20140226PAC to Monsanto 1-11.pdf

ROCKY MOUNTAIN
POA'ER
201 South Main, Suite 2300
Sak Lakepiq Utah 84lll
r-1 /\ji l-.-ri .r1r
February 25,2014
Randall C. Budge, ISB No. 1949
RACINE, OLSON, NYE, BUDGE &
BAILEY, CHARTERED
P.O. Box l39l1-201E. Center
Pocatello, Idaho 83204-1391
[e-mail] (C)
James R. Smith
Monsanto Company
P. O. Box 816
Soda Springs, Idaho 83276
j im.r. smith@.monsanto.com (C)
Katie Iverson
Brubaker & Associates
19540 N. Wessex Drive
Surprise, Arizona 85387
[e-mail] (C)
RE: ID PAC-E-14-01
Monsanto 1't Set Data Request (1-11)
Please find enclosed Rocky Mountain Power's responses to Monsanto Itt Set Data Requests 1.1
- I .1 1. Provided electronically are Attachments Monsanto 1.2 -2, 1.4, 1.7 , 1.9, 1.10, and I .l l.
Provided on the enclosed Confidential CD are Confidential Attachments Monsanto l.l,l.2 -1,
1.5, and 1.6. Confidential information is provided subject to the terms and conditions of the
protective agreement signed in this case.
If you have any questions, please feel free to call me at (80I) 220-2963.
Sincerely,
J,kr/ ltular? /a.^u
J. Ted Weston
Manager, Regulation
Enclosures
C.c.: Jean JewellAPUC ieanjewell@.puc.idaho.gov (C)
PAC-E- I 4-0 I /Rocky Mountain Power
February 25,2014
Monsanto Data Request 1.1
Monsanto Data Request 1.1
Please describe all avenues and programs by which RMP sells renewable energy
credits. Please include copies of all tariffs and sales agreements currently in
effect through which RMP collects a revenue from the sale of renewable energy
credits.
Response to Monsanto Data Request 1.1
The Company participates in requests for proposals (FJFP) from the market, issues
reverse RFP to the market, and engages in bilateral discussions with
counterparties as opportunities are presented. The Company issues reverse RFP
on a minimum rolling quarterly basis. Renewable energy credit (REC) market
brokers occasionally present transaction interest for the Company's
consideration. The broker market is illiquid and predominantly indicative (not a
firm interest).
Please refer to Confidential Attachment Monsanto 1.1, which provides a copy of
the only REC sales agreement currently in effect.
Confidential information is provided subject to the terms and conditions of the
protective agreement signed in this case.
Recordholder: Paul Johnson
Sponsor: To Be Determined
PAC-E- 1 4-0 I /Rocky Mountain Power
February 25,2014
Monsanto Data Request 1.2
Monsanto Data Request 1.2
Please provide copies of the long-term sales contracts that expired during the
Deferral Period, as reference by RMP Witness Dickman on page 10, line 15
through page I 1, line 6, and at page 11, lines 16 through22.
Response to Monsanto Data Request 1.2
There were four long-term sales agreements included in Base net power costs
(NPC) but that expired prior to the end of the Energy Cost Adjustment
Mechanism (ECAM) Defenal Period (December 1,2012 to November 30, 2AB).
Please refer to Confidential Attachment Monsanto 1.2 -1 which provides a copy
of two of the long-term sales agreements. Please refer to Attachment Monsanto
1.2 -2, which provides a copy of the remaining two long-term sales agreements;
these two agreements are publicly available, and therefore considered non-
confidential.
Confidential information is provided subject to the terms and conditions of the
protective agreement signed in this case.
Recordholder: Kristie Sharp
Sponsor: To Be Determined
PAC-E- I 4-0 1 /Rocky Mountain Power
February 25,2014
Monsanto Data Request 1.3
Monsanto Data Request 1.3
Regarding the qualifying facilities (QF) referenced by RMP Witness Dickman at
the bottom of page 1l of his testimony, is RMP entitled to the renewable energy
credits (REC) produced by these QFs? Did RMP purchase fewer RECs from
these QFs than in previous years because of the increase in the "customers
utilizing the QF generation to serve their own load", as Mr. Dickman describes?
Please fully explain your answer.
Response to Monsanto Data Request 1.3
None of the facilities included in the reference at the bottom of page 11 of the
Direct Testimony of Company witness, Brian Dickman are renewable facilities
and therefore do not have renewable energy credits (REC) attributes.
Recordholder: Kristie Sharp
Sponsor: Brian Dickman
PAC-E- 1 4-0 I /Rocky Mountain Power
February 25,2014
Monsanto Data Request 1.4
Monsanto Data Request 1.4
Please provide copies of the purchase agreements with the qualifying facilities
referenced at page 12, lines 9 tluough 13 of RMP Witness Dickman's testimony,
including detail regarding the purchase of any RECs from the QFs by RMP.
Response to Monsanto Data Request 1.4
Of the referenced facilities, Power County North and Power County South
facilities retain ownership of the RECs per the terms of their QF power purchase
agreements (PPA). For the Five Pine and North Point facilities, the project retains
ownership of the RECs for the first 10 years of operation, after which PacifiCorp
has ownership of the RECs for the second l0 years of operation, under the terms
of the respective PPAs.
Please refer to Attachment Monsanto 1.4, which provides copies of the referenced
QF PPAs; these agreements are publicly available, and therefore considered non-
confidential.
Recordholder: Kristie Sharp
Sponsor: Brian Dickman
PAC-E- 1 4-0 1 /Rocky Mountain Power
February 25,2014
Monsanto Data Request 1.5
Monsanto Data Request 1.5
Please provide the 12 months data supporting the Monsanto Balancing Account
Beginning Balance for December 2012 of $l1,850,355 with all supporting
workpapers (i.e., Exhibit I as ordered by the Commission in Case No. PAC-E-l3-
03).
Response to Monsanto Data Request 1.5
Please refer to Confidential Attachment Monsanto 1.5.
Confidential information is provided subject to the terms and conditions of the
protective agreement in this proceeding.
Recordholder: Brian Dickman
Sponsor: Brian Dickman
PAC-E- I 4-0 1 lRocky Mountain Power
February 25,2014
Monsanto Data Request 1.6
Monsanto Data Request 1.6
Please confirm or deny that Monsanto's ECAM deferral balance was $6,783,223
for the December l, 2010 through November 30,2011 ECAM deferral period as
referenced on page 9 of Order No. 32597 in Case No. PAC-E-12-03. If denied,
please explain.
Response to Monsanto Data Request 1.6
Consistent with the Idaho Public Utilities Commission (IPUC) order in case PAC-
E-12-A3, the incremental deferred costs from January l,20ll through November
30, 2011 are equal to $6,783,223. This represents unrecovered costs for the
period, prior to application of the carrying charge on the monthly balance in the
deferred account. Including interest, Monsanto's final balance as of November 30,
2011 was $6,812,973. Please refer to Confidential Attachment Monsanto
1.6. Please also refer to Attachment A submitted with IPUC StaffComments filed
June 26,2012 in Case No. PAC-E-12-03.
Confidential information is provided subject to the terms and conditions of the
protective agreement signed in this case.
Recordholder: Brian Dickman
Sponsor: Brian Dickman
PAC-E- 14-0 l/Rocky Mountain Power
February 25,2014
Monsanto Data Request 1.7
Monsanto Data Request 1.7
Please state the source, and povide all supporting workpapers for $2.4 million
shown on line 7,page 3 of Joelle Steward's testimony.
Response to Monsanto Data Request 1.7
Please refer to Attachment Monsanto 1.7 which provides the Company's 2013
Energy Cost Adjustment Mechanism (ECAM) compliance filing work paper. Cell
D8 in tab "ECAM Summaryo'shows how $2.4 million is calculated.
Recordholder: James Zhang
Sponsor: Joelle Steward
PAC-E- I 4-0 1 /Rocky Mountain Power
February 25,2014
Monsanto Data Request 1.8
Monsanto Data Request 1.8
Amortizing the $6,783,223 deferual balance ordered in Case No. PAC-E-12-03
over three years would be $2,261,074. Please reconcile this amount to the $2.4
million on page 3 of Joelle Steward's testimony.
Response to Monsanto Data Request 1.8
The deferral balance is impacted by two additional components; interest on the
unpaid balance and any load differences between the kilowatt-hours used to
develop the collection rate and Monsanto's acfual energy usage during the
collection period. The amount of $2.4 million onpage 3 of Joelle Steward's
testimony is the estimated balance of the 2011 ECAM defenal remaining after
first year amortization divided by two. Please refer to the Company's response to
Monsanto Data Request 1.7 specifically Attachment Monsanto 1.7.
Recordholder: James Zl'nng
Sponsor: Joelle Steward
PAC-E- I 4-0 1 /Rocky Mountain Power
February 25,2014
Monsanto Data Request 1.9
Monsanto Data Request 1.9
In Case No. PAC-E-13-03, Joelle Steward testified on page 3 at line 18, "The
Company will track the recovery of the two different deferral period amounts by
proportioning the collections consistent with each contract customers' annual
amortization balance." Please provide all studies, analysis and accounting
performed by the Company through February 2014 which track the recovery of
the two difterent deferral period amounts. Please provide all analysis in
electronic format.
Response to Monsanto Data Request 1.9
Please refer to Attachment Monsanto 1.9.
Recordholder: Lyle Bankhead
Sponsor: Joelle Steward
PAC-E-I 4-0 1 /Rocky Mountain Power
February 25,2014
Monsanto Data Request l.l0
Monsanto Data Request 1,10
Assuming Monsanto's future loads are consistent with 2013 loads, please provide
the Company's estimate of the expected date by which the 2011 ECAM deferral
for the period of December 1, 2010 through November 30,2011 will be paid off.
Please provide all workpapers.
Response to Monsanto Data Request 1.10
Assuming Monsanto's future loads are consistent with 2013 loads; the Company's
estimated pay-off date of the 2011 Energy Cost Adjustment Mechanism (ECAM)
deferral for the period of December l, 2010 through November 30,2011 will be
March 2015. Please refer to Attachment Monsanto 1.10.
Recordholder: Lyle Bankhead
Sponsor: Joelle Steward
PAC-E- 1 4-0 1 /Rocky Mountain Power
February 25,2014
Monsanto Data Request 1.11
Monsanto Data Request 1.11
Assuming Monsanto's future loads are consistent with 2013 loads, please provide
the Company's estimate of the expected date by which the20l2 ECAM deferral
for the period of December l,20ll through November 30,2012 will be paid off.
Please provide all work papers.
Response to Monsanto Data Request 1.11
Assuming Monsanto's future loads are consistent with 2013 loads; the Company's
estimated pay-off date of the 2012 Energy Cost Adjustment Mechanism (ECAM)
defenal for the period of December l,20ll through November 30,2012 will be
April 2016. Please refer to Attachment Monsanto 1.1 1.
Recordholder: Lyle Bankhead
Sponsor: Joelle Steward
firr*u+t48, Nr
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IT|MA rLltuls*an
Execution Version
-.,i y,, i-.'.. ! l i,'; i l: i0
II{ASTER POWER PURCHASE AND SALE AGREEMENT
CONT'IRMATION LETTER
BETwEDN PACIFICoRP aTqD :PaCTTIC GAS AND ELECTRIC co}IPAN Y
FOR BUNDLED RPS ENERGY
2O1O THROUGH2Ol2
Presmbte: This Confirmation lrtter ("eonfirmatio,n" or "A@!") is entered into as of ?/ S / Ol , 2OOg
("Exesu3!g! !alg') by and betrveen Pacific cur una nt".tri. Eiln paoi, a Califouda corporation (]@*6yer"),
and PacifiCorp, an Oregon corporation (?acinCse" or "SCI!gt''), each individually a "EEEy" and collectively the
'oPg$igq," and confirms the transaction ('Transggliotr') agreed to by the Pafties regarding the purchase and sale of the
Product (as defined belorv) hereunder. This Confirmation is being provided pursuant to and in accordance rvith the terms
ancl provisions of the EEI Master Power Purchase and Sale Agrcenrent betrveeq-the Pagies together rvith the Cover Sheet,
Collateral Annex and Paragraph l0 to the Collateral Anncx, each dated 7 /K toq ,2009 (collectively, the "EE!
MasterAgrreement"), and consti$tes aConfirmation under, a part of and is su6ject/to the terms and conditions of such
EEI Master Agreenrent, To thc extent that this Confirmation is inconsistent rvith any provision of the EEI Masler
Agreement, this Confirmation shall govem the rights and obligations of the Parties rvith respect to this Tmnsaction,
Capitalized terms used but not defined herein shall have the meanings assigned to thcm in the EEI Master Agreement.
Trnnsactiont Buyer is purchasing and Seller is selling the Product under the terms and conditions of this Confirmation
C&usastisq").
Seller: PaciliCorp
Btrl,eri PG&E
Term nud
Binding Nnture:
(a) Subject to the terms hereof, the delivery tenn shall commence HE 0lO0 PIIT on January l, 2010 and
continue through and conclude on IIE 2400 PPT Decembet 3l , 201,2 C DetlygIy-Tern"); provided that, this Confinnation
shall remain in effect until the Parties have fulfilled all obligations rvith respect to the Transaction, including the delivery
of the Product and the transfer of all Green Attributes to Buyer through IVREGIS, and ths payrnent of any and all amounts
due hereunder.
ft) This Agreement shall be effective and binding as of the Execution Date only to the extent required to give full
effect to, and enforce, the rights and obligations of'the Parties under Special Provisions I (Conditions Precedent), 2
(Failure to Meet All Conditions Prtcedent), 3 (Obligations Prior to Satisfaction of Conditions Precedent), 4 (Seller
Representations, Wananties and Covenanls), 6 (WREGIS),7 (Payments), 12 (Confidentiality), and l3 (Governing Larv),
and those terms and eonditions relating to the perficnnance and enforcement of each Party's rights and obligations under
the foregoing Special l,rovisions, Upon the occurence of the Effective Date, this Agreement shall be in filll force atd
effect, enforceable and binding in all respects.
Product:
(a) WSPP Schedule C Energy ('EirngjgeIgy") bundled rvith an equal amount of Green Attributes that are
produced by or associated rvith any Qualified Project (or Complying Facility, as applicable) identified ou Appendix II
attached hercto.
(b) All Green Attributes delivered by Seller pursuant to this Confinnation shall be (i) supplied and
attributable to generation from a Qualifred Project and (ii) generated and delivered rvithin the same calendar year. The
Firm Energy and the Green Attribules shall be referred to together as "Ettudled RPL Enqgy" or "Pl'o.dug!." AII Bundled
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2_
RPS Energy shall comply rvith the requircmcnts of the Califomia Renervables Portfolio Standard for out-otstatc
renervable generation, including, n ithout limitation, the eligibility and delivery requilenrents set forth in the guidelines
adopted by the CEC pursuant to Califomia Public Resources Code Sectiott25741, To the extent a changc in Law occurs
after the Execution Date that causes the preceding statement to be materially false or rnisleading, it shall not be an Et ent
of Default if Seller has used commercially reasonable efforls to comply rvith such change in Laiv. For purposcs of this
paragraph and Special Provision 8 belorv, such "cornrnercially reasonable effotts" shall mean Seller expending or
incurring up to atr aggregate of Ten Thousand Dollars ($10,000) ou out-of-pocket costs and expenses paid to third porties
(not including the need to incur adclitional admiuistrative or intenral staffing expeuses) during the Delivery Terrn of this
Confurnation to comply rvith such change in Larv.
Contract Priccr The Contract I'rice for Bundled RPS Energy shall consist of the Bnergy Price and the Green Attributes
Price, as follorvs:
(a) Energv Price: ICE Daily Califomia / Oregon Border lndex ("Energy Pricg"); plus
O) Green Attributes Price: The price for Green Attributes shall be: (i) $+Z per MWh for Cohtract Year 20t0;
(ii) $44 per MWh for Contract Year 2011; and (iii) $45 per MWh for Contract Year 2012 ('Green
Attributes.Price").
