in the event the need for the interruption or reduction
can be attributed to a particular Co-Owner's Phase or portions of its Phase, then the Shared
Facilities Manager shall, to the extent possible, limit such interruption or reduction to such Phase
or portions of the Phase, as the case may be Each Co-Owner shall promptly effect such
interruption in, or reduction of, delivery as the Shared Facilities Manager shall direct pursuant to
this Section 84 upon notice from the Shared Facilities Manager, which notice shall be
reasonable under the circumstances
8.5 Disconnection of Shared Facilities.. The Shared Facilities Manager shall have the
power and authority to disconnect the Phase of a Co-Owner (a) upon liquidation and removal of
the Shared Facilities upon termination or expiration of the Agreement, and Section 14 ,2 .2 upon a
Co-Owner's default hereunder, provided that any necessary FERC approvals are obtained prior
to effectuating such disconnection, (b) if the Shared Facilities Manager determines, in its
31
UOU:31862567
reasonable discretion, that disconnection is necessary in the event of an emergency; or (o) at the
direction of the Interconnection Provider, a QSE Provider or :a Governmental Authority. In the
cases of (i) a default for which a proper notice and cure period have already been provided
pursuant to Section 14.2.2, (ii) a real or reasonably perceived emergency or (iii) as directed under
clause (c) above, the Shared Facilities Manager shall provide notice to the relevant Co-Owner
concurrently with disconnecting its Projector as soon thereafter as is reasonably practical.
81 6 Additionaj Real Pronertv.Rights or. Facilities. Upon acquisition of any Additional
Real Property Rights or Facilities under Section 3.8. the Shared. Facilities 'Manager will prepare
amendments to Exhibit A to reflect the addition of the Additional Real Property Rights or
Facilities, which will be submitted to each Co-Owner for its review and approval.
Reporting; Notices;. Records. The Shared Facilities Manager shall, from time to
time, provide reports to the Co-Owners sufficient to keep the Co-Owners reasonably apprised as
to significant matters concerning the maintenance, and repair of the Shared Facilities, including
such tatters related thereto as may have a material impact on the operation, maintenance and
repair of each Co-Owner's Phase. The Shared Facilities Manager's reporting Obligations shall
include all of the following:
(a)Providing monthly reports by the fifteenth (15th) Business Day of
the following month and attending such regular monthly and/or
quarterly meetings as the Co-Owners may reasonably request;
provided,the Shared Facilities Manager receives at, least seven (7)
days' notice of such meetings, and such meetings either are held
within forty (40) miles of the Wind. Plant Site, or maybe attended
telephonically.
(b)Collecting data and information regarding the Shared Facilities'
performance and generating for the Co-Owners performance
reports setting forth, among other information reasonably required
by the Co-Owners, the Shared Facilities' performance and
availability.
(c)Promptly after receiving the same, providing to the Co-Owners
written notice of any communications, orders or requirements of
any Governmental Authority affecting the Shared Facilities.
(d)Shared Facilities Manager shall cooperate fully and provide such
records and other information that may be requested by the Co-
Owners in correction with (i) the filing of its tax returns; (ii) the
maintenance and retention of its books and records, (iii) any
financial reporting or other disclosures that may be required, and
(iv) any audit, litigation or other proceeding by any Governmental
Authority, including 'those that pertain to taxes.
(e)Collecting and providing any information, to the extent such
S nformation is in Shared Facilities Manager's possession or is
32
80th3186256i
reasonably available to Shared Facilities Manager, regarding the
Shared Facilities required for any reports to any Governmental
.Authorities
(f)Reporting promptly (and Mi. any event within twenty-four (24)
hours of becoming aware of an incident) to the Co-Owners and to
any other Persons entitled to receive such notice any incident of
explosion, fire, storm, or other emergency on the Wind Plant Site
which could reasonably be expected to threaten life or property
(g)Providing prompt written notice to the Co-Owners, all in
commercially reasonable detail upon learning of the event
requiring notice, of (x) any actual violation of any applicable Law,
including a requirement of any permit, and (y) all events,
occurrences, conditions, and issues that the Shared Facilities
Manager reasonably considers are material to, or are reasonably
Likely to have a material adverse effect on, the operation,
maintenance, or results of operations, 'including notices of liens
and claims of liens and any and all notices under any project
agreements of defaults, events or other conditions required to be
reported to the counterparties thereunder.
(Ii) Providing such other reports and information as. may be reasonably
requested by the Co-Owners under the terms of this Agreement
88 Access Audit Rights The Shared Facilities Manager shall allow the Co-Owners
and the Co-Owners' authorized representatives reasonable access to the Wind Plant and the
Shared Assets for the purposes of the Co-Owners and the Co-Owners' authorized
representatives access to inspect the books and records maintained by the Shared Facilities
Manager with respect to the Shared Assets (excluding, however, (i) the Shared Facilities
Manager's company books and records that do not pertain directly to charges or costs upon
which reimbursable costs are based, (n) personnel information or compensation or benefits
information pertaining to employees of Shared Facilities Manager or its Affiliates (not based at
the Wind Plant site), and (iii) information covered by legal privilege or which cannot be
disclosed without violating applicable Law) and the Co-Owners' audit thereof to be conducted
(at the Co-Owners' sole cost and expense), provided that the Co-Owners shall only have the
right to inspect and audit such books and records for any period that is within the seven (7)
calendar years from the date of final payment hereunder or the final settlement or disposition of
any claim made pursuant to this Agreement If any such inspection or audit discloses an error
and that, as a result thereof, any overpayment or any underpayment has occurred, the amount
thereof shall be paid within thirty (30) days after receipt of an invoice (with reasonable
supporting detail) with interest (except that any underpayment caused by the actions or inactions
of Shared Facilities Manager will not bear interest) at the Default Rate to the Party to whom: it is
owed by the other Parties, nrovided that a Party shall only be liable for any amounts hereunder
that relate to errors discovered and disclosed within the inspection and audit period provided for
in this provision
33
HOU3I8256,7
89 shared Facilities .O&M. Budget.
(a)Within ninety (90) days after the Effective. Date and no later than
September 1 of each calendar year during the term, the Shared
Facilities Manager shall deliver to the Owners a proposed budget
for operation, maintenance and repair of the Shared Facilities for
the following calendar year, or the portions of the year remaining
ninety (90) days after the Effective. Date (each, a "Shared Facilities
O&M Budget"), describing the scheduled work to be completed in
the following calendar year and the general operational plans for
the Shared Facilities during such years, including responsibilities
and emergency procedures and detailing the expected revenue and
expenses for the following calendar year including explanations for
any material differences to the base case at closing and such draft
budget shall include, at a minimum, the billing rates, estimated
cost, based on time and materials and all fees and reimbursable
costs contemplated in this Agreement for anticipated operation and
maintenance services and repairs to be provided by the Shared
Facilities Manager during each month of the following year (or
portions thereof), including any Shared Expenses The Shared
Facilities O&M Budget shall set forth the respective amounts
allocated to the different Co-Owners in proportion to their
respective Percentage Interests When approved pursuant to
subparagraph (b) below, the Shared Facilities O&M Budget shall
be the "Anproveci Shared Facilities O&M Budget" for such year
(b)The Co-Owners who at such time have a Percentage Interest
greater than zero shall have, thirty (30) days from receipt of the
proposed Shared Facilities O&M Budget either to approve the
same or to assist the Shared Facilities Manager in preparing an
Approved Shared Facilities O&M Budget by October 15th of each
year. If the Shared Facilities O&M Budget is approved by Co-
Owners representing at least fifty percent (50%) of the Percentage
Interests, the Shared Facilities O&M Budget will be the Approved
Shared Facilities O&M Budget for the following year. In the event
that a proposed Shared Facilities O&M Budget is not approved
within the time indicated, the Shared Facilities O&M Budget
prepared and, approved for the previous year shall be utilized until
such time as the new Shared Facilities O&M Budget is approved.
(c)If, during any calendar year the Shared 'Facilities Manager believes
that a variance (in excess of the permitted variances described in
subsection (4). below) is reasonably likely to occur 'between the
actual expense of operating and maintaining the Shared Facilities
and the budgeted expense for a particular material budget item, the
Shared Facilities Manager shall timely notify the Co-Owners of
34
HO1J:3186256J
such belief in writing and advise the Co-Owners of the necessary
revisions to the Approved Shared Facilities O&M Budget and the
reasons for those revisions If the Co-Owners representing at least
fifty percent (50%) of the Percentage Interests agree, the Co-
Owners and the Shared Facilities Manager shall proceed in good
faith to revise the Approved Shared Facilities O&M Budget in
such manner for the balance of the year.
(d) The commercially reasonable and necessary costs and expenses
incurred by the Shared Facilities Manager that are within ten
percent (100%) of any line item on the Approved Shared Facilities
O&M Budget and do not cause the overall Approved Shared
Facilities O&M Budget to be exceeded, and which are otherwise
incurred in accordance with the most recently Approved Shared
Facilities O&M Budget shall not require any additional approval of
the Co-Owners
8 10 l3ineracncies In the event of any emergency involving the Shared Facilities that
could reasonably be expected by Shared Facilities Manager to result in possible personal injury
or loss of life or damage to or destruction of property, the Shared Facilities Manager shall take
such action as may be reasonable and necessary to prevent, avoid or mitigate such Injury, loss of
life damage or destruction and shall, as soon as reasonably practicable, report any such material
incident, including the Shared Facilities Manager's response thereto, to the Co-Owners
.8 .11 Cooperation with Lenders Notwithstanding any other provision of this
Agreement, Shared Facilities Manager shall during normal business hours and upon reasonable
prior notice, cooperate with Co-Owners' Financing Parties and their advisors and consultants and
shall make all information, reports, logs and other documents relating to the Shared Facilities
available to such experts and lenders, and shall make Shared Facilities Manager's personnel
available for consultation with such experts and lenders all as reasonably requested The Shared
Facilities Manager also agrees that it shall, at any time and from time to time during the term of
this Agreement, after receipt of a written request by any of the Co-Owners, execute and deliver
to such Co-Owners and/or their lender, any consents to collateral assignments or estoppel
statements as may reasonably be requested
8.12 Obligations The Shared Facilities Manager shall have no liability for any
obligations except those expressly stated in this Agreement, and nothing in this Agreement shall
obligate the Shared Facilities Manager to perform any duties or assume any liabilities under any
agreement to which the Shared Facilities Manager is not directly a party unless such duties are
also expressly stated in this Agreement and then only to such extent The Co-Owners
acknowledge that the Shared Facilities Manager's performance under this Agreement is
dependent upon the Shared Facilities Manager having access to all parts of the Shared Facilities
and access to all documents as reasonably required by the Shared Facilities Manager, and having
required approvals and decisions from the Co-Owners
35
HOiJ:3 I 86256.7
8 1 Inpçction by Co-Qwners. Co-Owners, through. their employees, agents, lenders,
experts or representatives, have the right, at all reasonable times, at the expense of the Co-
Owners, (a) to inspect or cause to be inspected, the (i) services of Shared Facilities Manager,
(ii) the Shared Facilities; and (iii) equipment, materials and methods to be used in the operation
and maintenance of the Shared Facilities, provided, however, that such Inspection shall not
unreasonably interfere with the operation and maintenance of the Shared Facilities, and any
Persons inspecting the work .aliafl abide by any and all reasonable safety rules and procedures
established by Shared Facilities Manager that are not inconsistent with this Agreement or
otherwise applicable to the Wind Plant, as communicated to them in writing by the Shared
Facilities Manager prior to their access to the Wind Plant Site, (b) to attend any and all operation
and maintenance meetings, provided however, that such attendance shall not unreasonably
interfere with Shared Facilities Manager's performance of its obligations under this Agreement
or in connection with the Shared Facilities or the operation and maintenance of the Shared
Facilities, and (c) to access, for itself, its employees, agents, representatives or advisors, to all
parts of the Shared Facilities. For purposes of clause (b) immediately above, the Shared
Facilities Manager shall give the Co-Owners reasonable advance notice of all material
construction meetings in order to permit the Co-Owners to send a representative, if it so desires.
The Co-Owners' review or inspection of any services provided by the Shared Facilities Manager
hereunder will not be construed as constituting approval or acceptance of such services. Shared
Facilities Manager at all times will retain responsibility for the services that meet the
requirements of this Agreement, regardless of whether or not the Co-Owners have reviewed or
inspected suchservices, plans, documentation or other acts or items.
8.14 Risk of Loss. As between the Co-Owners and Shared .Facilities Manager, the Co-
Owners (in proportion to their respective Percentages Interest) shall be responsible for the risk of
loss to the Shared Facilities or any portion thereof during the operation and maintenance :of the
Shared Facilities regardless of cause, except if such loss is caused in whole or in part by the
gross negligence or willful misconduct .f Shared Facilities Manager's related parties or
subcontractors of any tier, provided that Shared Facilities Manager will only be liable for such
loss up to the amount of One Hundred Thousand Dollars ($100,000) deductible per occurrence
on the Co-Owners' insurance.
8.15 Shared Facilities Manager Representative. The Shared Facilities Manager
designates the General Manager of the Shared Facilities Manager as its individual representative
(the 'Shared Facilities Manager Representative") whose instructions, requests, and decisions will
be binding upon such Shared Facilities Manager in all matters concerning this Agreement, except
that the Shared Facilities Manager Representative shall not have the authority to amend this
Agreement. The Shared Facilities Manager shall have the right to change the Shared Facilities
Manager Representative at any time and from time to time by written notice to the Co-Owners.
8.16 Standards of Performance. Throughout the term of this Agreement, Shared
Facilities Manager shall perform the services and all other obligations under this Agreement in
accordance with Prudent Wind industry Practices, the requirements of any financing agreements
or other project agreements (which requirements will be related to Shared Facilities Manager by
the Co-Owners), the Interconnection Agreements and all applicable Laws All activities and
work performed for or by the Shared Facilities Manager shall, at a minimum, ..subject to the
36
H01J:31862567
HSSE policies, standards, and requirements attached hereto as Exhibit D. Additionally, at all
times during the term of this Agreement, in the performance of its Obligations hereunder, Shared
Facilities Manager shall comply with all applicable Laws of all Governmental Authorities having
jurisdiction over the Wind Plant or the Shared Facilities. Shared Facilities Manager shall be
responsible, in connection with its performance hereunder, for, (I) all payroll, withholding, old
age, social security, unemployment, accident insurance, health insurance, employee benefit, and
other taxes of employees of Shared Facilities Manager, (ii) all taxes with respect to
compensation paid to Shared Facilities Manager, including income and franchise taxes, and
(iii) all surcharges, penalties,, fees and other governmental amounts and charges relating thereto.
8.17 Assignment of Warranties. The Shared Facilities Manager hereby assigns to the
'Co-Owners all manufacturers' warranties that the Shared Facilities Manager receives with
respect to any parts or materials provided to and used by the Shared Facilities Manager under
this Agreement. The Co-Owners shall assign to the Shared Facilities Manager any claim under a
warranty with respect to any part that the Shared Facilities Manager repairs or replaces other
than to the extent the Shared Facilities Manager is reimbursed by the Co-Owners pursuant to
Section 7.6.3.
8.18 Rights of..Co-Owners: License of Co-Owner Property.
8.18.1 The Shared Facilities Manager hereby acknowledges and agrees that the
Co-Owners shall hold title to all specialized equipment, tools, parts,
reports, data, information, records, books, plans, designs, papers or print
outs or other information used by the Shared Facilities Manager in the
performance of Shared Facilities Manager's obligations under this
Agreement to the extent such, assets have been paid for by the Co-Owners,
including those which the Shared Facilities Manager has generated,
received or purchased (but has been reimbursed by the Co-Owners) in the
course of performing its duties hereunder ("Co-Owner. Property"), but
excluding any Shared Facilities Manager owned or licensed property
(including software, or other intellectual property developed outside of the
scope of the services provided hereunder). Notwithstanding the foregoing,
Co-Owner Property does not include personnel records, information about
Shared Facilities Manager's internal costs or internal business practices,
trade secrets or 'other confidential information of the Shared Facilities
Manager, materials covered by legal privilege, or materials relating to any
audit or dispute between the Parties or between Shared Facilities Manager
and any other Person.
8.18.2 The Co-Owners hereby grant the Shared Facilities Manager (including its
relevant subcontractors) a paid-up, worldwide license to use the Co-Owner
Property in connection with this Agreement. Such license shall
automatically expire immediately upon the termination or expiration of
this Agreement; Drovided that Shared Facilities Manager may retain a
copy of Co-Owner Property '(other than equipment, tools and parts). as
37
HOIJ:3 i86267
Shared Facilities Manager deems necessary for compliance with Law or
for audit purposes.
.9. REPRESENTATIONS AND WARRANTIES
9.11 Representations and. Warranties. As of the date of this Agreement, each Party
represents.and warrants to each other Party that:
(a)it is duly organized, validly existing and in good standing under the
Laws of the jurisdiction of its organization or Incorporation,
(b)it has the power to execute and deliver this Agreement and to
perform its obligations under this Agreement and has taken all
necessary corporate, company, partnership and/or other actions to
authorize such execution and delivery and performance of such
obligations,
(c)its execution and delivery of this Agreement and its performance
of its obligations under this Agreement do not violate or conflict
with any Law applicable to it, with any provision of its charter or
bylaws (or .comparable constituent documents); with any order or
judgment of any court or other agency of government applicable to
it or any of its assets, or with any contractual restriction binding on
or affecting it or any of its assets,
(4) all authorizations of and exemptions, actions or approvals by, and
all notices to or filings with, any Governmental Authority that are
required to have been obtained or made by it at the time this
representation is made with respect to this Agreement have been
obtained or made and are in lull force and effect, and all conditions
of any such authorizations, exemptions, actions or approvals have
been complied with;
(c) this Agreement constitutes the Party's legal, valid, and binding
obligation, enforceable against it in accordance with its terms
(subject to applicable bankruptcy, reorganization, insolvency,
moratorium or similar Laws affecting creditors' rights generally
and subject as to enforceability, to equitable principles of general
application, regardless of whether enforcement is sought in a
proceeding in equity or at law), and
(1) except as otherwise permitted herein, it has neither initiated nor
.rcceived written notice of..any action, proceeding, or investigation
pending, nor to its knowledge is any such action, proceeding, or
investigation threatened (or any basis therefore known to it) which
questions the validity of this Agreement s or which would
materially or adversely affect its tights or obligations as a. Party.
38
HOU;31862567
92 Exc1uivity of Warranties. THE WARRANTIES PROVIDED IN THIS
AGREEMENT ARE EXCLUSIVE, AND NO OTHER WARRANTIES OF ANY KIND,
WHETHER STATUTORY, EXPRESS, OR IMPLIED (INCLUDING ALL
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE) WILL APPLY.
10. FORCE .MAJEURE
Notwithstanding any other provision of this Agreement, each Party's obligations .under
this Agreement shall be suspended by any Force Majeure if and to the extent that such Party is
prevented or delayed from performing by reason of the Force Majeure, provided, however, that
(a) the prevention or delay of performance shall be of no greater scope and of no longer duration
than is necessarily caused by the Force Majeure and required by any remedial measures, (b) no
obligations of any Party that arose before the occurrence of such causes shall be excused as the
result of the occurrence, and (c) each Party shall use reasonable commercial efforts to remedy its
inability to perform, provided, further, that no Force Maj cure shall excuse any payment
obligations of either the Shared Facilities Manager or the Co-Owners due hereunder. If the
performance by any Party of its obligations under this Agreement is affected by any Force
Majeure, such Party shall as soon as practicable notify the other Parties of the nature and extent
thereof.
ii. INDEMNIFICATION
111 Co-Owner Indemnification To the full extent permitted by Law, each Co-Owner
(an "Indemnifying Party") agrees to mdemmfy, defend and hold harmless each other Co-Owner
and the other Co-Owner' directors, managers, officers, shareholders, partners, members,
Affiliates, employees, agents, representatives, successors and assigns (collectively, the
"Indemnified Parties"), from and against any and all Losses and Liabilities, to the extent arising
out of or related to (a) claims of Persons who are not a Co-Owner (including employees of a Co-
Owner) to the extent they arise or result from, or are occasioned by or in connection with any
breach by the Co-Owner of any of its obligations under this Agreement, (b) any breach of this
Agreement by the Co-Owner, (c) any negligent actor omission that causes a material and
adverse effect on an Indemnified Party or that Indemnified Party's Phase, including any such
action or omission that results in damage to or an outage of the Indemnified Party's Phase, and
(d) Hazardous Materials spilled, generated released or introduced into or on the Shared Lands by,
through or under such Co-Owner The indemnification provided under this Section 111 will not
apply to the extent the Liabilities are caused by the gross negligence or intentionally wrongful
acts or omissions of the applicable Indemnified Party. This Section ii will survive the
termination or expiration of this Agreement until the expiration of the applicable statute of
limitations.
112 Notice and Legal Defense.. Promptly after receipt by a Co-Owner or another
Indemnified Party under this Section 11 or other parts of this Agreement of any claim or notice
of the commencement of any action, administrative or legal proceeding, or investigation as to
which indemnity provided for in Section 11 . 1 may apply, the Indemnified Party will notify the
Indemnifying Party in writing of such fact The Indemnifying Party will assume the defense
39
HOIJ3I.862567
thereof with counsel designated by the Indemnifying Party and reasonably satisfactory to the
Indemnified Party; provided that if the defendants in any such action include both the
Indemnified Party and the Indemnifying Party and the Indemnified Party will have reasonably
concluded that there may be legal defenses available to it which are different from or additional
to, or inconsistent with, those available to the Indemnifying Party, the indemnified Party will
have the right to select separate MJrJ to participate in the defense of such action on behalf of
the Indemnified Party, at the Indemnifying Party's reasonable expense. The Indemnifying Party
will not, without the written consent of the Indemnified Party, (a) settle or compromise any
indemnity claim or consent to the. entry of any final judgment that does not include as an
unconditional term thereof the delivery by the claimant or plaintiff of .a written release or
releases from all liability in respect of such indemnity claim of all Indemnified Partie. affected
by sich indemnity claim, or (b) settle or compromise any indemnity claim if the settlement
Imposes equitable remedies or material obligations on the Indemnified Party other thanficia1
Obligations for which :such Indemnified Party will be indemnified under this Agreement. No
indemnity claim that is being defended in good faith by the indemnifying Party will be settled or
compromised by the Indemnified Party without the written consent of the Indemnifying Party.
.113 Failure to Defend Action. Should the Indemnified Party be entitled to
indemnification under Section 11..1 as a result of a claim by a third party, and the Indemnifying
Party fails to assume the defense of such claim, the Indemnified Party may, at the expense of the
Indemnifying Party, contest (or, with the prior written consent of the Indemnifying Party, settle)
such claim.
11.4 Indemnification Amount. In the event that an hide tnifying Party is obligated to
indemnify and hold an Indemnified Party harmless under Section 11.1. the amount owing to the
Indemnified Party will be the amount of such Indemnified Party's reasonable, actual out-of-
pocket loss net of any insurance or other recovery.
11.5 Supremacy. The provisions expressed in this Section 11 will prevail over any
conflicting or inconsistent provisions contained elsewhere in this Agreement and will survive
termination of this Agreement.
12. INSURANCE
12.1 CO-Owners' Insurance Requirements. For the duration of this Agreement, either
(a)the Co-Owners shall, at their sole cost and expense, jointly maintain the. insurance policies
and coverages described in Part A. (Required Insurance Coverages of Co-Owners) of Exhibit E or
(b)upon the agreement of each of the Co-Owners, one Co-Owner may procure such insurance
policies and coverage on behalf of all Co-Owners. In either case,. the Co-Owners will bear
responsibility for premiums therefor based on their Percentage Interests.
122 Shared Facilities Manager's Insurance Reauirements. For the duration of this
Agreement, the Shared Facilities Manager shall, at its sole cost and expense, procure and
maintain the insurance policies and coverages described in Part B (Required insurance
Coverages of Shared Facilities Manager) of Exhibit E.
40
H0U306256.7
12.3 Evidence, Terms and Modification of insurance: Self-Insurance.
(a)Each Party shall provide the other Parties with insurance
certificates reasonably acceptable to the other Parties evidencing
that insurance coverages are in compliance with this Agreement.
Such 'insurance and certificates shall (a) name the other Party's
group (i e, Co-Owners or Shared Facilities Manager, as
applicable) as an additional :insured under the Commercial General
Liability and Umbrella Liability Policies; (b) provide a waiver of
any rights of subrogation against the other Party's group i.e., Co-
Owners or Shared Facilities Manager, as applicable), and
(c)indicate that the Commercial General Liability and Umbrella
Liability policies have been endorsed as described above. All
policies of a Party shall be written with insurers that the other
Parties, in their reasonable discretion, deem acceptable (such
acceptance will not be unreasonably withheld or delayed) All
policies shall be written on an occurrence basis, except as provided
in Section 123(b) All policies of a Party shall contain an
endorsement that the other Parties' insurance policies shall be
primary in all instances regardless of like coverages, if any, carried
by such other Party. No Party's liability under this Agreement is
limited to the amount of insurance coverage required herein by
virtue of this Section 123
(b)in the event that any insurance as required herein is commercially
available only on a "claims-made" basis, such insurance shall
provide for a retroactive date not later than the date of the Original
Shared Facilities Agreement and such insurance shall be
marntamed by a Party, with a retroactive date not later than the
retroactive date required above, for a minimum of five (5) years
after the term hereof. If any insurance required to be maintained
by a Party hereunder ceases to be available on commercially
reasonable terms in the commercial insurance market, such Party
shall provide written notice to the other Parties, .accompanied by a
certificate from an independent insurance advisor of recognized
national standing, certifying that such insurance is not available on
commercially reasonable terms in the commercial insurance
market for electric generating plants of similar type, geographic
location and design Upon receipt of such notice, such first-
mentioned Party shall use commercially reasonable efforts to
obtain other insurance that would provide comparable protection
against the risk to be insured, and the other Party shall not
unreasonably withhold its consent to modify or waive such
requirement,
41
HOU:31862567
(c)Either Party shall have the option -to self-insure any of the
coverages in this Section 123 to the extent allowable by statute,
and to the extent approved and/or allowed by any lender's
insurance advisor. In the event that a Party elects to :self4nsur; it
shall provide the other Parties with reasonably satisfactory
evidence of such insurance.
13.. CONFIDENTIALITY
13.1 Confidentiality.
13.1.1 The Confidential Information shall not be disclosed or permitted to be
disclosed by the Receiving Party to any other person or entity not a Party.
hereto without the prior written consent of the Disclosing Party, except:
(a)to the Receiving Party's Representatives;. provided that the
Receiving Party guarantees the adherence of its Affiliates to, and
will be responsible for their breach of; this :Sctiofl 111,1 and
provided, further, that prior to making disclosure of Confidential
Information to its Representatives who are not directors, officers or
employees of the Receiving Party or its Affiliates, the Receiving
Party shall obtain a written undertaking of confidentiality not less
restrictive than this Section 13.1 . from each such Representative
(except in the case of outside 'legal counsel the Receiving Party
shall only be required to procure that such legal counsel is bound
by a professional legal duty of confidentiality), and
(b)to the extent such information is required to be disclosed under
applicable Law or stock exchange regulations or by a
governmental or court order, decree, regulation or rule, provided
that the Receiving Party makes all commercially reasonable efforts
to give prompt written notice to the Disclosing Party as far as
possible in advance of such disclosure to permit the Disclosing
Party to obtain a protective order against or otherwise to limit The
disclosure (in connection with which the Receiving Party shall
reasonably cooperate with the Disclosing Party), and provided,
further, that, in any case, the Receiving Party shall only disclose
that portion of the Confidential Information that, in the opinion of
the Receiving Party's legal counsel, IS required to be disclosed and
shall use its commercially reasonable efforts to ensure further
confidential treatment of the Confidential Information so disclosed
I1.3I1..2 The Receiving Party shall use the: Confidential Information, or permit the
same to be used by the Receiving Party's Representatives, in connection
with the Receivmg Party's exercise of its rights and performance of its
obligations under this Agreement and for no other purpose whatsoever.
42
HOtJ:31862567
1313 The Parties acknowledge that the Disclosing Party would not have an
adequate remedy at Jaw for money damages if the covenants contained in
this Section 13.1 were breached. Accordingly, the Disclosing Party shall
be entitled to an injunction restraining such disclosure and other equitable
relief (including specific performance), without the requirement of posting
a bond or other security.
14. CO-OWNER EVENTS OF DEFAULT TERMINATION, REMEDIES,
LIMITATION OF LIABILITY, SURVIVAL
14.1 Events of Dfaul. The occurrence and continuation of any of the following
events at any time during the term of this Agreement, except to the extent caused by, or resulting
from, an act or omission of another Co-Owner in breach of this Agreement or an event of Force
Majeure, will constitute an event of default of a Co-Owner (an "Event of Default"):
14. 1.1 Payment. The Co-Owner fails to pay when due any amounts required to
be paid by such Co-Owner under this Agreement, and such failure to pay is not cured
within fifteen (15) days following written notice from any other Co-Owner specifying the
amount to be paid, provided that such period will be extended for so long as the allegedly
defaulting Co-Owner is disputing in good faith such amount pursuant to the procedures
set forth in Section 15.
14.1.2 Shared Real Property Rights. A Co-Owner breaches, or causes the breach
of, a Shared Real Property Right andhils to cure such breach within the time permitted
by such Shared Real Property Right, after receipt of a notice of default under. the Shared
Real Property Right to cure, or cause to be cured, the default described therein, as is
given to the defaulting Co-Owner. Each of the Co-Owners agrees to provide a copy of
any notice of default under a Shared Real Property Right that is received, by it to the other
Co-Owners within twenty-four (24) hours of receiving such notice of default, regardless
of the party or the contract that is alleged to be in default in the notice.
14.1.3 Interconnection Agreement. The Co-Owner breaches, or causes the
breach of, its applicable Interconnection Agreement, and the exercise of any remedies for
such breach would have a material adverse effect on any of the Shared Assets or this
Agreement or the non-defaulting Co-Owners' Phases, and such defaulting Co-Owner
ails to cure such breach within the time permitted by such agreement. Each of the Co-
Owners agrees to provide a copy of any notice of default received by it to the other Co-
Owners under an applicable Interconnection Agreement within twenty-four (24) hours of
receiving such notice of default, regardless of the party or the contract that is alleged to
be in default in the notice.
14.1.4 Other Defaults. The Co-Owner fails to cure any other failure to perform
under this Agreement within thirty (30) days following written notice from any other Co-
Owner specifying the nature of the failure to perform, provided that if the default is not
reasonably capable of being cured within thirty (30) days, then the default will be deemed
43
HOU:3 86256.7
cured if the defaulting Co-Owner: commences, diligently pursues, and completes action
that remedies the default within ninety (90) days of receipt of such notice.
14.1,5 Seizure of.Property, Any substantial part of such Co-Owner's property is
subjected to any levy, seizure, assignment or sale for or by any creditor or Governmental
Authority that materially affects that Co-Owner's ability to perform under this
Agreement.
14.1.6 Bankr.uitcv. if the Co-Owner is adjudicated as bankrupt becomes
insolvent, enters into an arrangement or composition with the Co-Owner's creditors,
suffers permanent or temporary court-appointed receivership of substantially all of such
Co-Owner's property, makes a general assignment for the benefit of creditors, files a
voluntary bankruptcy petition or suffers the filing of an involuntary bankruptcy petition
that is not dismissed within thirty (30) days after filing.
142 Remedies. Upon the occurrence and during the continuation of an Event of
Default by a Co-Owner, each other Co-Owner will have any and all of the following remedies,
exercisable only after due mquny that an Event of Default has occurred and is continuing
14.2.1 Tender Perform ce. In its sole and absolute discretion, cure the default
of the defaulting Party by making or tendering the required payment or performance, and
pennittmg the defaulting Co-Owner's Phase to remain connected to the Shared Facilities
and sales of electricity by the defaulting Co-Owner to be continued
14.2.2 Disconnect Co Owner. To cause the disconnection of the defaulting Co.
Owner's Phase from the Shared Facilities, provided, that (a) the defaulting Co-Owner's
Phase will be permitted to reconnect promptly when and if the default as cured, and (b)
any and all damages suffered and incurred by the non-defaulting Co-Owners have been
compensated..
14.2.3 Specific Performance. To bring an action to specifically enforce the
provisions of this Agreement The Co-Owners agree that damages may be an inadequate
remedy for an Event of Default under this Agreement, and that each Co-Owner will be
entitled to seek injunctive and other equitable relief against any other to
prevent or eliminate such default
14.2.4 Other Rights and Remedies. TO exercise any and all other rights and
remedies which the non-defaulting Co-Owners might otherwise have under this
Agreement, at law or in equity..
143 Reiinbursement.of Expenses to Cure -, Lien. if any Co-Owner elects to cure an
Event of Default of another Co-Owner, the defaulting Co-Owner will reimburse the curing Co-
Owner for its expenses mcurred in rendering the cure, plus interest at the Default Rate The Co-
Owner curing the default will have :a lien on the defaulting Co-Owner's Undivided Interest, to
the extent of the amount expended by the curing Co-Owner in remedying the default (including
attorneys' fees), and the defaulting Co-Owner hereby appoints the curing Co-Owner as its
44
HOU3.i86256.
attorney-in-fact to file, record and otherwise assert such lien, to the extent of the expenditures in
relation to such cure or remedy,
14.4 Remedies Cumulative. No right, remedy or election given by any term of this
Agreement will be deemed exclusive but each will be cumulative with all other rights, remedies
and elections available under this Agreement, at law or in equity.
14.5 Walver of ParUtion. The Co-Owners will not have and hereby waive the right to
partition all or any portion of the Shared Assets, or to make application to any court or authority
or to commence or prosecute any action or proceeding for partition of the Shared Assets Each
Party will be entitled to a decree or order restraining or enjoining such partition, application,
action or proceeding upon any breach of the provisions of this Section 145 The Co-Owners
acknowledge and agree that they have been paid full consideration for the waiver provided in
this Section .14.5.
14.6 Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION
OF THIS AGREEMENT TO THE CONTRARY, IN NO EVENT, WHETHER AS A