No other payment shall be reguired for Bundled RPS Energy deliverred under this Confirmation,
Dclivery Poilt: The Delivery Point for Firm Energy shall be the California / Oregon Border North to South ('COB").
With regard to Grcen Attributes, title shall tmnsfer from Seller to Buyer as set forth in Special Provision 7 belorv or in
accordance rvith applicable Larv. .
Quantity:
(a) For each Contmct Year, Seller shall deliver to Buyer the Quantity specified in thble I belorv for Grtcn
Attributes ('Green Attributes Oum&") and Itinn Energy ("Firm Energy QuaUtjU") (together, the "Quag!ilJ__o-f
Product"); provided that, if the Goodnoe Wiud Facility identified on Appendix II is not cerlified by the CEC as an ERR
by December 27, 2009, then Seller nray make a one-time adjustment to the Grcen Attributcs Quantity and the Firm
Energy Quantity as specified in Appendix III after providing five (5) days prioiNotice to Buycr.
(b) The Finn Energy Quantity shall match (upon conversion to MWh) the Green Attributcs Quantity,
TABLE 1: QUANTITY OFPRODUCT
Contract Years
2010 ttn'ough2012
Green Attributes Quantity
(Mlvh)
Firm Energy Quantity (as
scheduled and delivered at
coB) (Mw)
Cousisting of
Quarter l, Quarter
2, and Quarter 4 of
each Contract Year
655,200 MWh in Contract Year 2010
655,200 MWh in Contmct Year 201 I
657,600 MWh in Conhact Year2012
100 MW for each hour of each
day in each Delivery Month
during each applicable Quarter
in each Contract Year
Green Attributcs Iurbalance and Product Delivery Shortfall:
In the cvent that for auy Contract Year the Firm Energy Quantity delivered is more than the Green Attributes Quantity
delivered ("Green Attnbutes Lnbal ce'), then Buyer shall remain obligated to pay Seller the Energy Price for the Firm
Energy that was scheduled, deliveird and received by Buyer, pursuant to Special Provision 7 belorv, and thc follorving
provisions in this Grecn Ath{butes Imbalance and Product Deliveiy Shortfall section shall apply as Buyer's exclusive
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remedies for such Creen Attributes hnbalance in that Contract Year, notrvithstanding anything to the conhary in the EEI
Master Agreement. If Seller does not cure the Green Attributes lnbalance in accordance rvith this Green Attributes
Imbalance and Product Delivery Shortfall section, Buyer may, at its option, declare an Event of f)efault. The MWh
amount of a Grcen Attributes Imbalance shall be rcfered to as the "01€en Attributes "
In the event that for any Contract Year the Quantity of Product delivered is less than the applicable Quantities specified in
Table I above for Green Attributes and Finn Energy (a "Procluct Delivery Shffifa!l,'), then this Green Attributes
Inrbalance and Product Delivery Shortfall section shall apply as Buyer's exclusive renredies for such Product Dclivery
Shortfall in that Contract Year, notrvithstanding anlhing to the contmry in the EEI Master Agreenrent, If Seller does not
cure the Product Delivery Shortfall in accordance rvith lhis Green Attributes Imbalance and Product Delivery Shortfall
section, Buyer may, at its optiou, declare an Event of Default. The MWh arnount of a Ptoducl Delivery Shortfall shall be
refened to as the "Product ShortfallAurount,"
This Green Attributes hnbalancc and Product Delivery Shortfall section shall be Buyer's sole and cxclusive remedy for
any Green Attributcs lnrbalance, Green Attributes Deficit funount (which is the MWh amount of a Greon Attributes
Imbalance), Product Delivery Shortfall, Product Shortfall Amount (rvhich is the MWlr amount of a I'roduot Delivery
Shortfall), or breach of subsection (b) of tlrc Quantity section above,
(a) Cure Provislorr for Greeu Attributes Imbalance and / or Product Delivery Shorffnll. Subject to the
Shomfall Danrages plovision in subsection O) immediately belorv, Seller shall cune a Grcen Attlibutes Imbalance and / or
Product Delivery Shortfall as set forth herein ('Cure frcyision"). Seller shall give Buyer Notice no later than January 15
of the calendar year irunediately succeeding the,Contract Ycar in rvhich the Green Attributes Imbalance and / or Product
Delivery Shortfall occured containing Seller's best estimatc of the Green Attributes Deficit Amount or Product Shortfall
Amourt, as applicable ("Notice of Estimated ). In addition, on or before Maroh 30 of such immediately succeeding
salendar year, Se[Ier shall give Notice to Buyer of the actual Green Attributes Deficit Amount and / or thc actual Product
Shortfall Amount as verified against the applicable metered data ('Noticc of Actual CurC').
(i) To cure a Green Attributes Imbalance, Seller shall deliver to Buyer in the second Quafter of such
immediately succeeding calendar year ('pure_Egg!gd') Green Attributes and Firm linergy each in ar amount equal to the
actual verified Green Attributes Deficit Amount (rounded down to the nearest 5 MW block), To cure a Product Delivery
Shortfall, SeLler shall deliver to Buyer in the second Quarter of such immediately succeeding calendar ycar ("Cure
Perlod') Product irr an amount equal to the actual verified Product Shofifall Amouut (r'ounded dorvn to lhc nearest 5 MW
block).
(ii) The Contract Price for any Green Attributes delivered under this Cure Provision (rvhether for a
Green Attributes Inrbalance or a Produot Delivery Shortfall) shall be tlrc Green Attributes Price for the Contract Year in
rvhich the Green Attributes lmbalance or the Product Delivery Shortfall, as applicable, occurs. The Contract Price for
Firm Energy delivered uncler this Cure Provision shall be the Energy Price at the tirne scheduled, delivercd and rcceived,
'Ilre Parties shall use theNotice of Estimated Cure to develop a mutually agreeable schedule for any Firm Energy that
Seller delivers under this Cure Provision ('Firm Enerey. Cure Schedule"). The Parties shall update the Firm Energy Cure
Schedule as necessary in accordancc rvith the Notice of Actual Cure.
(iii) Seller may deliver Green Attributes pursuant to this Cure Provision from any Qualified Projecl or
from any generating facility that (a) at the tinre of such delivery qualifies and is certified by the CEC as au ERR for
purposes of the Califomia Renervables Portfolio Standard, is registered rvith WREGIS, and has commenced initial
operation after January 1, 2005, and may be an in-state or out-of-state resource but is located rvithin tlre United States, and
(b) otherrvise cornplies rvith this Confirmation (each suoh generating facility, a "egloplying_Facili["); provided that, at
Ieast tluee (3) days prior to any such delivery from a Complying Facility, Seller shall give Buyer Notice identifying such
Complying Facility in reasonable detait.
(b) Failurc Notice nnd Shortfall Damages. In the event that Seller fails to cure a Green Attributes
lmbalance and / or Product Dclivery Shortfall in accordance rvith the Cure Provision in subsection (a) abovq then Buyer
shall give Seller Notice of such failure ("Eaih&-Notiw') and fifteen (15) calendar days from the delivery of such Failule
Notice to.either (1) crue the outstanding Green Attributes f)efrcit funorurl or Product I)elivery Shortfall (as applicable) or
(2) pay Shortfall Damages to Buyer, Buyer's Failure Notice shall identify the outstanding Creen Attributes Deficit
Anrount and / or Product Delivery Shortfall and the amount of applicable Shortfall Damages.
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, (i) If pursuant to Buyer's Failure Notice Seller clects to cure 0rc outstanding Green Anributes Delicit
Amount and / or Product Delivery Shortfall, Sellel nray deliver Green Atu'ibutes from any Qualified Project or Cornplying
Facility for the cure. 'l'he Parties shall agree upou a schedule for any Firrn Energy that Seller delivers pursuant to suclr
cure.
(ir) If pursuant to Buyer's lrailure Notice Seller elects to pay Shortfall Damages, such damages shall
be paid for each MWh of the Green Attributes Defrcit Amount and / or the Pruduct Shortfall Arnount that Seller failed to
cure pursuant to the Curc Provision in subsection (a) above. The Parties agree that the damages sustained by Buyer as a
result of a Green Attributes Deficit Arnount and / or Produot Delivery Shortfall rvould be difficult or irnpossible to
determine or that obtaining an adequate remedy would be urueasonably time consuming or expensive and thereforc agree
that Sellu shall pay the Shortfall Damages to Buyer as liquidated damages, In no event shall Buyer be obligated to pay
Shortfall f)anrages.
(iii) If rvithin the fifteen (15) day time period follorving delivery of Buyer's Failure Notice Seller does
not either' (1) cure the Creen Attributes Deficit Amouut or Product Delivery Shortfall (as applicable) or (2) pay the
applicable Shortfall Damages , Buyer may, at its option, declare an Event of Default.
Dclivcry Ratc: Except for calcnclar months July, August and Septenrber of eaeh Contract Year, Seller shall shape ancl
dcliver Firm Encrgy for each Conlract Year during all calendar months of such Contract Year (each, a
"Dgl!yEty-I{on!h," attd collectively for a Contract Year, the "Dglivgy_Mgnlhs") as unifonn hourly blocks
of Bnergy deliveries over all hours of each day in cach'Delivery Month pursuant to'table 1 and the
Quantity section above,
Green Attributes shall be detivered by Seller to Buyer in accordance with Speciai Provision 6 belorv.
Scheduling: (1) Except for any Irirm Energy that may be delivered pursuant to the Cure Provision or a Failure Notice,
Seller shall Schedule all Firm Energy in accordance with the most recent rules adoptcd by the Western
Electricity Coordinating Council ("WECC').
(2) For any Firm Bnergy that Seller delivers purcuant to the Cure Pnrvision, the Parties shall use the
Notice of Estimated Cure to develop a mutually agreeable schedule for such Firm Energy (defined as the
"Finn Energy-Qlrre. Sohgd$le'). The Parties shall update the Firm Iinergy Cure Schedule as necessary in
accordance rvith the Notice of Actual Cure. Seller shall Schedule all Firm Energy in accordance rvith the
Firm Energy Cure Schedule for delivery during the same hour and rvithin seven calendar days from the
date such Energy should have been delivered pursuant the Delivery Ratc seclion of this Confinnation. In
addition, the Patties shall agree upon a schedule for any Firm Energy that Seller delivers pursuant to a
F'ailure Notice.
(3) The Pa(ies may also agree to additional scheduling and communication protocols neccssary lo
implement deliveries under this Confirmation.
(4) NERC E-tags slull comply with the delivcry requirements as specilied by thc CEC. Buyer shall be
responsible, if applicable, lo create NERC E-tag documentation for each,confinned day-ahead delivery,
and to rcvisc such NERC E-tags hourly, as necessary, to shorv that the associated schedule pertains to this
Confirmation, that the REC source is a Qualified Project, and, via the NERC E-tag's physical path chain,
that the sole source of the Green Attributes is a Qualified Project.
Crcrlit and Collaterd: As this Confinnation is being provided pursuant to and in accordance rvith the EEI Master
Agreernent, the obligations of each Party under the Confinnation shall be secured in accordance rvith the provisions of the
EEI Master Agreement, rvilh the follorving exception: Should a Party suffer a Dorvngrade Event such that a
Party's Credit Rating falls belorv'BBB-'from S&P or'Baa3tfrom Moody's, it shall post Performance Assurancc in
an amount equal to $14,167,248, Aly suoh Performance Assumnce shall rernain in full force arrd effeet from such clate
until the earlier of (a) the date ttre Dolngrade Event ceases to be applicable or (b) the encl of the DeliveryTemr.
SPECIAL PROYISIONS:
l. Conditions Plececlenl. l'he Effective Date of this Confir:nation shall not occur until the follorving conditions have been
satisfied (such conditions shall be refered to collectively as "eo1djtj_qtg_Brcgedgg!," aud each.a "eqncLligLflggdenl"):
(a) CPUC Approval has been obtained and Buyer rcceives a final and non-appealable order of the CPUC that
finds that Buyer's entry inlo this Conflumation is reasonable and that payments to be made by Buyer hercunder arc
recoverable in mtes ("CPUC Approval Cqr:dit '); and
(b) the CEC cefiifies that at least seven (7) of the Wind Facilities listed on Appendix II is each an ERR for
pulposes of the Califomia REnervables Portfolio Standard C'CEC Certification C ).
2. Failure to Meet-AIJ Conditions Plecedent. If each Condition Prccedent is not satisfiecl, or rvaivecl in rvriting by both
Parties, on or before Decetnber 29,2009, either Parly may terminate this Confimration effective upon receipt of n ritten
notice by the other Party, such noticc shall be delivered by Deccmber 29,2009 or such later date as may be rnutually
agrced upon in rvrtting by the Parties, Neither Parly shall have any obligation or liability to the other by reason of such
termiuatiorr.
3. ObligationsPriortoSgti$factiouofConditionsPrecedent. IfasofJanuaryt,2010theCECCerlificationConditiou
Precedent has been satisfied, but not the CPUC Approval Condition Prececlent and neither Party has terminated this
Confu:rnation under Special Provision 2, then the Parlics shall have the obligations set forth in this SpecialProvision 3.
(a) Delively and Receipt of Finn Enctsy. Seller shall deliver Firm Energy as specified in the Delivery Rate
section above aud Buyer shall take and pay for Fimr Euergy delivered at the Energy Pricq in accordance rvith this
Confimration. In the event this Confirmation is later terminated pursuant to Special Provision 2, thc Pafies' obligations
to deliver, receive and pay for Firm Iinergy slrall simultaneously tenninate as soon as tliey may pmctically be terminated
rvith due regard to the Scheduling provisions hereof. Any Finn Energy delivered prior to a ternrination of this
Confnmation pursuant to Special Provision 2 shall be paid for by Buyer at the Energy Price.
(b) Tracking of Green Attributes.
(i) Seller shall record and track in an internal bookkeeping account (A) the amount of Green
Attribtrtes that shall be bundled rvith the Firrn Energy delivcred pursuant to Special Provision 3(a) above ("Tregkgd_Glgg!
Attributes') and (B) the aggregate Grecn Attributes Price payable rvith respect to suoh Trackecl Green Attributes. Seller
shall reserve and rnaintain all Tracked Green Attributes in Seller's intemal bookkeeping account on behalf of and for the
sole benefit of Buyer until tlre earlier to occur of either the date of the satisfaction of all Conditions Precedent or the date
this Agreernent is teminated pursuant to Special Provision 2. During the time period in rvhich Seller tracks Green
Attributes pursuant to this subsection (the "Tracklgg-Period"), all metering and WREGIS obligations shall be performed
in accordance rvith the applicable provisions of this Confirmation, and such information shall form the basis of itenrs (A)
and (B) referenced above.
(iD Upon the first day follorving the Effective Date, Sellcr shall transfer the Tracked Grecn Attributes
to Buyer pursuant to Special Provision 6 and invoice Buyer for the Tracked Grcen Attributes at the applicable Greerr
Attributes Price. Buyer shall pay such amount in accordance rvith Special Provision 7, Upon the transfer of the Tracked
Green Attdbutes tg Buyer and the payment therefor, this Special Provision 3(b) shall no longer be applicable.