RESULT OF BREACH OF CONTRACT, TORT LIABILITY (INCLUDING
NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL ANY CO-OWNER
BE LIABLE TO ANY OTHER PARTY FOR SPECIAL, INDIRECT, PUNITIVE OR
CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING
CLAIMS OF CUSTOMERS, COST OF MONEY, LOSS OF PROFIT, LOSS OF USE OF
CAPITAL OR REVENUE, EXCEPT TO THE EXTENT SUCH DAMAGES ARE
INCLUDED IN (A) THE AMOUNTS PAYABLE UNDER THE INDEMNIFICATION
PROVISIONS SET FORTH IN THIS AGREEMENT FOR CLAIMS OF THIRD
PARTIES FOR PERSONAL INJURY OR PROPERTY DAMAGE, OR (B) A BREACH
OF SECTION 13. . .
IS. DISPUTE RESOLUTION.
Unless stated otherwise herein, all Disputes shall be resolved in accordance with the
dispute resolution procedures set forth in Exhibit F Notwithstanding the foregoing. (a) the
Parties may at any time seek injunctive or equitable relief from a court of competent jurisdiction,
and (b) nothing herein shall prevent a Party from defending or pursuing any claim in acourt or
other proceeding eding against a third party that. has. been initiated by such third : party.
16. NOTICES.
All notices and other communications required or permitted. by this Agreement or by
applicable Law to be served upon or given to a Party by another Party shall be in writing and
shall be deemed duly served, given and received (i) on the date of service, if served personally or
sent by facsimile transmission (with appropriate confirmation of receipt) to the Party to whom
notice is to be given, or (ii) on date of receipt, if mailed by certified mail, postage prepaid, return
receipt requested, or (in) on the date of receipt if sent by a nationally recognized courier for next
day service and so addressed as follows:
4.5
H0th3186256.7
If to Goshen II, to
GOSHEN PHASE!! LLC
do BP Wind Energy North America me.
700 Louisiana St, 33 d Floor
Houston, Texas 77002
Attention: Asset Manager
Telephone:[phone]
Facsimile - [phone]
With a copy to:
GOSHEN.I PHASE 1i LLC
do BP Wind Energy North America Inc.
700 Louisiana s, 3td Floor
Houston, Texas 77002
Attention Legal Manager
Telephone: [phone]
Facsimile: (7.13) 354-2120
With a copy to:
GOSHEN PHASE !1LLC
do Goshen Ridge Wind Farms LLC
1300 N. Northiake Way, 2 Floor
Seattle, WA 98103
Attention: General Counsel
Telephone [phone]
Facsimile, [phone]
.IftoRAE, to:
R1DGELINE ALTERNATIVE ENERGY, LLC
1300 N Northiake Way, 2 Floor
Seattle, WA. 98103
Attentiom General Counsel
Telephone [phone]
Facsimile [phone]
If to MCP, to:
MEADOW CREEK PROJECT COMPANYLLC
do Ridgeline Energy LLC
Legal Department
1300 N. Northláke Way, 2 Floor
Seattle, WA 98 103
46
HOtJ:3.186256.7
Telephone: [phone]
Facsimile,: 206508.4738
If to Shared Facilities Manager, to:
AE POWER SERVICES LLC
do BP Wind Energy North America Inc
700 Louisiana St, 33 d Floor
Houston, Texas 77002
Attention: Asset Manager
Telephone [phone]
Facsimile (71-3)354-2120
With a copy to
AE POWER SERVICES LLC
do BP Wind Energy North America Inc
700 Louisiana:St.,33 4 Floor
Houston, Texas 77002
Attention Project Counsel
Telephone: [phone]
Facsmule [phone]
17 MISCELLANEOUS PROVISIONS
17.1 Transfers
17.1.1. General Restrictions Subject to Section 17.1.2, no Co-Owner may
Transfer its interest in this Agreement without the consent of the other Co-Owners,
provided, however, no consent of the other Co-Owners shall be required in connection
with the Transfer by any Co-Owner (a "Transfemng Co-Owner") of this Agreement
when made together with a Transfer of all or substantially all of its respective Project
Controlled Assets (or in the case of RAE, if it divides the Project Controlled Assets of
Phase III into more than one subdivision thereof in connection with a Transfer of an
undivided portion of its interests under this Agreement when made together with a
Transfer of all or substantially all of the Project Controlled Assets with respect to each
such subdivision of Phase III), provided that the new owner shall be assigned and shall
assume the Transferring Co-Owner's interest in this Agreement to the extent of the
interest transferred as a condition to the assignment, in whole or in part according to
whether the Transfer was total or partial Each Co-Owner may collaterally assign its
interest in this Agreement to a Financing Co-Owner or a Power Purchaser, provided that
the Project Controlled Assets are collaterally assigned concurrently therewith, but no
such assignment shall subordinate or otherwise adversely affect the rights of the other
Co-Owners in and to this Agreement or the Shared Facilities covered hereby. In addition,
in connection with the financing of each Project, each Co-Owner shall upon the
reasonable request of a Co-Owner provide customary estoppels and consents in favor of a
47
H0U3I862567
Financing Co-Owner or a Power Purchaser, including rights of step-in with respect to a
Co-Owner's obligations under this Agreement and rights to concurrent notice of default
17.1.2 Right of First Refusal. If Goshen II, MCP or RAE desires to Transfer
(other than to RAE, .MCP or Goshen II, as appropriate) any of its rights in this Agreement
without a corresponding Transfer of its Project Controlled Assets to which such rights in
this Agreement relate, Goshen Ii, MCP or RAE, as the case may be, must first offer in
writing to Transfer such interests to the other Co-Owners, as the case may be (the "Other
Co-Owners"), on the same terms and conditions as the proposed transferee (the "Right .gf
First Refusal") Upon receipt of the Right of First Refusal, the Other Co-Owners shall
have twenty (20) Business Days in which to noti1r Goshen II, MCP or:RAE, as the case
may be, whether or not the Other Co-Owners elects to accept or reject the offer (on a pro
rata basis or any other basis agreed by the Other Co-Owners). If such Other Co-Owners
reject or fail to respond within such time period,. Goshen II, MCP or RAE, as the case
may be, shall have the right to consummate the Transfer to the proposed transferee any
price and terms not being less favorable than the price and terms offered to the Other Co-
Owners in the Right of First Refusal delivered pursuant to this Section 17.1,2
17.2 Assignment by Shared Facilities Manager.. The. Shared Facilities Manager may
not assign, pledge or otherwise transfer this Agreement without the prior written consent of all of
the Co-Owners, which may be withheld in the Co-Owners' sole and absolute discretion,
provided, however, such restriction on assignment shall not apply if the assignment is to an
Affiliate of the Shared Facilities Manager or constitutes an indirect assignment as a result of a
merger, acquisition, sale or other institutional reorganization of the Shared Facilities Manager Or
.its Affiliates.
17:.3 ERC ApDrovaL Notwithstanding anything in Sectiçns 17.1 and 112 to the
contrary, no Transfer of any Party's interests in this Agreement shall be effective unless and until
such Party has obtained any necessary prior approvals from the FERC to effectuate any changes
to this Agreement to reflect such Transfer and the change in the parties to this Agreement.
17.4 Governing Law, This Agreement is governed by the Laws of the State of New
York, excluding any choice of law rules that would direct application of Laws of another
Jurisdiction. I Each Party hereby irrevocably and unconditionally submits to the exclusive
jurisdiction of any New York State court or federal court of the United States of America siumg
in New York City, and waives, to the fullest extent legally permissible, any objection which it
may now or hereafter have to the personal jurisdiction of such courts or venue of any proceeding
arising out of or relating to this Agreement in such courts and any defense of an inconvenient
forum to the maintenance of such action or proceeding in such courts. IN ADDITION, EACH
PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGIITIT MAY HAVE TOATRIA....Y JURY 'IN RESPECT OF.ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT.
48
HOU;3186256.:7
17.5 Compliance with Laws. This Agreement is subject to. all present and future Laws,
including valid orders, rules and regulations of any Governmental Authority having jurisdiction
over the Wind Plant, the Shared Assets or Parties.
17:6 Survival.. Notwithstanding any other provision, of this Agreement, the provisions
of this Sections 17.6 (Survival) and Sections 7.3 (Shared Facilities Manager Indemnification),
14 (Removal of Shared Facilities Manager), 11 (Indemnification), 1jConfidentia1.ity), 144
(Remedies Cumulative), 146 (Limitation of Liability) and 15 and Exhibit F (Dispute Resolution)
are intended to and shall survive termination of this Agreement 'so as to cover all Claims
instituted within the period set forth 'in the applicable statute of limitations.
17.7 Effect of Waiver. The Parties agrees that no failure or delay by a Party in
exercising any right, power or privilege under this Agreement shall operate as a waiver thereof,
unless such waiver is made expressly and confirmed in writing by the Party against whom such
waiver would be enforced, nor shall any single or partial exercise by a Party of any right, power
or privilege hereunder preclude any other or future exercise thereof.
17.8 Severability. Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to that jurisdiction, be ineffective 'to the extent of that prohibition or
unenforceability without invalidating the remaining provisions hereof or affecting the validity or
enforceability of that provision in any other jurisdiction.
17-9 Entire Agreement: Amendments. This Agreement constitutes the entire
agreement between the Parties pertaining to the subject matter hereof and supersedes all prior
agreements, representations, communications and understandings, written or oral, express or
implied, pertaining thereto, including the Original Shared Facilities Agreement. Any
modifications, amendments, or changes to this Agreement shall be binding upon the Parties only
if agreed upon in writing and signed by the authorized representatives of the Parties and shall be
subject to FERC approval as set forth in Section 17.17 below; provided, that the Shared Facilities
Manager shall be 'required to sign any amendment proposed by the Co-Owners 'except to the
extent such amendment adversely affects the rights or obligations of the Shared Facilities
Manager hereunder.
17.10 Not for the Benefit of Third Parties. This Agreement is intended to be solely for
the benefit of the Parties and their respective successors and permitted assignees, and is not
intended to and shall not 'confer any rights or benefits on any party not a signatory hereto.
17.11 Counterparts. This Agreement may be executed in a number of identical
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument, notwithstanding that all of the Parties are not signatories to the
originator to the same counterpart. A copy of this Agreement signed by a Party and delivered
by facsimile transmission to the other Parties shall have the same effect as the delivery of an
original of this Agreement containing the original signature of such first-mentioned Party.
17.12 Further Assurances. Each Party agrees to provide such information, execute and
deliver any instruments and documents, and to take such other actions as may be necessary or
reasonably requested by the 'o'ther Parties, which are not inconsistent with the 'provisions of this
49
FIOU:3 186256.7
Agreement and which do not involve assumptions of obligations or materially affect The cost of
performance, other than those provided for in this Agreement, in order togive full. effect to this
Agreement and to carry out the intent of this Agreement.
17.13 No Recourse to Affiliates. This Agreement 5 solely and exclusively between the
Parties, and any obligations created in this Agreement will be the sole obligations of the Parties
to this Agreement. No Party will have recourse to any parent, subsidiary, partner, joint venture,
affiliate, director or officer of the other Parties for performance of such obligations, unless the
obligations are assumed in writing by the person against whom recourse is sought.
17.14 Successors and Assigns. This Agreement will be binding on, and inure to the
benefit of, the Parties and their successors and permitted assigns. The Shared Assets will be
held, conveyed, assigned, hypothecated, encumbered, leased, used and occupied, subject to the
covenants, terms and provisions set forth in this Agreement, which covenants, terms and
provisions will run with the land, and-will be binding upon and inure to the benefit of each Party
and each other person and entity having any interest therein during their ownership thereof, and
their respective permitted grantees, heirs, successors and assigns, and will create privity of
contract and estate among the Parties and their respective grantees, heirs, successors and assigns.
17.15 Competing Ventures. Any Co-Owner or the Shared Facilities Manager may
engage in or possess an interest in other business ventures of any nature and description,
independently or with others, including but not limited to the ownership, financing, leasing,
management, syndication, investment, brokerage and development of real property (including
real property of the same type and nature as the. Projects), and neither a Co-Owner nor the Shared
Facilities Manager shall have any right by virtue of this Agreement in and to such independent
ventures orto the income or profits derived therefrom.
17.16 Memorandum. Concurrently with the execution and delivery of this Agreement,
the Parties will execute a Memorandum of this Agreement (in a form reasonably acceptable to
the Co-Owners), which Memorandum will be recorded in the official real estate records of the
county or counties in which the Shared Assets are located, The provisions of this Agreement
will control, however, with regard to any omissions from or provisions of this Agreement. that
may be in conflict with, the Memorandum of Agreement. At such time as this Agreement has
been terminated, the Parties agree to execute and record in the official real estate records of the
counties referred to above, a termination of the Memorandum of Agreement, which termination
will specifically refer to the Memorandum of Agreement and will recite that this Agreement has
terminated in accordance with theprovisions of this Agreement.
17.17 FERC A2rova1 The Parties acknowledge and agree that:
(a)this Agreement will be filed with FERC pursuant to Section 205 of
the FPA, and following FERC acceptance for filing will be
publicly available as a filed tariff or rate schedule;
(b)any subsequent amendments to this Agreement must be filed with
FERC pursuant to Section 205 of the FPA and accepted for filing
by FER.0 before such amendments can take effect;
50
HOU3t86256.7
(c)any elm ges in ownership or Percentage Interests contemplated by
this Agreement may be subject to prior approval by FERC,
including approval under Section .203 of the FPA;
(d)disconnections or terminations contemplated by this Agreement
may require prior FERC approval; and
(e)subject to the terms and conditions of this Agreement, the Parties
agree to execute and deliver all documents reasonably necessary
for this Agreement to comply with FERC rules and practices.
[Signature page. follows]
Si
-
flDU:31$2567
IN WITNESS WHEREOF, the Parties to this Agreement have caused this Agreement to
be executed by their duly authorized re..presentatives as of the Effective Date.
"CIosben II "
GOSHEN PHASE II LLC
By: ..
Name:
Title:
"RAE"
RIDGELINE ALTERATIVE ENERGY, LLC
By:
Name:
Title:
"MCP"
MEADOW CREEK PROJECT COMPANYLLC
By:
Name:
Title:
"Shared Facilities Manager"
AE POWER, SERVICES LLC
By:
Name:
Title:
[SIONATURE PAGE TO AMENDED AND RESTATED SN. D FACILiTIES AOREEMENI
H0U3862567
i4; 11 :3 V
Shared Real Property Rights
Portions ofReal Pror Encumbered by Wind Ener2v.L ease Agreements
RAE to GPEI. Assignments
Effective Expiration Date MOL Instrument Amend- Amend- Assignments and
Landlord Date Date Recorded No. meat meat and Assumption
Date Recorded Assumption Instrument
Recorded No
11/15/2005
William L7 MY asamonded 1111512045 12/07/05 1208443 1219/09 1351197 Farms and restated 2/9/10 1359945
2/9/10
9/19/2005
Steve & Tamara amended
12/06/07 12/6107 n/a
Rhodes and Lorene as amended 9/19/2045 09/20/05 1200008 & and 05/24/06 1224770
Curtis and restated 4/12110 1360990
4/12/10
Trnmiini.i A--r,oarfc, A 1-141 flflfl&LSLISI.Ffl ILXI 1t*t.tfl3
Landlord Effective Date Instrument
Date Recorded Now
D&K Judy Farms 9/1/09 09/02109 1343188
Sand S Farms 8/31/09 09/02/09 1343191
Judys IdaMon
Ranches 9/1/09 09/02/09 1343187
Gary S Simmons
(SSR) Trust 9/2/09 09102/09 1343184
Exhibit A -Page 1
11013:3 186256.1
EXHIBIT B
Maintenance Responsibilities
General
General inspection of any and all gates, cattle guards, culverts, security systems, and lighting installed
In connection with the development of the Phases, as well as, any fencing erected to enclose any
Shared Facilities
Maintain access roads by dragging or grader excluding the importation of new road material
Dressing of roads
Weed abatement and vegetation control
Brush control and clear and maintenance of transmission rights of way
Snow removal, as needed
Erosion control, including culverts, as needed
Environmental:
Proper disposal of Hazardous Material arising from Shared Facilities and maintenance, activities and
completion of all required manifests and logs
Compliance with permitting
Storage of material in compliance with all regulations:
Shared Facilities:
Insulator washing, as required
Pole line inspection
Substation and interconnection facilities inspection
Gas-ffll of breakers
Torquing of electrical connections and structures
Coordinate with the Co-Owners for events or conditions that would affect the Phases
Periodic testing of protective relays
Transformer testing
Transformer maintenance
Testing contact resistance and operation on breakers and switches
Weed abatement and vegetation control
Witness meter and relay calibrations for interconnect as required by interconnect guidelines
Auto transformer oil sampling and testing
Periodic testing of voltage :regulation/power .factor equipment if installed
Other
Reporting
Billing
Eh:ibitBpage.I
HOU:3 1162567
EXHIBIT C
Billable Rate Schedule
Rates
Hi-Voltage Labor Market rate plus ltWo
Standard Field Labor Market rate plus 100/9
Work Subcontracted Market rate plus 10%
Equipment Rates:
Co-Tenancy Manager Cost plus 100/0
Equipment
Subcontract Equipment Cost plus 10%
Travel Rates:
(for expedited
mobilization in the
event of emergencies)
Per Diem Market rate
Boarding At cost without mark up
Travel At applicable hourly rate
Parts & Materials
Acquired Parts Cost plus 100/0
Notations
I All authorized repair work shall he charged at the hourly rates set forth in this Exhibit
2 All work subcontracted (including equipment rentals) and parts and materials, if provided by Shared
Facilities Manager, shall be charged at the full amount of the contract price plus the percentage set forth in this
Exhibit.
3 Repair work performed during overtime hours and holidays will be performed only by mutual agreement
among Shared Facilities Manager and the Co-Owners.
4 Shared Facilities Manager shall provide all personnel, hand tools equipment, small routine supplies (such
as hand towels or, stationary supplies), consumables (including grease and oils) and vehicles.
5 Regular work hours shall be understood to mean the hours between 600 am to 3:30 pm, Monday through
Friday, excluding national holidays
Exhibit C - Page :1
HOU:3186256.7
EXJW.IT D
Shared Facilities Manager HSSE. Policy
The, Shared Facilities Manager shall comply with the Healdi Safety, Security,, and
Environmental (FISSE) program set forth in this Exhibit D (the "HSSE Pro9ram") Shared
Facilities Manager shall ensure that any subcontractor it utilizes complies with the HSSE
Program
A) Shared Facilities Manager's HSSE Program
1 Leadership Commitment. Shared Facilities Manager leadership and management at all levels
in the company are fully committed to make safety of employees, visitors, and the
community the absolute top priority.
2 Employee involvement All employees, regardless of position are required ,to be involved m
the HSSE Program.
3. The Shared Facilities Manager will develop a comprehensive written HSSE training,
program All Shared Facilities Manager employees and subcontractor employees will
participate, in the training program.
4 Shared Facilities Manager shall have clearly defined HSSE requirements, including the
processes for planning, tracking, and verifying compliance Control of work processes, site
boundaries, and authorities shall be clearly defined, agreed, and implemented
5. Shared Facilities Manager shall have a hazhrd identification and risk assessment process for
'completing a daily pre-job task hazard analysis and/or work permitting system to identify and
control the hazards to an acceptable level.
6 All of Shared Facilities Manager's employees will be trained in the recognition and
mitigation of hazards Shared Facilities Manager shall communicate to Shared Facilities
Manager's employees the expectation that everyone has an obligation to stop work that is
unsafe.
7.Shared Facilities. Manager shall have a behavior-based safety program which, at a. minimum,
shall include a safety observation program with performance targets The program shall have
elements for rewarding appropriate behavior and a progressive discipline policy to address
inappropriate behavior.
8.Shared Facilities Manager will have a written policy for reporting all safety, security and
environmental incidents to the Shared Facilities Manager. Shared Facilities Manager's
management will investigate all recordable incidents Shared Facilities Manager will
investigate at its discretion, or at the request of any Co-Owner, safety violations and near
misses that do not cause an injury. Any Co-Owner may conduct a separate investigation at
its discretion.
Exhibit D - Page 1
HOU:3I 862563
9.. Shared Facilities Manager shalt ensure that regulatory required training for Shared Facilities
Manager's employees has been identified and completed. Competency shall be
demonstrated.
10. Shared Facilities Manager shall have a Written Waste. Management plan. for use at the Shared
Facilities, which at a minimum, requires identification of waste and disposal. methods.
11 Shared Facilities Manager shall have an acceptable Contractor Environmental Management
System (C-EM)
12 Shared Facilities Manager shall comply with the Driving Standard as provided to Shared
Facilities Manager by Goshen II
13.. Shared Facilities Manager shall have and apply :a Fitness-for-Duty :program which includes
assessment of the physical capability of Shared Facilities Manager's employees to perform
certain specific tasks and a physical agility testing component
.14. Shared Facilities Manager shall have an up to date Environmental, Health and Safety Plan
and an up to date Security Plan with historical records that provide assurance that the
Environmental, Health and Safety Plan and the Security Plan are being faithfully executed
and evidence the degree to which all of Shared Facilities Manager's employees have been
trained and have demonstrated that they understand and have the knowledge to comply with
the Environmental, Health and Safety Plan and the Security Plan
15. Firearms and weapons are prohibited on all Shared Facilities Manager sites, including all
property owned, operated, leased by, or under the control of a Co-Owner and containing
Shared Facilities. Shared Facilities Manager shall ensure its employees, affiliates, sub-tiers,
vendors or subcontractors not possess or transport weapons or firearms onto a Co-Owner's
site.
B)1I$SEMeetings
Shared Facilities Manager shall conduct or take part in regularly scheduled on-site or off
site HSSE meetings discussing, among other topics, facility and job hazards, incidents, near-
misses, site-specific safety and health rules, and site-specific procedures
C) Incident Reporting and Investigations
Shared Facilities Manager shall immediately notify each CO-Owner of all Shared
Facilities Manager or subcontractor incidents resulting in personal injury, spills or releases,
security issues, loss or damage to property, or near-misses as well as incidents requiring
notification under the Environmental Management Plan, and including any inspections by
governmental authorities and any pending administrative or judicial proceeding The Co-Owners
may require Shared Facilities Manager to conduct an investigation for any HSSE incident Each
Co-Owner retains the right to participate or conduct its own incident investigation. For all
mcident mvestigations, Shared Facilities Manager shall provide a written investigation report to
the Co-Owners The investigation report shall identify possible root causes associated with the11
.Exbiblt :1) Page 2
HOU:3 .1 86256.7
incident as well as proposals for corrective action. When requested,. Shared Facilities Manager
shall furnish the Co-Owners with a copy of non privileged reports made by or on behalf of
Shared Facilities Manager concerning an incident, including any non-privileged statements or
other investigative material,
D) Personal Protective Equipment
Shared Facilities Manager shall ensure Shared Facilities Manager's employees have
proper personal protective equipment (PPE) before services begin, and that PPE is worn as
required. Shared Facilities Manager shall Obtain and comply with individual site PPE
requirements.
E Shared Facilities Manager's Employee Conduct
The Co-Owners have the right to require. Shared Facilities Manager to remove and bar
from the Shared Facilities any personnel whose conduct (condition or action) jeopardizes the
safety of any person.
F)Shared Facilitie. Manager's Employee RSSE Competency
Shared Facilities Manager shall ensure that regulatory required training for Shared
Facilities Manager's employees has been identified and completed. Competency shall be
demonstrated.
Shared Facilities Manager shall have clearly defmed HSSE requirements, including the
processes for verifying compliance. Control of work processes, site boundaries, and authorities
shall be clearly defined, agree:., and implemented.
G)Short Service Employee Policy
Shared Facilities Manager shall comply with its own site-specific short service employee
policy, whichever policy is more restrictive.
H)Preventative Maintenance Program
Shared Facilities Manager shall have a preventative maintenance program that includes,
at .a minimum, the identification and prioritization of maintenance for safety and/or
environmental critical items.
I)Chemicals Brought to Shared Facilities
Shared Facilities Manager shall ensure Material Safety Data Sheets (MSDSs) are
available at the Shared Facilities for all chemicals Shared Facilities Manager brings to the site,
and that the MSDS is reviewed as part of the JSAIJSEA discussion.
Exhibit D - Page 3
}IOU 3156256.7
EXHIFIT E
Insurance Requirements
FAR- RT A- REOUIRED INSURANCE CovERMES OF Co .RS
Type of Insurance Minimum Limits of Coverage
Commercial General
Liability (COL) $1,000,000 combined single limit per occurrence
and in the aggregate, where applicable. If COL
insurance contains., a general aggregate limit, it shall
apply separately to the Wind Plant.
COL insurance shall be written on ISO occurrence
,form CG 0001 01 96 (or a substitute form
providing equivalent coverage) and shall cover
liability arising from premises, operations,
independent contractors, products/completed
operations, contracts, property damage, personal
injury and advertising injury, and liability assumed
under an insured contract (including the tort liability
of another assumed in ,a business contract), all with
limits as specified above COL insurance shall
include ISO endorsement CO 24 17 (or an
equivalent endorsement) which modifies the
definition of "Insured contract!' to eliminate the
exclusion of easement or license agreements in
connection with construction or demolition
operations on or within 50 feet of a railroad There
shall be no endorsement or modification of the COL
insurance limiting the scope of coverage for liability
arising from explosion, collapse, or underground
property damage
Umbrella Liability $1500000() umbrella liability combined single
limit per occurrence and in the aggregate;. The
:commercial umbrella insurance shall provide
coverage over the top of the CGL insurance, the
Business Automobile Liability insurance, and the
Employers Liability insurance.
The COL and commercial umbrella insurance to be
obtained by or on behalf of a Party shall be
endorsed as follows "Such insurance as afforded by
this policy for the benefit of the other Party shall be
Exhibit .E .- Page 1 11.11.1
HOU:31562567
primary as respects any claims, losses, damages,
expenses, or liabilities arising out of this
Agreement, and insured hereunder, and any
.insurance carried by the other Patty shall be excess
of and noncontributing with insurance afforded by
this policy, and shall provide for claims by one
insured against another such that, except for the
limits of insurance, the insurance shall apply
separately to each insured against whom a claim is
made or suit is brought.
Business Automobile Liability $1,000,000 combined single limit (each accident),
including all Owned, Non-Owned, Hired and
Leased Autos
Business Automobile Liability insurance shall be
written on ISO form CA 00 01, CA 00 05, CA 00
12, CA 00 20, or a substitute form providing
equivalent liability coverage. if necessary, the
policy shall be endorsed to provide contractual
liability coverage equivalent to that provided in the
1990 and later editions of CA 00 01.
Workers Compensation Statutory Requirements. Co-Owner may comply
with these requirements through the use of a
qualified self-insurance plan.
Employers Liability $1,000,000 each accident for bodily injury by
accident, or $1,000,000 each employee for bodily
injury by disease.
Builder's Risk Providing coverage, but only during periods when
construction, installation and/or erection activities
are undertaken, for:
;(j) Physical damage loss to property in the course of
construction, installation and erection, on an "all
risk" basis and including coverage for earthquake,
flood, collapse, faulty workmanship, materials and
design, testing of machinery or equipment, debris
removal and partial occupancy, with limits
sufficient to cover the Probable Maximum Loss
(I'fiJ)
(ii) Delay in Start-up coverage providing coverage
for losses caused by an insured peril with an
Exhibit - Page 2
liOU:31962567
'4AI1 Risk" Property
indemnity period 6 months and a waiting period not
to :exceed I 60 days.
The deductible may not exceed $250,000 each and
every loss.
"All Risk" Property Insurance, in an amount equal
to the maximum probable loss The deductible, if
any, may not exceed $250,000 each and every loss
"All Risk" Property Insurance shall include
(i)coverage for fire, flood, wind and Storm,
tornado and earthquake with respect to facilities
similar in construction location and occupancy to
the Wind Plant, with sublimits of no less than
$250,000 for flood and earthquake;
(ii)Boiler and Machinery Insurance covering all
objects customarily subject to such insurance,
including boilers and turbines as applicable; and
(iii)Business Interruption and Extra Expense
Insurance, in an amount required to cover the
Party's continuing or increased expenses, resulting
from Interruption as a result of a probable maximum
loss, for a period of six (6) calendar months The
waiting period deductible may not exceed 60 days
Business Interruption insurance shall cover
suspension or delay of, or interruption in, the
operation of the Wind Plant as a result of an insured
peril covered under Property 'insurance as set forth
above, to the extent available on commercially
reasonable terms as determined by the Party, subject
to a deductible Notwithstandmg any other
provision of this Agreement, Co-owner shall not be
required to have Business Interruption insurance
until the Placed-In-Service Date:.
PART B—RE0uIRW IrJSURANCE.COVERAGE•s OF SHARED FAciums MM4AGER
L Type of Insurance Minimum Limits of Coverage
Commercial General
Exhibit E -Page 3
HOU:3186256,7
Liability (CGL) :$1,00(),000 co. bined single limit per occurrence
and in the aggregate, where applicable. If CGL
insurance contains a general aggregate limit, it shall
apply separately to the Wind Plant
CCL insurance shall be ..written on ISO occurrence
form CO 00 01 01 96 (or a substitute form
providing equivalent coverage) and shall cover
liability arising from premises, operations,
independent contractors, products/completed
operations, contracts, property damage, personal
injury and advertising injury, and liability assumed
wider an insured contract (including .the tort liability
of another assumed in a business contract), all with
limits as specified above CGL insurance shall
include ISO endorsement CO 24 17 (or an
equivalent -endorsement) which modifies the
definition of "insured contract" to eliminate the
exclusion of easement or license agreements in
connection with construction or demolition
operations on or within 50 feet of a railroad There
shall be no endorsement or modification of the CGL
insurance limiting the scope of coverage for liability
arising from explosion, collapse, or underground
property damage.
Umbrella Liability $15,000,000 umbrella liability combined single
limit per occurrence and in the aggregate. The
commercial umbrella insurance shall. provide
coverage over the top of the COL insurance, the
Business Automobile Liability insurance, and the
Employers Liability insurance
The CGL and commercial umbrella insurance to be
obtained by or on behalf of a Party shal be
endorsed as follows "Such insurance as afforded by
this policy for the benefit of the other Party shall be
primary as respects any claims, losses, damages,
expenses., or liabilities arising out of this
Agreement, and insured hereunder, and any
insurance carried by the other Party shall be excess
of and noncontributing with insurance afforded by
this policy., and shall provide for claims by one
insured against another such that, except for the
limits of insurance, the insurance shall apply
Exhibit -:1. age .4
EC U: 31 86256.7
separately to each insured against whom a claim is
made or suit is brought.
Business Automobile Liability $100O,000 combined single limit (each accident),
including all Owned, Non-Owned, Hired and
Leased Autos.
Business Automobile Liability insurance shall be
written on ISO form CA 00 01, CA 00 05, CA 00
12, CA 00 20, or a substitute form providing
equivalent liability coverage If necessary, the
policy shall be endorsed to provide contractual
liability coverage equivalent to that provided in the
1990 and later editions of.CA:00 01.
Workers compensation Statutory Requirements Co-Owner may comply
with these requirements through the use of a
qualified self-insurance plan
Employers Liability $1,000,000 each accident for bodily injury by
accident, or $1,000,000 each employee for bodily
injury by disease
Exhibit - Page 5
HOU;3 L86256.7
1 WA 1.1 i 1.) Ii
Dispute Resolution Procedures
Applicability..
Unless stated otherwise herein, all Disputes shall be resolved in accordance with the dispute
resolution procedures set forth in this Exhibit F Notwithstanding the foregoing, (a) the Parties may
at any time seek injunctive or equitable relief from a court of competent jurisdiction, and (b) nothing
herein shall prevent a Party from defending or pursuing any claim in a court or other proceeding against a
third party that has been initiated by such third party.
Neotiations..E. Senior Manaeinent.
A.In the event of a Dispute aniong the Patties, the Parties will use all reasonable efforts to
reach a satisfactory solution by referring the Dispute to senior management of each of the
Parties.
B.Senior management of the Parties will meet as soon as possible, on no less than seven (7)
days' written notice, unless specifically agreed otherwise and shall negotiate in good
faith Senior management of the Parties shall examine any submissions by the Parties,
and shall,:: if the Dispute cannot be resolved immediately, agree: to convene for furl her
negotiations aimed at resolving the Dispute.
C.Should senior management of the Parties be unable to resolve the Dispute within thirty(30):days
after commencement of negotiation by such senior management, or if any of the Parties fails to
comply with the time periods set forth in Paragraph 13 above, then the Parties agree that upon
prior written notice to the other Parties (collectively, the "Notified Party"), one or more Parties
(collectively, the "Notifying Party") may submit such Dispute to binding arbitration on the
following terms
L All such Disputes shall be finally settled by binding arbitration,
.administered by the .Ametican Arbitration Association in accordance with its
Commercial, or other, Arbitration Rules (except to the extent modified by this
Exhibit F), by (subject to Paragraph(u below) three (3) arbitrators who are to be
appointed an accordance with Paragraph (ii) below and who, to the extent
possible, shall be experienced in developing wind farms, knowledgeable of wind
industry consensus standards, and otherwise have experience and expertise in the
subject matter involved in the Dispute The arbitrator(s) decisions shall be
determined in accordance with the standard of a reasonably prudent business
person owning the assets involved with respect to the Dispute presented for
resolution. The Parties furth..agree that any dispute under any other agreement
among the Parties and relating to the Wind Plant (including without limitation,
this Agreement, the Omnibus Agreement between BP Wind Energy North
America Inc and Ridgeline Energy, LLC, and each of the Transaction Documents
(as define in such Omnibus Agreement) shall be brought in the same arbitration as
Exhibit F - Page 1
.H0U3182561
the Dispute such that all disputes between the Parties arising under such
agreements will be resolved in the same proceeding.
ii. Unless all Parties can agree in writing on a. single arbitrator within
ten (10) Days after the delivery of notice referred to in Paragravh B above, then,
within ten (10) Days thereafter, the Notifying Party, on the one hand (which shall
be entitled to specify one arbitrator), and Notified Party, on the other hand (which
shall be entitled to specify one arbitrator), shall each notify the other in writing of
the name of the independent arbitrator chosen by them to participate as a member
of a three-member panel of arbitrators. If either the Notifying Party or the
Notified Party fails to give the other timely notice of such appointment, then the
Party who timely gave such notice shall be entitled to require that its arbitrator act
as the sole arbitrator hereunder. If an arbitrator is timely appointed by each of the
Parties, the two named arbitrators shall select the third member of the arbitration
panel within ten (10) Days after they have both been appointed, and they shall
promptly notify the Parties thereof. Each Party shall promptly notify the other
Party and the Party-selected arbitrators in writing if the third arbitrator has any
relationship to or affiliation with such Party (a "Notice of Relationship"), in
which event another arbitrator shall be selected within ten (10) Days after receipt
of such Notice of Relationship by the Party-selected arbitrators If the two
initially appointed arbitrators cannot timely agree on a third arbitrator, then any
Party may request that the American Arbitration Association select the third
arbitrator. The arbitrators, to the extent possible, shall have experience and
expertise in the subject matter involved in the Dispute.
in The arbitration bearing shall be held at a site in Chicago, Illinois,
to be agreed to by a majority of the arbitrators on thirty (30) Days' written notice
to the Parties The arbitration proceedings shall be held in the English language
iv. The arbitration hearing shall be concluded within one hundred
twenty (120) Days after it is commenced unless otherwise ordered by a majority
of the arbitrators :fl compelling grounds, and the award thereon or decision with
respect thereto shall be made within ten (10) Days after the close of the
submission of evidence Arbitration demanded hereunder by any Party shall be
final and binding on the Parties and may not be appealed except in the case of
manifest error or impropriety in the arbitration proceedings. The decision,
arbitration order and relief agreed upon in writing by any two or more of the
arbitrators (in the case of a three-member panel) shall be deemed the decision of
the panel for all purposes hereof. If two or more members of the arbitration panel
cannot agree, then the decision of the arbitrator not appointed by any Party shall
control. The references herein to the arbitration panel shall also be deemed to
refer to a single arbitrator where a panel is not being used hereunder, and all
references to decisions, orders, awards and relief granted by the panel of
arbitrators shall mean the decision, order, award or relief agreed upon in writing
by the required number of members of the panel, as indicated.
Exhibit - Page 2
HOU:3186256.7

v. The Parties agree: that the arbitration panel may render and the
Parties shall abide by any mterim ruling that the arbitration panel deems necessary
or prudent regarding discovery, summary proceedings, or other pre-arbitration
matters.

vi The Parties hereby submit to the in personam jurisdiction of the
state and federal courts located in Chicago, Illinois, and agree that any such court
may enter all such orders as may be necessary or appropriate to enforce and/or to
confirm any ruling or decision or any award rendered by the arbitration panel
Any court of law of Illinois or the United States of America shall enforce the
decision of the panel of arbitrators (or single arbitrator, as applicable) in its
entirety and only in its entirety, provided, however, that if a court for any reason
refuses to enforce any, equitable remedies ordered by the arbitration panel, such
refusal shall not affect any damage or attorney fee award made by the arbitration
panel.
vii.Any costs or other expenses, including reasonable attorneys' fees
and costs incurred by the successful Party, arising out of or occurring because of
the arbitration proceedings may be assessed against the unsuccessful Party, borne
equally, or assessed in any manner within the discretion of the arbitration panel
and shall be included as part of any order or decision re.ndered by the arbitration
panel The arbitration panel may also order any Party who is ordered to pay any
other Party's .attOrney& fees and costs to pay interest on such award at a rate not
to exceed the prime rate published in the Wall Street Journal edition from the date
of the award until paid As an initial matter (and until ordered differently by the
arbitration panel m connection with an award), the Parties shall each pay the fees,
costs and expenses charged by the arbitrator chosen by it, and, in advance, one-
half (1t2) of the fees, costs and expenses.. charged by the third arbitrator.
viii.Third parties dealing with any Party shall be entitled to fully rely
on any written arbitration order or decision with regard to the matters addressed
therein, whether or not such arbitration order or decision has been confirmed or
adopted by a court, or incorporated in any order of any court.
Exhibit F - Page 3
..HOU:3I862S67
EXHIBIT M
EX=LJANATION PROVIDING ASSURANCE THAT TIlE PROPOSED TRANSACTION WILL NOT
RESULT IN CROSS-SUBSIDIZATION OR PLEDGE OR ENCUMBRANCE OF UTILITY ASSETS
Each Applicant verifies with respect to itself, based on facts and circumstances known to
it or that are reasonably foreseeable, that the Proposed Transaction will not result in, at the time
of the Proposed Transaction.or in the fttture.:
(1)any transfers of facilities between a traditional public utility associate company
that has captive customers or that owns or provides transmission service over jurisdictional
transmission facilities, and an associate company;
(2)any new issuances of securities by a traditional public utility associate company
that has captive customers or that owns or provides transmission service over jurisdictional
transmission facilities, for the benefit of an associate company;
(3)any new pledge or encumbrance of assetS of.a traditional public utility associate
company that has captive customers or that owns or provides transmission service over
jurisdictional, transmission facilities, for the benefit of an associate company; or
(4)any new affiliate contracts between a non-utility associate company and a
traditional public utility associate company that has captive customers or that own or provide
transmission service over jurisdictional transmission facilities, other than non-power goods and
services agreements subject toreview under Sections 205 and 206 of the Federal Power Act
v
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
Goshen Phase 11 LLC
Ridgelinc Alternative Energy, LLC ) Docket No. .ECl2- -000
PROTECTIVE ORDER
(Issued,
I This Protective Order shalt govern the use of all Protected Materials produced by,
or on behalf of any Participant. Notwithstanding y order terminating this proceeding, this
Protective Order shall remain in effect until specifically modified or terminated by the Presiding
Administrative Law Judge ("Priding Judge") or the Federal Energy Regulatory Commission
("Commission").
.2. A Participant may designate as protected those materials which customarily are
treated by that Participant as sensitive or proprietary, Which are not available to the public, and
which, if disclosed freely,, would subject that Participant or its customers to risk of competitive
disadvantage or other business injury,
3. Defithtions—For purpose of this Order:
(a)The term "Participant" shall mean a Participant as defined in I& C F R §
385.102(b).
(b)(I) The term 'Protected Materials" means (A) materials (including
depositions) provided, by a Participant in response to discovery requests and desigil' ted by Snch
Participant as protected; (B) any information contained in or obtained from such designated
materials.; (C) any other materials which are made subject to this Protective Order by the
Presiding Judge, by the Commission, by any court brother body having appropriate authority, or
by agreement of the Participants; (D) notes of Protected Materials; and (E) copies of Protective
Materials. The Participant producing the Protected Materials shall physically mark them on. each
page as 'PROTECTED MATERIALS" or with words of similar import as long as the term
"Protected Materials" is included in that designation to indicate that they are Protective
Materials.
(2)The term "Notes of Protected Materials" means memoranda,
handwritten notes, or any other form of information (including electronic form) which copies or
discloses materials described in Paragraph 3 (b)l). Notes of Protected Materials are subject to
the same restrictions provided in this order for Protected Materials except as specifically
provided -in this order.
(3)Protected Materials shall not include (A) any information or
document contained in the files of the Commission, or any other federal or state agency, or any
federal or state court, unless the information or document has been determined to be protected by
such agency or court, or i(B) information that is public knowledge, or which becomes public
knowledge, other than through disclosure in violation of this Protective Order.
(c)The term "Non-Disclosure Certificate" shall mean the certificate annexed
hereto by which Participants who have been granted access to Protected Materials shall certify
their understanding that such access to Protected Materials is provided pursuant to the terms and
restrictions of this Protective Order, and that such Participants have read the Protective Order
and agree to be bound by it. AllNon-Disclosure Certificates shall be served on all parties on the
official service list maintained by the Secretary in this proceeding.
(d)The term "Reviewing Representative" shall mean a person who has signed
a Non-Disclosure Certificate and who is:
(I): Commission Litigatloti.Staff
(2)an attorney who has made an appearance in this proceeding for a
Participant;
(3)attorneys, paralegals, and other employees associated for purposes
of this case with an attorney described in (2),
(4)ui expert or an..employee of an expert retained by ...Participant: for
the purpose of advising, preparing for or testifying in this
proceeding;
(5)

aperson designated as a Reviewing Representative by order of the
Presiding Judge or the Commission, or
(6)employees or other representatives of Participants 'appearing in this
proceeding with significant responsibility for this docket
4. Protected Materials shall be made available under the terms: of this Protective
Order only to Participants and only through their Reviewing, Representatives as provided in
Paragraphs. 7:, S, and 9
5 Protected Materials shall remain available to Participants until the later of the date
that an order terminating this proceeding becomes no longer subject to j'tidic .al. review,. of the
date that any other Commission proceeding relating to the Protected Material is concluded and
no longer subject to judicial review. If :requested to do so in writing after that date, the
Participants shall, within fifteen days of such request, return, the Protected Materials (excluding
Notes of Protected Materials): to the Paicipants that produced them, or shall destroy the
materials, except that copies of fili,iigs, official transcripts and exhibits in this proceeding that
contain Protected Materials, and Notes of Protected Material may be retained, if they are
maintained in accordance with Paragraph 6, below. Within such time period each Participant, if
requested to do so, shall, also submit to the producing Participant an affidavit stating that, to the
best of its knowledge, all Protected Materials "and all Notes of Protected Materials have been
returned or have been destroyed or will be maintained in accordance with Paragraph 6 Tot he
extent Protected Materials are not returned or destroyed, they shall remain subject to the
Protective Order,
6.All Protected Materials shall be maintained by the Participants in a secure place.
Access to those materials shall be limited to those Reviewing Representatives specifically
authorized pursuant W. Paragraphs 8 and 9. The Secretary shall place any Protected Materials
filed with the Commission in a non-public file. By placing such documents in a non-public file,
the Commission is not making a determination of any claim of privilege. The Commission
retains the right to make determinations regarding any claim of privilege and the discretion to
release information necessary to carry out its jurisdictional responsibilities.
For documents submitted to Commission Litigation Staff ("Staff', Staff shall follow the
notification procedures of 18 C.F.R. § 388.112 before making public any Protected Materials.
7.Protected Materials shall be treated as confidential by each Participant and by the
Reviewing Representative in accordance with the certificate executed pursuant to Paragraph 9.
Protected Materials shall not be used except as necessary for the conduct of this proceeding, nor
shall they be disclosed in any manner to any person except a Reviewing Representative who is
engaged in the conduct of this proceeding and who needs to know the information in order to
catty out that person's responsibilities in this proceeding. Reviewing Representatives may make
copies of Protected Materials, but such copies become Protected Materials. Reviewing
Representatives may make notes of Protected Materials, which shall .be: treated as Notes of
Protected Materials if they disclose the contents of Protected Materials,
8 •(a) If a Reviewing Representative's scope of employment ihclüdes the
marketing of energy, the direct supervision of any employee or employees whose duties :include
the marketing of energy, or the provision of consulting services to any person whose duties
include the marketing of energy, such Reviewing Representative may not use information
contained in any Protected Materials obtained through this,procceding to give any Participant or
any competitor of any Participant a coniffietchd advantage.
(b) In the event that a Participant wishes to designate as a Reviewing
Representative a person not described in Paragraph 3(d) above, the Participant shall seek
agreement from the Participant providing the Protected Materials. If an agreement is reached
that person shall be a Reviewing . Representative pursuant to Paragraph 3(d): above with respect to
those materials. If no agreement is reached, the Participant shall submit the disputed designation
to the Presiding Judge for resolution.
9 (a) A Reviewing Representative shall not be ermitted to inspect, participate
in discussions regarding, or otherwise be permitted access to Protected Materials pursuant to this
Protective Order unless that Reviewing Representative has first executed a Non-Disclosure
Certificate provided that if an attorney qualified as a Reviewing Representative has exec ütOd
such a certificate, the paralegals, secretarial and clerical personnel under the attorney's
instruction, supervision or control need not do so. A copy of each Non-Disclosure Certificate
shall be provided to counsel for the Participant asserting confidentiality prior to disclosure of any
Protected Material to that Reviewing Representative.
(b) Attorneys qualified as Reviewing Representatives are responsible for
ensuring that persons tinder their supervision or control comply with this order.
10. Any Reviewing Representative may disclose Protected Materials to any other
Reviewing Representative as long as the disclosing Reviewing Representative and the receiving
.Reviewing Representative to whom the are disclosed ceases to be engaged in
these proceedings, or is. employed or retained for a position whose occupant is not qualified to be
.a Reviewing Representative under Paragraphs 3(d), access to Protected Materials by that person
shall be terminated. Even if no longer engaged in this proceeding, every person who has
executed a Non-Disclosure Certificate shall continue to be hound by the provisions of this
Protective Order and the certification.
Ii. Subject to Paragraph .17, the Presiding Administrative Law Judge shall resolve
any disputes arising under this Protective Order, Prior to presenting any dispute under this
Protective Order to the Presiding Administrative Law Judge, the. parties to the dispute shall use
their best efforts to resolve it. Any participant that contests the designation of materials as
protected shall notify the party that provided the protected materials by specifying in writing the
materials whose designation is contested This Protective Order shall automatically cease to
apply to such materials five (5) business days after the notification is made unless the designator,
within said 5-day period, files a motion with the Presiding Administrative Law Judge, with
supporting affidavits, demonstrating that the materials should continue to be protected. In any
challenge to the designation of materials as protected, the burden of proof shall be on the
participant seeking protection. If the Presiding Administrative Law Judge finds that the
materials at issue are not entitled to protection, the procedures of Paragraph 17 shall apply.
12. All copies of all documents reflecthig Protected Materials, including the portion
of the hearing testimony, exhibits, transcripts, briefs and other documents which refer to
Protected Materials, shall be filed and served in sealed envelopes or other appropriate containers
endorsed to the effect that they are sealed pursuant to this Protective Order. Such documents
shall be marked "PROTECTED MATERIALS" and shall be filed under seal and served under
seal, upon. the Presiding Judge and all Reviewing Representatives who are on the service list. For
anything filed under seal, .redcted versions or, where an entire document is protected, a letter
indicating such, will alsobe flied with the Commission and served on all parties on the service
list and the Presiding Judge. Counsel for the producing Participant shall provide to all
Participants who request the same, a list of Reviewing Representatives who are 'entitled to
receive such material. Counsel shall take all reasonable precautions necessary to assure that
Protected Materials are not distributed to unauthorized persons.
If any Participant desires to include, utilize or 'refer to any Protected Materials or
information derived therefrom in testimony or exhibits during the 'hearing. in these proceedings in
such a 'manner that might require disclosure of such material to persons other than reviewing
representatives, such participant shall first notify both counsel for the disclosing participant and
the Presiding Judge: of such desire, identifying with particularity "eac ''h.of the Protected Materials.
Thereafter, use of such Protected Material will be governed by procedures determined by the
Presiding Judge.
13.Nothing in this Protective Order shall be construed as precluding any Participant
from objecting to the use of Protected Materials on any legal grounds.
14.Nothing in this Protective Order shall preclude any Participant from requesting
the Presiding residing Judge, the Commission, or any other body having appropriate authority, to find that
this Protective Order should not apply to all or any materials previously designated as Protected
Materials pursuant to this Protective Order. The Presiding Judge may alter or amend this
Protective Order as circumstances warrant at any time during the course of this proceeding.
15.Each party governed by this Protective :Order has the right to seek changes in it as
appropriate from the Presiding Judge or the Commission.
16.All Protected Materials filed with the Commission, the Presiding Judge, or any
other judicial or administrative body, in support of, or as a part of, a motion, other pleading,
brief, or other document, shall be filed and served in sealed envelopes or other appropriate
containers bearing prominent markings indicating that the contents include P.roteted Materials
subject to this Protective Order.
17.if the Presiding Judge finds at any time in the course of this proceeding that all or
part of the Protected Materials need not be protected, those materials shall, nevertheless, be
subject to the protection afforded by this Protective Order for three (3) business days from the
date of issuance of the Presiding Judge's decision, and if the Participant seeking prOtection files
an interlocutory appeal or requests that the issue be certified to the Commission, for,an additional
seven (7) business days.. None of the Participants waives its rights to seek additional
administrative or judicial remedies after the Presiding Judge's decision respecting Protected
Materials or Reviewing Representatives, or the Commission's denial of any appeal thereof. The
provisions of 18 C.F.R. § 388.112 shall apply to any requests for Protected Materials in the files
of the Commission under the Freedom of inforn ation Act (5 U.S.C. § 552).
18.Nothing in this Protective Order shall be deemed to preclude any Participant from
independently seeking through discovery in any other administrative or judicial proceeding
information or materials produced in this proceeding under this Protective Order.

19, None of the Participants waives the right to pursue any other legal or equitable
remedies that may be available in the event of actual or anticipated disclosure of Protected
Materials.