(iiD If this Confinnation is terminated pursuanl to Special llrovision 2 above, (A) Buyer automatically
relinquishes any and all rights to any Green Attributes or WREGIS Certificates hercunder; (B) Buyer shall have no
payment obligations rvhatsoever pursuant to this Spccial Provision 3(b); and (C) this Special Provision 3(b) shall no
Ionger be applicablc, Upon the tennination of this Confirmation pursuant to Special Provision 2, neither Party slrall have
any further liability or obligation to the other Party by reason of such lermination other than for auy Firm Energy
delivered pursuant to Speoial Provision 3(a) above,
(iv) Nothing in this Special Provision 3O) shall rrcquire Seller to reserve Green Attributes or WREGIS
Certificates from any Qualified Project beyond Jarruary l, 2010 if the EtTective Date does not occur prior thereto, except
as rnutually agleed by the Pafiies rvith respect to Tracked Green Attributes during the Tracking Period,
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4. Sgller Representations. Warranties aud Covenants. Sellcr hereby represents,'ivarrants, and covenants that:
(a) Seller has the contractual right to purchase and take title to (i) the Firni Energy ancl (ii) the Green Attributes
generated by any Qualified Project (ancl any Complying Facility, as applicable) delivered hereunder, and at the tin:e of
delivery to Buyer all right, title and interest in and to suoh Finn Energy and Green Attributes are free and clear of any
liens, taxes, Clailns, sccurity interests or other errcumbmnces, except for any right or interest by any entity claiming
through Buyer and any Govemmental Charges, costs ancl expenses charged to or incurred by Buyer follorving transfer
of the Green Attributes pumuant to Special Provision 6 belorv;
(b) Seller has not sold, and rvill not sell, the F-inn Energy or Green Attributes to be deliverecl hereunder, or the
RECs representing suoh Green Attributes, to any otlrer person or entity;
(c) Seller and cach Qualified Facility (and each Complying F-acility, as applicable) shall be registered rvith
WREGIS;and
(d) All Green Attributes delivered hereunder shall be supplied and attributable to generation from a Qualified
Project (and, as applicable, a Complying Facility) and all Product shall qualify under the requircments ofthe California
Renervables Portfolio Standard.
5. Green Attriblltps from Any Qualified Project anSllrackine of RECs in WREGIS.
(a) Except as provided in the Cure Provision and the Failure Notice ancl Shortfall Damages sectiou, in no
eveut shall Seller have the right to procure any element of the Green Attributes fiom any sourpe other than a Qualified
Project fbr sale or delivery to Buyer under this Agreement.
(b) Seller rvarrants that all necessary steps have beeu taken to allorv the renervable energy credits transfened
lo Buycr to be tracked in the Western Renervable Energy Generation Infonnation Systcm.
(c) Buyer rvamants that all necessary steps that Buyer is responsible for undertaking pursuant to this
Confir:nalion have bcen taken to allorv the renewable energy credits transferred to Buyer to be tracked in the Westem
Renervable Ilnergy Generalion lnformati on Systenr.
6. WREGIS.
(a) Seller shall take all actions and execute all documents or instruments necessary lo ensure that the Creeri
Attributes to be sold hereunder from each Qualified Pmject (and cach Complying ltacility, as applicable) can be
transfered to Buyer utilizing WREGIS and that the transfer of WREGIS Certificates shall represent the RECs attributable
to or associatecl rvith such Green Attributes. Seller aud Buyer shall comply rvith all Lal,s, insluding, rvithout limitation,
the WREGIS Operating Rules, r'egarding the certification and transfer of such WREGIS Certificates to Buyer aud Buyer
shall be given sole title to all such WREGIS Certificates. Prior to the cornmencement of the Delivery l'erm, Seller shall
register each Qualified Project rvith WREGIS and establish an account rvith WREGIS C'seller's WREGL$ Accuil'),
rvhich Seller shall maintain until the end of the Delivery Tenn. Seller shall transfer WREGIS Certificates to Buyer in
accordance with WREGIS reporting protocols and WREGIS Operating Rules (as defined in the WREGIS Operating
Rules) from Seller's WREGIS Account to the WREGIS account(s) designated in rvriting by Buyer ("BUySdgJU&EGIS.
Accoggt"). Seller shall be responsible for all expenses associated rvith registerirrg each Qualified Project (and each
Complying Facility, as applicable) rvith WREGIS, establishing and maintaining Seller's WREGIS Account, and paying
WREGIS Certificate issuance and transfer fees, and all charges assessed by WREGIS to transfer WREGIS Cerlificate.s
from Seller's WREGIS Account to Buyer's WREGIS Account. Buyer shall be responsible for all cxpenses associated
rvith accepting and retiring WREGIS Cerlificates transfered to Buyer hereunder.
(b) Seller shall transfer WREGIS Certificatbs lo Buyer on a nronthly basis no later than ten (10) catendar days
afier their creation in accordaucs rvith the certification procedure established by the WREGIS Operating llules. Sincc
WREGIS Certificates rvill only be created for rvhole MWh amounts of output gencmled, any fractional MWh amounts
, (i.e,, kWh) rvill be canied fonvard until sufficient generation is accumulated for thc creation of a WRIiGIS Ccrtificate,
Seller shall usc cornmercially reasonable efforts to (i) ensure that the WREGIS Certificates for a given calendar month
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con'espond s,ith the Creeu Attributcs generated by each applicable Qualified Project for such calendar month as
evidenced by such Qualified Project's metercd data, and (ii) validate, adjust, and disprite data rvith WREGIS so that the
data fi'orn each applicable Qualified Project's meter exactly corresponds rvith thc WREGIS Certificates created for the
Green Attributes in each calendar month. Seller shall provide Bul,er rvith arry copies of correspondence or documcnlation
to or from WREGIS rvith respect to any such validation, adjusttnent, or dispnte. For purposes of this Special Ptovision
6(b), "commercially reasonable effotts" shall nrean, with respect to each WREGIS Cerlificate, Seller expending or
incuring Five Dollars ($5.00) per WRECIS Certificate on out-of-pocket costs and expenses paid to third parties (not
including the need to incur additional achninistrative or intenral stafling expenses) during the Delivery Tenn up lo a
rnaximum of Ten Thousand Dollars ($10,000) to comply rvith its obligations under clauses (i) and (ii) above.
(c) Without lirniting Seller's obligations under this Special Provision 6, including rvithout limitation Seller's
obligations under clauses (i) and (ii) of subsection (b) above, if a WREGIS Cerlificate Deficit is caused solely by an eror
or omission of WREGIS, it shall not constitute a Creen Attributes Imbalance or Ptoduct Delivery Shortfall and the Paflies
shall cooperate in good faith to cause WREGIS to correct its enor or omission.
(d) If WR-EGIS changes the WREGIS Opcrating Rules after the Execution Date or applies thc WREGIS
Operating Rules in a manner inconsistent rvith this Corrfirmation, the Parties promptly shall modify this Special Ptovision
6 as reasonably required to cause and enable Seller to transfer to Buyer's WREGIS Account a quantity of WREGIS
Certificates for each given calendar month tlut comesponds to the Creen Attributes generated by each applicable
Qualified Project in the samc calendar month.
7. Payments. Buyer's payments to Seller under this Confirnration shall be made in accordance with Article 6 of the EEI
MasterAgreement. The follorving provisions shall supplement those in Article 6 of the lllll Master Agrccrnentr
Calculation Peliod: Each calcnclarmonth during the DeliveryTerm.
Monthly Cash
Settlement Amount:
The Monthly Cash Settlement Amount shall be equal to the sum of the follorving:
(a) the applicable Energy Price pursuant to the ICE Daily Califonria / Oregon Borcler Index
rnultiplied by the quantity of Firm Energy schedulecl, delivered and received by Buyer pursuant to
this Confiruration during the applicable Calculation Period; and
(b) the applicable Green Attributes Price multiplied by the quantity of Green Attributes (in
MWhs) delivered to Buycr pursuant to this Confinnatioil as parl of the Product, as evidenced by
the WREGIS Cerlificates for the RECS reprcsenting such Green Attributes rvhich have been
properly transferred to Buyer's WREGIS Account,
Passaee qf Title: All rights, title and interest in and to the Green Attributes, RECs and WREGIS Cefiificates rvill transfer
to Buyer upon payment to Seller in accordance rvith the tenns of this Special Provision 7.
WREGIS Certific+fe Evidence: Buyer shall nol be obligated to pay for any Greeu Attributes that have not been evidenced
as WREGIS Certificates and properly transferred to Buyer's WREGIS Account,
8, Eligibility
(a) Seller, and, if applicable, its successors, repr€sents aud wanants that tluoughout the Delivery Term of this
Agreement that: (i) the Project qualifies and is certified by the CEC as an Eligible Renervable Energy Resoutce ("ERR')
as suclr term is defined in Public Utilities Code Section399.l2 or Sestion 399.L61' and (ii) the Project's output delivered to
Buyer qualifies under the requirements of the California Renervables Portfolio Standard. To the extent a change in laiv
occurs after execution of this Agreement that causes this representation and rvan"nty to be materially false or misleading,
it shall not be an Event of Default if Seller has usEd commercially reasonable efforts to comply rvith such change in larv,
(b) Seller and, if applicable, its successors, represents and rvarants that throughout the Delivery Term of this
Agreement the renervable energy credits tmnsferred to Buyer conform to the definition and attributes required for
compliance s,ith the Califomia Renervables Portfolio Standard, as set forth in Califomia Public Utilities Commission
Dccision 08-08-028, and as may be rnoclificd by subsequent decision of the Califor:ria Public Utilities Conrmission or by
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subsequent legislation. To the extenl a change in larv occurs after execution of this Agreement that causes this
representation and s,arallty to be uraterially false or misleading, it shall not be an Ercnt of Default if Seller has uscd
commercially reasonable efforts to cornply rvith such change in larv.
9. Green Altritrutes. Seller hereby provides and conveys all Green Attributes associated rvith all electricity generatiorl
fi'om thc Project to Buyer as part of the Product being delivered. Scller represents and warrants that Seller holds thc rights
to all Green Attributes fircm the I'roject, and Seller agrces to com,ey and hereby conveys all such Green Attributes lo
Buyer as included in the delivery of the Product from the Project.
10. Greenhouse Gas lltnissions. Buyer advises that a Govemmental Authority rnay require Buyer to take ceftain actiotrs
rvith rcspect to greenhouse gas emissions attributable to the generation of energy, including, but not limited to, reporting,
registering, tracking, allocating for or accounting for such emissions. Seller agre€s to reasonably cooperate $,ith Buyer's
fulfillment of its reporting obligatiotrs by providing infonnation as iequested in rvrltiug by Buyer rvith reasonable detail
and specificity as reasonably necessary to pennit Buyer to comply rvith sucli requirements, if any. Nothing herein shall
obligate Seller to take or not take any action or omission rvith respect to its orvn reporting to any Govemrnental Authority,
or to support or concur rvith pny reporting by Buyer to any Covemmental Authority.
11. No-S-q!p of _Capacitlt. The Parties hercby agrce tlrat tlre sale of Bundled RPS Energy hereunder shall only pertain to
the Green Attributes associated rvith generation from a Qualified'Project and the sale of Finr: EnergS and shall not in any
way include the sale of capacity from a Qualified Project, and Buyer hereby disclaims, negates, renoullces and rvaives any
claim to the contrary.
12. BPS Confidentiality. Notrvithstanding anything to the conffary in the EEI Master Agreement, at any timc on or aller
the date on rvhich the Buyer makes its aclvicc liling letter seeking CPUC Approval of this Agreement, either Party shall be
petmitted tq disclose the follorving terms rvith respect to this Agreernent to the extent applicable: Party names, rEsourcc
type, Delivery Ternr, Qualified Project locations, anticipated Initial Energy Delivery Date, Quantity, and Delivery Point.
13. Governing Lary. This agreement and the rights and duties of the parties hereunder shall be governed by and
construed, enforced and perfornred in accordance rvith the larvs of the stats of California, rvithout regard to principles of
conflicts of larv. To the exlenl enforceable at such timq each party waives its respeclive right t<l any jury trial. rvith
respect to any litigalion artsing under or in connection rvith this agreement.
14. As used in Special Provision 13 above, the ryord "agreement" means this Agreement and thc ryords "party''and
'opartics" shall have the meaning set forth in thc Preamble above.
15. As used in Special Provisions 8 and 13 'above, the rvords "law" and "larvs" shall have the meaning set forth in thc
Glossary of Definitions for "Law."
16. As trsed in the Glossary of Dcfinitions for "CPUC Approval" belorv, the rvords "eligible rcnervable energy resource"
shall have the meaning set forth in the Glossary of Definitions for "Eligible Renervable Energy Resource."
17. As used in Special Provisions 8 and 9 above, the rvords "the Prcject" shall mean atry Qualifrecl Project. As used in
the Glossary of Definitions bclorv for "Green Aftributes," the rvords "the Project" shall mean any Qualificd Project and
any Cornplying Facility, as applicable.
18. Counterparts, This Confinnation may be executed in onc or more counterpafis each of rvhioh shall be deemed an
origirral and all of rvhich shall be deemed one and the same Confirmation. Delivery of an executed counterpart of this
Confumation by fax ol l'ortable Dooument Fonnat (PDF) rvill be deerned as effective as delir.ery of an originally
executed counterpart. Ariy Party delivering an executed counterpart of this Cbnfirmation by fhcsimile or PDF rvill also
deliver an originally executed counlerpafl, but the failure of any Party to deliver an orlginally executed courltclpart of this
Confinnation rvill uot affect the validity or effectiveness of this Coufinnation.
GLOSSARY OF DEHNI'I'IONS: For purposes of this Confirmation, the follou,ing clefinitions shall apply:
"Cfllifornia Renervables Portfolio Standard" means the renervable energy prograln and policies established by Senate Bills
1038 and 1078, codified in Califomia Public Utilities Code Sections 399.11 tlu'ough 399.20 and California Public
Resources Code Sectiotrs 25740 through 257 51, as such provisions are anrended or supplemented from time to time.
{'CEC" rneans the California Energy Corritnission or its successor agency.
"Conlract Yeaf' means a period of trvelve (12) consecutive rnonths during the Delivery Term. The first Contmct Ycar
shall commence on January l, 2010 and each subsequent Contract Year shall comlnence on the anniversary of such date.
((CPIJCD means the Califomia Pubtic Utilities Commission, ot'successor entity.
"eBUe ABW!" meaus a final ahd non=appealable order of the CPUC, rvithout condilions or modifications
unacceptable to the Paties, or either of them, rvhich contnius the follorving tenus:
(a) approves this Ageernent in its entirety, including paynrents to be nrade by the Buyer, subjcct to
CPUC revicrv of the Buyer's administration of the Agreement; and
(b) fincls that any procurement pursuant to this Agreement is procurement frorn an eligiblc rcnervable
energyresourca forpurposes of deternrining Buyer's cbmpliance rvith any obligation lhat it may
have to procufle eligible renervable onergy resources pursuant to the Califonria Renervables
Portfolio Standard (Public Utilities Code Section 399. I I et seq.), Decision 03-06-071, or other
applicable larv.
CPUC Approval rvill be deemed to have occuned on the date that a CPUC decision containing such tindings becomes
final and non-appealable.
"Cornplying Facility'' has the rneaning set forth in thc Cure Provision.
"euls Provision" has the meaning set forth in subsection (a) of the Green Attributcs Imbalance and Producl Delivery
Shortfall section.
"Effeclil,e Dgtg" lueans the date on which all of the Conditions Precedent set forth in Speoial Prcvision I have been
satisfied or waived in rvriting by both Parties,
"Elieible Renervsble Enerey Rcsourgg" "eligible renswable ' or "ERR" has the meaning set forth in
California Public Utilities Code Ssction 399,12 and California Public Resonrces Cocle Section 25741, as either code
provision is amended or supplemented from time to time.
"Energy" as used in the definition of "Green Attributcs" and elservhere in this Agreenrent means electric energy rncasured
in MWh and net of auxiliary loads and station electrical uses,
"ExggUtlon_Dalg" means the latest date of signature found on the signature page of this Agreement.
"Goverrunental Authority" means any federal, state, local or rnunicipal governm€nt, govemmental depafinrent,
commission, board, bureau, agencyt or instrumentality, or any judicial, rcgulatory or administralive body, having
jurisdiction as to the matter in question.