20. The contents of Protected Materials or any other form of information that copies
or discloses Protected Materials shall not be disclosed to anyone Other than in accordance with
this Protective Order and shall be used only in connection with this (these) proceeding(s). Any
violation of this Protective: Order and of any Non-Disclosure Certificate executed hereunder shall
constitute a violation of an Order of the Commission.
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
Gosken Phase II LLC
Ridgeline Alternative Energy, LLC ) 'Docket No. EC12- -000
NON-DISCLOSURE CERTIFICATE
I hereby certify my understanding that access to Protected Materials is provided to me
pursuant to the terms and restrictions of the Protective Order in this proceeding, that I have been
given a copy of and have read the Protective %Order, and that I agree to be. bound by it. I
understand that the contents of the Protected Materials, any notes or other rnernoranda, or any
Other form of information that copies or discloses Protected Materials shall not be disclosed to
anyone other than in accordance with that Protective Order. I acknowledge that a violation of
this certificate constitutes .a violation of an order of the Federal Energy Regulatory Commission..
U
NON-DISCLOSURE CERTIFICATE
FOR COM PETITIVE DUTY PERSONNEL
I hereby certiy my understanding that access to Protected Materials marked
"CONTAINS INFORMATION NOT AVAILABLE TO COMPETITIVE DUTY
PERSONNEL" in the above-captioned case is provided to me pursuant to the terms and
restrictions of the Protective Order in said proceeding, that I have been given a copy of and have
read the Protective. Oder, and that I agree to be bound by it I understand that the contents of the
Protected Materials that may come into my possession or under my control, any notes or other
memoranda, or any other form ..f information tha ...copies: or discloses. Protected, Materials may
not be disclosed to anyone other than in accordance with that Protective Order. I promise not to
make or facilitate any such prohibited disclosure, and I acknowledge my understanding that,:
violation of this certificate constitutes a. violation of an order of the Federal Energy Regulatory
'Commission and may subject me to sanctions and Pun i.sh entin accordance with, law.
Title:..............................
Representing:__________________
Date:. .. .....
L.(mD STATES OF AMERICA
BEFORE TIlE
FEDERAL ENERGY REGULATORY COMMISSION
Goshen Phase II IL ) Ridgeline Alternative Energy, LLC ) Docket No. EC12- 400
Veiificatlon Pursuant to 18 C. EA 133,7
STATE OF TEXAS )
)
COUNTY OF BARS
NOW., BEFDRF.. ME, the undersigned authority, personally came and appeared, Joaquin
Oliveira, who, after first being duly sworn by me, did depose and say
That he is Management Committee Member of (oshen Phase 11 LLC ("Gosben II") and
has the authority to verify the foregoing Application on behalf Goshen II, and that to the best of
his knowledge. mfonnation, and belief, all of the statements pgo-at, a h Win said Application with
respect to Goshen fl are true and correct
Management Committee Member of Goshen 11
Subscribed and sworn to before me
thi1 , of March, 2012
Public
LORICRAt ii Notery Pubftc Steto of Texas
My Commission expires MvComlm5IonExPIresj
- _L
UNITED . STAT... OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
Goshen Phase II LLC )
Ridgeline Alternative Energy, LLC ) Docket No. EC12- -000
Verification Pursuant to 18 c.F.R. 33.7
STATE OF WASHINGTON )
)
COUNTY OF KING )
NOW, BEFORE ME, the undersigned authority, personally came and appeared, Robert
Ellis, who, after first being duly sworn by me, did depose and say:
That he is Vice President of Ridgeline Alternative Energy, LLC and has the
authority to verify the foregoing Application on behalf RAE and its subsidiaries, and that to the
best of his knowledge, information, and belief, all of the statements contained in said Application
with respect to such entities are true and correct.
Robeu Elhs
Subscribed and sworn to before inc
this 131h day of March, 2012 --
JAMIE M.. ONKA Notary Public
State of Washington votary Public My Commission Expires
November 03 2012
-
My Commission expires
FEDERAL ENERGY REGULATORY COMMISSION
WASHINGTON, D.C. 20426
OFFICE OF ENERGY MARKET REGULATION
Wolverine Creek Energy LLC
Docket No. ER12-1280-000
Wolverine Creek Goshen Interconnection, LLC
Docket No. ER12-1281-000
May 9, 2012
Dickstein Shapiro LLP
One Stamford Plaza
263 Tresser Boulevard
Suite 1400
Stamford, CT 06901-3271
Attention: Laura V. Szabo, Esq
Reference: Amended Common Facilities Agreement
Dear Ms. Szabo:
On March 16, 2012, you filed, on behalf of the applicants to both of the above
referenced dockets, the same unexecuted Amended and Restated Common Facilities
Agreement (Amended CFA) between Wolverine Creek Energy LLC (Wolverine) and
Wolverine Creek Goshen Interconnection, LLC (WCGI).1 Currently, WCGI, Wolverine,
Ridgeline Alternative Energy, LLC (Ridgeline) and Goshen Phase II are parties to the
existing CFA. You state the Amended CFA reflects Ridgeline's assignment of a portion
of its ownership interest in WCGI to Meadow Creek Project Company LLC (Meadow
Creek), along with a portion of Ridgeline's Common Facilities Percentage Interest to
correspond with Meadow Creek's planned generation. Certain technical modifications
and other clarifications have been proposed to effectuate this change in ownership
interest and capacity share. Waiver of the Commission's notice requirements pursuant to
1 Designated by the parties as WCGI's and Wolverine's FERC Electric Rate
Schedules No. 1.
Docket No. ER12-1280-000, et al. 2
section 35.11 of the Commission's regulations (18 C.F.R. § 35.11) is granted, and the
Amended CFA is accepted for filing.2
These filings were noticed on March 16, 2012, with comments, protests or
motions to intervene due on or before April 6, 2012. No protests or adverse comments
were filed. Notices of intervention and unopposed timely filed motions to intervene are
granted pursuant to the operation of Rule 214 of the Commission's Rules of Practice and
Procedure (18 C.F.R § 385.214). Any opposed or untimely filed motion to intervene is
governed by the provisions of Rule 214.
This acceptance for filing shall not be construed as constituting approval of the
referenced filing or of any rate, charge, classification, or any rule, regulation, or practice
affecting such rates or services provided for in the filed documents; nor shall such
acceptance be deemed as recognition of any claimed contractual right or obligation
associated therewith; and such acceptance is without prejudice to any findings or orders
which have been or any which may hereafter be made by the Commission in any
proceeding now pending or hereafter instituted by or against Wolverine Creek Energy
LLC and Wolverine Creek Goshen Interconnection, LLC.
This action is taken pursuant to authority delegated to the Director, Division of
Electric Power Regulation - West under 18 C.F.R. § 375.307. This order constitutes final
agency action. Requests for rehearing by the Commission may be filed within 30 days of
the date of issuance of this order, pursuant to 18 C.F.R. § 385.7 13.
Sincerely,
Steve P. Rodgers, Director
Division of Electric Power
Regulation - West
cc: All Parties
2 Central Hudson Gas & Electric Corporation, et al., 60 FERC ¶ 61,106, reh 'g
denied, 61 FERC 161,089 (1992), and Prior Notice and Filing Requirements Under
Part II of the Federal Power Act, 64 FERC ¶ 61,139, clarWed, 65 FERC ¶ 61,081
(1993).
20120510-3031 FERC PDF (Unofficial) 05/10/2012
FEDERAL ENERGY REGULATORY COMMISSION
WASHINGTON, DC 20426
OFFICE OF ENERGY MARKET REGULATION
Wolverine Creek Energy LLC
Docket No. ER12-1280-000
Wolverine Creek Goshen Interconnection, LLC
Docket No. ER1 2-128 1 -000
May 10, 2012
Dickstein Shapiro LLP
1825 Eye Street, NW
Washington, DC 20006
Attention: Laura V. Szabo, Esq.
Counsel for Wolverine Creek Energy LLC and
Wolverine Creek Goshen Interconnection, LLC
Reference: Errata to Letter Order Issued on May 9, 2012
Dear Ms. Szabo:
On May 9, 2012, the Commission issued a delegated letter order, which accepted
for filing in each docket referenced above, an unexecuted Amended and Restated
Common Facilities Agreement (Amended CFA) between Wolverine Creek Energy LLC
and Wolverine Creek Goshen Interconnection, LLC (collectively, Applicants). In the last
sentence of the first paragraph, the delegated letter order states, "the Amended CFA is
accepted for filing," without expressly granting the Applicants requested effective date.
The sentence is corrected to read, the Amended CFA is accepted for filing effective
when the Execution Date occurs, subject to the Applicants filing an executed Amended
CFA to reflect the actual effective date."
Sincerely,
Steve P. Rodgers, Director
Division of Electric Power
Regulation - West
20120510-3031 FERC PDF (Unofficial) 05/10/2012
Document Content (s)
ER12-1280 Errata.DOC ..................................................1-1
L'1I41411
One Stamfatd Plaza J 283 Trea.er Boulevard I Suite 1400 1 Stamford, CF 06901-3271
m009r&4500 I r 203) 9&4501
March 16, 2012
By E-Filing
Hon. Kimberly D. Bose, Secretary
Federal Energy Regulatory Commission
888 First Street, N.E.
Washington, D.C. 20426
Re: Wolverine Creek Goshen Interconnection LLC, Docket No. ER12- -000
Wolverine Creek Energy LLC, Docket No. ER12- -000
Filing of Amended Common Facilities Agreement
Dear Ms. Bose:
Pursuant to Section 205 of the Federal Power Act (TPA"),1 and Part 35 of the Federal
Energy Regulatory Commission's ("Commission") regulations,2 Wolverine Creek Goshen
Interconnection, LLC ("WCGI") and Wolverine Creek Energy LLC ("Wolverine") (collectively,
the "Applicants") submit for filing an unexecuted form of an Amended and Restated Common
Facilities Agreement ("Amended CFA") that will not become effective until its execution date,
which will not occur until after certain conditions described in Section IV below are satisfied
(the "Execution Date"). As described in Section III, below, the Amended CFA will amend and
restate the Common Facilities Agreement ("CFA"), dated November 18, 2005, and as amended
by the First Amendment, effective as of May 28, 2010, among WCGI, Wolverine, Ridgeline
Alternative Energy, LLC ("RAE")3 and Goshen Phase II LLC ("Goshen II") that is currently on
file with the Commission as Rate Schedules FERC No. 1 for WCGI and Wolverine.4 The
116 U.S.C. § 824d (2009).
2 18 C.F.R. § 35.13 (2009).
3 RAE was formerly known as Ridgeline Airtricity Energy LLC but changed its name to Ridgeline Alternative
Energy, LLc.
4 The CFA was originally submitted for filing to the Commission by WCGI and Wolverine in Docket No. ER06-
267-000 on November 18, 2005, which the Commission accepted for filing on January 13, 2006. See Wolverine
Creek Goshen Interconnection LLC, et al., Letter Order, Docket Nos. ER06-267-000, 0A06-1-000 and TS06-4-000
(Jan. 13, 2006), Errata Notice (Jan. 27, 2006) (together, "Wolverine Creek Letter Order"). The first amendment to
the CPA was filed with the Commission on February 23,2010, in Docket No. ER1O-793-000, which the
Commission accepted for filing on April 7, 2010. See Wolverine Creek Goshen Interconnection LLC, et al., Letter
Order, Docket No. ER1O-793-000 (Apr. 7, 2010). WCGI and Wolverine submitted a compliance filing on June 4,
2010, notifying the Commission of the effective date of the amended CPA, which was accepted by the Commission
in Wolverine Creek Goshen Interconnection LLC, et al., Letter Order, Docket No. ER1O-793-001 (Jul. 1, 2010).
DOCSCT-28815020
Los Angeles I New York I Orange County I Silicon Valley I Stamford I Washington, DC
DICKSTEINSHAPI ROLIP
The Honorable Kimberly D. Bose
March 16, 2012
Page 3
developing, owning and operating the WCGI Interconnection Facilities with a transfer capacity
sized to deliver the output of its Owners' (or their affiliate's) respective wind-powered
generation facilities to the PacifiCorp transmission system.7
WCGI, Wolverine, RAE and Goshen II are parties to the CFA. The CFA sets out the
terms under which each of Wolverine, RAE and Goshen has the right to interconnect their
respective wind generation projects to the WCGI Interconnection Facilities and use their
respective shares of available capacity on the WCGI Interconnection Facilities for delivery of
power generated by their respective projects to the PacifiCorp transmission system. Such terms
include the Owners' obligations to pay their pro-rata share of WCGI' s expenses once they begin
using that capacity. As noted above, the CFA is on file with the Commission as rate schedules of
WCGI and Wolverine, and in the Wolverine Creek Letter Order, the Commission granted WCGI
and Wolverine waivers of the Commission's open access transmission requirements under
Section 35.28 and Parts 37 and 358 of the Commission's regulations.8 WCGI is also an exempt
wholesale generator (
64EWG 3
).9
Wolverine owns a 64.5 MW (nameplate) wind-powered generation facility (the "WCE
Project") that currently interconnects to the WCGI Interconnection Facilities, which are used by
Wolverine to deliver its power to the PacifiCorp transmission system.'° Goshen II owns a 124.5.
MW (nameplate) wind-powered generation facility (the "GPII Project") that also currently
interconnects to the WCGI Interconnection Facilities, which are used by Goshen II to deliver its
power to the PacifiCorp transmission system.11 RAE is not at present using the WCGI
Interconnection Facilities because its wind-powered generation project or projects have not yet
been constructed.
Under the CFA, each of the Owners' rights to use the WCGI Interconnection Facilities is
based on the ratio of the capacity amount of its generation project over the Design Capacity (as
7 See CFA, 2.1.
8 In the Wolverine Creek Letter Order, the Commission also granted WCGI the same types of waivers and blanket
authorizations granted to market-based rate entities with respect to rate and financial regulation under Parts 35, 141
and 34 of the Commission's regulations.
9 See Wolverine Creek Goshen Interconnection LLC, 111 FERC 162,209 (2005).
10 Wolverine has market-based rate authority and waivers and blanket authorizations that the Commission grants to
entities with market-based rate authority. See Wolverine Creek Energy LLC, Docket No. ER06-230-000, Letter
Order, (Jan. 13, 2006). Wolverine is also an EWG. See Wolverine Creek Energy LLC, 111 FERC ¶ 62,210 (2005).
Goshen II has market-based rate authority and the waivers and blanket authorizations that the Commission grants
to entities with market-based rate authority. See Goshen Phase IILLC, Docket Nos. ER1O-1821-000 and -001,
Letter Order, (Oct. 7, 2010). Goshen II is also an EWG. See Eagle Creek Hydro Power, LLC, et al., Docket Nos.
EG10-48-000, et al., Notice of Effectiveness of Exempt Wholesale Generator Status (Oct. 1, 2010).
DICKSTE1NSHAPIROLLP
The Honorable Kimberly D. Bose
March 16, 2012
Page 5
RAE has been developing potential wind-powered projects to be connected to the WCGI
Interconnection Facilities. One such project RAE is developing, through its wholly-owned
subsidiary, Meadow Creek Project Company LLC ("Meadow Creek"), will consist of wind
energy electric generation facilities to be located in Bingham County, Idaho totaling
approximately 119.7 MW (collectively, the "Meadow Creek Project' ).'6 The CFA contemplates
the interconnection to the WCGI Interconnection Facilities of an RAE Project (defined as one or
more wind powered generation facilities developed by RAE or its affiliates in, inter alia,
Bingham County, Idaho, with an aggregate nameplate capacity that does not exceed RAE's
Common Facilities Percentage Interest), owned by RAE or an affiliate. 17
Because RAE will indirectly own the Meadow Creek Project through its subsidiary,
Meadow Creek, RAE plans to assign the portion of RAE's ownership interests in WCGI and
RAEs Common Facilities Percentage Interest that corresponds to the 119.7 MW amount of
Meadow Creek's generation planned to interconnect to the WCGI Interconnection Facilities (the
"Meadow Creek Share") and to reduce RAE's ownership in WCGI and the RAE Share in the
CFA by the corresponding amount. RAE has requested that Owners amend and restate the CFA
in the form of the Amended CPA to reflect the rights and obligations of Meadow Creek, as an
owner of WCGI, with rights to use the WCGI Interconnection Facilities consistent with the
Meadow Creek Share. 18
III. Description of Proposed Amended CFA
Once the Amended CFA becomes effective on the Execution Date, as described in
Section IV below, it will supersede and replace the existing CFA as described below.
16 RAE decided, as a business matter, to assign the development rights for the Meadow Creek Project to Meadow
Creek, RAE's special purpose subsidiary, to complete the development of the project. RAE has advised WCGI and
Wolverine that the Meadow Creek Project will consist of two "qualifying small power production facilities" within
the meaning of the Commission's regulations at 18 C.F.R. § 292.203(a) ("QE"): the approximately 77.7 MW North
Point Project and the approximately 38.8 MW Five Pine Project. See notice of self-certification of QF status, filed
by Meadow Creek for North Point Project, Docket No. QF 12-1 75-000; notice of self-certification of QF status, filed
by Meadow Creek for Five Pine Project, Docket No. QF12-176-000, (Jan. 26, 2012). RAE has advised WCGI and
Wolverine that Meadow Creek has not yet applied for market-based rate authority, waivers of the Commission's
open access transmission requirements or EWG status, given the early stage of the Meadow Creek Project's
development, but plans to do so prior to the initial generation of electric energy by the Meadow Creek Project.
17 See, e.g., CFA, §1.1(oo), 2.1 and 2.6.
18 The admission of Meadow Creek as an owner of WCGI will be implemented through an amendment to the limited
liability company agreement of WCGI ("Amended WCGI LLC Agreement"), but it will not occur until after certain
conditions are satisfied, including obtaining the Commission's approval under Section 203 of the FPA of the
proposed change in WCGI's ownership and the Commission's acceptance under Section 205 of the Amended CFA.
On the same date as this filing of the Amended CPA, a separate application under Section 203 of the FPA for the
proposed ownership change in WCGI has been filed with the Commission by WCGI and RAE.
DICKSTE INS HA P t ROLIP
The Honorable Kimberly D. Bose
March 16,2012
Page 7
(3)Section 3.2 of the CFA will be amended to modify Wolverine's right to elect to
use excess capacity on the WCGI Interconnection Facilities from the current right
to elect to use 30 MW of the excess over Design Capacity to the right to elect to
use the first 10 MW of excess capacity on the WCGI Interconnection Facilities
above the nameplate capacity of the currently existing WCE Project, the GPII
Project and the Meadow Creek Project and to confirm RAE the right to use the
remaining excess capacity. 24
(4)Certain technical modifications will be made to the metering requirements of
Section 2.11 to provide for the collection of additional information, as may be
required to track the operation of each project and the addition of Section 2.3(e) to
accommodate Meadow Creek's request for equipment to monitor the design
capacity usage of the WCGI Interconnection Facilities.
(5)Sections 2.3(b) and (c) will be deleted because they are no longer operative or
necessary since the referenced facilities in those sections were completed several
years ago.
(6)The definition of the LLC Agreement will be revised to reference the Amended
WCGI LLC Agreement.
(7)Certain clarifying language will be added to arbitration and contract integration
provisions in Sections 2.21 and 4.3.
Other than as described above, the terms and conditions of the Amended CFA are
substantially similar to the CFA.25
23 See Amended CFA, §1.1(1). The definition of the GPII Project will also be clarified to reflect the actual
nameplate rating. See Amended CPA, § 1.1(v).
24 See, e.g., Amended CFA, §§ 3.2 and 1.1(q).
25 As noted supra, in the Wolverine Creek Letter Order, the Commission granted WCGI and Wolverine waivers of
the Commission's open access requirements because the WCGI Interconnection Facilities are limited, discrete
facilities that will be used for the purpose of delivering its owners' power to the transmission grid. After the
Amended CFA becomes effective, the WCGI Interconnection Facilities will continue to be limited, discrete facilities
used by its owners. Since Meadow Creek is an affiliate of RAE (an owner of WCGI) and will be an owner of
WCGI, and the existing CFA contemplates interconnection of affiliate projects, the proposed interconnection of an
RAE's subsidiary to use a portion of RAE's existing rights to the WCGI Interconnection Facilities does not
materially change the facts upon which the open access waivers were granted and does not trigger any open access
transmission tariff requirements. See also Terra-Gen Dixie Valley, LLC, et. al., 132 FERC 161,215 at P 47 (20 10)
(clarifying that OATT requirement is not triggered upon receiving a request for transmission service from an
affiliated third party).
DICKSTEINSHAPRO,
The Honorable Kimberly D. Bose
March 16, 2012
Page 9
(g) RAE has paid, or caused to be paid, to Goshen II its costs and expenses incurred in
connection with the Amended CFA, the WCGI LLC Agreement and the Amended SFA..
The Applicants request that the Commission accept the Amended CFA for filing, without
modification, to become effective on the Execution Date. The Applicants do not yet know when
the Execution Date will occur because it is contingent on the satisfaction of various conditions.
However, after the Commission accepts the Amended CFA for filing and the Execution Date
occurs, the Applicants commit to make an informational compliance filing within ten (10) days
after such date occurs resubmitting the executed Amended CFA in the form attached hereto
notifying the Commission of the effective date. 28 The Applicants request that the Commission,
in its order accepting the Amended CFA for filing, confirm that, to the extent the executed
Amended CFA submitted in such supplemental compliance filing has no changes other than its
execution date, signatures, and the completion of other placeholders for dates, no further action
will be required by the Commission for the Amended CFA to become effective as their
respective rate schedules on the Execution Date.
The Applicants request waiver of the Commission's sixty day prior notice requirement
under 18 C.F.R. § 35.3 of the Commission's regulations to the extent that the Execution Date
occurs less than sixty days after the date this filing is submitted to the Commission. Waiver is
consistent with Central Hudson Gas & Electric Corp., 60 FERC ¶ 61,106, order on reh 'g, 61
FERC ¶ 61,089 (1992) because there is no rate impact (i.e., the Amended CFA will adjust the
Common Facilities Percentage Interest as described herein and makes a number of technical
changes as described herein). Also, to the extent the effective date occurs more than 120 days
after the date of this filing, the Applicants request waiver of Section 35•3•29
28 See, e.g., Bishop Hill Energy LLC, et al., Letter Order, Docket Nos. ER12-847-000, et al. (March 5, 2012) as
corrected by the Errata to the Letter Order (March 5, 2012) (granting a FERC rate schedule date that was tied to the
execution date that would not occur until future conditions were satisfied and allowing subsequent informational
compliance filing to submit a signed agreement and notify of the actual effective date); Grand Ridge Energy IV
LLC, Letter Order, Docket No. ER1 1-128-000 (Dec. 2, 20 10) (granting a FERC rate schedule date that was tied to
an execution date that would not occur until satisfaction of future conditions and allowing subsequent informational
compliance filing to submit a signed agreement and notify of the actual effective date); Potomac Electric Power Co.,
Docket No. ER08-1 152-000 (Jun. 23, 2008) (granting a FERC rate schedule effective date of a contract that was tied
to the satisfaction of future conditions and allowing a subsequent informational compliance filing to incorporate
actual effective date); see also Potomac Electric Power Co., 93 FERC 161,240 at 61,799 (2000) (The Commission
granted request to accept interconnection agreements with effective date tied to a future date and with certain
information omitted because it would not be known until such closing date and to make an informational filing after
closing).
29 See, e.g., Southern California Edison Co., 106 FERC ¶ 61,183 at PP 5 and 46 (2004) (Commission granted waiver
of the 120 day requirement finding good cause where effective date was tied to closing of related transaction).
D ICKSTE INS HA P IROLLP
The Honorable Kimberly D. Bose
March 16, 2012
Page 11
VI. Conclusion
The Applicants request that the Commission accept the Amended CFA for filing with the
effective date requested herein and grant the waivers requested herein.
Respectfully submitted,
/s/ Laura V. Szabo
Laura V. Szabo
Dickstein Shapiro LLP
One Stamford Plaza.
Stamford, CT 06901
Counsel for Wolverine Creek
Goshen Interconnection LLC
and Wolverine Creek Energy LLC
Patricia Alexander
Energy Industry Advisor
Dickstein Shapiro LLP
1825 Eye Street, N.W.
Washington, DC 20006
139 FERC ¶ 62,043
UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Ridgeline Alternative Energy, LLC Docket No. EC12-82-000
Wolverine Creek Goshen Interconnection LLC
ORDER AUTHORIZING DISPOSITION
OF JURISDICTIONAL FACILITIES
(Issued April 16, 2012)
On March 16, 2012, as amended on March 22, 2012, Ridgeline Alternative
Energy, LLC (Ridgeline) and Wolverine Creek Goshen Interconnection, LLC (Wolverine
Goshen) (jointly Applicants) filed an application pursuant to section 203(a)(1) of the
Federal Power Act (FPA)1 requesting Commission authorization for the disposition of
jurisdictional facilities resulting from the transaction by which Meadow Creek Project
Company LLC (Meadow Creek) will become a member of Wolverine Goshen
(Transaction). The jurisdictional facilities associated with the Transaction are the
common facilities agreement (CFA) and an approximately 18.2 mile electric FPA
jurisdictional interconnection line and related equipment (WCGI Interconnection
Facilities).
Applicants state that Wolverine Goshen is a public utility under the FPA which
owns FPA-jurisdictional interconnection facilities and has a rate schedule on file with the
Commission. Applicants state that the current direct owners of Wolverine Goshen are
Ridgeline; Goshen Phase II LLC (Goshen), an affiliate of Ridgeline; and Wolverine
Creek Energy LLC (Wolverine Creek), which is not an affiliate of Ridgeline or Goshen.
Applicants state that the Transaction relates to the proposed interconnection of a wind
farm being developed by Meadow Creek, a wholly-owned subsidiary of Ridgeline, which
will require that Meadow Creek become a direct owner of Wolverine Goshen and that
Ridgeline reduce its ownership interests in Wolverine Goshen by a proportionate amount
so that, upon consummation of the Transaction, the ownership interests in Wolverine
Goshen held by Ridgeline will decrease proportionally by the amount that Meadow Creek
acquires.
Applicants state that Ridgeline is a Delaware limited liability company that was
formed for the purpose of developing wind energy projects. Ridgeline either directly, or
through subsidiaries, is in various stages of developing wind farms in Idaho, referred to
herein collectively as the Goshen Phase III Project. Applicants state that Ridgeline is a
1 16 U.S.C. § 824b (2006).
Docket No. EC12-82-000 -2 -
holding company as defined in Section 1262(8) of the Public Utility Holding Company
Act of 2005 (PUIHCA), solely due to its indirect ownership of one or more exempt
wholesale generators (EWGs) and qualifying facilities (QFs) as defined in the
Commission's regulations at 18 C .F.R. § 292.101 (b)( 1). Applicants add that Ridgeline
currently owns no physical assets and has neither applied for nor received market-based
rate authority from the Commission.
Applicants state that Ridgeline currently owns, through intermediate companies,
an indirect 12.5 percent interest in Goshen, which owns a 124.5 megawatt (MW) wind
energy project (the Goshen Phase II Project), located in Idaho, in the balancing authority
area (BAA) of PacifiCorp East. Applicants state that Goshen has received market-based
rate authority from the Commission and is an EWG as defined in Section 1262(6) of
PUHCA. Goshen owns an approximately 7 mile generation tie line and associated
facilities (Goshen Tie Line) and Ridgeline holds rights to acquire an ownership interest in
the Goshen Tie Line pursuant to the terms of a Shared Facilities Agreement (SFA) by and
between Ridgeline and Goshen. Applicants state that the SFA was accepted for filing by
the Commission and made effective as of September 1, 2010, pursuant to Section 205 of
the FPA, and Goshen and Ridgeline have been granted waivers of Commission Order
Nos. 888, 889 and 890 in connection with their activities under the SFA.
Applicants state that Ridgeline also owns 100 percent of Meadow Creek, a
Delaware limited liability company, that is developing a wind energy project located
adjacent to the Goshen II Project in Idaho (Meadow Creek Project). The Meadow Creek
Project will consist of two separate QFs, each located more than one mile apart: the
approximately 77.7 MW North Point Project and the approximately 38.8 MW Five Pine
Project. Applicants state that these projects are currently in development and
construction has not yet begun. Applicants add that, given the early stage of the Meadow
Creek Project's development, Meadow Creek has not yet applied to the Commission for
market-based rate authority for sale of electric energy from the Meadow Creek Project or
filed notice of EWG status, but will do so prior to the initial generation of electric energy
by the Meadow Creek Project.
Applicants state that in addition to its interest in Goshen and Meadow Creek,
Ridgeline also owns a 20 percent indirect interest in Rockland Wind Farm LLC
(Rockland). Rockland is a Delaware limited liability company that owns a 79.86 MW
wind energy project located in the Idaho Power Company BAA (Rockland Project).
Applicants state that Rockland has received market-based rate authority from the
Commission and is an EWG. The Rockland Project is also a QF. Applicants add that
Rockland is not participating in the Transaction. In addition to its indirect interests in
Goshen, Meadow Creek and Rockland, Ridgeline holds directly an ownership interest in
Wolverine Goshen of approximately 43.5 percent and, through its 12.5 percent interest in
Goshen, owns indirectly another interest in Wolverine Goshen of approximately 4.7
percent, for an aggregate interest in Wolverine Goshen of approximately 48.2 percent.
Docket No. EC12-82-000 -3 -
Applicants state that Ridgeline is indirectly owned 100 percent by EOLFI S.A., a
French Corporation (EOLFI). EOLFI is owned 71.49 percent by Veolia S.A. (Veolia), a
French corporation, 9.46 percent by AsahLm, a French civil partnership (société civile),
and 19.02 percent by Transvers, a French private investment corporation. Applicants add
that none of EOLFI, Asah Lm or Transvers, or their affiliates, currently owns, operates or
controls electric generation or transmission facilities in the United States.
Applicants state that through its affiliate, Dalkia S.A.S., Veolia's energy
operations include the operation of biomass facilities, combined heat and power plants,
and local district heating and cooling systems in Europe, Latin America, China, the
United States, Canada, the Middle East and the Asia Pacific Region.
Applicants state that Wolverine Goshen is a public utility that owns and operates
the WCGI Interconnection Facilities that currently connect a wind farm owned by
Wolverine Creek and the Goshen Phase II Project to the transmission system of
PacifiCorp. Wolverine Goshen's current direct owners are Wolverine Creek (which is
also Wolverine Goshen's managing member), with an approximately 19.3 percent
interest, Goshen with an approximately 37.2 percent interest, and Ridgeline, which holds
the residual interest of approximately 43.5 percent.
Applicants state that the ownership interests of Wolverine Creek, Ridgeline and
Goshen in Wolverine Goshen are governed by Wolverine Goshen's limited liability
agreement, which calculates the ownership interests using the Common Facilities
Percentage Interest definition in the CFA among Wolverine Goshen and its owners that
governs their right to use the WCGI Interconnection Facilities. Under the CFA, the
Common Facilities Percentage Interest is based on the ratio of the capacity amount of an
owner's generation project over the Design Capacity (as defined in the CFA) of the
WCGI Interconnection Facilities, which is currently calculated as follows:
(A)Wolverine Creek - the ratio equal to (i) 65 MW (as such amount may be
increased pursuant to the CFA) (the WCE Share) over (ii) the Design Capacity of
the WCGI Interconnection Facilities (WCE Share/Design Capacity).
(B)Goshen - the ratio equal to 130 MW or if at the commercial operation date
of the Goshen Phase II Project, the nameplate capacity of the Goshen II Project is
less than 130 MW, the lesser nameplate capacity (GPII Share) over (ii) the Design
Capacity of the WCGI IntercOnnection Facilities (GPII Share/Design
Capacity).
(C)Ridgeline - the ratio equal to(i),,WCGI Interconnection Facilities Design
Capacity minus the sum of the WCE Share and the GPII Share (RAE Share) over
(ii) the WCGI Interconnection Facilities design capacity (i e, [Design Capacity -
Docket No. EC12-82-000 -4 -
(WCE Share + GPII Share)]/Design Capacity).
Applicants state that under the CFA, Design Capacity is defined as the design
capacity in MW of the WCGI Interconnection Facilities and related substation and
equipment owned by Wolverine Goshen, which will be no less than 280 MW. Applicants
add that it has been determined, based on a recent study, that the Design Capacity of the
WCGI Interconnection Facilities is 334.6 MW, at unity power factor. Thus,
using the actual Design Capacity number for WCGI Interconnection Facilities, the
Common Facilities Percentage Interests under the existing CFA, and, thus, the existing
ownership interests in Wolverine Goshen are approximately 19.3 percent for Wolverine
Creek, approximately 37.2 percent for Goshen and approximately 43.5 percent for
Ridgeline (which is approximately 145 MW).
Applicants state that the Transaction involves an assignment by Ridgeline to
Meadow Creek, its wholly-owned subsidiary, of a portion of Ridgeline's ownership
interest Wolverine Goshen in connection with the planned interconnection of the
Meadow Creek Project to the WCGI Interconnection Facilities, which will result in
Meadow Creek becoming a direct owner of Wolverine Goshen and Ridgeline reducing its
direct ownership interests in Wolverine Goshen by the amount it assigns to Meadow
Creek.
Applicants state that the Transaction will require an amendment to the CFA,
which is a rate schedule on file with the Commission. Applicants state that Wolverine
Goshen, Wolverine, Ridgeline, Goshen, and Meadow Creek will enter into an amended
and restated CFA (Amended CFA) to implement the changes needed to reflect Meadow
Creek's rights and obligations with respect to its use of the WCGI Interconnection
Facilities. Wolverine Goshen has separately filed with the Commission an unexecuted
form of the Amended CFA for acceptance by the Commission pursuant to Section 205 of
the FPA. Applicants state that the Amended CFA will be executed by the parties after
certain conditions are satisfied including, inter alia, obtaining Commission authorization
under Section 203 for the Transaction and acceptance under Section 205 of the Amended
CFA.
Applicants state that when the Transaction is consummated, the calculation of
Meadow Creek's and Ridgeline's ownership interest in Wolverine Goshen will be