"GreguA!_ltrbulgg" neans any ahd al1 ctedits, benefits, emissions reduotions, offsets, and allou,ances, horvsoever entitled,
attributable to the generation from the Project, and its avoided emission of pollutants. Green Attributes include but are not
limited to Renervable Energy Credits, as rvell as: (l) any avoided emission of pollutants to ths air, soil or water such as
sulfur oxides (SOx), nitrogen oxides (NOx), carbon monoxide (CO) and other pollutants; (2) any avoided emissions of
carbon dioxide (CO2), melhane (CH4), nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride and othcr
greeuhouse gases (CHGs) that have been determined by the United Nations Intergovernmental Panel on Climate Change,
or otherwise by larv, to contribute to the actual or potential tll'cat of altering the Earth's climate by trapping heat in the
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atmosphere;l 1li ttre reporting rights to these avoided ernissions, such as Green Tag Reporting Rights. Green 'l'ag
Reporting Rights are the right of a Green 'fag Furchaser to repofi tlre orvnerchip of accumulated Green Tags in
compliance rvith federal or state larv, if applicable, and to a federal or state agency or any other party at the Gtceu Tag
Purchaser's discretion, and include rvithout limitation those Green Tag Reporting Rights accruing under Section 1605(b)
of The Energy Policy Act of 1992 aud any preseut or future federal, state, or local larv, regulation or bill, and intentatioual
or foreign emissions trading program. Green Tags are accumulated on a MWh basis and one Grcen Tag represents the
Green Attributes associated rvith one (l) MWh of Energy. Grcen Athibutes do not include (i) any energy, capacity,
reliability or other power attributes from the Project, (ii) produotion [ax credits associated rvith the constnrction or
operation ofthe Project and other financial incentives in the fornr ofcredits, reductions, or allorvances associated rvith the
project that arc applicable to a state or federal income taxation obligation, (iii) flrel-related subsidies or "tipping fees" that
rnay be paid to Seller to accept certain fuels, or local subsidies received by the generator for the destruction of particular
preexisting pollutants or the promotion of local environmenlal benefits, or (iv) emission reductiort credits encunrbered or
used by the Project for cornpliance rvith local, state, or federal opemting and/or air quality permits. If the Project is a
biomass or biogas facility ancl Seller receives any tradable Green Attributes based on the greenhouse gas reduction
benefits or other emission offsets attributcd to its fuel usage, it shall provide Buyer x,ith suffrcicnt Green Attributes to
insurc that there are zero net enrissions associated nith the production ofelectricity from the Project.
"Iil1" rneans the hour ending.
"ICE Daily Califomia / o-rg ' means the Intercontinental Exchange California / Oregon Border Day
Ahead Peak and Off-Peak Index fol the day of delivery or ary successor thereto.
"Initial Enerey Delivery Date" rileans the date upon rvhich all of the Conditions Precedent in Spccial Provision I have
been satisfied or rvaived in u,riting.
.
.Law" means any slatute, lal, treaty, rule, regulation, ordinance, code, permil, enactment, injunction, otder, rvrit,
decision, authodzation, jurlgmeut, decree or other legal or rcgulatory determinatiou or restriction by a coufl or
Governmental Authority of competent jurisdiction,.including any of thc forcgoing that are enacued, amended, or issued
after the Execution Date, and rvhich becomes effective after the Exeoution Date; or any binding interpretation of the
foregoing.
"M!Vh" means megarvatt-hour.
"No-tice gf.-Achlql.9ure" has the meaning set forth in subsection (a).of the Green Attributes Imbalance and Product
Delivery Shortfall section.
"Notice of Estimatd 'has the rneaning set forth in subsection (a) of the Green Attributes hnbalance and Product
Delivery Shortfall section.
'(PPTt' nreans Pacific prevailing tirne.
"Qualifled Project" means any of tlie rvind energy eleclric generatiug facilities listed on Appendix II hcreto that qualifies
and is certified by the CEC as an ERR for purposes of the Califomia Renervables Portfolio Standard and has commencad
initial operatiou ailel January 1, 2005.
"Omger" rneans one of a set of tbur corrsecutive three-month divisions of a Contract Year. As used in Table I , Quart-eJ 1
shall commence on January I and conclude March 3l; Quartcr 2 shall commence on April I and conclude on June 30; and
0uartpr4shallcomrnenceonoctoberlandcorrcludeonDecember3l.
I Avoided emissions may or may not havc any value for GHG compliance purposes. Although aroided emissions are
included in the list of Green Attributes, this inclusion does not qeate any right to use those avoiclcd cmissions to cornply
ivith any CHG regulatory program.
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"Renewable Errerey Ct.edits," "r'enewable euergy crEdfts," or "BECs" has the meaning set forth in California Public
Utilities Code Section 399.12(0 and CPUC Decision 08-08-028, as nlay be arnended or supplernented from tinrc to time
or as fruther defined or supplemented by 1611,, is evidenced by a WREGIS Ceftificate, and is equivalent to one (l) MWh
of electric geuei'ation.
o'Shortfall l)arnageq" means the liquidated damages payrnent(s) due by Seller to Buycr for a Grcen Attributes hnbalance
and / or for a Product f)elivery Shorlfall pursuant to the Failure Noticc and Shortfall Damages sectiotl and that is
calculated pursuant to Appendix I
"WEge" means the Western Electrioity Coordinating Counoil or its succossor organization.
"lilind_Faci!1tigs" m€ans the rvind enelgy electric generating facilities listed on Appendix II hereto.
r'W&Egg't means the Western Renewable Energy Generation Information System or any successor rcneivable energy
tracking program.
"WREGIS-egrtficEtes" has the same mcaning as "Certificate" as def,ined by WREGIS in the WRECIS Operating Rules
and are designated as eligible for cornplying rvith the California Renervables Portfolio Standard.
"WREGIS Certificate D 'means any deficit or shortfall in WREGIS Certificates delivered to Buyer for a calendar
month as compared to the Creen Attributes generated by each applicable Qualified Project for the same calendar nronth.
"WREGIS Operating Rules" means those operating rules and requirements adopted by WREGIS as of June 4, 2007, as
subsequently arnended, supplemented or rtplaced (in rvhole or in part) from time to time.
"WSPP Schedule C Ener_ff" means finrr energy Lhat conrplies rvith the tenns and provisions of $ervice Schedule C of the
Western Systems Porver I,ool (WSPP) Agreement or any successor to WSPP Service Schedule C that provides for the sale
of finn energy, both as may be in effect at any time from and aller the Execution Date; provided no terms and conditions
of the WSPP Agrecment are applicable to this Transaction or incotporated into this Agreement other than thosc schedules
and provisions of the WSPP Agreement as are necessary to interpret WSPP Service Schedule C (including applicable
definitions).
Please confirm that the terms and conditions stated herein accutately reflect the agreement reached by the Parties by
signing and retunring by facsimile to Seller at [ _... ].
[Signature page follows-]
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INV/ITNESS WI{EREOB the Parties have signed this Confirmation as of the Execution Datc,
Pacific Gas nnd Electric
e., */./*A e/r/// / .H,i/Mr/,i,,
SIGN,\TI'RE PAOE TO CONIJIRilI,ITTOt\ AGREE$IENT
Quanfltyof Product
Groen
Attdbrtsg
Quanllty
Exhibit 1:Green Attrib_gtes Imbalanse and Product Delivsry Shortfall
)^fffit" {
1' tmtetancer I h
#i
Produd0ellwry
Shrrfall
Grern
Atlrlbuter
lmbahnce
LJr
Craen
Alirlbutes
Ereesds
Enerry
This Exhibit is for illustuativepurposes only and will not be used in the corstuction or
interpretation of any provision ofthe Confirmation or Agreement, Without limiting the
generality of the foregoing, and without providing that this Exhibit is to be used for
conshrctiotr or interpretation, in the event of any variance between the terms frereof and
the terms of the Confinnation orAgreement, the terms of the Confirmation or
Agreeme,nt, as applicable, control.
1. Firm Energy Quantity and Grcen Attributes Quantity delivered meet Quantity of
Product requirements for Firm Energy Quantity and Green Athibutes Quantity (as set
forth in Table 1 of the Conlirmation). Cure Provision and Shortfall Damages section for
Green Attributes Imbalance and/or Product Dolivery Shortfall af,e not applicable because
the Firm Enorgy Quantif and the Green Attributes Quantities megawatt hours are equal
to one another.
With respect to 2,3rand 4 below, Seller must curo the greater of Product Delivery
Shortfall ot GreenAttributes [nbalance in the subsequent Confract Year.
2. Firm Bnergy Quantrtydeliveredis morethan Green Attributes Quantity. This
results in a Green Athibutes Imbalance and is subject to the Cure Provision and Shortfall
Damages s€ction. Amount of Green Athibutes Imbalance (Green Attributes Deficit
AmounQ not physically oured per Cure Provision is subject to Shortfall Darnages.
For example, in 2010 the Gnsen Attributes Imbalance is 50 GWh. This Green Attributes
Deficit Amount must be physically (Firm Bnergy * Green Athibutes) cured first and
then, if not completely cured physically, financially cured in 2011 per Cure Provision and
Shortfall Damages section.
3. Firm Energy Quantrty and GreenAtkibutes Quantity delivered is less than
Quantity of Product which results in a Produot Delivery Shortfall, and the Firm Enerry
Quantity is greater than the Green Attributes Quantity which rosults in a Green Attributes
Imbalance. Seller is required to first physically cure and then, if not completely cured
physically, fi.nancialLy cure both the Product Delivery Shortfall and the Green Attributes
Imbalance per Cure Provision and the Shortfall Damagos section.
For example, in 2010 ProductDelivery Shortfall is 50 GWh and Green Attributes
Imbalance is 75 GWh. The 75 GWh of Crreen Attributas Imbalance must bo physioally
(Firm Energy Quantity + Gteen Ath'ibutes Quantity) and, as applicable, financially cured
in 2011 per Cure Pnrvision and Shortfall Damages section. The amount of the Product
Delivery Shortfall (Proiluct Shortfall Amount) and Green Attributes lnbalance (Green
Attributes Deficit Amount) that is not physioally cured is subject to Shortfall Damages,
4. Firm Energy Quantrty and Greon Attibutes Quaatity delivered are both less than
Quantity ofProduct, and Green Attributes Quantity delivered is greater thanFirm Energy
Quantity. Buyet is not obligated to pay for Gteen Atfributes Quantity delivered in excess
of the Firm Energy Quantity delivered. Seller is required to cure Product Delivery
Shofifall pursuant to the Cure Provision and pay Shortfall Damages on what is not
physioally cured.
For example, in 2010 Product Delivery Shortfall is 80 GWh and the amount of Green
Attributes Quantity delivered exceeds Firm Energy Quantity by 40 GWh. Buyer is not
required to purchase the 40 GWh of Green Attributes, but Seller is required to first
physically curo (Finn Energy + Citeen Attibutes) and then, if not completely oured
physically, financially cure the Produot Delivery Shortfall of 80 GWh in 2011 per Cure
Provision and Shortfall Damages section, The amount of the Produot Delivery Shortfall
that is not physically cured is subject to Shortfall Damages.
APPENDD( I
SIIORTFALL DAMAGES
In accordance rvith the provisions of this Confirmation, Shortfall Danrages means the liquidated darnages
payrnent(s) that Seller must pay to Buyer for a Grcen Attributes Imbalauce and / or for a Product Delivery Shortfall no
later than fifteen (15) calendar days alter delivery of Buyer's Failure Notice to avoid an Event of Default if Seller does
not elect to cure and cure such Green Attributes Imbalance and / or Product Delivery Shortfall rvithin that same fifteen-
day time period.
The Shortfall Damages shall be calculated as set forth belorv.
For a Green Attributes Imbalance: Fifly Dotlars ($50) for each MWh of the Green Attributes Defrcit Ainount that
Seller fails to crx'e in accordance rvith the Cure Provision.
For a Product Delivery Shortfall: Fifty Doltars ($50) for each MWh of the Procluct Sho(fall Amount that Seller
fails to cure in accoxlancq rvith the Cure Provision.
-2-
APPEI'IDIX tI
The Wind Facilities are the folloling eight (8) facilities:
Seven Mile Hill I (Carbon County, Wyoming, CEC number 60807A,
WRBGIS number W975)
Seven Mile Hill il (Carbon Counfy, Wyoming, CEC nurnber 60808A,
WREGIS number W976)
Glenrock I (Converse County, Wyoming, CEC number 60805A,
WREGIS number W964)
Rolling Hills (Converse County, Wyoming, CEC number 608064,
WREGIS numberWg2S)
Wolverine Creek (Bouneville and Bingham Counties,Idaho, CEC number 605644,
WREGIS numberWlSS)
Marengo II (Columbia County, Washington, CEC nurnber 607304, WRECIS numberWT?2)
Glenrock III (Converse County, Wyoming, CEC number 608044,
WREGIS number W965)
Goodnoe Hills (Kliokitat, Washington, CEC numberpending, filed 412112009,
WREGIS numberW536)
"Qualified Project" means any of the foregoing rvind energy electric generating facilities that qualifies and is certified by
the CEC as an ERR for purposes of the California Renervables Portfolio Standard and has cornmenced initial operntion
after January 1, 2005.
"Complying Facility" means a generating facilityfrom which Seller may deliwr Green Attributes pursuant to the Cure
Provision and that (a) at the timc of such delivery qualifies and is certified by the CEC as arr ERR for purposes of the
California Renervables Portfolio Stantlard, is registered rvith WREGIS, and has conrmenced initial operation after January
l, 2005, and may be an in-state or out-of-state resourcc but is located rvithin the United States, and (b) otherrvisc complies
ri,ith the Confinnation.
-3-
APPBNDIX III
If the Goodnoe Wirrd Facility identified on Anpendix II is not certilied by the CEC as arr EI{R by December 21,2009,
tlren Seller rnay adjust the Green Attributes Quantity and the Firrn Energy Quantiff to the amount specified for each in
Table 2 belorv after providing five (5) days prior Notice to Buyer.
Regatdless of any such actjustment, the Firm Ilnergy Quantity shall match (npon convcrsion to MWh) the Green
Attributes Quantity, as requircd under the Confirmation
TABLE 2: QUANTITY OF PRODUCT
Conffact Ycars
2010 through
2012
Green Attributes Quantity
(Mwh)
Firnr Energy Quantity (as
scheduled and deliverrd at
coB) (Mw)
Consisting of
Quarter 1,
Quarter 2,and
Quarter 4 of each
Contract Year
491,400 MWh in Contract Year 2010
491,400 MWh in Contmct Year 201 I
493,200 MIVh in Contract Year2012
75 MW for Each hour of each
day in each Delivery Month
duriug eaoh applicable Quarter
in each Contract Year
-4-
E)GCUTED \'ERSION
MASTER POWER PURGHASE AND SALE AGREEMENT
coNFIT,lffiSNNLETTER
PACIFICORP
AND
SOUTHERN GALIFORNIA EDISON COMPANY
Thls oonflrmation'letter ('Confirmation") confirms the Transaction between PacifiCorp ('Selle/') afr-d
Southern California Edlson Company ("Buye( or 'SCB) dated as of May 29, 20Og ("Confirmatigi
Effectlve Date') regarding the sale and purphase of the Produot, as such term is defined below ln Section
1.1, in accorddncd with and subject td tfre terms and provisions of thls Confirmation, the EEI Master
Power Purchase & Sale Agreement, together with the Cover Sheet, any amendments and annexes
thereto between Seller and SCE dated as of May 29,20Q9 ("Master Agreemenf'), and Paragraph 10 of
the EEI Collateral Annex to the Master Agreement (Paragraph f 0 and the Collateral Annex are both
referred to herein as the "Gollateral Annet') (the Master {greement and the Collateral Annex shall be
collectMely refered to as the "EEl Agreemenf). The EEI Agreement and this Confirmation shall be
collectively refened to herein as the "Agreement." Capitalized terms used but not defined in this
Oonfirmation shall have the meanings ascribed to them ln the EE! Agreement or the Tariff. lf any term ln
this Confirmation conflicts with the Tariff or EEI Agreement, the definitions set forth in this Confirmation
shallsupersede.
ARTICLE 1
COMMERCIALTERMS
,,"1
IJ Produst lnformatlon
Seller: PACIFIGORP Buyer: SOUTHERN CALIFORNIA EDISON
COMPANY
Tradlng:
Sellqr
DayAhead: 503€13-6168
RealTime: 503-813-5389
Buver
Day Ahead: 626-307487 I 626-307430
Real Time: 626-e07-4./,53 I 826-3074416
Schedullng:
Seller Buver
Day Atread: 503-813€757 Day Ahead: 626-3074425 I A26-3074413
RealTime: 503-813-5389 I 5374 Real Timq 626-3074405 I 626-3074416
Product:Catifomla RPS-eligible electic energy
PrcJect;
All Product sold hereunder shall be from one or more of the wind facilities listed below:
Wolverine Creek (Bonneville & Bingham Counties, ldaho, WREGIS lD W188, CEC lD
60564A);
Leaning Juniper (Gilliam County, Oregon, WREGIS lD W200, CEC lD 605624);
Marengo (Columbia County, Washington, WREGIS lD W185, CEC lD 60729A);
Marengo Expanslon (Columbia County, Washington, WREGiS lDW77z,CEc lD 607304);
Rolling Hills (Converse County, Wyomlng, WREGIS lD W928, CEC lD pending);
Glenrock I (Converse County, Wyomlng, WREGIS lD W9&[, CEC lD pending).
"ProJecfl shall include, and be limited to, the facilities listed above that have received LORS
Certification.
The Parties acknowledge and agree that the Project constitutes a pool of facilities that Seller
is oermitted to utilize in order to satisfo its obliqations hereunder.
-1-
E)(ECTITED VERSION
The Parties further acknowledge and agree that, with respect to Sec-tion 3.2(a) of this
Confirmation, Project shall solely be limited to the actual Product generated and delivered by
one of the facillties included in the Project used to satisfy the Total Quantity, and that Buyer
is not entitled to any additional Product produced by the facilities in the Project above and
beyond the Total Quantity.
Seller shall use commercially reasonable efforts to obtain LORS Certification ftom thE CEC.
Quantity 50 MW
Total
Quantlty:
Total Quantity''shall be equal to the product of:
(i) all hours from October 1, 2009 to December 31,2012, exclusive of all hours in the
months of July through September, and
(ii) Quantity.
Dellvery
Obllgatlon:
The obllgation to provide the Total Quantity over the Delivery Period is a firm obllgation in
that Seller shall delivery the Total Quantity consistent with the terms of this Confirmation
without excuse other than Force Majeure; provided that, Seller shall be permitted to fulfill the
Total Quantity from any single or combination of facilities that constitute the Pr$ect.
Durlng the Energy Delivery Period, Seller shall generate, transmit and integrate wind
generation from the Project into Sellefs electrical system on an hourly basis to be delivEred
to Buyer as WSPP Schedule C energy.
During each appllcable month of the Energy Dellvery Period, Seller shall schedule and
dellver the Quantity amount of WSPP Schedule C energy to the Dellvery Polnt consistent
with the Scheduling lnterval.
Prlce:
2009: lndex plus $35.00/MWh
2010: lndex plus $39.00/MWh
2011: lndex plus $40.00/MWh
2012: lndex plus $42.00/MWh
Term:
The Term of this Transaction shall @mmence upon the Confirmation Effective Date; and
shall continue until delivery by Seller to Buyer of the Total Quantity of Product has been
completed and all other obligations of the Parties under this Agreement have been satisfled.
Dellvery
Perlod:
The Delivery Period of this Transaction shall @mmenoe upon October 1, 2009; and shall
continue until delivery by Seller to Buyer of the Total Quantity of Product has been
completed.
Energy
Dellvery
Perlod:
The Energy Delivery Period shall be October 1,2009 to December31,2012 (excluslve of the
months of July through September).
Termlnatlon
Rlghts:
Either Party may terminate this Confirmatlon on notice (consistent wih section 10.7 of the
Master Agreement) if (D the CPUC issues a final and non-appealable order not grantlng
CPUC Approval on or before December 31, 2009; or (ii) Buyer has not obtained or wafued
CPUC Approval by December 31, 2009, and notice of such termination is given within fifteen
(15) dap.
Anv termination made under this section shall be without liabilitv or oblioation to the other
-2-
E)(ECUTED \IERSION
ARTICLE 2
DEFINITIONS
UCEC' means the Califomia Energy Commission or its regulatory successor.
.OPUC'means the Gallfornia Public Utilitles Commission or its regulatory successor.
'CPUC Approval' means a final and non-appealable order of the CPUC, wfthout condltions or
modlftcatlons unacceptable to the Parties, or either of them, which contains the following terms:
(a) approves this Agreement in its entirety, including payments to be made by the Buyer,
subject to CPUC review of the Buyer's administration of the Agreement; and
(b) finds that any procurement pursuant to this Agreement is procurement from an eliglble
renewable energy resource for purposes of determining BuyePs compliance with any obligation
that it may have to procure eligible renewable energy resources pursuant to the Callfornia
Renewables Portfolio Standard (Public Utilities Code Section 399.11 ef soq.),
Decislon 03-06-071, or other applicable law.
CPUC Approval will be deemed to have occuned on the date that a GPUC decision containing such
flndlngs becomes final and non-appealable.
"Green Attrlbutes" means any and all credits, benefits, emissions reductions, ofBets, and allowances,
howsoever entltled, attributable to the generation from the Project, and its aroided emission of pollutants.
Green Attributes include but are not limited to Renewable Energy CrediE, as well as: (1) any avoided
emisgion of pollutants to the air, soll or water such as sulfur oxides (SOx), nitrogen oxides (NOx), carbon
monoxlde (CO) and other pollutants; (2) any avoided emisslons of carbon dioxide (CO2), methane (CH4),
nltrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride and other greenhouse gases
(GHGs) that have been determined by the United Nations lntergovemmental Panel on Climate Change,
or othenrise by law, to contribute to the actual or potential threat of altering the Earth's climate by
trapping heat ln the atmosphere;t (g) tne reporting rights to these avoided emissions, such as Green Tai
Reporting Righb. GrEen Tag Reporting Rights are the right of a Green Tag Purchaser to report the
ownership of accumulated Green Tags in compliance with federal or state law, if appllcable, and to a
federal or state agency or any other party at the Green Tag Purchaser's dlscretion, and include wlthout
Avoided emissions may or may not have any value for GHG compliance purposes. Although
avoided emissions are induded in the llst of Green Atributes, this lnclusion does not create any
right to use those avoided emissions to comply with any GHG regulatory prcgram.
party $(cept for payment of any WSPP Schedule C energy already delivered and received
before notlce of such termination.
Dellvery Polnt:Palo Verde 500kV
Scheduling
Obligations:
Seller shall schedule WSPP Schedule C energy consistent with the most recent rules
adoptad by the Westem Electicity Coordinating Council (l,VECC").
Both Parties shall act as their own scheduling coordinators and shall notify each other of
pre-schedules on the business day preceding the scheduled delivery, or as mutually agreed
by the Partles, in accordance wlth WECC guldelines,.pursuant to the WECC ISAS daily
scheduling calendar and the WECC Business Practices.
NERC E-Tags will comply with the delivery requirements as specifled by the CEC.
Soheduling
lnterval:
!n accordance with this Confirmation, Seller shall schedule and deliver to Buyer the WSPP
Schedule C energy over all hours of every day for each applicable month during the Energy
Delivery Period.
-3-
E>GCUTED \ZERSION
limitatlon those Green Tag Reporting Rights accruing under Section 1605(b) of The Energy Policy Act of
1992 and any present or fufure federal, state, or local law, regulation or bill, and intemational or foreign
emissions trading program. Green Tags are accumulated on a MWh basis and one Green Tag
represents the Green Attributes associated wlth one (1) tU\[/h of Energy. Green Attrlbutes do not include
(i) any energy, capacity, reliability or other power attributes from the Project, (ii) production tax credits
assoolated with the construction or operatlon of the Project and other financial incentives in the form of
oredlts, reductlons, or allowances associated with the project that are applicable to a state or federal
income traxation obligation, (iii) fuel+elated subsidies or'tipping fees" that may be paid to Seller to accept
oerhin fuels, or local subsidies received by the generator for the destruc'tion of particular preexisting
BollutanE or tho promotion of local environmental benefits, or (iv) emisslon reduction crediG encumbered
or used by the Project for compliance with local, state, or federal operating and/or air quality permits. lf
tre Project is a biomass or biogas facility and Seller receives any tradable Green Attributes based on the
greenhouse gas reduotion benefib or other emission offseb attributed to its fuel usage, it shall provide
Buyer wlth sufflclent Green Attributes to ensure that there are zerc net emissions associated with the
production of electricity from the Project.
'lndef means, for the respective Scheduling lnterval, the weighted average (rounded to the nearest
hundredth place) of the day-ahead index price as published by the lntercontinental Exchange, lnc. ("lCE")
fur the'Palo Peak'or "Palo Off-PealC Hub (whichever is applicable), on its website curently located at
<https//www.theice.com/>, or any successor thereto, unless a substitute publication and/or index is
mutually agreos to by the Parties.
"LORS Gertlflcatlon' means c,ertification by the CEC of an electrlc generation facility not located withln the
state of Califomia that such facility meets Califomia's environmental quality laws, ordinances, regulatlons,
and standards as set forth in the CEC's RPS Eligibility Guidebook.
'RPS' means ttre Callfornia Renewables Portfolio Standard Prognam as codified at Californla Public
Utllitles Code Section 399.11 et seg., and any declslons by the CPUC related thereto.
'WREGIS' means the Westem Region Electricity Generation lnformation System or other process
reoognized under applicable laws for the registration, transfer or ownership of Green Attrlbutes.
lruREGlS Certificate' means 'Certificate" as defined byWREGIS in ttre WRECIS Operating Rules,
i
TVREGIS Operatlng Rules" means the operating rules and requirements adopted byWREGIS.
co NvEYAN
"=
SXSrLEri* LE EN ERGY
&1 Selle/s Corwevance Of Electrlc Enersv
Throughout all applicable months of the Energy Delivery Period, Seller shall deliver and convey the
portion of the Total Quantity of elec{ric energy associated with the Produc't by delivering such energy to
the DelMery Point consistentwith the Delivery Obligation.
3,2 Seller's Convevance Of Green Attributes
(a) Seller hereby provides and conveys all Green Attributes associated with all electricity generation from
the Project to Buyer as part of the Product being delivered. Seller represents and wanants that Seller
holds the rights to all Green Attributes from the Project, and Seller agrees to convey and hereby conveys
all sucfr Green Attributes to Buyer as lncluded in the delivery of the Produet from the Project.
Subject to Section 3.2(b), the Green Attributes are delMered and conveyed when the electric energy ls
dellvered and conveyed.
(b) For each applicable month of the Delivery Period, Seller shall deliver and convey the Green Attributes
assoclated with the elactric energy delivered in Section 3.1 within fwe (5) Business Dap after the end of
the month ln which the WREGIS Certificates for the Green Attributes are created by properly bansfening
such WREGIS Certificates, in accordance with the rules and ragulations of WREGIS, equlvalent to the
quant'rty of Green Attributes to Buyer into Buyeds WREGIS account such that all right, title and lnterest in
-4-
E)MCUTED \'ERSION
and to the WREGIS Certificates shall transfer from Seller to Buyer; provided that Seller shall not transfer
any Green Attrlbutes or WREGIS Certificates to Buyer before CPUC Approval is obtained or waived, and
Buyer shall not be required to pay subsection (b) of the Monthly Cash Settlement Amount for any Green
AtUibutes transfered before CPUC Approval is obtained or waived.
3rg WREGIS Reqlstration
During the Term, Seller, at its own cost and expense, shall maintain its registration with WREGIS and
shall use lts reasonable efforts to ensure that all Green Atfibutes transferred to Buyer under this
Conflrmation count towards Buye/s RPS requirements. Following certification of the ProJect by the CEC
as an RPS-eligible resour@, all Green Attributes transfened by Seller hereunder. shall be deslgnated -
Callfomla RPS-compliant with WREGIS. Seller shall, at its sole expense, use WREGIS as required
pursuant to the WREGIS Operating Rules to effeciuate the transfer of Green Attributes to Buyer ln
acoordance wlth WREGIS reportlng protocols and WREGIS Operating Rules.
A FurtherAssurances
Seller shall take all reasonable actions, lncluding, but not limited to, amending this Confirmation, to
ensure that the energy associated with the Green Attributes provided for hereunder qualifies as
"dellvered'energy into Califomia within the meaning of the RPS; provided that such action does not result
ln a change in the orlginal allocation of the economic benefits and burdens to Seller under this
Conflrmation.
ARTICLE 4
CPUC FILING AND RPPROVAL
Wlthln forty-flve (45) days afier the execution date of thls Confirmation, Buyrer shallfile with the CPUC the
approprlate request for GPUC Approval. Buyer shall expeditlously seek CPUC Approval, including
Bromptly responding to any requesb br information related to the request for CPUC Approval. Seller
shall use commerclally reasonable efforts to support Buyer in obtalnlng CPUC Approval. Buyer has no
obllgatlon to seek rehearing or to appeal a CPUC decision whlch falls to approve this Agreement or rivhich
conhlns f,ndings requlred for CPUC Approval with conditions or modifications unacceptable to either
Party.
ARTICLE 5
COMPENSATION
Galculatlon Period:
Monthly Cash
Settlement Amount:
Each calendar month during the Delivery Period--::=:
The Monthly Gash Settlement Amount shall be equalto the sum of the following:
(a) the applicable lndex price multiplied by the quantity of WSPP Schedule C
energy scheduled, delivered and received by Buyer pursuant to Section 3.1
during the applicable Calculation Period; and
(b) (i) For Green Attributes pertaining to generation during 2009, $35.00
multiplied by the quantity of Green Attributes (in MWhs) delivered to Buyer
pursuant to Section 3.2 during the applicable Calculation Period;
(ii) For Green Attributes pertaining to generation durlng 2010, $39.00
multiplied by the quantlty of Green Attributes (in MWhs) delivered to Buyer
pursuant to Section 3.2 during the applicable Calculation Period;
(iii) For Green Attributes pertaining to generation during 2011, $40.00
multiplied by the quantity of Green Athibutes (in MWhs) delivered to Buyer
pursuant to Section 3.2 during the applicable Calculation Perlod; or
-5-
E)(ECUTED \IERSION
Payment Date:
(iv) For Green Attributes pertaining to generation during 2012,$/2.00
multiplied by the quantity of Green Attributes (in MWhs) delivered to Buyer
pursuant to Section 3.2 during the applicable Calculation Period.
Payment of each Monthly Cash Seftlement Amount by Buyer to Seller shall be
due and payable'on or before the later of the twentieth (20th) day of the month in
which the Buyer receives thg invoice, or within ten (10) Buslness Days, or, lf such
day is not a Business Day, then on the next Business Day, following receipt of an
invoice issued by Seller for the applicable Calculation Period. The involoe shall
include a statement detailing the portion of Product transferred to Buyer durlng
the applicable Calculation Period.
lnvoioes to Buyer will be sent by hard copy and PDF format to:
Southern California Edison Company
Attn: Michele WalkeriRenewable Alternative Power Conkact Manager
GOl, Quad 4D,490N
P.O. Box 800
Rosemead, CA 91770
Email : Michele.Walker@sce. com
Email 2: [e-mail]
For purposes of this Confirmation, Buyer shall be deemed to have received an invoice upon the receipt
of either the hard copy or PDF format of he invoicE, whichever comes first.
ARTIGLE 6
REPRESENTAIIONS, WARRAI.ITIES AND COVENANTS
g1 Seller's Representatlon. Warranties. and Govenants Related to Green Atfibutes
$eller, and, if applicable, its successors, represents and warrants that throughout the Delfuery Perlod of
thls Agreement that (i) the ProJect qualifies and is certified bythe CEC as an Eligible Renewable Energy
Resource ('ERR) as such term is defined in Public Utilltles Code Section 399.12 or Seotion 399,16; and
(il) the Project's ouput delivered to Buyer qualifies under the Califomizi Renewable Portfolio Standard. To
the extent a change in law occurs after execution of this Agreement that causes this representation and
wananty to be materially false or misleading, it shall not be an Event of Defuult if Seller has used
commercially reasonable efforts to comply with such change in law.