modified from the calculation referenced above as follows:
(A) The Wolverine Creek share will be determined based on the ratio equal to (i)
64.5 MW (as such amount may be increased pursuant to the CFA) over (ii) the
Design Capacity of the WCGI Interconnection Facilities;
Docket No. BC 12-82-000 -5 -
(B)The Goshen share will continue to be determined based on the ratio equal to
(i) 124.5 MW over (ii) the Design Capacity of the WCGI Interconnection
Facilities;
(C)Meadow Creek will have a share (the Meadow Creek Share) based on the ratio
equal to (i) the 119.7 MW capacity of the Meadow Creek Project, over (ii) the
Design Capacity of the WCGI Interconnection facilities; and
(D)The Ridgeline Share will be determined based on the ratio equal to (i) WCGI
Interconnection Facilities Design Capacity minus the sum of the Wolverine Creek
Share, the Goshen Share and the Meadow Creek Share over (ii) the WCGI
Interconnection Facilities Design Capacity (i.e., [Design Capacity - (Wolverine
Creek Share + Goshen Share + Meadow Creek Share)]/Design Capacity).
Applicants state that as a result of the Transaction, Meadow Creek's ownership
interest in Wolverine Goshen will be approximately 35.77 percent (i.e., 119.7 MW /
334.6 MW); and Ridgeline's direct ownership interest in Wolverine Goshen will be
approximately 7.74 percent (i.e., [334.6 MW - (64.5 MW + 124.5 MW +
119.7 MW)]! 334.6 MW). Applicant adds that Wolverine Creek's and Goshen's
ownership interests in Wolverine Goshen will not change as a result of the Transaction.
Applicants state that the Transaction is consistent with the public interest and will
not have an adverse effect on competition, rates or regulation. With regard to horizontal
competition, Applicants argue that relevant market for the Transaction is the PacifiCorp
East BAA, because this is where the WCGI Interconnection Facilities are located (and
where the Goshen Phase II Project, the Meadow Creek Project, and the remainder of the
Goshen Phase II Project are or will be located. Applicants argue that the Transaction
raises no horizontal market power concerns in the relevant market because the
Transaction does not involve the transfer of interests in generation. Wolverine Goshen
does not own any generation; it owns only limited interconnection facilities to
accommodate the deliver of the power produced by its owners and their power
purchasers.
Applicants argue that the Transaction raises no vertical market power concerns
because none of the Applicants or their affiliates own or control electric transmission
facilities in the relevant market other than the WCGI Interconnection Facilities or other
discrete and limited facilities necessary to interconnect generation facilities to the
transmission grid. Additionally, none of the Applicants or their affiliates own or control
fuel supplies or fuel delivery systems in the relevant market.
Applicants argue that the Transaction will not have an adverse effect on any
wholesale rates for electric power because Wolverine Goshen does not sell power, thus, it
has no wholesale power customers. Applicants add that the Meadow Creek Project and
Docket No. EC 12-82-000 -6 -
Ridgeline's remaining share of the Goshen Phase III Project have not been constructed,
and Meadow Creek and Ridgeline are not yet public utilities. Applicants contend that the
Transaction will have no adverse effect on transmission rates. Applicants state that under
the CFA, Wolverine Goshen provides its owners (i.e., Wolverine Creek, Ridgeline, and
Goshen) with access to the WCGI Interconnection Facilities for delivery of their power to
the transmission grid. Applicants add that Wolverine Goshen has filed the form of the
Amended CFA under Section 205 of the FPA for Commission acceptance. Applicants
state that the Amended CFA, once it is accepted by the Commission, will be a rate
schedule subject to the Commission's jurisdiction and have no adverse affect on rates.
Applicants add that neither Ridgeline nor Meadow Creek provide any transmission
services.
Applicants argue that the Transaction will not impair the ability of the
Commission or any state regulatory authority to regulate Applicants. The Commission
will continue to have jurisdiction over Wolverine Goshen and its FPA-jurisdictional
facilities (i.e., the CFA, the Amended CFA, and the WCGI Interconnection Facilities)
after the Transaction is consummated as it exercises currently. Applicants add that the
Commission will be able to exercise the same jurisdiction over Ridgeline, Meadow
Creek, and the wind farms these parties are developing and will own. No facilities will
be removed from the Commission's jurisdiction. Applicants submit that the Transaction
will have no effect on state commission regulation and is not subject to approval by any
state commission. Therefore, Applicants submit that the Transaction will not have an
adverse effect on regulation.
With respect to cross-subsidization, Applicants argue that the Transaction falls
within the "safe harbor" adopted by the Commission because no franchised public
utilities with captive customers are involved. Applicants state that the Transaction
involves the admission of a new owner in Wolverine Goshen that is a subsidiary of an
existing owner. Applicants state that none of the Applicants is or will be a franchised
public utility with captive customers, nor are any of the Applicants affiliated with a
franchised public utility with captive customers.
Nonetheless, Applicants verify that, based on facts and circumstances known to it
or that are reasonably foreseeable, that the Transaction will not result in, at the time of the
Transaction or in the future: (1) any transfers of facilities between a traditional public
utility associate company that has captive customers or that owns or provides
transmission service over jurisdictional transmission facilities, and an associate company;
(2) any new issuances of securities by a traditional public utility associate company that
has captive customers or that owns or provides transmission service over jurisdictional
transmission facilities, for the benefit of an associate company; (3) any new pledge or
encumbrance of assets of a traditional public utility associate company that has captive
customers or that owns or provides transmission service over jurisdictional transmission
facilities, for the benefit of an associate company; or (4) any new affiliate contracts
Docket No. EC12-82-000 -7 -
between a non-utility associate company and a traditional public utility associate
company that has captive customers or that owns or provides transmission service over
jurisdictional transmission facilities, other than non-power goods and services agreements
subject to review under Sections 205 and 206 of the Federal Power Act.
The filings were noticed on March 16, 2012, and March 24, 2012, with comments,
protests, or interventions due on or before April 6, 2012. None were received. Notices of
intervention and unopposed timely filed motions to intervene are granted pursuant to the
operation of Rule 214 of the Commission's Rules of Practice and Procedure (18 C.F.R. §
385.2 14). Any opposed or untimely filed motion to intervene is governed by the
provisions of Rule 214.
Information and/or systems connected to the bulk power system involved in this
transaction may be subject to reliability and cybersecurity standards approved by the
Commission pursuant to FPA section 215. Compliance with these standards is
mandatory and enforceable regardless of the physical location of the affiliates or
investors, information databases, and operating systems. If affiliates, personnel or
investors are not authorized for access to such information and/or systems connected to
the bulk power system, a public utility is obligated to take the appropriate measures to
deny access to this information and/or the equipment/software connected to the bulk
power system. The mechanisms that deny access to information, procedures, software,
equipment, etc., must comply with all applicable reliability and cybersecurity standards.
The Commission, NERC or the relevant regional entity may audit compliance with
reliability and cybersecurity standards.
Order No. 652 requires that sellers with market-based rate authority timely report
to the Commission any change in status that would reflect a departure from the
characteristics the Commission relied upon in granting market-based rate authority.2
The foregoing authorization may result in a change in status. Accordingly, the Applicant
is advised that they must comply with the requirements of Order No. 652. In addition,
Applicant shall make appropriate filings under section 205 of the FPA, to implement the
Transaction.
After consideration, it is concluded that the Transaction is consistent with the
public interest and are hereby authorized subject to the following conditions:
(1) The Transaction is authorized upon the terms and conditions and for the
purposes set forth in the application;
2 Reporting Requirement for Changes in Status for Public Utilities with Market-
Based Rate Authority, Order No. 652, 70 Fed. Reg. 8,253 (Feb. 18, 2005), FERC Stats. &
Regs. ¶ 31,175, order on reh'g, 111 FERC ¶ 61,413 (2005).
Docket No. EC 12-82-000 -8 -
(2)The foregoing authorization is without prejudice to the authority of the
Commission or any other regulatory body with respect to rates, service,
accounts, valuation, estimates or determinations of cost, or any other matter
whatsoever now pending or which may come before the Commission;
(3)Nothing in this order shall be construed to imply acquiescence in any estimate
or determination of cost or any valuation of property claimed or asserted;
(4)The Commission retains authority under Sections 203(b) and 309 of the FPA to
issue further orders as appropriate;
(5)If the Transaction results in changes in the status or the upstream ownership of
Applicants' affiliated qualifying facilities, if any, an appropriate filing for
recertification pursuant to 18 C.F.R. 292.207 shall be made;
(6)Applicants shall make the appropriate filings under section 205 of the FPA, as
necessary, to implement the Transaction; and
(7)Applicants must inform the Commission of any change in circumstances that
would reflect a departure from the facts the Commission relied upon in
authorizing the Transaction.
This action is taken pursuant to the authority delegated to the Director, Division of
Electric Power Regulation - West, under 18 C.F.R. § 375.307. This order constitutes
final agency action. Requests for rehearing by the Commission may be filed within 30
days of the date of issuance of this order pursuant to 18 C.F.R. § 385.713.
Steve P. Rodgers
Director
Division of Electric Power Regulation - West
** * * ******** * * * * * ** * *
PUBLIC
**** * * * * * * ** * ** * * **
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
Ridgeline Alternative Energy, LLC )
Wolverine Creek Goshen Interconnection LLC ) Docket No. EC12- -000
JOINT APPLICATION FOR AUTHORIZATION UNDER SECTION 203
OF THE FEDERAL POWER ACT AND REQUEST FOR
CONFIDENTIAL TREATMENT, EXPEDITED CONSIDERATION AND WAIVERS
PUBLIC VERSION
PURSUANT TO THE COMMISSION'S REGULATIONS REGARDING REQUESTS
FOR PRIVILEGED TREATMENT OF DOCUMENTS SUBMITTED TO IT, 18 C.F.R.
§388.112, INFORMATION CONTAINED IN
THE PUBLIC VERSION OF EXHIBIT I OF THIS APPLICATION
CONSTITUTES PRIVILEGED, PROTECTED, CONFIDENTIAL INFORMATION AND
HAS BEEN REMOVED
************** * ** *** * *** ** * * ** ** * ***
DOCSCT-2881500v2
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
Ridgehne Alternative Energy, LLC )
Wolverine Creek Goshen Interconnection LLC ) Docket No EC12- -000
JOINT APPLICATION FOR AUTHORIZATION UNDER SECTION 203
OF THE FEDERAL POWER ACT AND REQUEST FOR
CONFIDENTIAL TREATMENT, EXPEDITED CONSIDERATION AND WAIVERS
Pursuant to Section 203 (a)( 1) of the Federal Power Act ("EPA"), as amended by the
Energy Policy Act of 2005,1 and Part 33 of the Federal Energy Regulatory Commission's
("Commission") regulations,2 Ridgeline Alternative Energy LLC, ("RAE") and Wolverine Creek
Goshen Interconnection LLC ("WCGI" and together with RAE, the "Applicants") hereby request
Commission authorization for a transaction described herein that will admit a wholly-owned
subsidiary of RAE, Meadow Creek Project Company LLC ("Meadow Creek"), as a member of
WCGI (the "Proposed Transaction")
WCGI is a public utility under the FPA It owns FPA-jurisdictional interconnection
facilities and has a rate schedule on file with the Commission, as described more fully below.
The current direct owners of WCGI are RAE; Goshen Phase II LLC ("Goshen"), an affiliate of
16 U S C § 824b (2000) as amended by Pub. L No 109-58, 119 Stats 594 (Aug 8 2005)
2 18 C F R § 33.1 et seq. (2008) as amended by the Commission's Order No 669 Transactions Subject to
EPA Section 203, FERC Stats & Regs Regulations Preambles 131,200 (2005) ("Order No 669"); order on reh g
Order 669-A, 115 FERC 161,097 (2006) ("Order No. 669-A"), order on reh 'g, Order 669-B, 116 FERC ¶ 61,076
(2006) ("Order No 669-13").
DOCSCT-2881500y2
RAE;3 and Wolverine Creek Energy LLC ("Wolverine Creek"), which is not an affiliate of RAE
or Goshen.4 The Proposed Transaction relates to the proposed interconnection of a wind farm
being developed by Meadow Creek, a wholly-owned subsidiary of RAE described more fully
below, which will require that Meadow Creek become a direct owner of WCGI and that RAE
reduce its ownership interests in WCGI by a proportionate amount so that, upon consummation
of the Proposed Transaction, the ownership interests in WCGI held by RAE will be decreased
proportionately by the amount that Meadow Creek acquires.
As explained more fully below, the Proposed Transaction will not have an adverse effect
on competition, rates, or regulation, and will not result in cross-subsidization of a non-utility
associate company or pledge or encumbrance of utility assets for the benefit of an associate
company. Accordingly, the Proposed Transaction should be approved by the Commission
pursuant to FPA Section 203. Applicants respectfully request a 21-day comment period,
expedited consideration of this Application, and that the Commission issue an order authorizing
the Proposed Transaction by or before April 15, 2012.
I. REQUEST FOR EXPEDITED CONSIDERATION AND APPROVAL
This Application qualifies for expedited consideration, as it does not involve a merger or
consolidation of a traditional utility with a franchised service area, is consistent with
Commission precedent and the public interest, and involves a transaction that does not require an
Appendix A analysis, as set forth in Section 33.11 (c)(2) of the Commission's regulations
Goshen is not an applicant here because it is not disposing of any Commission jurisdictional facilities or
acquiring any interests in Commission jurisdictional facilities or companies in connection with the Proposed
Transaction.
Wolverine Creek is not an applicant under this 203 Application because it is not disposing of any
Commission jurisdictional facilities, nor is it acquiring any interests in Commission jurisdictional facilities or
companies, in connection with the Proposed Transaction.
18 C.F.R. § 33.11(c)(2).
-2-
Accordingly, consistent with Order No. 669, the Applicants request that the Commission
establish a 21-day notice period for comments on the Application.6 The Applicants further
request that the Commission issue an order approving the Proposed Transaction no later than
April 15, 2012. Good cause exists for requesting expedited action because Meadow Creek is
arranging financing for its wind energy generating facility, described herein, and expects as part
of the financing documentation to be required to show that its interconnection arrangements,
including its proposed acquisition of an ownership interest in WCGI pursuant to the Proposed
Transaction, have the necessary Commission approvals
II. REQUEST FOR CONFIDENTIAL TREATMENT
Pursuant to Sections 33.9 and 388.112(b) of the Commission's regulations,7 the
Applicants request privileged and confidential treatment for the transaction agreements contained
in confidential Exhibit I The information in confidential Exhibit I is commercially sensitive
and, therefore, not publicly available. The release of such information would likely cause
substantial harm to the competitive position of the Applicants, including an impediment in future
negotiations of similar transactions not Just for the Applicants but for other parties that might
engage in similar transactions
The Applicants submit a confidential version of this Application, marked "Contains
Privileged and Confidential Information - Do Not Release Pursuant to 18 C F R
§ 388.122," and ask that the confidential version be placed in the Commission's non-public files.
The Applicants also submit a public version of this Application with the confidential agreements
removed The Applicants understand that the Commission Staff will notify them in advance of
any public disclosure of any information contained in confidential Exhibit I. Any questions
6 Order No. 669 at P 194.
18CFR §339and388112(b)
-3-
concerning this request for confidential treatment should be directed to counsel listed in Section
VI.B below. A proposed protective order that includes a restriction of the ability of competitive
duty personnel to view the confidential material, should it be needed, is included as Attachment
1.
III. DESCRIPTION OF APPLICANTS
A. RAE and its Affiliates
RAE is a Delaware limited liability company that was formed for the purpose of
developing wind energy projects. RAE either directly, or through subsidiaries, is in various
stages of developing wind farms in Idaho, referred to herein collectively as the "Goshen Phase
III Project." RAE is a "holding company" as defined in Section 1262(8) of the Public Utility
Holding Company Act of 2005 ("PUHCA"), solely due to its indirect ownership of one or more
EWGs and "qualifying facilities" as defined in the Commission's regulations at 18 C.F.R. §
292.101 (b)(1) ("Q"), but currently owns no physical assets and has neither applied for nor
received market-based rate authority from the Commission.
RAE currently owns, through intermediate companies, an indirect 12.5% interest in
Goshen, which owns a 124.5 MW (nameplate) wind energy project (the "Goshen Phase II
Project"), located in Bonneville County, Idaho, in the balancing authority area ("BAY) of
PacifiCorp East.8 Goshen has received market-based rate authority from the Commission 9 and is
an "exempt wholesale generator" ("EWG") as defined in Section 1262(6) of PUHCA. iO Goshen
8 The balance of the membership interests in Goshen is currently held 37.5% by Diamond Generating
Corporation ("Diamond") (indirectly, through intermediate holding companies), and 50% by BP Wind Energy North
America Inc. ("BPWENA") (indirectly, through intermediate holding companies). Neither Diamond nor BPWENA
is affiliated with RAE.
See Goshen Phase II LLC, Docket No. ER1 0-1821-000 and -001 (Oct. 7, 2010) (unpublished letter order).
See Eagle Creek Hydro Power, LLC, et al., Docket No. EG1 0-48-000, et al., Notice of Effectiveness of
Exempt Wholesale Generator Status, Oct. 1, 2010.
-4-
owns an approximately 7 mile generation tie line and associated facilities ("Goshen Tie Line")
and RAE holds rights to acquire an ownership interest in the Goshen Tie Line pursuant to the
terms of a Shared Facilities Agreement ("SPA") by and between RAE and Goshen. The SPA
was accepted for filing by the Commission and made effective as of September 1, 2010 pursuant
to Section 205 of the FPA, and Goshen and RAE have been granted waivers of Commission
Order Nos. 888, 889 and 890 in connection with their activities under the SPA."
RAE also owns 100% of Meadow Creek, a Delaware limited liability company, that is
developing a wind energy project located adjacent to the Goshen II Project in Bonneville
County, Idaho ("Meadow Creek Project").12 The Meadow Creek Project will consist of two
separate QFs, each located more than one mile apart: the approximately 77.7 MW North Point
Project13 and the approximately 38.8 MW Five Pine Project.14 These projects are currently in
development and construction has not yet begun. Given the early stage of the Meadow Creek
Project's development, Meadow Creek has not yet applied to the Commission for market-based
rate authority for sale of electric energy from the Meadow Creek Project or filed notice of EWG
status, but will do so prior to the initial generation of electric energy by the Meadow Creek
Project.'5
See Goshen Phase II LLC et al.,133 FERC 61,090 (2010) The Goshen Tie Line interconnects the
Goshen Phase II Project to the WCGI Interconnection Facilities described in Section 111.13 below. WCGI does not
own or control any interests in the Goshen Tie Line nor is it a party to the SFA.
12 RAE was developing the Meadow Creek Project as one of the Goshen III Projects and RAE decided, as a
business matter to assign, the development rights for the Meadow Creek Project to Meadow Creek, RAE's special
purpose subsidiary, to complete the development of the project.
B See notice of self-certification of QF status, filed by Meadow Creek for North Point Project, Docket No.
QF12-175-000, Jan. 26, 2012.
14 See notice of self-certification of QF status, filed by Meadow Creek for Five Pine Project, Docket No.
QF12-176-000, Jan. 26, 2012.
15 In connection with a separate transaction (the "RAE/Goshen/MC Transaction"), separate requests will be
filed with the Commission, asking that the Commission (i) accept for filing without modification under FPA Section
205 a proposed amendment of the SFA (the "Amended SFA"), which will amend and restate the SFA in order to
effectuate Meadow Creek's acquisition of a partial ownership interest in the Goshen Tie Line, and (ii) approve under
-5-
In addition to its interest in Goshen and Meadow Creek, RAE also owns a 20% indirect
interest in Rockland Wind Farm LLC ("Rockland"). 16 Rockland is a Delaware limited liability
company that owns a 79.86 MW wind energy project located in the Idaho Power Company BAA
("Rockland Project"). Rockland has received market-based rate authority from the
Commission 17 and is an EWG.18 The Rockland Project is also a QF.19 Rockland is not
participating in the Proposed Transaction.
Finally, in addition to its indirect interests in Goshen, Meadow Creek and Rockland, RAE
holds directly an ownership interest in WCGI described in Section 111.13 below of approximately
43.5% and, through its 12.5% interest in Goshen, owns indirectly another interest in WCGI of
approximately 4.7%, for an aggregate interest in WCGI of approximately 48.2%.20 WCGI is
described more fully below.
RAE does not own any electric transmission facilities other than through its interest in
WCGI and it rights, as described above, to acquire an ownership interest in the Goshen Tie Line.
RAE is indirectly owned 100% by EOLFI S.A., a French Corporation ("EOLFI").
EOLFI is owned 71.49% by Veolia S.A. ("Veolia"), a French corporation specializing through
FPA Section 203 Meadow Creek's proposed acquisition of a partial ownership interest in the Goshen Tie Line.
Meadow Creek needs partial ownership and use of the Goshen Tie Line in order to interconnect the Meadow Creek
Project to the WCGI Interconnection Facilities described in Section 111.13 below. WCGI is not involved in the
RAE/Goshen/MC Transaction because WCGI is not a party to the SFA (and will not be a party to the proposed
Amended SPA) nor does it, or will it, own or control any interests in the Goshen Tie Line. Accordingly, WCGI will
not be an applicant in the separate FPA Sections 203 or 205 proceedings involving the RAE/Goshen/MC
Transaction.
16 The balance of the membership interests in Rockland is held 50% by Diamond (indirectly, through
intermediate holding companies), and 30% by Atlantic Power Corporation ("Atlantic Power") (indirectly, through
intermediate holding companies). Neither Diamond nor Atlantic Power is affiliated with RAE.
See Rock/and Wind Farm LLC, 137 FERC 161,102 (2011).
18 See Pau/ding Wind Farm II LLC, et al., Docket Nos. EG1 1-61-000, et at, Notice of Effectiveness of
Exempt Wholesale Generator Status, June 13, 2011.
See unpublished letter order, Docket No. QF 10-574-000, Oct. 5, 2010; notice of self-recertification, Docket
No. QF1O-574-001 ,filed Sept. 14, 2011.
20 See Section 111.13, below for a description of how the current direct ownership interests in WCGI held by
RAE, Goshen and Wolverine Creek are calculated.
its various subsidiaries in the areas of water cycle management, waste management, public
transportation and energy services, 9.46% by Asah Lm, a French civil partnership (société
civile), and 19.02% by Transvers, a French private investment corporation. None of EOLFI,
Asah Lm or Transvers, or their affiliates, currently owns, operates or controls electric generation
or transmission facilities in the United States.
Through its affiliate, Dalkia S.A.S., Veolia's energy operations include the operation of
biomass (wood) facilities, combined heat and power plants, and local district heating and cooling
systems in Europe, Latin America, China, the United States, Canada, the Middle East and the
Asia Pacific Region. Veolia has an approximately 50% indirect interest in Dalkia North
America Holdings, Inc., which in turn, owns several U.S. subsidiaries, none of which is a
traditional public utility or an electric generator.
B. WCGI
WCGI is a public utility that owns and operates an approximately 18 .2 mile electric FPA-
jurisdictional interconnection line and related equipment ("WCGI Interconnection Facilities")
that currently connects a wind farm owned by Wolverine Creek 2' (the "Wolverine Creek
Project") and the Goshen Phase II Project to the transmission system of PacifiCorp. WCGI's
current direct owners are Wolverine Creek (which is also WCGI's managing member), with an
approximately 19.3% interest, Goshen with an approximately 37.2% interest, and RAE, which
holds the residual interest of approximately 43.5%.
The ownership interests of Wolverine Creek, RAE and Goshen in WCGI are governed by
WCGI's limited liability agreement, which calculates the ownership interests using the Common
21 Wolverine Creek owns and operates a 64.5 MW (nameplate) wind-powered generating facility located in
Goshen, Idaho. Wolverine Creek is an exempt wholesale generator and has market-based rate authority. See
Wolverine Creek Energy LLC, Docket No. ER06-230-000, Letter Order, (Jan. 13, 2006) and Wolverine Creek
Energy LLC, 111 FERC 162,210 (2005). Wolverine is not an affiliate of RAE or Goshen.
-7-
Facilities Percentage Interest definition in the Common Facilities Agreement ("Qf") among
WCGI and its owners that governs their right to use the WCGI Interconnection Facilities. Under
the CFA, the Common Facilities Percentage Interest is based on the ratio of the capacity amount
of an owner's generation project over the Design Capacity (as defined in the CFA) of the WCGI
Interconnection Facilities, which is currently calculated as follows:
(A)Wolverine Creek - the ratio equal to (i) 65 MW (as such amount may be increased
pursuant to the CFA) (the "WCE Share") over (ii) the Design Capacity of the
WCGI Interconnection Facilities ("WCE Share/Design Capacity").
(B)Goshen II - the ratio equal to (i) 130 MW or if at the commercial operation date of
the GPII Project, the nameplate capacity of the Goshen II Project is less than 130
MW, the lesser nameplate capacity (the "GPII Share") over (ii) the Design
Capacity of the WCGI Interconnection Facilities ("GPII Share/Design
Capacity").22
(C)RAE - the ratio equal to (i) WCGI Interconnection Facilities Design Capacity
minus the sum of the WCE Share and the GPII Share (the "RAE Share") over (ii)
the WCGI Interconnection Facilities design capacity (i.e., [Design Capacity -
(WCE Share + GPII Share)]/Design Capacity).
Under the CFA, Design Capacity is defined as the design capacity in MW of the WCGI
Interconnection Facilities and related substation and equipment owned by WCGI, which will be
no less than 280 MW.23 It has been determined, based on a recent study, that the Design
Capacity of the WCGI Interconnection Facilities is 334.6 MW, at unity power factor. Thus,
using the actual Design Capacity number for WCGI Interconnection Facilities, the Common
Facilities Percentage Interests under the existing CFA, and, thus, the existing ownership interests
The nameplate capacity of the Goshen Phase II Project at commercial operation was 124.5 MW, which is
less than 130 MW, so the Goshen II Share under the CFA is calculated using 124.5 MW as the numerator.
See CFA, §1.1(1). In past Commission 203 filings made by WCGI describing the calculation of the amount
of its owners rights of usage of the WCGI Interconnection Facilities, or their ownership interest in WCGI, such
calculations were made using as the Design Capacity number, the minimum amount of 280 MW as an
approximation of the Design Capacity because at the time of those filings, a study had not been done to determine
the actual Design Capacity. However, the actual Design Capacity, rather than the minimum requirements, governs
the calculation under the CFA and WCGI limited liability agreement of the actual WCGI ownership amounts, and
usage rights of the WCGI Interconnection Facilities at any given time.
-8-
in WCGI are approximately 19.3% for Wolverine Creek, approximately 37.2% for Goshen II and
approximately 43.5 % for RAE (which is approximately 145 MW).
WCGI and Wolverine Creek filed with the Commission under Section 205 of the FPA the
CFA, which has been accepted for filing by the Commission as rate schedules of WCGI and
Wolverine Creek. 24 The CFA sets out the terms under which each of Wolverine Creek, RAE and
Goshen has the right to interconnect their respective wind generation projects to the WCGI
Interconnection Facilities and use their respective shares of available capacity on the WCGI
Interconnection Facilities for delivery of power generated by their respective projects to the
PacifiCorp transmission system. The CFA also establishes Wolverine Creek's, RAE's and
Goshen' s obligations to pay their pro-rata share of WCGI' s expenses for their use of that
capacity.
The Commission has granted WCGI waivers of the Commission's open access
transmission requirements under Section 35.28 and Parts 37 and 358 of the Commission's
regulations.25 The Commission also granted WCGI the same types of waivers and blanket
authorizations granted to market-based rate entities with respect to rate and financial regulation
under Parts 35, 141 and 34 of the Commission's regulations.26 WCGI is also an EWG.27
IV. DESCRIPTION OF PROPOSED TRANSACTION
The Proposed Transaction involves an assignment by RAE to Meadow Creek, its wholly-
owned subsidiary, of a portion of RAE's ownership interest in WCGI in connection with the
24 See Wolverine Creek Goshen Interconnection, LLC, et al., Letter Order, Docket No. ER06-267-000, el al.,
(Jan. 13, 2006) and Errata Notice, ER06-267-000, et al. (Jan. 27, 2006) (the "WCGI Order"). See also Wolverine
Creek Goshen Interconnection, LLC, et al., Letter Order, Docket No. ER1O-793-000 (April 7, 2010) (accepting for
filing amendment to CFA).
25 Id
26 Id
27 Wolverine Creek Goshen Interconnection LLC, 111 FERC ¶ 62,209 (2005).
In
planned interconnection of the Meadow Creek Project to the WCGI Interconnection Facilities,
which will result in Meadow Creek becoming a direct owner of WCGI and RAE reducing its
direct ownership interests in WCGI by the amount it assigns to Meadow Creek .28 Thus, when
the Proposed Transaction is consummated, the calculation of Meadow Creek's and RAE's
ownership interest in WCGI will be modified from the calculation referenced in Section II. B
above as follows:
(A)The Wolverine Creek share will be determined based on the ratio equal to (i) 64.5
MW 29 (as such amount may be increased pursuant to the CFA) over (ii) the Design
Capacity of the WCGI Interconnection Facilities;
(B)The Goshen share will continue to be determined based on the ratio equal to
124.5 MW over (ii) the Design Capacity of the WCGI Interconnection Facilities;
(C)Meadow Creek will have a share (the "Meadow Creek Share") based on the ratio
equal to (i) the 119.7 MW capacity of the Meadow Creek Project, over (ii) the Design
Capacity of the WCGI Interconnection facilities; and
(D)The RAE Share will be determined based on the ratio equal to (i) WCGI
Interconnection Facilities Design Capacity minus the sum of the Wolverine Creek
Share, the Goshen Share and the Meadow Creek Share over (ii) the WCGI
Interconnection Facilities Design Capacity (i.e., [Design Capacity - (Wolverine Creek
Share + Goshen Share + Meadow Creek Share)]/Design Capacity).
RAE's assignment of a portion of its ownership interest in WCGI to Meadow Creek will also be
accompanied by corresponding assignment of a portion of RAE's rights and obligations under the CFA. The
Proposed Transaction will require an amendment to the CFA, which is a rate schedule on file with the Commission.
WCGI, Wolverine, RAE, Goshen, and Meadow Creek will enter into an amended and restated CFA ("Amended
CPA") to implement the changes needed to reflect Meadow Creek's rights and obligations with respect to its use of
the WCGI Interconnection Facilities. WCGI has separately filed with the Commission an unexecuted form of the
Amended CFA for acceptance by the Commission pursuant to Section 205 of the FPA. The Amended CFA will be
executed by the parties after certain conditions are satisfied including, inter alia, obtaining Commission
authorization under Section 203 for the Proposed Transaction and acceptance under Section 205 Of the Amended
CFA.
The Amended CFA will contain a clarification to adjust the 65 MW amount currently used for the
calculation of its ownership interest to Wolverine's existing project's nameplate amount of 64.5 MW. Thus, there
will be negligible reduction in Wolverine's ownership interest in WCGI.
The Amended CPA will contain a clarification to insert the 124.5 MW amount currently used for the
calculation of Goshen's ownership interest, which is the number already used under the existing CPA Common
Facilities Percentage Interest formula.
-10-
As a result of the Proposed Transaction, Meadow Creek's ownership interest in WCGI
will be approximately 35.77% (i.e., 119.7 MW / 334.6 MW); and RAE's direct ownership
interest in WCGI will be approximately 7.74% (i.e., [334.6 MW - (64.5 MW + 124.5 MW +
119.7 MW)]! 334.6 MW). Wolverine Creek's and Goshen's ownership interests in WCGI will
not change as a result of the Proposed Transaction.
Exhibit I contains the transaction agreements for the Proposed Transaction, which are
described below. The public version of Exhibit I contains the form of the Amended CFA that
WCGI, Wolverine Creek, RAE, Goshen and Meadow Creek will enter into, which will amend
the CFA to reflect Meadow Creek's rights and obligations with respect to use of the WCGI
Interconnection Facilities to deliver power from the Meadow Creek Project and which will not
be executed or become effective until certain conditions are met, including obtaining an order
from the Commission under Section 205 accepting the Amended CFA for filing and an order
under Section 203 for the Proposed Transaction. Confidential Exhibit I contains (i) the form of
an amended and restated limited liability agreement that WCGI, Wolverine Creek, RAE, Goshen
and Meadow Creek will enter into in order to effectuate Meadow Creek's acquisition of an
ownership interest in WCGI (the "WCGI Amended LLC Agreement"), which will not become
effective until certain conditions are met, including obtaining Section 203 approval, (ii) an
agreement among WCGI, Wolverine Creek, RAE, Goshen and Meadow Creek regarding the
conditions required to be satisfied before executing the Amended CFA and WCGI Amended
LLC Agreement, and (iii) the substantially final form of agreement that RAE and Meadow Creek
will enter into at the time of closing on the Proposed Transaction to effectuate the transfer of a
portion of RAE's ownership interests in WCGI to Meadow Creek.