"Commercially reasonable efforts" shall not require Seller to incur out-of-pocket expenses ln excess of
$25,000.00.
ln addition to the foregoing, Seller warrants, represents and covenants, as of the Confirmation Efiective
Date and throughout the Delivery Period, that
(a) all necessary steps have been taken to allow the Green Attrlbutes associated with tre
Produot be bansfened to Buyer and be tracked in WREGIS;
(b) Seller has the contractual rights to sell al! right, title, and interest in he Produci agreed to
be delivered hereunder;
(c) Seller has not sold the Product to be delivered under this Confirmatlon to any other
peron or entiiy;
(d) at the time of delivery, all rights, tifle, and interest in the Product to be delivered under
thls Confirmation are free and clear of all liens, taxes, claims, security interests, or other
encumbrances ofany kind whatsoever; and
-6-
E)GCUTED \'ERSION
following certification of the facility(s) in the Project by the CEC as an RPS-eligible
resource! the facility(s) in the Project and all electrical output from the facility(s) ln the
Project are reglstered with WREGIS as California RPS-eligible.
ARTICLE 7
GENERAL PROVISIONS
U Facllltv tdentlficatlon
Withln flve (5) Business Days after the end of each month during the Delivery Period, exclusive of the
months of July, August, September, November and December, Seller shall ldentlfy and provlde estlmates
of the facility(s) lncluded in the Project that the Product was delivered fiom for that month.
Wlthin five (5) Business Days after the end of eacfr November during the Dellvery Period, Seller shall
Identifo and provided estimates of the facility(s) included in the Project that the Product was delivered
from for that month and identify the faoility(s) in the Project that the Product will be delivered ftom for the
month of December.
ru Governinq Law
Govemlng Law. Thls agreement and the rlghts and duties of the parties hereunder shall be govemed by
and construed, enforced and performed in accordance with the laws of the state of Califomia, without
regard to principles of conflicts of law. To the extent enforceable at such time, each party walves its
respective rlght to any jury trlal with respect to any litlgation arising under or in connection with thls
agreement.
I{g Oblloatton To DellverWREG]S Certificates
Notwlthshnding anything to the contrary contained in the MasterAgreement, in the event Seller declares
an Early Termination Date pursuant to Section 5.2 of the Master Agreement, Seller shall not be permitted
to suspend performance with respect to the obligation to transbrWREGlS Cefficates associated wlth
Green Atklbutes that Buyer has already paid for pursuant to Article Five of this Confirmation.
Notwlthstanding anythlng to the contrary contained in the Master Agreement, Seller shall not be permitted
to suspend performance under Section 5.7 of the Master Agreement with respect to the obligation to
transferWREGIS Gertificates associated with Green Attributes that Buyer has already paid for pursuant
to Article Flve of this Confirmation.
Notwithstanding anything to the contrary contained in the MasterAgreement the obligation to transfer
WREGIS Certlficates associated wih Green Attributes that Buyer has already paid for pursuant to Article
Flve of thls Confirmation shallsurvfue the termination of thls Confirmation.
ARTICLE 8
CREDITAND COLLATERAL
grL SellerGollateralReouirements
Notwlthstandlng anything to the contary contalned ln the EEI {greement, Seller's Collateral Requlrement
and Exposure for thls Transaction is deemed to be zero dollars ($O.OO;.
$! Buver Collateral Reoulrements
Notrruithstanding anything to the contrary contained in the EElAgreement, Buyer's CollateralRequirement
and Exposure for this Transaction is deemed to be zero dollars ($0.001.
(e)
-7-
AGKNOWLEDGED AtlD AGREED TO May29,2009:
PACIFIGORP
EXECUIED \MRSION
Vice Presldent, Renewable and
Alternative Power
navLLzoog
By:
Name:
Tltle:
Date:May_,2009
SOUTHERN CALIFORNIA EDISON OOMPANY
-8-
AGKNO,T LEDGED AND AGREED TO May 29, 2009:
PACIFICORP
By:
Name:
Tltle:
Date: nav 71.eoog
EXECUTED VERSION
SOUTHERN CALIFORNIA EDISON COMPANY
By:
Name: Stuart R. Hemphill
Tftle: Vice Prceident, Renanvable and
Alternative Power
Datq May .2009
-8-
AtfMtllvt6NT
krrALH fl,tauxntro,
oflice of the Secretary i' y'
, : Service Date
December 21, 201I
BEFORE TrrE rDArrO PUBLTC UTrr{rr[IEE p+OMMISppN
IN THE MATTER OF THE APPLTCATION OT
PACIIIICORP DBA ROCI(Y MOUNTAIN
POWER FOR A DETERMINA'TION
NTCANOING A T'IRMENERGY SALES
AGREEMENT BETWEEN ROCICT.
MOTINTAIN PO'IilER .q.ND CPNAR CREEK
WIND, LLC (RATTLESNAKE CANYON
PROJECT (11-01), COYOTE rrILL PROJICT
(1I-02), NORTH pOrNT PROJECT (1I-0s),
STEEP RrDGE PROJtrCT (11-04), AltD I'ryE
PINE PROJECT (11.0s).
:
SUPREME COI}RT
DOCKETNO. 39134-2011
IPUC CASD NOS. PAC.E.1l.OI
PACJ-I1-02
PAC-E-I1-03
PAC-E-I1-04
PAC-E-Il-05
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CEDAR CREEK WIND, LLC,
Petitioner/Appellant,
v.
IDAIIO PUBLIC UTILITIES COMMISSION,
' Respondent, Respondent on Appeal,
and
PACIFICORP DBA ROCKY MOUNTAIN
POWER,
Respondent.
PUC ORDER NO. 32419
. On July 27,2011, the Commission issued Final Order on Reoonsideration No. 323ff2
affirming its prior decision to not approve five Power Purchase Agreements (PPAs or
A,greements) entered into between Cedar Creek Wind and PacifiCorp dba Rocky Mountain
Power pursuant to the federal Public Utility Regulatory Policies Act of 1978 (PURPA). Based
upon the expressed terms of the five Ageements, the Commission found that the PPAs wur not
effective prior to December l4,2C1.A - the date on which tho eligibility for PURPA published
avoided cost rates in Idatro changed from 10 average megawatts (aMW) to 100 kilowatts ftW)
for wind and solar qualiffing facilities (QFs), Order No. 32260. Because each of the ppAs
oRDERNO.324t9
requested published avoided cost rates but the projects were in excess of 100 kW, the
Commission found that the published rate was no longer available to the projects.
On August 5,2011, Cedar Creek filed a Petition with the Federal Bnergy Regulatory
Commission GERC) claiming that the Commission's Order No. 32302 was inconsistent with
FERC's regulations implementing PURPA. While its Petition to FERC was pending, Cedar
Creek, on August 31,201l, also appealed the Commission's Order to the Idaho Supreme Court.
On October 4,2011, FERC issued an Order concluding that the Commission's Order was
inconsistent with PURPA and FERC's PURPA regulations.
On October 24,2011, the Commission and Cedar Creek filed a Stipulated Motion
with the Idaho Supreme Court that the appeal be temporarily suspended and the matter remanded
to the Commission.l Suspending the appeal would allow the Commission to reconsider its Order
No. 32302 in light of the FERC Order and provide the parties with an opportunity to discuss the
possibility of resolving the dispute. LA.R 13.3. On November 9,2011, the Court issued an
Order suspending the appeal and remanding the matter to the Commission for firther review.
On remand, the Commission invited settlement of the entire dispute and authorized the
Commission Staff to participate in the settlement negotiations. Order No. 32386 cilirg Rules
352 and 353. Cedar Creek, Rocky Mountain and Staff (collectively the "Parties") convened four
settlement conferences. On December 15, 2A11, the Parties filed a Motion to approve a
*Stipulation of Settlement and Request for Approval of Power Purchase Agreementso'
("settlement Stipulation") that proposed to settle all the disputed issues.
Having reviewed the underlying administrative record, the FERC Order and the
Settlement Stipulation, the Commission issues this final Reconsideration Order on Rernand. As
explained in greater detail below, the Commission approves the Settlement Stipulation and
approves the three rnodified PPAs. Accordingly, the Commission amends and clarifies its prior
OrderNo. 32307 to be consistent wittr this Order. Idaho Code $ 6l-624.
t When the Stipulated Motion was tiled, Rocky Mountain had not yet bee,n granted intervention by tho Court.
Nevertheless, Rocky Mountain supported the suspension and remand.
ORDERNO, 32419
BACKGROUND
A, Eliytbtli| Cap Case
Prior to the filing of the five Cedar Creek PPAs, Avista Corporation, Idaho Power
Company, and Rooky Mourtain (colleolively "the Utilities") petitioned the Commission on
November 5, 2010, to initiate a generic investigation to oddress various PURPA issues. The
Utilities also requested that while the investigation was underway, the Commission
'nimmediately" reduce the eligibility cap or ceiling for the "published" avoided cost rate from 10
aMW per.month to 100 kW per month. Order Nos. 32212 and32302.2 The Commission issued
a Notice and Order opening a separate investigation (GNR-E-10-04), solicited initial and reply
cotnments, and oonveled an oral argumsnt to address the proposed reduction in the eligibility
cap. Order No . 32131 at 6-7.
The Commission subsequently found that the Utilities had made a convincing case to
temporarily "reduce the eligibility cap for published avoided cost rates from l0 aMW to 100 kW
for wigd and solar [OFsl only while the Commission further investigates" other PURPA issues.
Order No. 32176 at 9 (emphasis original). Consistent with its prior Notice, tle Commission
ordered that the eligibility cap for the published rate be reduced from l0 alvlW to 100 kW for
wind and solar projects effective December 14,2010. Order Nos. 32176,32212,32302. No
party, including Cedar Creek, appealed the Commission's decision to reduce the eligibility cap.
Order No. 323}2at 5, 14-l 5.
B. The Five OriginalAgreements
The prooedural history of this consolidated case is complex and lengthy, but the
pertinent points are summarized here. On December 22,2010, Rocky Mountain Power and
Cedar Creek exeouted five separate PPAs for five wind QF projects.3 Under the terms of each
Agreement, each project agreed to sell energy to Rocky Mountain for a 20-year term using the
published avoided cost rate set by the Commission. Taken together, the five projects had a
2 Pursuant to FERC's PURPA regulations, state oommissions must "publish" an avoidod cost rate for small QFs
with tho design oapacity of 100 kW or less, 18 C,F.R. $ 292.30a(cXl). However, PUPJA regulations also declare
that state commissions "may" set standards or publishcd ratgs at a higher capaoity amount. lS C.F.R $292.304(dOA). In Fobruary 2008, the Commission established tbe eligibility cap for published avoided cosJ rates
for each of tho three utilities at I 0 aMW frer No. 30488 at 17,
3 Becaugo of the similarity benreen each of the five Agtements, the Commission found it reasonable and
appropriato to consolidate the cases and issue a consolidated Order. frer N o, 32260 at n,l .
oRDERNO. 32419
narneplate capasity of 133.4 MV/.4 Under normal and/or average conditions, each wind project
was to have sold its output of not more than 10 alvlW per month to Rocky Mountain at the
published rate. The projects all selected October 1,2012 as ttre scheduled commercial operation
date (COD). Order No. 32302 at 3.
On January 10,2011, Rooky Mountain filed the Applications requesting that the
Cornmission issue an Order ('acoepting or rejecting" the five Cedar Creek PPAs. On February
24,2011, the Commission issued a consolidated Notice of Application and Notice of Modifie.d
Prosedure forthe five Applications. Cedar Creek and Commission Stafffiled timely comments
in response to the Notice of Modified Procedure. Rocky Mountain and Cedar Creek both filed .'
reply comments.
In its final Order No. 32260 issued June 8, 2011, the Comrnission declared that "the
primary issue to be determined in these [Cedar Creek] cases is whet]rer the Agreements were
executed before the eligibiliry cap for published rates was lowered to 100 kW on December 14,
2010." Order No. 32260 at 9. The Commission found that the five PPAs were not fully-
executed (i.e., signed by both parties) prior to December 14,2010. Relying on the actual terms
of the PPAs, the Commission found that eaoh PPA stated that "the 'Effective Date' of [each]
Agreement is 'after execution by both Parties and aftel app{oyal by the Commi$sion ."' I!. citing
PPA lJT 1.13, 2.1. (emphasis added).s Because the Commission had previously reduced the
eligibility cap for the published avoided cost rate from 10 aIr4W to 100 kW, the five PPAs
"contained an essential term that was no longer available to the Projects." Order N o.32302 at2,
Cedar Creek timely filed a Joint Petition for Reconsideration of the Commission's
final Order No. 32260. On reconsideration, Cedar Creek argued that the Commission's Order
was elroneous because a "legally enforceable obligation" existed between Cedm Creek and
Rocky Mountain prior to the reduction in the eligibility cap on December 14, 2010. As a result,
Cedar Creek maintained that it was entitled to published avoided cost rates and urged the
Commissionto "expeditiously approve the Agleements as submitted." OrderNo .32302 atl.
4 The Applications for Rattlesnak€ Canyon, Coyote Hill and North Point indicated that each of theso projects would
have a maximum namoplate capacity of 21.6 MW, whilc Steep Ridge and Five Pine would each have a maximum
nameplate capacity of 25,3 MW.
' The Commission also observed that the opening paragraph of each Agreemont states that the Agreement is
"en0er€d into this 22d day of Decomber 2010." /d.
ORDER NO, 324T9
On reconsideration, the Cornmission affirmed its prior decision that the five PPAs all
contained express language that the effective date of each Agreement is when both parties signed
the PPAs - December 22,2010. The Commission noted that it was undisputed that Cedar Creek
signed the PPAs on December 13, 2010, and Rocky Mountain signed on December 22,2010, Id.
Agreements Tn 1.13, 2,1, Order No, 32302 at 4, 6,8. Given the agreed upon effective date, the
Cornmission affrrmed that each Agreement did not become effective until after execution by
both Parties. Order No. 32302 at 9, The Commission also found that it is not in the public
intsrest to allow parties with conhacts executed on or after Decernber 14, 2010, to avail
themselves of an eligibilrty cap, and thus published mtes, that are no longer applioable. Order
No.32302 at12,16.
D, The FERC Case and the Appeal
On August 5;2011, Cedar Creek filed a Petition with FERC requesting that the
federal agency bring an enforcement action against the Commission pursuant to 16 U.S.C. $
82aa4(l)(2) or, in the altemative, to make certain findings related to the Commission's decision.
Cedar Creek olaimed that the Commission's Ordff is inconsistent with FERC's regulations
implementing PURPA. On Ostober 4,2011, FERC issued an Order declining to bring an
enforcement action against the Commission. However, FERC determined that the Commission's
Order was inconsistent with PURPA and FERC's implementing regulations, Notice of Intent not
to Ai,ct and Declaratory Order, 137 FERC fl 61,006 (Oct.4,2011). In particular, FERC
construed the Cornmission's final Order Noi 32260 as "limiting the creation of a legally
enforceable obligation only to QFs that have [PPAs] , . . signed by bottr parties tg the
agreement." Id. atlJ26. FERC interpreted the Commission's Order as requiring a flrlly-exeouted.
contract as a condition precedent to the creation ofa legally enforceable obligation between tho
parties. Id. at\\ 30, 35. Although this Cornmission has a long line of cases to the contrary,
FERC concluded that the Commission did not recognize that "a legally enforceable obligation
may be incrured beforo the formal rnemorialization of a contractto writing,': Id. atl36.
FERC did not rule whether Cedar Creek had perfected a legally enforceable
obligation for the five projects. Id. at![t[ 38 (whether there is a "legally enforceable obligation ; ,
. is not belbre us.'); 39. Given the issuance of the FERC Order and Cedar Creek's appeal to the
Idaho Supreme Court, Cedar Creek and the Commission filed a Stipulated Motion for the appeal
' to be temporarily suspended and the matter remanded to the Commission.
ORDER NO, 32419
TIIE SETTI,EMEI{T STIPULATION
Cedar Creek, Rocky Mountain and Staff (collectively the '?arties') convened four
settlement conferences on October 20 and 27, November 16, and Dicember l, 201l. As a result
of these settlement discussions, the Parties on December 15, 201 l, filed a Motion to Approve the
Settlement Stipulation and Request for Approval of Power Purchase Agreements (the
"settlement Stipulation'), The Parties disclosed that they have tesolved all disputes between and
among themselves,
The Parties requested tlrat the Commission modiff its Order on Reconsideration No,
32302 aad approve three of the five original PPAs as amended in the Settlement Stipulation.
More specifically, the Parties requested that the Commission approve the amendments to the
North Point project (Case No. PAC-E-I1-03); the Five Pine project (Case No,'PAC-E-l1-05);
and the Coyote Hill project (Case No. PAC-E-I1-02) (together, the "Agreernents"). Inaddition,
Cedar Creek and Rocky Mountain agreed to withdraw the remaining two Applications and
accompanfng PPAs. Stipulation at $ 2.6
The Parties agreed that Cedar Creek had established a legally enforceable obligation
under FURPA no later than December 13, 2010. Stipulation at $$ 1, 4. Because such obligation
arose prior to Deoembet 14,2010, the Parties agree that the strrviving PPAs should be approved
by the Commission at the avoided eost rates contained in the Original Agreements. Id. at $ 5.
Thus, Cedar Creek and Rocky Mountain are restored to their relative positions under the original
PPAs. The tluee surviving PPAs will have a combined nameplate capacity not to exceed 133.4
MW and Rosky Mountain shall not be required to purchase more than 438,000 MWh (i.e,,
approximately 50 alvlW) of output in any given calendar year. /d. at $ 7; PPAs at 1.30, 1.43, 4.1 .
The North Point PPA will be modi.fied to have an 80 MW nameplate capacrty, while the Five
Pine and Coyote Hill.PPAs will have a total nameplate capaoity not to exceed 53.4 MW.
Stipulation, Exh, A, B, C.
Both the North Point and Five Pine PPAs provide that these PPAs may be assigned to
Ridgeline at its Meadow Creek site. /d al S 21,2. Because the Meadow Creek facility already
has its transmission interconneotion with PacifiCorp, assignment to Ridgeline would allow the
scheduled commercial operation date (COD) for both facilities to be December 31, 2012.
6 Tho two Applications and PPAs to be withdrawn arc: the Steep Ridge project (Case No. PAC-E-I l-04) and the
Rattlesnake Canyon project (Case No. PAGE.I l-01) (together, fte "Withdrawn Agwments"). Stipulation at 2.
ORDERNO, 32419
Utilizing the Meadow Creek facility would allow Cedar Creek/Ridgeline to obtain Treasury
grants and other tax incentives before they are set to expire on December 31,2012. Any
assignment of North Point and Five Pine to Ridgeline must occur within 90 days of the effectivd
date of the PPAs as modified, approximately on or before March 31,2012, Exh. A, B, C $ 21,2.7
The Coyote Hill project is contemplated at the original Cedar Creek site.
In addition, the PPAs further provide that Cedar Creek and Rocky Mountain shall
share the "Enyironmental Attributes" (including but not limited to renewable energy credits
(RECs) and Gteen Tags) attibuted to the surviving PPAs. More specifically, Cedar Creek shall
be entitled to the environmental atffibutes for the first l0 years of operation, while Rocky
Mountain shall be entitled to the environmental attributes for the last 10 years of the 20-year
Agreements; Exh. A, B, C at $$ 1.17, 1.26,4.6.
The Parties assert that the settlement of their dispute including the modifications of
the surviving PPAs represents a fair, just and reasonable resolution of the disputed claims, and
are consistent with applicable law and regulatory policies. Stipulation at $$ l, 6,12. \\aParties
firttrer maintain that the settlement represents a negotiated compromise betw'een the Parties and
is in the public interest The Parties agree that the Settlement Stipllation "resolves all issues
raised by any parfy in the captioned [Commission] dockets, in the FERC Proceeding, and in
Cedar Creek's appeal to the Idaho Supreme Court. If tbe Commission adopts the Settlement
Stipulation, each waives, releases and discharges the ottrer Parties from any and all causes of
action, suits, claims, demands, and liability whatsoever in law or equity." Id, at $ 17. The
Parties urge the Csmmission to approve this Settlement Stipulation and the PPAs intheir entirety
andtheystandreadyto supportthe Stipulation. /d. at $ 13.
COMMISSION I'IhIDINGS
At the outset, we commond the Parties for their diligence and efforts at resolving the
underlying disputes. Consistent with our authority rmder ldaho Code $ 6l-624 and Rules 352
and 353, we invited settlement of all of the disputes arising from our Order Nos. 32260 and
32302. Order No. 32386 at 2.
7 Althoug the Ndgelinefir,teadow Crcek transmission line is already completod, this line may havo capacity
limitations. Consoquently, tho PPAs allow for a combination of goneration sizes at the Fivo Pine and Coyote Hill
projects so long as tho total generation for all the projects not exceed 438,000 MWh. This purchase cap shall be
fiued-up annually. Stipulation at $ 7.
0RDERNO. 324t9
Rule 356 provides that the Commission is not bound by the Parties' Settlement
Agreement. IDAPA 3l;01.01.356. The Commission will "independently review any settlement
proposed to it to determine whether the settlement is just, fair and reasonable, in the public
interest or otherwise in accordance with law or regulatory policy." .Id. The Commission may
accept, rejqct, or modiff settlement provisions. Moreover, proponents of settlements on appsal
carry the burden of showing that the settlement is reasonable and in the public interest. Rule
355. When a settlement of an appeal - such as this case - calls for Commission action, the
Commission will prescribe an appropriate procedure to examine a proposed settlement. In this
cise, the Parties to the appeal have asked the Commission to arnend Reconsideration Order No.
3nAZ issued July 27,2011, and approve three modified PPAs. Idaho Code $ 6l-624 provides
that the Commission "may at any time, upon notice to the public utility affected, . . . rescind,
alter or amend any order or decision made by it."
After having reviewed the record in this oase, the FERC Order, the Stipulation of
Settlement and Request for Approval of Power Purchase Agreements, and the modified PPAs,
we find the record is comprehensive and fi-uther proceedings are not necessary. Rule 354. Based
upon our review of the entire record and the particular facts of this case, we find that the
Sottlement is fair, just and reasonable, and in the public interest. As noted by the Parties, the
Stipulation represents a reasonable compromise of the positions held by the Parties.
ln our initial'decision, this Comrnission made a determination about whether to
approve the Agreements based on the express terms contained within each Agreement. [n our
past experience, when a QF wants a deterrnination that there is a legally enforceable obligation,
it files a complaint against a utility that it alleges has failed to negotiate. This is the first time the
Commission has reviewed the facts of this case for evidence regarding the existence of a legally
enforceable obligation outside the express terms of the original five Agreements entered into by
Rocky Mountain and Cedar Creek.
' There are several reason$ supporting our determination that the settlement is fair and
roasonable to Cedar Creek, Rocky Mountain, and ratepayers. First, the Stipulation returns Cedar
Creek and Rocky Mountain to their respective positions prior to the issuance of our Orders
disapproving the PPAs. Based upon the Parties' assertions in the Settlement Stipulation and our
review of the record, we find that the record reveals that Cedar Creek had perfected a legally
enforceable obligation no later than December 13,2010. As such, Cedar Creek was entitled to
ORDERNO,32419
the published avoided cost rates available to l0 aMW QFs in effect as of December 13,2010.
The thxee modified PPAs equate to the original five PPAs.
Second, PaoifiCorp and ratepayers are protected tmder the settlemsnt and the three
modified PPAs by being obligated to purchase no moro than the total equivalent of 50 aMW of
net output as originally contemplated under the five PPAs. Assignment also allows the COD
date to advance, thereby providing benefit to Cedar Creek.
Thfud, ratepayers and Rocky Mountain are further advantaged becawe the modified
PPAs recognize that the environrnental athibutes produced by the three modified projects will be
equally apportioned between Rocky Mountain and Cedar Creek. Under the PPAs, Cedar Creek
will be entitled to the environmental attributes for the fust l0 years of the Agreements and
Rocky Mountain will be entitled to the environme,ntal attributes for the last 10 years of the
Agreements. This is an improvement over the original PPAs because the assignment of the
environmental attributes or RECs was not clearly delineated in the original Agteements.
Moreover, subsequent revenues derived from the environmental attributes will offset Rocky
Mountain's purchase of the output from the surviving PPAs over the last l0 years of the.
Agreements
Finally, we find that resolution of this matter will avoid uncertainty and conserve
resources (both time and money). This is benefioial to Cedar Creek, Rocky Mountain and
ratepayers. The settlement avoids the likelihood of litigation in multiple forums and represents a
significant benefit to all Parties. Here the settlement brings the dispute to a reasonable
conclusion and benefits Cedar Creek, Rocky Mountain and ratopayers. Rules 354-355; Aguire
v, Hamlin,80 Idaho 176r,327 P,2d 34g (1958).
ORDER
IT IS HEREBY ORDERED that the Motion for Approval of the Stipulation of
Settlement and Request for Approval of Power Purchase Agreements filed by the Parties is
granted. In addition, we approve the three modified Agreements identified in Exhibit A (Norttr
Point), Exhibit B (Five Pine), and Exhibit C (Coyote Hill).
IT IS FURTHER ORDERED that Rocky Mountain Power's request to withdraw the
Steep Ridge Application and Ageement (Case No. PAC-E-11-04) and {re Rattlesnake Canyon
Application and Agreement (Case No. PAC-E-I l-01) is granted,
oRDER NO. 32419
IT IS FURTHER ORDER-ED that OrderNo. 32302 issued July 27,2011, is ameaded
consistent with the findings and discussions set out in this Order pursuant to ldaho Code $ 6l-
624.
THIS IS A FINAL, RECONSIDERATTON ORDER ON REMAND. Any party
aggrieved by this Order may appeal to the Supreme Court of Idaho as provided by the Public
Utilities Law and the Idaho Appellate Rules. See ldaho Code g 6l-627,
DONE by Orderof the Idaho Public Utilities Commission at Boise,Idaho this *ltt
day of December 201 1.
MACK A. REDFORD, COMMISSIONER
ATTEST:
Assistant Commissiori S ecretary
bls/O:PAC-SI1.01_PAC-E-11 frrpAC-E-l 1.03_PAC-E l 144_PAC-E.I l-05_il8
ORDER NO, 32419 IO
BEFORE THE IDAHO PUBLIC UTILITIDS COMMTSSION
IN THII MAT'I'ER OF THE APPLICATION OF
PACIII.ICORP DBA ROCIil MOUNTAIN
POWER FOR A DETERMINATION
REGARDING A FIRM ENERGY SALES
AGREUMENT BETWEEN ROCKY MOUN'TAIN
POWER ANT) CEDAR CREEK WIND, LLC
(RATTLtrSNAKE CANYON PROJECT)
IN THE MATTER OFTHE APPLICATION Otr
PACIF'ICORP DBA ROCKY MOI'NTAIN
POWER FOR A DETERMINATION
REGARDING A T'IRM ENERGY SALES
AGREE,MENT BITWEEN ROCKY MOUNTAIN
POWER ANT' CEDAR CREEK WIND, LLC
(coYoTE HILL PROJECT)
IN 'I'IIE MAI*I'ER OF I'HE APPI,ICATION OF
PACIFTCORP DBA ROCKY MOUNTAIN
POWER FOR A DETERMINATION
REGARDING A FIRM ENERGY SALES
AGRtrEMENT BETWEEN ROCKY MOUNTAIN
POWER AND CEDAR CREEK WIND, LLC
(NORr.H PqrNI PROJEgIJ. ._
IN THE MATTER OFTHEAPPLICATION OT'
PACIITICORP DI}A ROCKY MOUNTAIN
POWER FOR A DETERMTNATION
RBGARDING A FIRM ENERGY SALES
AGRIEMIXN'T I}T]'I'WEItrN ROCKY MOUNTAIN
POWER AND CEDAR CREEK WIND, LLC
(STEEP RrDGE PROJECT)
IN THE MA'I'TIIR OFTHE APPLICATION OT
PACIFICORP DB.A ROCKY MOUNTAIN
POWER FOR A DETERMINA'UON
ITIIGARDING A FIRM ENERGY SALITS
AGREEMDNT BETWEEN ROCKY MOUNTAIN
POWEIT AND CEDAR CREEK WIND, LLC
(r'rvE PINE PROJECT)
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CASE NO, PAC-E-II -OI
CASE NO. PAC-E.I I-02
CASE NO. PAC-E.II-03
cAsE N0. PAC-E-Il-04
cAsE NO. pAC-E-rr-0s
DSMI)11"2989964v I lD
Meadow Creek Proj ect Company ll,C--!ivv Pine
AMEIIDED AND RESTAIED FO\4'ER PI,JRCIIA,SE AGREIXVIEI\T
BETWEEN
MEADOW CREEK PROJECT COMPANY LLC
AI{D
PACIFICORP
Relating to Five Pine Project, an up to 40 MW Wind Turbine Generadon Project
a non-fueled on-systenl Intermittent Resowce with Mechanical Availability Guarantee,
Idaho Qualifying Facility
(i)
Meadow Creek Project Company LLC-Fivu Ptw
TableofContenb
SECTION 1. DEFINITIONS ....,.,...., ,.,.,,,,,,..,,.,,,,..,,,2
SECTION 2. TERM; COMMERCIAL OPERATION DATE.... ....,...............9
SECTION 3. REPRESENTATIONS AND WARRANTIES .............,......... I3
SECTION 4. DELIVERY OF POWER; AVAILABILITY GUARANTY.......,..,.......... 15
SECTION 5. PURCHASE PRICES .....I8
SECTION 6. OPERATION AND CONTROL ,,.,,..20
SECTION 7. MOTIVE FORCE..... ...,,,23
SECTION 8. GENERATION FORECASTING COSTS...... ,,...23
SECTION 9. METERING: REPORTS AND RECORDS ..,,...,.24
SECTION 10. BILLINGS. COMPUTATIONS AND PAYMENTS........ ..,,,,26
SECTION 11. SECURITY ,.,..,,,.,,.,,.,,,,,,27
SECTION 12. DEFAULTS AND REMEDIES ,,,,.,,,28
SECTION 13. INDEMNIFICATION: LIABILITY ....................30
SECTION 14. INSURANCE..............., .........,........,..31
SECTION 15. FORCE MAJEURE .,,.,.,, )Z
SECTION 16. SEVERAL OBLIGATIONS....,..... ,,...............,....,33
SECTION 17. CHOICE OF LAW .......,.33
SECTION 18. PARTIAL INVALIDITY............ ......33
SECTION 19. WAIVER .....33
SECTION 20. GOVERNMENTAL JURISDICTION AND AUTHORIZATIONS ......... 33
SECTION 21. SUCCESSORS AND ASSIGNS ....,..33
SECTION 22. ENTIRE AGREEMENT.,........... ,,,,,,.34
SECTION 23. NOTICES. ,,.....................35
(i)
Meadow Creek ProJ ect Company LW-Fiw Piw
AIVIM{Du) ANP NESTATED FO\IMR. PURCEASf, AGBEUVIENT
TI{IS AMENDED AI{D RESTATED POV/ER PURCHASE AGREEMET{T, relating to FIVE
PINE, en up to 40 MW wind twbine gmerfltion proJeot, snterod into this ftay of January, 2012,
is between Meadow Creek Project Company LLC, a Delaware limited liability mmpany (the
"Seller') and PaoifiCorp, an Orcgon corporation aoting in its merchartt function capacity
(?oclffCorp'). Sello and PaoifiCorp are rcfcned to collectively as the ooParties" ard
individually as a "Part5/",
RECITAI.S
A Cedtr Creek Win4 LLC (CClt/') and PacifiCo,rp entened into that certain Power
Purchase Agreement deted as of Decernbs 14,2011(the "Ot'igiual PPA'), pursuant to which CCW
has been grmtpd tho right to assign the Original PPA to an affiliate of Ridgeline Enqgr, LI,C ,
B, CCW has electod to exercise its right to assign the Orignal PPA to Seller, ar affiliate
of Ridgeline Enerry, LLC, and pursuant to the tsms of the Original PPA, sflective rpon zuch
assignmort, the Original PPA is to be anre,rrded and r€stated on the terms set for$ in this Agreement
C. Seller intends to construd, own, o,perate and maintain a wind facility, inohding
Seller's lflterconnection Facilities, for the geireration of electic power located in ldaho, with an
enrpected Facility Cspacity Rating of up b 40 megawatts as fi.lrth€,r de$eribed in Exhlbtt A and
Exhibit B ("Facllity").