-11-
Consummation of the Proposed Transaction is contingent upon, among other things, the
Commission approvals described above.
V. THE COMMISSION SHOULD APPROVE THE PROPOSED
TRANSACTION PURSUANT TO SECTION 203 OF THE FPA
A. Legal Standard
Commission approval under Section 203(a)(1) of the FPA is required prior to the
disposition ofjurisdictional facilities with a value in excess of $10,000,000. The Commission
has interpreted Section 203(a)(1) of the FPA to include indirect changes of control of
jurisdictional facilities. 31
Section 203(a)(4) of the FPA requires that the Commission approve jurisdictional
transactions that are "consistent with the public interest." When analyzing the effects of
jurisdictional transactions on the public interest under Section 203 of the FPA, the Commission
relies upon the analysis set forth in Order No. 592, the Commission's Merger Policy Statement, 32
and Order No. 642. The Commission generally considers the following three factors in
FPA Section 203 Supplemental Policy Statement, FERC Stats. & Regs., Regs. Preambles 131,253 at P 45
(2007), order on clarification and reconsideration, 122 FERC 161,157 (2008) (the "203 Supplemental Policy
Statement"), and Phelps Dodge Corporation, et al., 121 FERC ¶ 61,251 at P 15 (2007) (indirect transfers of control
ofjurisdictional facilities fall within the "or otherwise dispose" language of Section 203(a)(1)(A) of the FPA). RAE
believes that, to the extent it may be considered a "holding company," as defined in Section 1262(8) of the Public
Utility Holding Company Act of 2005 ("PUHCA"), Section 203(a)(2) is not applicable because, under the terms of
the Proposed Transaction, it is not purchasing, acquiring, or taking any security, or merging or consolidating with, a
transmitting utility, an electric utility company or a holding company in a holding company system that includes a
transmitting utility or an electric utility company. To the extent RAE might be considered to be indirectly acquiring
or taking such a security via its ownership of Meadow Creek, RAE is a holding company solely with respect to its
direct or indirect ownership of one or more EWGs, thus, it qualifies for a blanket authorization with respect to
Section 203(a)(2) of the FPA pursuant to 18 C.F.R. § 33.1(c)(8).
32 Inquiry Concerning the Commission's Merger Policy Under the Federal Power Act: Policy Statement,
Order No. 592, FERC Stats. & Regs., Regs. Preambles ¶ 31,044 (1996) ("Merger Policy Statement"),
reconsideration denied, Order 592-A, 79 FERC ¶ 61,321(1997) (codified at 18 C.F.R. Part 2).
Revised Filing Requirements Under Part 33 of the Commission's Regulations, Order No. 642, FERC Stats.
& Regs., Regs. Preambles 13 1,111, at 31,879 (2000) ("Order No. 642"), on reh 'g, Order No. 642-A, 94 FERC ¶
61,289 (2001) (codified at 18 C.F.R. § 33.2(g)).
-12-
I
analyzing applications pursuant to Section 203 of the FPA: (1) the effect on competition; (2) the
effect on rates; and (3) the effect on regulation. 34
In addition, FPA Section 203(a)(4) requires a showing that a proposed transaction will
not result in cross-subsidization of a non-utility associate company or pledge or encumbrance of
utility assets for the benefit of an associate company.
As demonstrated below, the Proposed Transaction is consistent with the public interest
and will not result in cross-subsidization of a non-utility associate company or the pledge or
encumbrance of utility assets for the benefit of an associate company.
B The Proposed Transaction is Consistent with the Public Interest
As explained in Section III above, the Proposed Transaction involves the admission of
Meadow Creek as a new owner of WCGI and a corresponding reduction in the direct ownership
interests RAE holds in WCGI. Thus, the Proposed Transaction involves a partial change in the
direct ownership of WCGI (even though RAE will continue to, in the aggregate, own directly
and indirectly, the same amount of ownership interests in WCGI). Although the Proposed
Transaction does not involve any change in WCGI's direct ownership of its FPA-jurisdictional
facilities, the Commission might view the Proposed Transaction as an indirect disposition subject
to its Section 203(a)(1)(A) jurisdiction As demonstrated below, the Proposed Transaction is
consistent with the public interest, because it will not have an adverse effect on competition,
rates or regulation and does not raise cross subsidy concerns.
1. The Proposed Transaction will not have an adverse effect on
competition in the relevant markets
The Proposed Transaction will not have an adverse effect on competition in the relevant
market, which is the PacifiCorp East BAA ("PacifiCorp East"), where the WCGI Interconnection
See Order No. 642, at p. 31,872; Order No. 592 at p.30,111.
-13-
Facilities are located (and where the Goshen Phase II Project, the Meadow Creek Project and the
remainder of the Goshen Phase III Project are or will be located).35 Specifically, as
demonstrated below, the Proposed Transaction raises neither horizontal nor vertical market
power concerns in the relevant markets.
a. The Proposed Transaction raises no horizontal market power
concerns
Section 33.3(a)(1) of the Commission's regulations requires the filing of a horizontal
competitive screen analysis in order to determine whether a proposed transaction will have an
adverse effect on competition. 36 However, Section 33 .3(a)(2)(i) of the Commission's regulations
provides that a horizontal competitive analysis is not required if the applicants affirmatively
demonstrate that they do not currently conduct business in the same geographic markets or that
the extent of their business transactions in the same geographic markets is de minimis.37
The Proposed Transaction does not involve the transfer of interests in generation. WCGI
does not own any generation; it only owns only limited interconnection facilities to
accommodate the delivery of the power produced by its owners to their power purchasers. The
Proposed Transaction simply involves the admission of Meadow Creek (a wholly-owned
subsidiary of RAE, an existing direct owner of WCGI), as a new direct owner in WCGI and the
corresponding reduction of RAE's direct ownership interests in WCGI. Therefore, the Proposed
Transaction does not require a horizontal competitive screen analysis, and raises no horizontal
market power concerns.
See Pacj/ICorp, etal., "Order Authorizing Merger and Disposition of Jurisdictional Facilities," 124 FERC
¶ 61,046 at P 6 (July 18, 2008) (". . . PacifiCorp East includes PacifiCorp's loads and resources in the States of
Idaho, Utah and Wyoming. . .
18 C.F.R. § 333(a)(1).
18 C.F.R. § 33.3(a)(2)(i).
-14-
b. The Proposed Transaction raises no vertical market power
concerns
Section 33.4(a)(1) of the Commission's regulations requires the filing of a vertical
competitive screen analysis in order to determine whether a proposed transaction will have an
adverse effect on competition.38 However, Section 33.4(a)(2) of the Commission's regulations
provides that a vertical competitive analysis need not be filed if the applicants affirmatively
demonstrate that they do not currently provide electricity products and inputs to electricity
products in the same geographic markets or that the extent of their business transactions in the
same geographic markets is de minimis.
None of the Applicants or their affiliates own or control electric transmission facilities in
the relevant market other than the WCGI Interconnection Facilities or other discrete and limited
facilities necessary to interconnect generation facilities to the transmission grid, as described
above in Section III. Additionally, none of the Applicants or their affiliates own or control fuel
supplies or fuel delivery systems in the relevant market.40 Accordingly, the Proposed
Transaction does not require a vertical competitive screen analysis, and raises no vertical market
power concerns.
2. The Proposed Transaction will not have an adverse effect on rates
In assessing the effect that a proposed jurisdictional transaction could have on rates, the
Commission's primary concern is "the protection of wholesale ratepayers and transmission
customers."4' In the Merger Policy Statement, the Commission made clear that its concern with
38 18 C.F.R. § 33.4(a)(1).
18 C.F.R. § 33.4(a)(2)(i).
Trigen-Kansas City, an affiliate of Veolia has a non-performing long-term coal purchase agreement for
100,000 tons per year out of a mine in southeastern Kansas.
New England Power Co, etal., 82 FERC ¶ 61,179, at p.61,659, order on reh'g, 83 FERC 1 61,275 (1998).
-15-
the effect of a proposed transaction on rates is to protect ratepayers from rate increases resulting
from a proposed disposition of jurisdictional assets. 42
The Proposed Transaction will not have an adverse effect on any wholesale rates for
electric power. WCGI does not sell power, thus, it has no wholesale power customers. The
Meadow Creek Project and RAE's remaining share of the Goshen III Project have not been
constructed, and Meadow Creek and RAE are not yet public utilities.
The Proposed Transaction will have no adverse effect on transmission rates. Under the
CFA, WCGI provides its owners (i.e., Wolverine Creek, RAE and Goshen) with access to the
WCGI Interconnection Facilities for delivery of their power to the transmission grid. As noted
above, the CFA is a rate schedule on file with the Commission. WCGI has filed the form of the
Amended CFA under Section 205 of the FPA for Commission acceptance. The Amended CFA,
once it is accepted by the Commission, will be a rate schedule subject to the Commission's
jurisdiction and have no adverse affect on rates. Further, neither RAE nor Meadow Creek
provide any transmission services.
3. The Proposed Transaction will not have an adverse effect on regulation
The Proposed Transaction will not impair the ability of the Commission or any state
regulatory authority to regulate Applicants. The Commission will continue to have jurisdiction
over WCGI and its FPA-jurisdictional facilities (i.e., the CFA, the Amended CFA, and the
WCGI Interconnection Facilities) after the Proposed Transaction is consummated as it exercises
currently. Additionally, the Commission will be able to exercise the same jurisdiction over
RAE, Meadow Creek, and the wind farms these parties are developing and will own. No
facilities will be removed from the Commission's jurisdiction. The Proposed Transaction will
42 See Merger Policy Statement at p. 30,123.
-16-
have no effect on state commission regulation and is not subject to approval by any state
commission. Therefore, Proposed Transaction will not have an adverse effect on regulation.
C. The Proposed Transaction Will Not Result in Cross-Subsidization
Under Section 203(a)(4) of the FPA and Section 2.26(f) of its regulations, the
Commission considers whether a proposed transaction will result in a cross-subsidization of a
non-utility associate company by a utility company, or in a pledge or encumbrance of utility
assets for the benefit of an associate company. The Proposed Transaction does not pose a risk of
cross-subsidization and does not pledge or otherwise encumber utility assets. In the 203
Supplemental Policy Statement, the Commission stated that it will recognize three classes of
transactions that are unlikely to raise the cross-subsidization concerns described in the Order
No. 669 rulemaking proceeding. 43 The first such class involves "transactions where the
applicant shows that a franchised public utility with captive customers is not involved. If no
captive customers are involved, then there is no potential for harm to customers. Therefore,
compliance with Exhibit M could be a showing that no franchised public utility with captive
customers is involved in the transactions "
The proposed Transactions fall within the above described "safe harbor" adopted
by the Commission because no franchised public utilities with captive customers are involved.
As described herein, the Proposed Transaction involves the admission of a new owner in WCGI,
that is a subsidiary of an existing owner. None of the Applicants is or will be a franchised
public utility with captive customers. Nor are any of the Applicants affiliated with a franchised
public utility with captive customers.
203 Supplemental Policy Statement at P 16.
203 Supplemental Policy Statement at P 17 (footnote omitted).
-17-
Because the Proposed Transaction falls within the Commission's safe harbor, an Exhibit
M containing a detailed explanation and evidentiary support to demonstrate lack of cross-
subsidization is not required. While attaching an Exhibit M may not be required, the Applicants
provide Exhibit M out of an abundance of caution but, consistent with the Commission's policy,
do not provide any further evidence to demonstrate lack of cross-subsidization because, as shown
above, the Proposed Transaction does not involve franchised public utilities with captive
customers.
VI. INFORMATION REQUIRED BY SECTION 33.2 OF THE
COMMISSION'S REGULATIONS AND REQUESTS FOR
CERTAIN WAIVERS OF THE INFORMATION REQUIREMENTS
The Applicants submit the following information pursuant to Part 33 of the
Commission's regulations. The Applicants have provided all information necessary to determine
that the Proposed Transaction is consistent with the public interest, as required under Section 203
of the FPA. However, because certain information is not relevant to the Commission's
consideration of whether the Proposed Transaction is consistent with the public interest, the
Applicants respectfully request that the Commission waive certain of the filing requirements in
Part 33 of its regulations, as discussed below.
Subject to the foregoing, the Applicants provide the following information pursuant to
Part 33 of the Commission's regulations:
A. Name and principal business office of Applicants 45
1. Ridgeline Alternative Energy, LLC
do Ridgeline Energy LLC
1300 North Northiake Way, Second Floor
Seattle, WA 98103
18 C.F.R. § 33.2(a).
-18-
2. WCGI
Wolverine Creek Goshen Interconnection, LLC
do Invenergy, LLC
1 South Wacker Dr., Suite 2020
Chicago, IL 60606
B. Names and addresses of the person authorized to receive notices and
communications 46
The names and address of persons authorized to receive notices and communications with
respect to this Application are:
For RAE: For WCGI:
Robert M. Ellis* Laura V. Szabo*
General Counsel Dickstein Shapiro LLP
Ridgeline Energy LLC One Stamford Plaza
1300 North Northlake Way, 2nd Floor 263 Tresser Blvd.
Seattle, WA 98103 Suite 1400
Stamford, CT 06901
Karen B. Wong* Tel: [phone]
Milbank, Tweed, Hadley & McCloy LLP [e-mail]
601 South Figueroa Street, 30th Floor
Los Angeles, CA 90017
Tel: [phone]
kwongmilbank.com
James C. Liles*
Regulatory Advisor
Milbank, Tweed, Hadley & McCloy LLP
1850 K Street, N.W., Suite 1100
Washington, D.C. 20006
Tel: [phone]
jlilesmilbank.com
Persons denoted with an asterisk (*) are those designated for service pursuant to Rule
2010.
18 C.F.R. § 33.2(b).
18 C.F.R. § 385.2010.
-19-
C. Description of Applicants
1.All business activities of the applicants, including authorizations
by charter or regulatory approval (Exhibit A)49
The descriptions of the business activities of the Applicants are set forth in Section III
above. Therefore, the Applicants request waiver of the requirement to file Exhibit A.
2.A list of all energy subsidiaries and energy affiliates, percentage
ownership interest in such subsidiaries and affiliates, and a
description of the primary business in which each is engaged
(Exhibit B)50
The Applicants' relevant energy subsidiaries and affiliates are described in Exhibit B.
The Applicants request waiver of the requirement to list in Exhibit B the energy affiliates of
WCGI through Wolverine Creek and Goshen through BPWENA and Diamond, because the
Proposed Transaction does not involve either a merger or consolidation with such entities or any
increase in concentration with respect to generating facilities, and therefore such energy
subsidiaries and affiliates are not relevant to the Commission's analysis of this Application under
Section 203 of the FPA. Accordingly the Commission should grant Applicants a waiver of the
requirement to list such subsidiaries and affiliates in Exhibit B.
3.Organizational charts depicting the applicants' current and
proposed post-Transaction corporate structures (Exhibit C)5'
The Applicants provide in Exhibits C-i and C-2 organizational charts depicting the pre-
and post-Transaction ownership of the Applicants.
48 18 C.F.R. § 33.2(c).
18 C.F.R. § 33.2(c)(1).
18 C.F.R. § 33.2(c)(2).
18 C.F.R. § 33.2(c)(3).
-20-
4.Description of all joint ventures, strategic alliances, tolling
arrangements or other business arrangements, including transfers
of operational control of transmission facilities to Commission
approved Regional Transmission Organizations, both current, and
planned to occur within a year from the date of filing, to which the
applicants or their parent companies, energy subsidiaries, and
energy affiliates are parties, unless the applicants demonstrate
that the proposed Transaction does not affect any of their business
interests (Exhibit D)52
Other than the matters described in this Application, the Proposed Transaction will have
no effect on joint ventures, strategic alliances or other business arrangements of the Applicants
or their parent companies, energy subsidiaries and energy affiliates, separate from the Proposed
Transaction. Therefore, Applicants request waiver of the requirement to file Exhibit D.
5.Identity of common officers or directors of parties to the proposed
Transaction (Exhibit E)53
There are and will be no common officers or directors between RAE and Meadow Creek,
on the one hand, and WCGI, on the other hand. Neither RAE nor Meadow Creek is a public
utility. The Proposed Transaction will not change these relationships Accordingly, the
Applicants request waiver of the requirement to file Exhibit E
6.Description and location of wholesale power sales customers
and unbundled transmission services customers served by the
applicants or their parent companies, subsidiaries, affiliates and
associate companies (Exhibit F)54
Neither RAE, Meadow Creek nor any of their parent companies currently has wholesale
power sales customers nor do they have transmission customers. As described in Section III.B
above, WCGI allows its owners pursuant to the CFA to interconnect their respective generating
facilities to the WCGI Interconnection Facilities and deliver their power through the WCGI
52 18 C.F.R. § 33.2(c)(4).
18 C.F.R. § 33.2(c)(5).
18 C.F.R. § 33.2(c)(6).
-21-
Interconnection Facilities to the transmission grid. The Applicants request a limited waiver of
the information requirements of 18 C.F.R. §33.2(c)(6), to the extent waiver may be deemed
necessary, to provide any additional information including the wholesale power customers of
their public utility affiliates because that information is not necessary or relevant to evaluating
the Proposed Transaction and would be unduly burdensome to provide. Therefore, the
Applicants request waiver of the requirement to file Exhibit F.
D.Description of Jurisdictional Facilities Owned, Operated or Controlled by
the Applicants or their Parent Companies, Subsidiaries, Affiliates and
Associate Companies (Exhibit G)
A description of the Applicants' jurisdictional facilities owned, operated or controlled by
the Applicants or the relevant parent companies, subsidiaries, affiliates and associate companies
of Ridgeline is provided in Section III, above.
The Applicants request a limited waiver of the information requirements of 18 C.F.R.
§33.2(d), to the extent waiver may be deemed necessary, to provide information on the FPA-
jurisdictional facilities of its public utility affiliates because that information is not necessary or
relevant to evaluating the Proposed Transaction and would be unduly burdensome to provide.
Therefore, the Applicants request waiver of the requirement to file Exhibit G.
E.A Narrative Description of the Proposed Transaction for Which
Commission Authorization is Requested (Exhibit 11)56
A narrative description of the Proposed Transaction is provided in Section IV, above.
Therefore, the Applicants request waiver of the requirement to file Exhibit H.
18 C.F.R. § 33.2(d).
18 C.F.R. § 33.2(e).
-22-
1.The identity of all parties involved in the Transaction
The parties involved in the Proposed Transaction are RAE, Goshen, Meadow Creek,
Wolverine Creek and WCGI.
2.All jurisdictional facilities and securities associated with or affected
by the Transaction
The jurisdictional facilities associated with or affected by the Proposed Transaction are:
(a) the CFA and (b) the WCGI Interconnection Facilities.
3 The consideration for the Transaction
The consideration for the Proposed Transaction was reached through arm's-length
negotiations between the parties to the Proposed Transaction
4. The effect of the Transaction on such jurisdictional facilities and
securities
The Proposed Transaction will result in a change in the direct owners of WCGI, which
will also result in a modification of the CFA through the Amended CFA.
F. Contracts Relating to the Proposed Transaction (Exhibit I)
The transaction agreements related to the Proposed Transaction are described in Section
IV above, copies of which are contained in Exhibit I hereto The Applicants request a waiver of
any requirement to provide other incidental documents that may be executed in connection with
the Proposed Transaction because the Applicants do not believe that such documents would
provide the Commission with information relevant to its public interest evaluation of the
Transaction. 58
18 C.F.R. § 33.2(f).
See ElF Berkshire Holdings, LLC, 116 FERC ¶ 61,273 (2006).
-23-
G.Statement Explaining the Facts Relied Upon to Demonstrate that the
Proposed Transaction is Consistent with the Public Interest (Exhibit J)M
A statement regarding the consistency of the Proposed Transaction with the public
interest is provided in Section V of this Application. Therefore, the Applicants request waiver of
the requirement to file Exhibit J.
H.General or Key Map Showing the Properties of Each Party to the
Transaction (Exhibit K)60
The Proposed Transaction does not involve the merger or other combination of any
public utilities with franchised service territories. Therefore, the Applicants request waiver of
the requirement to file Exhibit K.
I.Licenses, Orders or Other Approvals Required from Other Regulatory
Bodies in Connection with the Proposed Transaction, and the Status of Other
Regulatory Actions (Exhibit L)"
The Applicants do not require regulatory approvals from other regulatory bodies in
connection with the Proposed Transaction. Apart from this Application, the Proposed
Transaction will require the Commission's acceptance of the Amended CFA under Section 205
of the FPA. Additionally, the Applicants have agreed, along with Wolverine Creek, Goshen and
Meadow Creek, that the Proposed Transaction will not be consummated until certain other
conditions are met, including the issuance by the Commission of the following orders relating to
the separate RAE/Goshen/WC Transaction described in Section III.A above: (i) the issuance of
an order accepting for filing without modification under Section 205 of the FPA the proposed
Amended SFA among RAE, Goshen and Meadow Creek, and (ii) the issuance of an order
approving under Section 203 of the FPA Meadow Creek's proposed acquisition of an ownership
18 C.F.R. § 33.2(g).
60 18 C.F.R. § 33.2(h).
61 18 C.F.R. § 33.2(i).
-24-
interest in the Goshen Tie Line pursuant to a separate Section 203 application filed with the
Commission for that transaction. 62
J. Cross-Subsidization (Exhibit M)63
See Section V.C, supra, and Exhibit M.
VII.PROPOSED ACCOUNTING ENTRIES"
None of the Applicants is required to maintain their books of accounts in accordance with
the Commission's Uniform System of Accounts in Part 101. Therefore, the Applicants are not
required pursuant to 18 C.F.R. §33.5 to present proposed accounting entries to their books or
financial statement showing the effects of the Proposed Transaction to the extent there may be
any such effects.
VIII.VERIFICATIONS"
Signed verifications by authorized representatives of each of the Applicants are included
as Attachment 2 to this Application.
62 As explained in footnote 15, supra, WCGI is not involved in the RAE/Goshen/WC Transaction and will
not be an applicant in the FERC Section 203 and 205 proceedings for that separate transaction.
18 C.F.R. § 33.20).
18C.F.R33.5.
65 18C.F.R33.7.
-25-
IX. CONCLUSION
WHEREFORE, for the reasons stated above, Applicants request that the Commission
issue an order under Section 203(a)(1) of the FPA authorizing the Proposed Transaction.
Applicants further request that the Commission consider this Application on an expedited basis,
establish a 21-day comment period, and issue an order approving the Proposed Transaction by
April 15, 2012. Applicants also request that the Commission grant any necessary waivers of the
Commission's regulations as described herein.
Respectfully submitted,
_/s/ Laura V. Szabo _/s/ Robert M Ellis
Laura V. Szabo Robert M. Ellis
Dickstein Shapiro LLP General Counsel
lOne Stamford Plaza Ridgeline Energy LLC
263 Tresser Blvd. 1300 North Northlake Way, 2nd Floor
Suite 1400 Seattle, WA 98103
Stamford, CT 069016
Tel: [phone] Karen B. Wong
[e-mail] Milbank, Tweed, Hadley & McCloy
601 South Figueroa Street, 30th Floor
Counsel for Wolverine Creek Goshen Los Angeles, CA 90017
Interconnection LLC Tel: [phone]
Fax: [phone]
kwong(,inilbank.com
Counsel for Ridgeline Alternative Energy,
LLC
Dated: March 16, 2012
-26-
EXHIBIT B
EXHIBIT B
Energy Subsidiaries and Affiliates
WCGI does not have any subsidiaries. The energy affiliates of RAE and Meadow
Creek are described below. In Section VI.C.2 of the Application, the Applicants have requested
waiver of the requirement to list WCGI's energy affiliates through Wolverine Creek and Goshen
through BPWENA and Diamond.
Affiliates of RAE and Meadow Creek: See attached asset charts.
Ridgeline Alternative Energy, LLC
FERC Order No. 697 Appendix B Table of Energy Affiliates
Market-Based Rate Authority and Generation Assets through Veolia
Rockland l ERI 1- Rockland 1 Rockland ' Rockland Wind N/A 'Idaho Power ' Northwest ' Expected 79.86 MW
Wind Farm 4475-000 Wind Farm Wind Farm Farm LLC Company 12/2011
LLC LLC ("IPCO")
Goshen Phase ER1O-1821 Goshen Phase Goshen Phase Goshen Phase 9/1/2010 PACE Northwest 9/1/2010 124.5 MW
II LLC II II LLC II LLC
Grays Ferry ER1O-852 Grays Ferry Grays Ferry Grays Ferry N/A PJM Northeast 1998 192.6 MW
Cogeneration Cogeneration Cogeneration Cogeneration
Partnership Facility Partnership Partnership
MATEP, ER1O-1655 MATEP MATEP, MATEP, N/A ISO-NE Northeast 1986 87.8 MW
Limited ER1O-1370 Facility Limited Limited
Partnership ER98-1 192 Partnership Partnership
MATEP, LLC ER06-1 143 N/A N/A N/A N/A N/A N/A N/A 0 (power
marketer)
Montenay N/A Montenay Montenay Montenay N/A Progress Southeast 12.5 MW
Charleston Charleston Charleston Charleston Energy, (currently
Resource Facility Resource Resource Carolinas- out of
Recovery, Inc. Recovery, Inc. Recovery, Inc. East service)
Veolia Energy N/A Veolia Energy Veolia Energy Veolia Energy N/A PJM Northeast 1983 6 MW
Trenton, LP Trenton Trenton, LP Trenton, LP
Facility
Trigen-St. ER07-671 Trigen-St. Trigen-St. Trigen-St. N/A MIISO Central 1999 33 MW
Louis Energy Louis Energy Louis Energy Louis Energy
Corp. Facility Corp. Corp.
Veolia Energy N/A Grand Avenue Veolia Energy Veolia Energy N/A KCP&L SPP 1991 5 MW
Kansas City, Steam Plant Kansas City, Kansas City,
Inc. Inc. Inc.
1
Ridgeline Alternative Energy, LLC
Electric Transmission Assets and/or Natural Gas Intrastate Pipelines and/or Gas Storage Facilities through Veolia
Applicant is including any relevant generator tie-lines herein out of an abundance of caution. Applicant does not believe or concede that
generator tie-lines should be included in the instant electric transmission asset chart because such assets are not networked transmission facilities,
are not designed or constructed to serve as transmission facilities, and are not intended to serve as transmission facilities for third party
transmission customers.
2
2 As explained in the instant Application, WCGI is a public utility that owns and operates an approximately 17-mile electric interconnection
line and related equipment that currently connects wind farms owned by Wolverine Creek Energy LLC, an entity not affiliated with the Applicant,
and Goshen Phase II, LLC to the transmission system of PacifiCorp. The WCGI line is limited and discrete and does not comprise an integrated
transmission system, and WCGI has been granted waivers of the Commission's open access transmission requirements under Order Nos. 888 and
889 and Part 358 of the Commission's regulations. See Wolverine Creek Goshen Interconnection LLC, Letter Order, Docket No. ER06-267 (Jan.
13, 2006), Errata Notice, Docket No. ER06-267 (Jan. 27, 2006). WCGI is also an EWG. See Wolverine Creek Goshen Interconnection LLC, 111
FERC ¶ 62,209 (2005).
EXHIBIT C
Exhibit C-i
Pre-Transaction of RAE and WCGI
Veolia S.A
71.49% by Veolia Environement S.A.
9.46% by Asah Lm. A French civil partnership
19.02% by Transvers French private investment corporation
EolfiS.A.
100%
FRidgeline Energy Holdings Inc.
100%
Ridgeline Alternative Energy
LLC
Diamond Clematis
25%** Energy LLC
Diamond
(Not part of the
transaction)
Goshen Phase II Holdings 'I LLC
"Goshen Holdings" 75%**
100%
Goshen Ridge Wind Farm AE Goshen II Wind
LLC Farm LLC
43•5%* "Goshen Ridge" "AE Goshen II"
Wolverine Creek (owned by BP Wind)
(Not 50%** pa of e
Energy LLC transaction)
Goshen Phase II LLC
"Goshen Phase II Project"
50%**
19.3%
37.2%*
Wolverine Creek Goshen Interconnection LLC
* The ownership percentages of Wolverine Creek Energy LLC, Ridgeline Alternative Energy LLC, and Goshen Phase II LLC are an
approximation based on the 334.6 MW design capacity of the WCGI Interconnection Facility.
** Ownership through one or more wholly-owned subsidiaries.
Exhibit C-2
Post-Transaction of RAE and WCGI
Veolia S.A
71.49% by Veolia Environement S.A.
9.46% by Asah Lm. A French civil partnership
19.02% bvTransvers French private investment corporation
Eolfi S.A.
100%
Ridgeline Energy Holdings Inc.
100%
Ridgeline Alternative Energy
LLC
I I Diamond Clematis
25%** Energy LLC
100% "Diamond"
(Not part of the
transaction)
Meadow Creek Project Goshen Phase II Holdings
Company LLC LLC
"Goshen Holdings" 75%**
100%
AE Goshen II Wind Goshen Ridge Wind Farm Farm LLC
LL'..
35.8% 77%*
Goshen Ridge,, "AE Goshen Il"
(owned by BP Wind)
Wolverine Creek (Not part of the
Energy LLC 50%** transaction)
Goshen Phase 11 LLC
"Goshen Phase H Project"
50%**
37.2%*
Wolverine Creek Goshen Interconnection LLC
* The ownership percentages of Wolverine Creek Energy LIC, Ridgeline Alternative Energy LLC, and Goshen Phase II LLC are an
approximation based on the 334.6 MW design capacity of the WCGI Interconnection Facility.
Ownership through one or more wholly-owned subsidiaries.
EXHIBIT I
PUBLIC VERSION
PRIVILEGED, PROTECTED, CONFIDENTIAL
INFORMATION
HAS BEEN REMOVED PURSUANT TO 18 C.F.R. § 388.112
AMENDED AND RESTATED COMMON FACILITIES AGREEMENT
OF
WOLVERINE CREEK GOSHEN INTERCONNECTION LLC
1, 2012
HOU:3 186077.7
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS ...........................................................................................................2
1.1 Certain Definitions .......................................................................................................... 2
ARTICLE II COMMON FACILITIES AGREEMENTS ..............................................................7
2.1 Use of Common Facilities .............................................................................................. 7
2.2 Construction of Common Facilities................................................................................8
2.3 Design/Capacity of Common Physical Facilities . .......................................................... 8
2.4 Development and Interconnection Rights.......................................................................9
2.5 Priority of Use ................................................................................................................ .10
2.6 Right to Transmit Electricity ........................................................................................ 10
2.7 Shared Expenses and Line Losses ................................................................................ 10
2.8 Interconnection Agreement ........................................................................................... 11
2.9 Shared Easements ......................................................................................................... 12
2.10 Maximum Projects to Interconnect............................................................................... 12
2.11 Wind Data; Metering Data............................................................................................ 12
2.12 Indemnity...................................................................................................................... 12
2.13 Environmental Compliance .......................................................................................... 12
2.14 No Waste or Nuisance; Maintenance; No Interference ................................................ 12
2.15 Liens; Sales ................................................................................................................... 13
2.16 Taxes............................................................................................................................. 13
2.17 Operation and Management.......................................................................................... 13
2.18 Events of Default; Default ............................................................................................ 13
2.19 Remedies....................................................................................................................... 13
2.20 Equitable Relief ............................................................................................................ 14
2.21 Arbitration..................................................................................................................... 14
2.22 Force Majeure 14
2.23 Effect of Force Majeure................................................................................................ 14
ARTICLE III TRANSFERABILITY ........................................................................................... 15
3.1 General Restriction ....................................................................................................... 15
3.2 Increase to WCE Common Facilities Percentages ........................................................ 15
3.3 Transfer of GPII, MCP and RAE Interests................................................................... 15
3.4 FERC Approval ............................................................................................................ 16
ARTICLE IV MISCELLANEOUS PROVISIONS ..................................................................... 16
4.1 Notices.......................................................................................................................... 16
4.2 Choice of Law ................................................................................................................ 16
4.3 Entire Agreement .......................................................................................................... 16
4.4 Interpretation................................................................................................................. 16
4.5 Waiver ........................................................................................................................... 16
4.6 No Third Party Beneficiaries........................................................................................ 17
11
HOU:3 186077.7

4.7 Counterparts; Facsimile Signatures . 17

4.8 Amendments; Term ......................................................................................................17

4.9 Further Assurances........................................................................................................17
111
HOU:3 186077.7
AMENDED AND RESTATED COMMON FACILITIES AGREEMENT
THIS AMENDED AND RESTATED COMMON FACILITIES AGREEMENT (this
"Agreement") is made and entered into as of F 1, 2012 (the "Effective Date"), by and
among WOLVERINE CREEK GOSHEN INTERCONNECTION LLC, a Delaware limited
liability company (the "Company"), WOLVERINE CREEK ENERGY LLC, a Delaware limited
liability company ("WCE"), RIDGELINE ALTERNATIVE ENERGY, LLC, a Delaware limited
liability company ("RAE"), MEADOW CREEK PROJECT COMPANY LLC, a Delaware
limited liability company ("MCP") and GOSHEN PHASE II LLC, a Delaware limited liability
company ("GPII"); each also a "Party" and collectively, the "Parties".
RECITALS
A.Effective as of the Effective Date, each of WCE, RAE, GPII and MCP owns
membership interests in the Company.
B.The Company, WCE, RAE and GPII entered into that certain Common Facilities
Agreement, dated as of November 18, 2005, as amended by that certain First Amendment to
Common Facilities Agreement, dated as of December 30, 2009 (the "Original Common Facilities
Agreement"), pursuant to which such parties set forth their rights and obligations regarding the
use, operations and management of the Company's physical assets for each of the WCE Project,
the GPII Project and the RAE Project (each as defined in the Original Common Facilities
Agreement).
C.WCE has constructed a 64.5 MW nameplate capacity wind energy electric
generating facility in Bonneville and Bingham Counties, Idaho and GPII has constructed a 124.5
MW nameplate capacity wind energy electric generating facility in the vicinity of the WCE
Project.
D RAE (or its successors, assigns or affiliates) intends to construct other wind
power generation facilities in the vicinity of the WCE Project and the GPII Project and, to that
end, has assigned to MCP, effective as of the Effective Date, a portion of the RAE Project (as
defined in the Original Common Facilities Agreement) and RAE's corresponding rights and
obligations under the Common Facilities Agreement in respect thereof.
E.The Parties have determined, including as a result of that certain Wolverine Creek
to Goshen 161 kV Transmission Line Thermal Capacity Study, dated December 2011, prepared
by Electrical Consultants Inc., that the Shared Grid Connection Line has a capacity of 334.6 MW
at unity power factor.
F.The Parties wish to amend and restate in its entirety the Original Common
Facilities Agreement to, among other things, reflect the addition of MCP hereto, the separation
of the MCP Project from the RAE Project, and effect a reallocation of rights to excess capacity
(including to terminate WCE's rights to 30 MW of excess capacity as provided in the Original
Common Facilities Agreement), in each case as provided herein.
I
HOU:3 186077.7
NOW, THEREFORE, in consideration of the foregoing and the agreements and
covenants contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Definitions. Capitalized words and phrases used herein shall have the
following meanings, or the meanings given in the Sections of this Agreement in which they are
defined, unless the text expressly or by necessary implication requires otherwise.
(a)"AAA" has the meaning set forth in Section 2.27.
(b)"Agreement" has the meaning given in the preamble to this Agreement.
(c)"Base Design" has the meaning described in Section 23(a.
(d)"Common Facilities" means, collectively, the Common Physical Facilities,
the Common O&M Agreement, the Construction Contract Warranties, the other Shared
Project Agreements, the Shared Licenses and Permits, and the Shared Real Property
Documents.
(e)"Common Facilities Percentage Interest" means, with respect to each
Member, the percentage of the Design Capacity of the Common Physical Facilities that
each Member has a right to use. The Common Facilities Percentage Interest of (i) WCE
shall be determined based on the ratio equal to (A) 64.5 MW (as such amount may be
increased pursuant to Section 3.2, such amount referred to in this definition as the "WCE
Share") over (B) the Design Capacity (i.e., WCE Share/Design Capacity), (ii) GPII shall
be determined based on the ratio equal to (A) 124.5 MW (such amount referred to in this
definition as the "GPII Share") over (B) the Design Capacity, (iii) MCP shall be
determined based on the ratio equal to (A) 119.7 MW (such amount referred to in this
definition as the "MCP Share") over (B) the Design Capacity, and (iv) RAE shall be
determined based on the ratio equal to (A) the Design Capacity minus the sum of the
WCE Share, the GPII Share and the MCP Share over (B) the Design Capacity (i.e.,
[Design Capacity - (WCE Share + GPII Share + MCP Share]/Design Capacity).
(I) "Common O&M Agreement" means any operations and maintenance
agreement entered into between the Common Operator and the Company (or the Manager
on behalf of the Company). The Common O&M Agreement will require the Common
Operator, inter alia, to conduct all activities and operations with respect to any Common
Physical Facilities (i) in accordance with the terms of each Interconnection Agreement,
(ii) in accordance with good operating and utility industry practices, (iii) in compliance
with all Laws, and (iv) without causing a material adverse effect on the Company, the
Common Facilities, any Member, or any Member's respective Projects.
(g) "Common Operator" means the Person engaged by the Company to
operate and/or maintain the Common Physical Facilities from time to time.
2
HOU:3 186077.7
(h)"Common Physical Facilities" means the Shared Substation, the Shared
Grid Connection Line, and all other interconnection and transmission facilities owned by
the Company from time to time, the use of which is contemplated to be shared by the
WCE Project, the GPII Project, the MCP Project and the RAE Project in accordance with
this Agreement.
(i)"Company" has the meaning given in the preamble to this Agreement.
(j)"Construction Contract Warranties" means the warranties of the
contractors under the Construction Contracts to repair and replace any defects in the
Common Physical Facilities.
(k)"Construction Contracts" means the contracts for construction of the
Common Physical Facilities.
(1) "Design Capacity" means, as of any date, the design capacity expressed in
MW of the Common Physical Facilities which, as of the Effective Date, is 334.6 MW at
unity power factor.
(m)"Effective Date" has the meaning given in the preamble to this
Agreement.
(n)"Environmental Laws" means, collectively, any and all Laws pertaining
to pollution or protection of health, safety or environment, including Laws (both statutory
and common law) relating to actual or threatened emissions, discharges, or releases of
pollutants, raw materials, products, contaminants, or hazardous or toxic materials or
wastes into ambient air, surface water, groundwater, or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal, transport, or
handling of pollutants, contaminants, or hazardous or toxic materials or wastes, and
including all Environmental Permits and agreements and duties issued under or imposed
by such Laws
(o)"Environmental Permits" means, collectively, all licenses, permits and
other authorizations or registrations required under any and all Laws pertaining to
pollution or protection of health, safety or environment, including Laws (both statutory
and common law) relating to actual or threatened emissions, discharges, or releases of
pollutants, raw materials, products, contaminants, or hazardous or toxic materials or
wastes into ambient air, surface water, groundwater, or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal, transport, or
handling of pollutants, contaminants, or hazardous or toxic materials or wastes.
(p)"Event of Default" has the meaning given in Section 2.24.
(q)"Excess Capacity" means 25.9 MW (being the Design Capacity less the
sum of the nameplate capacities of each of the WCE Project, the GPII Project and the
MCP Project -- or 308.7 MW).
3
HOU:3 i 86077.7
(r) "FERC" means the Federal Energy Regulatory Commission or any
successor agency.
(s)"FERC Fees" has the meaning given in Section 1.1 (tt)(vi).
(t)"Financing Member" means (i) any and all lenders providing senior or
subordinated construction, interim or long-term debt financing or refinancing for the
purchase, installation or operation of a Project, and (ii) any and all equity and tax
investors providing financing or refinancing for a Project or purchasing equity ownership
interests in a company owning a Member or a Project, and any trustee or agent acting on
behalf of any such lenders or equity and tax investors.
(u)"Goshen Substation" means the substation owned by the Interconnector
(including the revenue meter), located approximately seventeen (17) miles from the
Shared Substation to which the Common Physical Facilities are interconnected.
(v)"GPII Project" means that certain wind farm located in Bonneville
County, Idaho, with a maximum nameplate capacity not to exceed 124.5 MW.
(w)"Indemnified Party" has the meaning set forth in Section 2.12.
(x)"Indemnifying Member" has the meaning set forth in Section 2.12.
(y)"Interconnection Agreements" means, collectively, the interconnection
agreements to be entered into between the Company and a Member, on the one hand, and
the Interconnector on the other hand, relating to the interconnection of such Member's
Project Controlled Assets into the Goshen Substation.
(z)"Interconnector" means PacifiCorp.
(aa) "Laws" means all applicable laws, statutes, ordinances, rules, regulations,
decrees, orders, permits, requirements, judgments, decisions and injunctions issued by
any governmental authority, including laws relating to health, safety and the
environment.
(bb) "Line Losses" means, in respect of the affected Member(s) as provided in
Section 2.7, the incremental, demonstrable economic losses actually suffered by such
Member(s) as a result of line losses caused by electric generation by the obligated
Member in accordance with Section 2.7.
(cc) "LLC Agreement" means the Third Amended and Restated Operating
Agreement of the Company, dated as of the Effective Date, as amended or modified from
time to time.
(dd) "Manager" means WCE in its role of Manager of the Company under the
LLC Agreement and its permitted successors succeeding to the role of Manager under the
LLC Agreement.
HOU:3 I 86077.7
(ee) "Maximum Nameplate Capacity" means, as of any date of determination,
the aggregate sum of the maximum nameplate capacity ratings of each wind turbine
generator included in a Project that has been interconnected to the Goshen Substation
through the Common Physical Facilities as of the date of such determination.
(ff) "MCP Project" means the wind power generation facilities to be
developed by MCP (or MCP's successors, assigns or affiliates) in Bonneville County,
Idaho, in the vicinity of the WCE Project with an aggregate Maximum Nameplate
Capacity of all such facilities not to exceed 119.7 MW.
(gg) "Member" means each of WCE, RAE, GPII and MCP.
(hh) "MW" means a megawatt or megawatts, as the context may require.
(ii) "Operator" means any person that operates a Project from time to time on
behalf of any Member.
(jj) "Party" means each of the Company, WCE, GPII, MCP and RAE; and
"Parties" means, collectively, the Company, WCE, GPII, MCP and RAE.
(kk) "Person" means any individual or entity, and the heirs, personal
representatives, successors and assigns of such individual or entity where the context so
permits.
(11) "Power Purchaser" means PacifiCorp or any other entity purchasing
electricity generated by a Project.
(mm) "Projects" means, collectively, the WCE Project, the GPII Project, the
MCP Project and the RAE Project.
(nn) "Project Controlled Assets" means, for each Member, any of the assets
comprising its respective Project or Projects (including each such Project's transformer),
the corresponding Project Lands and related Project agreements and contractual
arrangements, including such Member's Interconnection Agreement. For the avoidance
of doubt, the Project Controlled Assets shall exclude any of the Common Facilities.
(oo) "Project Lands" means, for any Project, the lands on which such Project
is located.
(pp) "Purchase Agreement" means that certain Purchase and Sale Agreement,
dated as of April 22, 2005, by and among, Invenergy Wind LLC, a Delaware limited
liability company, Ridgeline Airtricity Energy, LLC, a Delaware limited liability
company, Airtricity, Inc., a Delaware corporation, Ridgeline Energy LLC, a Washington
limited liability company, and Wolverine Creek Energy LLC, a Delaware limited liability
company.
(qq) "" has the meaning given in the preamble to this Agreement.
5
HOU:3 186077.7
(rr) "RAE Project" means one or more wind power generation facilities to be
developed by RAE (or RAE's successors, assigns or affiliates) in Bonneville and
Bingham Counties, Idaho, in the vicinity of the WCE Project with an aggregate
Maximum Nameplate Capacity of all such facilities not to exceed RAE's Common
Facilities Percentage Interest.
(ss) "Right of First Refusal" has the meaning given in Section 3.3.
(tt) "Shared Expenses" means expenses necessary for the operation and
maintenance of the Common Facilities, including without limitation:
(i)All fees and expenses payable under the Common O&M Agreement,
and the other Shared Project Agreements.
(ii)Operating period insurance under any blanket policy purchased by or
behalf of the Company.
(iii)The fixed costs payable under any and all contracts for the Members'
purchase of backfeed power to supply station load for all the Projects, when and if
such contract is single-billed to the Company as agent for all Members.
(iv)Property and other use or ad valorem taxes assessed or allocated to the
Common Facilities.
(v)Reasonable out-of-pocket expenses of the Manager incurred in
connection with the performance of its services under this Agreement.
(vi)The costs of Shared Licenses and Permits and, including without
limitation, any fees charged by the FERC or other governmental entity. Any
FERC annual charges or other regulatory fees imposed on the Company with
respect to the services provided under this Agreement ("FERC Fees") shall be
allocated to the Members for payment to the Company based on output from their
Projects or some other objective criteria applicable to the nature of the FERC Fees
imposed.
(vii)Other shared expenses identified from time to time in accordance
with the provisions of Section 2.7.
(uu) "Shared Grid Connection Line" means the transmission line which was
constructed by WCE and contributed to the Company in accordance with the provisions
of Section 2.2.
(vv) "Shared Licenses and Permits" means, collectively, the governmental
licenses, permits, approvals and authorizations, whether federal, state or local, or
domestic or foreign, including Environmental Permits, relating to the Common Physical
Facilities.
HOU:3 186077.7
(ww) "Shared Project Agreements" means, collectively, the Common Facilities
Project Agreements (as defined in the Purchase Agreement), the Common O&M
Agreement, the Construction Contract Warranties and all other agreements entered into
by or on behalf of the Company relating to the ownership and/or operation of the
Common Physical Facilities. For the avoidance of doubt, the Shared Project Agreements
shall exclude any agreements entered into by a Member or its affiliates (other than the
Company) with respect to such Member's respective Projects, including such Member's
Interconnection Agreement.
(xx) "Shared Real Property Documents" means, collectively, the transmission
land rights, easements and permits described in Schedule 3.7 of the Purchase Agreement
and Part B of Schedule 3.20 of the Purchase Agreement and all other easements, option
agreements, leases, subordination agreements and other real property agreements, in each
case entered into by the Company after April 22, 2005 that create or evidence any real
property interests relating to the Common Physical Facilities. For the avoidance of doubt,
the Shared Real Property Documents shall exclude any easements, option agreements,
leases, subordination agreements and other real property agreements entered into by a
Member or its affiliates (other than the Company) with respect to such Member's
respective Projects.
(yy) "Shared Substation" means the substation which was constructed by
WCE in accordance with the requirements set forth in Section 2.3 and contributed to the
Company in accordance with the provisions of Section 2.2.
(zz) "Sharing Ratio" means, as of any date of determination, with respect to
each Member, the ratio equal to the aggregate Maximum Nameplate Capacity of such
Member's respective Project(s) over the Maximum Nameplate Capacity of all Projects.
(aaa) "Transfer" means, with respect to any asset, the sale, assignment, transfer,
pledge, encumbrance, transfer, pledge, or other disposition of, either voluntarily, by
operation of law or otherwise, or such asset.
(bbb) "Uprate MWs" has the meaning set forth in Section 3.2.
(ccc) "WCE" has the meaning given in the preamble to this Agreement.
(ddd) "WCE Project" means that certain wind farm located in Bonneville and
Bingham Counties, Idaho, with a maximum nameplate capacity not to exceed 64.5 MW
except as set forth in Section 3.2.
(eee) "WCE Project COD" means the date on which the WCE Project achieved
the Commercial Operation Date (as defined in the Purchase Agreement).
ARTICLE II
COMMON FACILITIES AGREEMENTS
2.1 Use of Common Facilities. The Common Facilities shall be held and used solely
to permit the transmission of electricity generated by or on behalf of a Member (or by such
7
HOU:3186077.7
Member's successors, assigns or affiliates) from the Projects through the Common Physical
Facilities to the Goshen Substation, and to deliver electricity from a provider of back-up or
maintenance power to the Projects.

2.2 Construction of Common Facilities. WCE, in connection with its construction of
the WCE Project, caused the Common Facilities to be constructed. WCE shall act as the "owner"
under any and all construction contracts entered into in relation to the Common Facilities.
Neither the Company, GPII, MCP nor RAE shall have any financial liability or financial
obligations related to such construction costs. Effective as of the date of transfer of title of each
component of the Common Facilities to WCE pursuant to the Construction Contracts, WCE
transferred such assets to the Company as a capital contribution.

2.3 Design/Capacity of Common Physical Facilities.
(a)WCE agrees that the Common Physical Facilities shall be designed with a
Design Capacity to permit acceptance of electric power from transformers separately
owned by each Member (or its successors, assigns and affiliates) located within the
Shared Substation yard with an aggregate nameplate capacity equal to the Design
Capacity. The Shared Grid Connection Line shall be initially designed (i) to be able to
transmit at least 280 MW from the Shared Substation to the Goshen Substation and (ii) to
the extent commercially and technically feasible, with a single conductor with
substantially the same performance parameters as a 954 ACSR. The Shared Substation
shall be designed and constructed with sufficient bus, space, safety, security, and other
facilities to initially accommodate the WCE Project and to accommodate additional
Projects to be constructed over time in one or more separate phases, in each case with
minimal or no outages to the Projects currently interconnected to the Shared Substation.
The Common Physical Facilities installed at the Goshen Substation shall be designed to
be able to interconnect the Shared Grid Connection Line into the Goshen Substation. The
foregoing design specifications and performance criteria of the Common Physical
Facilities are referred to in this Agreement as the "Base Design."
(b)Reserved.
(c)Reserved.
(d)Interconnection of MCP Project and RAE Project: Upgrades and
Additions. As soon as practical but no less than eight (8) months prior to the expected
commercial operation date of each of the MCP Project or RAE Project, as the case may
be, MCP or RAE, as the case may be, shall provide the Company and each Member with
the proposed plans and requirements with respect to the interconnection of such Project
to the Common Facilities, including the proposed Project's nameplate capacity, schedule
and needs for interconnection to the Common Facilities. In addition, WCE acknowledges
and agrees that GPII, MCP or RAE, as the case may be, shall have the right at any time
after the WCE Project COD to propose to, and subject to compliance with this clause (d),
install any upgrades or additional design or operational components to the Common
Physical Facilities (including enhancements or changes to support the addition of a
second conductor to the Shared Grid Connection Line) at GPII's, MCP's or RAE's (as
8
HOU:3 186077.7
the case may be) sole cost and expense. GPII, MCP or RAE, as the case may be, shall
keep the Manager informed on a regular basis regarding the status of the development
and project schedule for each such Project or such upgrades and additional design or
operational components. GPII, MCP or RAE, as the case may be, and the Manager shall
cooperate and coordinate plans to assemble, construct and/or install any applicable GPII
Project Controlled Assets, MCP Project Controlled Assets or RAE Project Controlled
Assets within the Shared Substation and to install meters, bus interface and other
interconnection equipment in and with the Common Physical Facilities. GPII, MCP or
RAE, as the case may be, agrees that all planning, construction and installation of the
required interconnection and transmission facilities required for the their Projects or such
upgrades and additional design or operational components into the Common Physical
Facilities shall be conducted pursuant to prudent engineering and construction practices
and in a manner that will not materially interfere with the normal operation and
maintenance of any Project then existing; provided, that the Parties acknowledge and
agree that the construction and installation of the interconnection and transmission
facilities may result in unscheduled outages or and/or curtailment of some or all of the
energy production of a Project then existing. GPII, MCP or RAE, as the case may be,
agrees to compensate the Member owning such existing Project for any lost energy
production resulting from such outage or curtailment. The Manager and the
Interconnector must approve all meters and other equipment supplied by GPII, MCP or
RAE, as the case may be, prior to the interconnection of such meters and equipment to
the Common Physical Facilities. GPII, MCP or RAE, as the case may be, shall be solely
responsible for its costs of interconnection with the Common Physical Facilities, and for
any costs incurred (including any penalties imposed on the Company or any Member
owning a Project then existing, or damages payable to the Power Purchaser or the
Interconnector) or revenues loss suffered (including the cash value of any lost Federal
Production Tax Credits) by any Member owning a Project then existing, the Manager or
the Company, as applicable, in connection with each interconnection of a GPII Project,
an MCP Project or an RAE Project or such upgrades and additional design or operational
components with the Common Physical Facilities.
(e) The Company and the Members each hereby agree that, in connection
with the interconnection of the MCP Project to the Shared Substation, WCE shall, at
MCP's sole cost and expense, cause to be installed as part of the Common Facilities a
system to monitor the Shared Grid Connection Line to determine whether the use and
operation thereof is, at any point in time, exceeding the Design Capacity. During any
period of time that the use and operation of the Shared Grid Connection Line exceeds the
Design Capacity, including in each instance where such condition is detected by the
monitoring system, the provisions of Section 2.5 hereof shall apply to any resulting
curtailment or disconnection from the Common Facilities. The monitoring system to be
utilized shall be subject to WCE's and GPII's approval. The costs of operation and
maintenance of the monitoring system shall not constitute Shared Expenses and shall,
instead, be the sole obligation of MCP.
2.4 Development and Interconnection Rights. In addition to the WCE Project and the
GPII Project, subject to Section 2.3(d), MCP shall have the right to develop the MCP Project and
HOU:3186077.7
RAE shall have the right to develop the RAE Projects and to have such Projects installed and
interconnected to the Shared Substation in phases.

2.5 Priority of Use. The WCE Project (excluding the Uprate MWs, if any) shall have
at all times priority in the interconnection of its individually owned equipment, transmission of
its electricity and use of the Common Facilities over all other Projects using the Common
Facilities, including any and all of the GPII Project, the MCP Project and the RAE Project. In
the event of any system emergency affecting the Interconnector or any Power Purchaser or
curtailment of interconnection or transmission services at the Goshen Substation or within the
Common Facilities, (a) the WCE Project (excluding the Uprate MWs, if any) shall be the last
Project to be curtailed or disconnected from the Common Facilities and the Goshen Substation,
the GPII Project shall be the second to last Project to be curtailed or disconnected from the
Common Facilities and the Goshen Substation, the MCP Project shall be the third to last Project
to be curtailed or disconnected from the Common Facilities and the Goshen Substation, the
Uprate MWs portion of the WCE Project, if any, shall be the fourth to last to be curtailed or
disconnected from the Common Facilities and the Goshen Substation, and the RAE Project shall
be the first Project to be curtailed or disconnected from the Common Facilities and the Goshen
Substation, and (b) the WCE Project (excluding the Uprate MWs, if any) shall be the first Project
to be permitted to use the Common Facilities and interconnect to the Goshen Substation, the
GPII Project shall be the second Project to be permitted to use the Common Facilities and
interconnect to the Goshen Substation, the MCP Project shall be the third Project to be permitted
to use the Common Facilities and interconnect to the Goshen Substation, the Uprate MWs
portion of the WCE Project, if any, shall be the fourth to be permitted to use the Common
Facilities and interconnect to the Goshen Substation, and the RAE Project shall be the last
Project to be permitted to use the Common Facilities and interconnect to the Goshen Substation.

2.6 Right to Transmit Electricity. Each Member retains the right to hold and utilize its
Common Facilities Percentage Interest, to (a) connect Projects to the Common Facilities up to its
respective Common Facilities Percentage Interest, subject to Section 23(d), and (b) deliver or
receive electrical energy corresponding to such Common Facilities Percentage Interest in
accordance with the terms of this Agreement. Other than the obligation to pay expenses pursuant
to Section 2.7, there shall be no charge to the Members to transmit electricity using the Common
Facilities.

2.7 Shared Expenses and Line Losses. Each Member hereby confirms its obligation to
share in the periodic payment of Shared Expenses, and agrees, severally but not jointly, to pay its
respective share of the Shared Expenses as and when due and payable calculated as follows: each
Member shall pay a portion of the Shared Expenses based on its Sharing Ratio except that the
FERC Fees shall be paid in accordance with the allocation set forth in Section 1.1 (tt)(vi) of this
Agreement. The Members shall cause the Manager, as authorized agent for each Member, to
administer the collection and payment of the Shared Expenses, whether invoiced by each
expense payee against a particular Project or invoiced as an aggregate expense of all Members.
Each Member obligated to pay Shared Expenses shall pay each invoice for Shared Expenses
promptly upon, in any event within thirty (30) days of, receipt of written notice thereof from the
Manager. As it becomes practicable and desirable, the Members from time to time may designate
additional expenses as Shared Expenses to be administered by the Manager in accordance with
this Section 2.7 to the extent such additional expenses are similar to the other Shared Expenses.
10
061181IMIYikA
As an approximation, line losses between the Shared Substation and the Goshen Substation will
be allocated as between WCE and GPII (except in respect of the Uprate MWs) in accordance
with their respective Sharing Ratios. It is the intent of the Members that, for the purpose of
allocating line losses as between WCE and GPII (except in respect of the Uprate MWs), the
mechanism for allocating electric generation at the Goshen Substation shall be based on the
concurrent ratio of measured electric generation at the Shared Substation. The Members agree to
negotiate in good faith as to details of such mechanism, such as metering requirements and
averaging periods. If electric generation from the (i) MCP Project causes WCE or GPII to suffer
Line Losses, (ii) Uprate MWs causes GPII or MCP to suffer Line Losses, or (ii) RAE Project
causes WCE (including in respect of the Uprate MWs), GPII or MCP to suffer Line Losses, the
Member (other than WCE) owning the Project (or WCE in the case of Uprate MWs, as
applicable) causing such Line Losses shall cooperate with the Member(s) suffering such Line
Losses and the Interconnector to cause an allocation of the underlying line losses to the Member
(other than WCE) owning the Project (or WCE in the case of Uprate MWs, as applicable)
causing such Line Losses. Any imbalance charges or other charges incurred under the
Interconnection Agreement that result from the operation of a Project that are reasonably
allocable (based on output or some other objective criteria) shall be paid by such Project and
shall not be Shared Expenses.
2.8 Interconnection Agreement.
(a)Each Member hereby confirms that it will negotiate a separate
Interconnection Agreement with the Interconnector containing terms that are approved by
the Company, such approval not to be unreasonably withheld if such Interconnection
Agreement is not inconsistent with the terms of this Agreement and does not have an
adverse impact on any other Member or the Company. Each Member hereby designates
the Company to act as its representative for purposes of communicating with, and
receiving instructions from, the Interconnector with respect to such Member's Project.
Promptly upon receipt of any notice from the Interconnector to the Company or a
Member of any default (or any other event) which could give rise to an exercise of
remedies, including disconnection of any Project or termination by the Interconnector of
the Interconnection Agreement, the Company or such Member shall deliver written
notice of the same to the Common Operator and the other Member or the Members, as
the case may be.
(b)To the extent that the Company receives liquidated damages (to the extent
not related to the Common Facilities), transmission network upgrade credits or other
credits or refunds pursuant to an Interconnection Agreement, the Company shall
promptly remit such damage payment, credit or refund to the Member party to such
Interconnection Agreement.
(c)Neither the Company nor the Manager shall have any obligation or
liability under the Interconnection Agreements to post credit support on behalf of any
Member or make any payments thereunder.
(d)Each Member agrees that it will furnish the Company with every report or
notice it receives from the Interconnector pursuant to its Interconnection Agreement.
11
HOU:3 1 86O777
2.9 Shared Easements. Each Member and the Company shall, to the extent permitted
by the Shared Real Property Documents or other underlying real property interest, as applicable,
grant nonexclusive easements on such property for the benefit of the other Members for the latter
to use roads, have rights of access (e.g., access and utility agreements) and rights to locate and to
use subterranean or overhead transmission lines, as applicable; provided, that such nonexclusive
easements shall not permit the grantees to interfere in any material respect with the construction,
operation or economic value of the Common Facilities or the Project Lands encumbered by such
nonexclusive easements.
2.10 Maximum Projects to Interconnect. No Member shall interconnect any of its
Projects to the Shared Substation to the extent such interconnection will result in such Member
having Projects with a Maximum Nameplate Capacity in excess of such Member's Common
Facilities Percentage Interest. To the extent that conditions shall exist as shall result in a Member
generating energy from its respective Project in excess of such Member's Common Facilities
Percentage Interest, then such Member shall curtail its operation of its Project so as not to exceed
such Member's Common Facilities Percentage Interest.
2.11 Wind Data: Metering Data. Each Member shall share with all other Members (i)
current and historical wind data collected from anemometers located on its respective Project
Lands and (ii) real time data for MWs, MVARs and voltage from the meters relating to its
respective Project. The sharing Member shall have no liability with respect to the wind data or
metering data provided, whether for completeness, accuracy or otherwise. The receiving Member
shall maintain the confidentiality of the wind data and metering data received.
2.12 Indemnity. Each Member (an "Indemnifying Member") shall indemnify, defend
and hold harmless the Company and each other Member (an "Indemnified Party") from and
against any and all losses, damages, liabilities, claims, judgments, liens, penalties, costs and
expenses, including, without limitation, reasonable attorneys' and consultants' fees, which may
be imposed upon or incurred by such Indemnified Party or asserted against such Indemnified
Party by any third person or entity in connection with its Interconnection Agreement or any
breach of this Agreement or any negligent or willful acts or omissions of or on behalf of the
Indemnifying Member on or with respect to its Project Controlled Assets.
2.13 Environmental Compliance. Each Member shall, with respect to its Project
Controlled Assets, comply with all Environmental Laws and be responsible for all investigations,
studies, clean up, corrective action or response or remedial action required by any governmental
authority now or hereafter authorized to regulate environmental or other matters or by any
consent decree or court or administrative order now or hereafter applicable to such Member's
use, operation or ownership of its Project Controlled Assets. The Members shall have the right
(but not the obligation, unless otherwise required above) to participate in the management and
control of all investigations and any environmental clean up, remediation or related activities
relating to its Project Controlled Assets.
2.14 No Waste or Nuisance: Maintenance: No Interference. No Member shall use or
permit the use of the Common Facilities in any manner that would create waste or nuisance, or
that would increase the rate, or jeopardize the issuance or maintenance, of any insurance policy
relating to the Common Physical Facilities, nor otherwise conduct or cause to be conducted
12
HOU:3 186077.7
operations on its Project Lands which would have similar effects on, or otherwise damage or
interfere with, the Common Physical Facilities located on its respective Project Lands.
2.15 Liens; Sales. No Member shall cause or permit any lien or encumbrance to be
levied against or attached to the Common Facilities. Each Member agrees not to sell, lease,
convey, transfer and/or assign or to enter into any agreement with respect to the sale, lease,
conveyance, transfer or assignment of any of the Common Facilities.
2.16 Taxes. Each Member shall pay all real and personal property taxes and
assessments, general or special, levied against its Project or the facilities and fixtures located
thereon, except for any taxes or assessments that are Shared Expenses. All such taxes and
assessments shall be paid before delinquency and before any fine, interest or penalty shall
become due or be imposed for their non-payment.
2.17 Operation and Management. Each Member is required to operate and maintain its
Project Controlled Assets acting as a prudent operator and manager and otherwise (a) in
accordance with the terms of the Interconnection Agreement applicable to such Member's
Project, (b) in accordance with good operating and utility industry practices, (c) in compliance
with all material Laws, and (d) without causing a material adverse effect on the Company, the
Common Facilities, any Member or any of the other Member's respective Projects.
2.18 Events of Default; Default. If a Member shall fail to perform its obligations
hereunder in any material respect, then such failure shall not constitute a default hereunder
unless such Member shall have failed to cure such default within (a) five (5) days after receipt of
written notice of a payment default, (b) the period of time for cure provided in the
Interconnection Agreement with respect to a default in performance of the Interconnection
Agreement, or (c) thirty (30) days after such Member has received written notice of any other
default from a non-defaulting Member; provided, however, that if the nature of the defaulted
obligation or obligations other than a payment default is such that more than thirty (30) days are
required, in the exercise of commercially reasonable diligence, for performance of such
obligation(s), then such Member shall not be in default if it commences such performance within
such thirty (30) day period and thereafter continuously pursues the same to completion with
commercially reasonable diligence, such extended period not to exceed ninety (90) days,
including the initial cure period Failure to comply with the cure periods set forth above shall
result in an "Event of Default".
2.19 Remedies. In addition to all other remedies permitted by Law or under this
Agreement (all of which shall be cumulative), following an Event of Default, the non-defaulting
Member and its lenders or other interest holders shall be entitled following an Event of Default
to perform the obligations of the defaulting Member, and the defaulting Member shall reimburse
the performing Members for their expenses which they incurred in rendering the performance,
plus interest at the Default Rate. The Member curing the default shall have a lien on the
defaulting Member's Common Facilities Percentage Interest and the proceeds arising therefrom,
to the extent of the amount expended by the curing Member in remedying the default (including
attorneys' fees), and the defaulting Member appoints the curing Member as its attorney-in-fact to
file, record and otherwise assert such liens, to the extent of the expenditures in relation to such
cure or remedy.
13
HOU:3 186077.7
2.20 Equitable Relief. The Parties agree that damages may be an inadequate remedy
for a breach by the Company, the Manager or any other Member of its respective obligations
under this Agreement (including a breach of Section 2.7), and that each Member shall be entitled
to seek injunctive and other equitable relief, including specific performance, against any other
Member or the Manager to prevent or eliminate such default.
2.21 Arbitration. All disputes arising under this Agreement will be governed
exclusively and finally by mandatory and binding expedited arbitration. In the event a dispute
arises between Members (including the Manager), the aggrieved Member shall promptly notify
the other Members of the dispute in writing. If the Members having the dispute shall have failed
to resolve the dispute within fifteen (15) days after delivery of such written notice, such
Members shall, within three (3) days of receipt of a written demand from the other Member to do
so, direct a designated representative to confer in good faith within five (5) business days(s), to
resolve the dispute. Should the Members be unable to resolve the dispute to their mutual
satisfaction within seven (7) days, each Member involved in the dispute shall have the right to
pursue the resolution of such dispute by binding expedited arbitration under the Commercial
Rules of Arbitration of the American Arbitration Association ("AAA"). The expedited
arbitration will be concluded within sixty (60) days of the date of the demand for arbitration.
Any party shall have the right to apply to a court of competent jurisdiction for an injunction to
protect its interests under this Agreement while the arbitration is pending. The arbitration panel
shall consist of the number of arbitrators equal to the number of disputing Members, one
nominated by each of the disputing Members (unless a disputing Member is an affiliate of
another disputing Member, in which case such affiliated disputing Members may together
nominate only one arbitrator), and the arbitrators shall choose the chairman from among
themselves; provided, that if the resulting number of arbitrators is an even number, an additional
arbitrator shall be nominated by the other arbitrators or, in the absence of agreement, by the
AAA, and such additional arbitrator shall serve as the chairman of the arbitration panel. For so
long as RAE and its affiliates own less than 50% of GPII, RAE and GPII shall not be deemed to
be affiliates of each other, nor shall GPII or MCP be deemed to be affiliates of each other.
Likewise, so long as RAE and its affiliates own less than 50% of MCP, RAE and MCP shall not
be deemed to be affiliates of each other. The place of arbitration shall be Chicago, Illinois at a
site chosen by the arbitration panel or, in the absence of agreement among the panel, at a site
chosen by the arbitration chairman.
2.22 Force Majeure. Force Majeure shall mean unforeseeable causes, such as acts of
God, the enforcement or adoption of legislation or lawful rules, regulations or orders of any
governmental body, acts of the public enemy, riots, strikes, or other industrial disturbances, labor
or material shortages, fires, explosions or other causes of a similar nature which are beyond the
reasonable control of the Parties and which wholly or partly prevents a Party from performing its
obligations under this Agreement.
2.23 Effect of Force Majeure. If, because of an event of Force Majeure, any Party is
unable to carry out its obligations under this Agreement, and if such Party promptly gives the
other Parties written notice of such Force Majeure in detail, specifying the nature, extent and
expected duration of such Force Majeure, the obligations and liabilities of the Party giving such
notice and the corresponding obligations and liabilities of any other Party shall be temporarily
suspended to the extent made necessary by and during the continuance of such Force Majeure.
14
HOU:3 186077.7
Any disabling effects of such Force Majeure shall be eliminated as soon as and to the extent
reasonably practicable by the Party claiming Force Majeure.
ARTICLE III
TRANSFERABILITY

3.1 General Restriction. No Member may Transfer its interest in this Agreement
without the consent of the other Members; provided, however, no consent of the other Members
shall be required in connection with the Transfer of this Agreement when made together with a
Transfer of all or substantially all of its respective Project Controlled Assets (or in the case of
RAE, if it divides its Project Controlled Assets into more than one RAE Project in connection
with a Transfer of an undivided portion of its interests under this Agreement when made together
with a Transfer of all or substantially all of the Project Controlled Assets with respect to each
such RAE Project); provided that the new owner shall be assigned and shall assume the
Transferring Member's interest in this Agreement to the extent of the interest transferred as a
condition to the assignment, in whole or in part according to whether the Transfer was total or
partial, and the new owner shall agree in writing to become a Member of the Company. Each
Member may collaterally assign its interest in this Agreement to a Financing Member or a Power
Purchaser, provided that the Project Controlled Assets are collaterally assigned concurrently
therewith, but no such assignment shall subordinate or otherwise adversely affect the rights of
the other Members in and to this Agreement or the Common Facilities covered hereby. In
addition, in connection with the financing of each Project, each Member shall upon the
reasonable request of a Member provide customary estoppels and consents in favor of a
Financing Member or a Power Purchaser, including rights of step-in with respect to a Member's
obligations under this Agreement and rights to concurrent notice of default.

3.2 Increase to WCE Common Facilities Percentages WCE owns all rights, title and
interest in and to the first ten (10) MWs of Excess Capacity, and may elect in a written notice
delivered to each Member to increase the nameplate capacity of the wind turbines comprising the
WCE Project to utilize up to such ten (10) MWs (the "Uprate MW5") RAE owns all rights, title
and interest in and to the Excess Capacity in excess of the first ten (10) MWs of Excess
Capacity. For the avoidance of doubt, except as provided in the first sentence of this Section 3 2,
WCE has no rights to Excess Capacity, any other additional capacity in respect of the Common
Facilities, or any portion of the Common Facilities Percentage Interest of RAE or any other
Member, in each case however arising, and hereby unconditionally and irrevocably waives any
and all rights to the same.

3.3 Transfer of GPII. MCP and RAE Interests. If GPII, MCP or RAE desire to
Transfer (other than to RAE, MCP or GPII, as appropriate) any of its rights in this Agreement
without a corresponding Transfer of its Project Controlled Assets to which such rights in this
Agreement relate, GPII, MCP or RAE, as the case may be, must first offer in writing to Transfer
such interests to WCE on the same terms and conditions as the proposed transferee (the "Right of
First Refusal"). Upon receipt of the Right of First Refusal, WCE shall have twenty (20) Business
Days in which to notify GPII, MCP or RAE, as the case may be, whether or not WCE elects to
accept or reject the offer. If WCE rejects or fails to respond with such time period, GPII, MCP or
RAE, as the case may be, shall have the right to consummate the Transfer to the proposed
15
HOU:3 186077.7
transferee at any price and terms not being less favorable than the price and terms offered to
WCE in the Right of First Refusal delivered pursuant to this Section 3.3.

3.4 FERC Approval. Notwithstanding anything in Sections 3.1, 3.2 and 3.3 to the
contrary, no Transfer of any Member's interests in this Agreement shall be effective unless and
until the Company has obtained any necessary prior approvals from the FERC to effectuate any
changes to this Agreement to reflect such Transfer and the change in the parties to this
Agreement.
ARTICLE IV
MISCELLANEOUS PROVISIONS

4.1 Notices. Any notice, demand, or communication required or permitted to be given
by any provision of this Agreement shall be deemed to have been sufficiently given or served for
all purposes if delivered personally or by telecopy to the party or to an executive officer of the
party to whom the same is directed or, if sent by registered or certified mail, postage and charges
prepaid, addressed to the Member's and/or Company's address, as appropriate, which is set forth
in this Agreement or to such other address as a Member shall advise the other Members and the
Company from time to time in writing.

4.2 Choice of Law. This Agreement shall in all respects be governed by and
construed and enforced in accordance with the internal laws of the State of Illinois, without
regard to its choice of law provisions.

4.3 Entire Agreement. This Agreement, together with the LLC Agreement, sets forth
the complete understanding of the Parties hereto with respect to the subject matter hereof and
supersedes all prior discussions, agreements, and undertakings relating to the subject matter
hereof, including the Original Common Facilities Agreement.

4.4 Interpretation. All personal pronouns used in this Agreement, whether used in the
masculine, feminine or neuter gender, shall include all other genders; the singular shall include
the plural; and the plural shall include the singular. Titles of articles and sections in this
Agreement are for convenience only and neither limit nor amplify the provisions of this
Agreement. All references in this Agreement to articles, sections, subsections or paragraphs shall
refer to articles, sections, subsections and paragraphs of this Agreement, unless specific
reference is made to the articles, sections or other subdivisions of another document or
instrument. The word "including" shall mean "including without limitation". This Agreement
shall not be interpreted in favor of any Party by virtue of said Party not having prepared this
Agreement. The unenforceability, invalidity, or illegality of any provision of this Agreement
shall not affect or impair the continuing enforceability or validity of any other part, all of which
shall survive and be valid and enforceable.

4.5 Waiver. No consent or waiver, express or implied by any Party hereto, to or of
any breach or default by the other in the performance by the other of its obligations hereunder
shall be deemed or construed to be a consent or waiver to or of any other breach or default in the
performance by such other Party of the same or any other obligations of such Party hereunder.
Failure on the part of any Party hereto to complain of any act or failure to act of any other Party,
16
HOU:3 186077.7
or to declare such other Party in default, irrespective of how long such failure continues, shall not
constitute a waiver of such Party of its rights hereunder.

4.6 No Third Party Beneficiaries. This Agreement and the terms and provisions
hereof are solely and exclusively for the benefit of the Parties hereto. No third party may rely on
any of the provisions herein contained or lay claim to any of the rights of the Parties hereto.

4.7 Counterparts: Facsimile Signatures. This Agreement may be executed in
counterparts each of which when so executed and delivered shall be deemed to be an original and
all of which together shall constitute one instrument Facsimile signatures shall be binding upon
the Parties hereto with the same force and effect as original signatures.

4.8 Amendments: Term. Except as specifically provided in this Agreement, this
Agreement shall not be amended except by the written agreement of the Company and all the
Members. This Agreement shall be in effect for so long as the Common Facilities are in
existence.

4.9 Further Assurances. Upon the reasonable request of any Member at any time after
the Effective Date, the other Members shall forthwith execute and deliver such further
instruments of assignment, transfer, conveyance, endorsement, direction or authorization and
other documents as the requesting Member or its or their counsel may reasonably request in
order to effectuate the purposes of this Agreement. Each Member agrees to cooperate fully with
the other Members in assisting it to comply with the terms of this Agreement, including, but not
limited to, assistance in obtaining consents, waivers, authorizations, waivers, authorizations,
orders and/or approvals of third parties. Notwithstanding the foregoing, no Member shall be
required to make any substantial payment or incur any material economic burden, except for a
payment otherwise required of it, pursuant to this Section 4.9. Each Member agrees to cooperate
with the reasonable requests of any Power Purchaser, the Interconnector, or any Financing
Member in conjunction with the financing of the Common Facilities and another Member's
Projects. Each Member agrees to execute any customary consent and assignment in favor of a
Power Purchaser, Interconnector or a Financing Member requested by any other Member.
[Signature Page Follows]
17
HOU:3 186077.7
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
WOLVERINE CREEK GOSHEN
INTERCONNECTION LLC
By: WOLVERINE CREEK ENERGY LLC, its
Manager
By:____________________________
Name:
Title:
011111 ILIA 04910 1 04 0CM i*ieawz•
By:
Name:
Title:
GOSHEN PHASE II LLC
By:
Name:
Title:
RIDGELINE ALTERNATIVE ENERGY, LLC
By:
Name:
Title:
MEADOW CREEK PROJECT COMPANY
LLC
By:___________________________
Name:
Title:
Signature Page
EXHIBIT M
EXHIBIT M
EXPLANATION PROVIDING ASSURANCE THAT THE PROPOSED TRANSACTION WILL NOT
RESULT IN CROSS-SUBSIDIZATION OR PLEDGE OR ENCUMBRANCE OF UTILITY ASSETS
Each Applicant verifies with respect to itself, based on facts and circumstances known to
it or that are reasonably foreseeable, that the Proposed Transaction will not result in, at the time
of the Proposed Transaction or in the future:
(1)any transfers of facilities between a traditional public utility associate company
that has captive customers or that owns or provides transmission service over jurisdictional
transmission facilities, and an associate company;
(2)any new issuances of securities by a traditional public utility associate company
that has captive customers or that owns or provides transmission service over jurisdictional
transmission facilities, for the benefit of an associate company;
(3)any new pledge or encumbrance of assets of a traditional public utility associate
company that has captive customers or that owns or provides transmission service over
jurisdictional transmission facilities, for the benefit of an associate company; or
(4)any new affiliate contracts between a non-utility associate company and a
traditional public utility associate company that has captive customers or that own or provide
transmission service over jurisdictional transmission facilities, other than non-power goods and
services agreements subject to review under Sections 205 and 206 of the Federal Power Act.
ATTACHMENT 1
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
Ridgeline Alternative Energy, LLC )
Wolverine Creek Goshen Interconnection LLC ) Docket No. EC12- -000
PROTECTIVE ORDER
(Issued
1.This Protective Order shall govern the use of all Protected Materials produced by,
or on behalf of, any Participant. Notwithstanding any order terminating this proceeding, this
Protective Order shall remain in effect until specifically modified or terminated by the Presiding
Administrative Law Judge ("Presiding Judge") or the Federal Energy Regulatory Commission
("Commission").
2.A Participant may designate as protected those materials which customarily are
treated by that Participant as sensitive or proprietary, which are not available to the public, and
which, if disclosed freely, would subject that Participant or its customers to risk of competitive
disadvantage or other business injury.
3.Definitions—For purpose of this Order:
(a)The term "Participant" shall mean a Participant as defined in 18 C.F.R. §
385.102(b).
(b)(1) The term "Protected Materials" means (A) materials (including
depositions) provided by a Participant in response to discovery requests and designated by such
Participant as protected; (B) any information contained in or obtained from such designated
materials; (C) any other materials which are made subject to this Protective Order by the
Presiding Judge, by the Commission, by any court or other body having appropriate authority, or
by agreement of the Participants; (D) notes of Protected Materials; and (E) copies of Protective
Materials. The Participant producing the Protected Materials shall physically mark them on each
page as "PROTECTED MATERIALS" or with words of similar import as long as the term
"Protected Materials" is included in that designation to indicate that they are Protective
Materials.
(2)The term "Notes of Protected Materials" means memoranda,
handwritten notes, or any other form of information (including electronic form) which copies or
discloses materials described in Paragraph 3 (b)(1). Notes of Protected Materials are subject to
the same restrictions provided in this order for Protected Materials except as specifically
provided in this order.
(3)Protected Materials shall not include (A) any information or
document contained in the files of the Commission, or any other federal or state agency, or any
federal or state court, unless the information or document has been determined to be protected by
such agency or court, or (B) information that is public knowledge, or which becomes public
knowledge, other than through disclosure in violation of this Protective Order.
(c)The term "Non-Disclosure Certificate" shall mean the certificate annexed
hereto by which Participants who have been granted access to Protected Materials shall certify
their understanding that such access to Protected Materials is provided pursuant to the terms and
restrictions of this Protective Order, and that such Participants have read the Protective Order
and agree to be bound by it. All Non-Disclosure Certificates shall be served on all parties on the
official service list maintained by the Secretary in this proceeding.
(d)The term "Reviewing Representative" shall mean a person who has signed
a Non-Disclosure Certificate and who is:
(1)Commission Litigation Staff;
(2)an attorney who has made an appearance in this proceeding for a
Participant;
(3)attorneys, paralegals, and other employees associated for purposes
of this case with an attorney described in (2);
(4)an expert or an employee of an expert retained by a Participant for
the purpose of advising, preparing for or testifying in this
proceeding;
(5)a person designated as a Reviewing Representative by order of the
Presiding Judge or the Commission; or
(6)employees or other representatives of Participants appearing in this
proceeding with significant responsibility for this docket.
4.Protected Materials shall be made available under the terms of this Protective
Order only to Participants and only through their Reviewing Representatives as provided in
Paragraphs 7, 8, and 9.
5.Protected Materials shall remain available to Participants until the later of the date
that an order terminating this proceeding becomes no longer subject to judicial review, or the
date that any other Commission proceeding relating to the Protected Material is concluded and
no longer subject to judicial review. If requested to do so in writing after that date, the
Participants shall, within fifteen days of such request, return the Protected Materials (excluding
Notes of Protected Materials) to the Participants that produced them, or shall destroy the
materials, except that copies of filings, official transcripts and exhibits in this proceeding that
contain Protected Materials, and Notes of Protected Material may be retained, if they are
maintained in accordance with Paragraph 6, below. Within such time period each Participant, if
requested to do so, shall also submit to the producing Participant an affidavit stating that, to the
best of its knowledge, all Protected Materials and all Notes of Protected Materials have been
returned or have been destroyed or will be maintained in accordance with Paragraph 6. To the
extent Protected Materials are not returned or destroyed, they shall remain subject to the
Protective Order.
6.All Protected Materials shall be maintained by the Participants in a secure place.
Access to those materials shall be limited to those Reviewing Representatives specifically
authorized pursuant to Paragraphs 8 and 9. The Secretary shall place any Protected Materials
filed with the Commission in a non-public file By placing such documents in a non-public file,
the Commission is not making a determination of any claim of privilege. The Commission
retains the right to make determinations regarding any claim of privilege and the discretion to
release information necessary to carry out its jurisdictional responsibilities.
For documents submitted to Commission Litigation Staff ("Staff'), Staff shall follow the
notification procedures of 18 C.F.R. § 388.112 before making public any Protected Materials.
7.Protected Materials shall be treated as confidential by each Participant and by the
Reviewing Representative in accordance with the certificate executed pursuant to Paragraph 9.
Protected Materials shall not be used except as necessary for the conduct of this proceeding, nor
shall they be disclosed in any manner to any person except a Reviewing Representative who is
engaged in the conduct of this proceeding and who needs to know the information in order to
carry out that person's responsibilities in this proceeding. Reviewing Representatives may make
copies of Protected Materials, but such copies become Protected Materials. Reviewing
Representatives may make notes of Protected Materials, which shall be treated as Notes of
Protected Materials if they disclose the contents of Protected Materials.
8.(a) If a Reviewing Representative's scope of employment includes the
marketing of energy, the direct supervision of any employee or employees whose duties include
the marketing of energy, or the provision of consulting services to any person whose duties
include the marketing of energy, such Reviewing Representative may not use information
contained in any Protected Materials obtained through this proceeding to give any Participant or
any competitor of any Participant a commercial advantage.
(b) In the event that a Participant wishes to designate as a Reviewing
Representative a person not described in Paragraph 3(d) above, the Participant shall seek
agreement from the Participant providing the Protected Materials. If an agreement is reached
that person shall be a Reviewing Representative pursuant to Paragraph 3(d) above with respect to
those materials. If no agreement is reached, the Participant shall submit the disputed designation
to the Presiding Judge for resolution.
9.(a) A Reviewing Representative shall not be permitted to inspect, participate
in discussions regarding, or otherwise be permitted access to Protected Materials pursuant to this
Protective Order unless that Reviewing Representative has first executed a Non-Disclosure
Certificate provided that if an attorney qualified as a Reviewing Representative has executed
such a certificate, the paralegals, secretarial and clerical personnel under the attorney's
instruction, supervision or control need not do so. A copy of each Non-Disclosure Certificate
shall be provided to counsel for the Participant asserting confidentiality prior to disclosure of any
Protected Material to that Reviewing Representative.
(b) Attorneys qualified as Reviewing Representatives are responsible for
ensuring that persons under their supervision or control comply with this order.
10.Any Reviewing Representative may disclose Protected Materials to any other
Reviewing Representative as long as the disclosing Reviewing Representative and the receiving
Reviewing Representative to whom the Protected Materials are disclosed ceases to be engaged in
these proceedings, or is employed or retained for a position whose occupant is not qualified to be
a Reviewing Representative under Paragraphs 3(d), access to Protected Materials by that person
shall be terminated. Even if no longer engaged in this proceeding, every person who has
executed a Non-Disclosure Certificate shall continue to be bound by the provisions of this
Protective Order and the certification
11.Subject to Paragraph 17, the Presiding Administrative Law Judge shall resolve
any disputes arising under this Protective Order. Prior to presenting any dispute under this
Protective Order to the Presiding Administrative Law Judge, the parties to the dispute shall use
their best efforts to resolve it. Any participant that contests the designation of materials as
protected shall notify the party that provided the protected materials by specifying in writing the
materials whose designation is contested This Protective Order shall automatically cease to
apply to such materials five (5) business days after the notification is made unless the designator,
within said 5-day period, files a motion with the Presiding Administrative Law Judge, with
supporting affidavits, demonstrating that the materials should continue to be protected. In any
challenge to the designation of materials as protected, the burden of proof shall be on the
participant seeking protection. If the Presiding Administrative Law Judge finds that the
materials at issue are not entitled to protection, the procedures of Paragraph 17 shall apply.
12. All copies of all documents reflecting Protected Materials, including the portion
of the hearing testimony, exhibits, transcripts, briefs and other documents which refer to
Protected Materials, shall be filed and served in sealed envelopes or other appropriate containers
endorsed to the effect that they are sealed pursuant to this Protective Order. Such documents
shall be marked "PROTECTED MATERIALS" and shall be filed under seal and served under
seal upon the Presiding Judge and all Reviewing Representatives who are on the service list. For
anything filed under seal, redacted versions or, where an entire document is protected, a letter
indicating such, will also be filed with the Commission and served on all parties on the service
list and the Presiding Judge. Counsel for the producing Participant shall provide to all
Participants who request the same, a list of Reviewing Representatives who are entitled to
receive such material. Counsel shall take all reasonable precautions necessary to assure that
Protected Materials are not distributed to unauthorized persons.
If any Participant desires to include, utilize or refer to any Protected Materials or
information derived therefrom in testimony or exhibits during the hearing in these proceedings in
such a manner that might require disclosure of such material to persons other than reviewing
representatives, such participant shall first notify both counsel for the disclosing participant and
the Presiding Judge of such desire, identifying with particularity each of the Protected Materials.
Thereafter, use of such Protected Material will be governed by procedures determined by the
Presiding Judge.
13.Nothing in this Protective Order shall be construed as precluding any Participant
from objecting to the use of Protected Materials on any legal grounds.
14.Nothing in this Protective Order shall preclude any Participant from requesting
the Presiding Judge, the Commission, or any other body having appropriate authority, to find that
this Protective Order should not apply to all or any materials previously designated as Protected
Materials pursuant to this Protective Order. The Presiding Judge may alter or amend this
Protective Order as circumstances warrant at any time during the course of this proceeding.
15.Each party governed by this Protective Order has the right to seek changes in it as
appropriate from the Presiding Judge or the Commission.
16.All Protected Materials filed with the Commission, the Presiding Judge, or any
other judicial or administrative body, in support of, or as a part of, a motion, other pleading,
brief, or other document, shall be filed and served in sealed envelopes or other appropriate
containers bearing prominent markings indicating that the contents include Protected Materials
subject to this Protective Order.
17.If the Presiding Judge finds at any time in the course of this proceeding that all or
part of the Protected Materials need not be protected, those materials shall, nevertheless, be
subject to the protection afforded by this Protective Order for three (3) business days from the
date of issuance of the Presiding Judge's decision, and if the Participant seeking protection files
an interlocutory appeal or requests that the issue be certified to the Commission, for an additional
seven (7) business days. None of the Participants waives its rights to seek additional
administrative or judicial remedies after the Presiding Judge's decision respecting Protected
Materials or Reviewing Representatives, or the Commission's denial of any appeal thereof. The
provisions of 18 C.F.R. § 388.112 shall apply to any requests for Protected Materials in the files
of the Commission under the Freedom of Information Act (5 U.S.C. § 552).
18.Nothing in this Protective Order shall be deemed to preclude any Participant from
independently seeking through discovery in any other administrative or judicial proceeding
information or materials produced in this proceeding under this Protective Order.
19.None of the Participants waives the right to pursue any other legal or equitable
remedies that may be available in the event of actual or anticipated disclosure of Protected
Materials.
20.The contents of Protected Materials or any other form of information that copies
or discloses Protected Materials shall not be disclosed to anyone other than in accordance with
this Protective Order and shall be used only in connection with this (these) proceeding(s). Any
violation of this Protective Order and of any Non-Disclosure Certificate executed hereunder shall
constitute a violation of an order of the Commission.
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
Ridgeline Alternative Energy, LLC )
Wolverine Creek Goshen Interconnection LLC ) Docket No. EC12- -000
NON-DISCLOSURE CERTIFICATE
I hereby certify my understanding that access to Protected Materials is provided to me
pursuant to the terms and restrictions of the Protective Order in this proceeding, that I have been
given a copy of and have read the Protective Order, and that I agree to be bound by it. I
understand that the contents of the Protected Materials, any notes or other memoranda, or any
other form of information that copies or discloses Protected Materials shall not be disclosed to
anyone other than in accordance with that Protective Order. I acknowledge that a violation of
this certificate constitutes a violation of an order of the Federal Energy Regulatory Commission.
By:_____________________
Title:_____________________________
Representing:_____________________
Date:___________________________
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
Ridgeline Alternative Energy, LLC )
Wolverine Creek Goshen Interconnection LLC ) Docket No. EC12- -000
NON-DISCLOSURE CERTIFICATE
FOR COMPETITIVE DUTY PERSONNEL
I hereby certify my understanding that access to Protected Materials marked
"CONTAINS INFORMATION NOT AVAILABLE TO COMPETITIVE DUTY
PERSONNEL" in the above-captioned case is provided to me pursuant to the terms and
restrictions of the Protective Order in said proceeding, that I have been given a copy of and have
read the Protective Order, and that I agree to be bound by it. I understand that the contents of the
Protected Materials that may come into my possession or under my control, any notes or other
memoranda, or any other form of information that copies or discloses Protected Materials may
not be disclosed to anyone other than in accordance with that Protective Order. I promise not to
make or facilitate any such prohibited disclosure, and I acknowledge my understanding that a
violation of this certificate constitutes a violation of an order of the Federal Energy Regulatory
Commission and may subject me to sanctions and punishment in accordance with law.
an
Title:
Representing:
Date:
ATTACHMENT 2
VERIFICATIONS
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
Ridgeline Alternative Energy, LW ) Wolverine Creek Goshen Interconnection LLC) Docket No. EC12- -000
STATE OF WASHINGTON )
)
COUNTY OF KING )
NOW, BEFORE ME, the undersigned authority, personally came and appeared, Robert
Ellis, who, after first being duly srn by me, did depose and say:
That he is Vice President of Ridgeline Alternative Energy, LLC ("RAE") and has the
authority to verify the foregoing Application on behalf RAE and its subsidiaries, and that to the
best of his knowledge, information, and belief, all of the stat9neatkpontained in said Application
with respect to such entities are true and correct. 1
My Commission expires pj 311
''
J'•. 131 - /
of '4
".InI"
04*2L9905.10224
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
WCGI VERIFICATION PURSUANT TO 18 C.F.R. §33.7
Alex George_, being duly sworn, deposes and says that: he is a _Vice President of
Wolverine Creek Goshen Interconnection LLC ("WCGF') and has the authority to verify the
foregoing application filed by WCGI; he has read said application; and to the best of his
knowledge, information and belief, all of the statements contained therein are true and accurate
with respect to WCGI and Wolverine Creek Energy LLC and its affiliates. I declare under
penalty of perjury that the foregoing is true and co11e ,,/(
Subscribed and Sworn to before me
on this J4ay of March, 2012.
OFFICIAL SEAL
ubZ?N 14 NOTARY PUBLIC - STATE OF ILLINOIS
MY COMMISSION EYPPIRES:02123113
My commission expires
## ##
4* 4*
4*## # # ### #4*4*4* ## ### ##### ### # 4* #4* 4* 4* # #### ## # ## 4* #4* #4* ###
##### ###### 4* # 4* ###### # #4*4*4* 4* 4* # 4* 4* 4* 4* ## # ## 4* 4*
4* #4* # #4*4* ## # # ## 4* # #
### ## #### #4* ### ##### ##### ##### #### #4*4* ###
Job : 134
Date: 4/23/2012
Time: 4:03:06 PM