D. Seller has sffirred rights to deliver output fiom ib Facifity to PacifiCorp across the
interconnection and other fasilities as further described in Addendum L,
E Seller int€rds to operate the Facilify as a Qualiffing Facility, as zuch term is
definod in Section 1,59 below, and to sell Nd Ottput to PacifiCorp in ldalro.
F. Seller estimates that ttre avenage arrual Net O$put (based on the maximurn capa,sity
of 40 megawds) to be delivCIed by the Facility to PacifiCorp is I 09,0 I 1 ,621 kilowatt hours (k!Vh)
('Average Annual Net Outpuf) prxsuant to tlre kritial Year Eneqgy Delivery Schdule in Sedion
4.3,1, which amount of energy PacifiCorp will inolude in its resource planning,
G. Seller intends to sell and PacifiCorp intends to purohase all the Net Output from flre
facility in a@ordance with tlre tqrns and conditioru ofthis Agreernent,
H PacifiCorp intends to designate Seller's facility as a Netwod( Resorrce for ttre
purposes of serving Network Load.
L This Agrcement is a 'T.{ew QF Contact" urder the PacifiCorp krter-Jlnisdicticnal
Cost Allocation Revised Protocol.
J. Seller has authoriz,ed Transmission Provider to release geireration data to
PacifiCorp. If yes, the authorization is attached as Exhlbit H.
NOW,TIIEREFORE, tlrePartiesmntuallyagreeto rnend a:dreststedtheOriginal PPAto
read in its entinety as follows:
SECTION 1.
Meadow Creek Project Company AC-FitEPilrc
DEFINITIONS
When used in this Agreement, the following terms shall have the following meanings:
1.I "As-built Supplement" shall be a zupplement to Exhibit A, provided by Seller
following completion of construction of the Facility, accurately describing the completed
Facility.
1.2 "Availabilif5/" means, for any Billing Period, the ratio, expressed as a
percentage, of (x) the aggregate sum of the turbine-minutes in which each of the Wind
Turbines at the Facility was available to generate at the Maximum Facility Delivery Rate
during the Billing Period over (y) the product of the number of Wind Turbines that comprise
the Facility Capacity Rating as of Commercial Operation multiplied by the number of
minutes in such Billing Period. A Wind Turbine shall be deemed not available to operate
during minutes in which it is (a) in an emergency, stop, service mode or pause state; (b) in
"run" stafus and faulted; or (c) otherwise not operational or capable of delivering at the
Maximum Facility Delivery Rate to the Point of Delivery; unless if unavailable due solely to
(i) a default by PacifiCorp; (ii) to the extent not caused by Seller's actions, a curtailment in
accordance with Section 6,3 or (iii) insufficient wind (including the normal amount of time
required by the generating equipment to resume operations following a period when wind
speed is below the Cut-In Wind Speed).
13 "Billing Period" means the timc period between PacifiCorp's reading of its
power purchase meter at the Facility, which for this Agreement shall coincide with calendar
months.
1.4 "CAMD" means the Clean Air Markets Division of the Environmental
Protection Agency or successor administrator, or any state or federal entity given jurisdiction
over a program involving Green Tags or any attribute thereof.
1.5 "Commercial Operation" means that not less than the90o/o of the expected
Facility Capacity Rating is flrlly operational and reliable and the Facility is fully interconnected, fully
integrated, and synchonized with the System, all of which shall be Seller's responsibility to receive
or obtain, and which occurs when all of the following events (i) have occurred, and (ii)
remain simultaneously tue and accurate as of the date and moment on which Seller gives
PacifiCorp notice that Commercial Operation has occurred:
1.5,1 PacifiCorp has received a certificate addressed to PacifiCorp from a
Licensed Professional Engineer (a) stating the Facility Capacity Rating of the Facility at the
anticipated time of Commercial Operation and (b) stating that the Facility is able to generate
electic power reliably in amounts required by this Agreernent and in accordance with all other terms
and conditions of this Agreement.
1.5.2 Start-Up Testing of the Facility has been completed in accordance
with Exhibit E.
L5,3 PacifiCorp has received a certificate addressed to PacifiCorp from a
Licensed Professional Engineer, an attorney in good standing in Idaho, or a letter from
Transmission Provider, stating that, in accordance with the Generation Interconnection
Agreement, all required interconnection facilities have been constructed, all required
2
Meadow Creek Project Company ILC-FiwPine
interconnection tests have been completed and the Facility is physically interconnected with
the System in conformance with the Generation Interconnection Agreement and able to
deliver energy consistent with the terms of this Agreement, and the Facility is fully
integrated and synchronized with the System.
L.5.4 PacifiCorp has received a certificate addressed to PacifiCorp from a
Licensed Professional Engineer, or an attorney in good standing in Idaho, stating that Seller
has obtained all Required Facility Documents and, if requested by PacifiCorp in writing,
Seller shall have provided copies of any or all such requested Required Facility Documents.
1.5.5 Seller has complied with the security requirements of Section 1L
1,5.6 Nelwork Rg$qulcg D.e,.sienQtion and Transmissigq Sp{viqe Request,
(i) PacifiCorp has received confirmation from the Transmission Provider that the Facility has
been designated as a Network Resource and (ii) PacifiCoqp has received confirmation from the
Transmission Provider that the transmission service request has been granted in sufficient
capacity to meet or exceed the Maximum Facility Delivery Rate and the Seller has paid all
costs associated with any requirernents of ttre tansmission service request.
1,6 'oCommercial Operation Date" means the date, as designated by PacifiCorp
pursuant to Section 2.4,the Facility first achieves Commercial Operation.
1.7 "Commission" means the Idaho Public Utilities Commission.
1.8 "Conforming Energy" means all Net Energy except Non-Conforming
Energy.
L9 "Conforming Energy Purchase Price" means the applicable price for
Conforming Energy and capacity, specified in Section 5.1.
1.10 "Contract Year" means a twelve (12) month period commencing at 00:00
hours Pacific Prevailing Time ("PPT") on January I and ending on 24:00 hours PPT on
December 3l; provided, however, that the first Contract Year shall cornmence on the
Scheduled Commercial Operation Date and end on the next succeeding December 31, and
the last Contract Year shall end on the Expiration Date, unless earlier terminated as provided
herein.
1.I I "Cut-in Wind Speed" means the wind speed at which a stationary wind
turbine begins producing Net Energy, as specified by the turbine manufacturer and set forth
in Exhibit A.
l.l2 "Default Security" shall have the meaning set forth in Section I I ,2 of this
Agreement.
l.l3 "Delay Liquidated Damages", "I)elay Daily Minimum", "Delay Period",
"Delay Price" and "Delay Volume" shall have the meanings set forth in Section 2,5 of this
Agreement.
1.14 "Delay Period Commencement Date" means October 1,2013.
Meadow Creek Project Company ILC--FiwPitrc
L l5 6'Delay Security" shall have the meaning set forth in Section 1 1 .1.1 of this
Agreement,
I .16 "Effective Date" shall have the meaning set forth in Section 2.1 of this
Agreement.
l.l7 "Energy Delivery Schedule" shall have the meaning set forth in Section 4.3
of this Agreement.
I .18 "Environmental Attributes" means any and all claims, credits, emissions
reductions, offsets, and allowances, howsoever entitled, associated with the generation of Output
from the Facility or the avoidance of the emission of any gas, chemical, or other substance to the
air, soil or water, that is capable of being measured, verified, or calculated. Environmental
Athibutes include but are not limited to: (l) any avoided emissions of pollutants to the air, soil, or
water such as (subject to the foregoing) sulflr oxides (SOx), nitogen oxides (NOx), carbon
monoxide (CO), and other pollutants; (2) any avoided emissions of carbon dioxide (C02), methane
(CH4), and other greenhouse gases (GHGs) ttrat have been determined by the United Nations
lntergovernme,ntal Panel on Climatp Change to contibute to the actual or potential tlueat of altering
the Earth's climate by trapping heat in the atmosphere; and, (3) all WREGIS Certificates.
Environmental Attibutes do not include (i) Production Tax Credits or certain other tax incentives
existing now or in the future associated with the construction, ownership or operation of the
Facility, or (ii) adverse wildlife or environmental impacts,
l.l9 "Environmental Contamination" means the inhoducfion or presence of
Hazardous Materials at such levels, quantities or location, or of such form or character, as to
constitute a violation of federal, state or local laws or regulations, and present a material risk under
federal, state or local laws and regulations *rat ttre Premises will not be available or usable for the
purposes contemplated by this Agreement.
1.20 "Expected Facility Capacity Rating" shall be between l0 and 40 MW but
shall not exceed 40 MW in any event, nor shall the sum of the Facility Capacity Rating of
this Agreement, the facility capacity rating under the amended and restated power purchase
agreement between PacifiCorp and Ridgeline relating to North Point, and the facility
capacity rating under the power purchase agreement between PacifiCorp and CCW relating
to Coyote Hill exceed 133.4 MW,
l.2l "Expiration Date" shall have the meaning set forth in Section 2.1 of this
Agreement.
1.22 ,"Facilit5/'is defined in Recital A of this Agreement.
1.23 "Facility Capacity Rating" means the sum of the Nameplate Capacity
Ratings for all Wind Turbine generators comprising the Facility.
1.24 "Force Majeure" has the meaning set forth in Section l5,l .
1.25 "Forced Outage" means an outage that requires removal of one or more
Wind Turbines from service, another outage siate or a reserve shutdown state before the end
of the next weekend. Maintenance Outages and Planned Outages are not Forced Outages.
Meadow Creelc Project Company ILC-Fivv Pine
1,26 "Generation Interconnection Agreement" means the generation
interconnection agreement entered into separately between Seller and Transmission Provider,
as applicable, specifying the Point of Delivery and providing for the construction and
operation of the Interconnection Facilities.
1.27 "Green Tags" means (a) the Environmental Attributes associated with all
Output, together with (b) the Green Tag Reporting Rights associated with such energy and
Environmental Attributes, however commercially transfered or traded under any or other
product names, such as "Renewable Energy Credits," "Green-e Certified," or otherwise. One
Green Tag represents the Environmental Attributes made available by the generation of one
MWh of energy from the Facility.
1 .28 "Green Tag Reporting Rights" means the exclusive right of a purchaser of
Environmental Attributes to report ownership of Environmental Attributes in compliance
with federal or state law, if applicable, and to federal or state agencies or other parties at such
purchaser's discretion, and include reporting under Section 1605(b) of the Energy Policy Act
of L992, or under any present or future domestic, international, or foreign emissions trading
program or renewable portfolio standard.
1.29 "Governmental Authority" means any supranational, federal, state or other
political subdivision thereof, having jurisdiction over Seller, PacifiCorp or this Agreement,
including any municipality, township or county, and any entity or body exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining to government,
including any corporation or other entity owned or controlled by any of the foregoing.
1.30 "Hazardous Materials" means any waste or other substance that is listed,
defined, designated or classified as or determined to be hazardous under or pursuant to any
environmental law or regulation,
I .31 "Inadvertent Energy" means energy delivered to ttre Point of Delivery at a rate
exceeding the Maximum Facility Delivery Rate on an hour-averaged basis, Inadvertent
Energy is not included in Net Energy,
1.32 "Index Price", for each day, shall mean the weighted average ofthe average Peak and
Off-Peak firm energy market prices, as published in the Intercontinental Exchange (ICE)
Day Ahead Power Price Reporr for the Palo Verde Hub for such day. For Sunday and NERC
holidays, the 24-Hour Index hice shall be used, unless ICE shall publish a Firm On-Peak and Firm
Off-Peak Price for such days for Palo Verde, in which event such indicas shall be utilized for such
days. If the ICE index or any replacernent of that index ceases to be published during the term of ttris
Agreement, PacifiCorp shall select as a replacement a substantially equivalent index that,
after any appropriate or necessary adjustments, provides the most reasonable substitute for
the index in question. PacifiCorp's selection shall be subject to Seller's consent, which Seller
shall not unreasonably withhold, condition or delay,
1.33 "Initial Year Energy Delivery Schedule" shall have the meaning set forth in
Section 4.3.1.
l.U "Interconnection Facilities" means all the facilities and ancillary equipment used to
interconnect the Facility to the System, as defined in the Generation Interconnection
Agreement,
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Meadow Creek Project Company AC-FilePine
1.35 "Letter of Credit" means an irrevocable standby letter of credit in a form
reasonably acceptable to PacifiCorp, naming PacifiCorp as the party entitled to demand
payment and present draw requests thereunder. Such letter of credit shall be provided by an
institution that is a United States office of a commercial bank or tust company organized under ttre
laws ofthe United States of America or a political subdivision thereoe with a credit rating on its
long-term senior unsecured debt of at least "A" from Standard & Poor's and"M" from Moody's
Investor Services, and (unless otherwise agreed) having assets of at least $10,000,000,000 (net of
reserves).
1.36 "Licensed Professional Engineer" means a person acceptable to PacifiCorp in its
reasonable judgment who is licensed to practice engineering in the state of Idaho, who has
faining and experience in the engineering discipline(s) relevant to the matters with respect to which
such person is called to provide a certification, evaluation and/or opinion, who has no economic
relationship, association, or nexus wittr Seller, and who is not a representative of a consulting
engineer, contractor, designer or othu individual involved in the developme,nt of the Facility, or of a
manufacturer or supplier of any equipment installed in the Facility. Such Licensed hofessional
Engineer shall be licensed in an appropriate engineering discipline for the required certification being
made. The engagement and payment of a Licensed Professional Engineer solely to provide the
certifications, evaluations and opinions required by this Agreernent strall not constitute a
prohibited economic relationship, association or nexus with Seller, so long as such engineer has no
other economic relationship, association or nexus with the Seller.
I .37 'Maintenance Outage" means any outage of one or more Wind Turbines that is not
a Forced Outage or a Planned Outage. A Maintenance Outage is an outage that can be
deferred until after the end of the next weekend, but that requires that the Wind Turbine(s) be
removed from service before the next Planned Outage. A Maintenance Outage may occur any time
during the year and must have a flexible start date.
1.38 "Material Adverse Change" shall mean, with respect to the Seller, if the Seller
has experienced a change in facts or circumstances related to development or operation of
the Facility that materially and adversely impact Seller's ability to fulfill its obligations
under this Agreement.
1.39 "Maximum Facility Delivery Rate" means the maximum instantaneous rate
(kW) at which the Facility is capable of delivering Net Output at the Point of Delivery, as
specified in Exhibit A, and in compliance with the Generation Interconnection Agreement,
Lq "Maximum GIA Delivery Rate" means themaximum rate (kW) at which ttre
Generator lnterconnection Agreement allows the Facility to deliver energy to the Point of
Delivery and is set forth in Exhibit A.
l.4l 'Tllameplate Capacity Rating" means the maximum instantaneous generating
capacity of any qualiffing small power or cogeneration generating unit supplying all or part
of the enerry sold by the Facility, expressed in MW or kW, when operated consistent with the
manufacturer's recommended power factor and operating parameters, as set forth in a notice from
Seller to PacifiCorp delivered before the Commercial Operation Date and, if applicable, updated in
the As-built Supplement,
1.42 "NERC" means the North American Electric Reliability Corporation.
6
Meadow Creek Project Company ILG-Fh.e Pine
1.43 "Net Energy" means the energy component, in kWh, of Net Output. Net
Energy does not include Inadvertent Energy.
1.4 'T.,let Outpuf ' means all energy and capacity produced by the Facility, less station use
and less transformation and transmission losses and other adjustments, if any. For purposes
of calculating payment under this Agreement, Net Ouput of energy shall be calculated as set forth
in Addendum L. Net Output does not include Inadvertent Energy.
145 "Network Resource" shall have the meaning set forth in the Tariff.
l# "Network Service Proyider" means PacifiCorp Transmission, as a provider
of network service to PacifiCorp under the Tariff.
1 ,47 "Non{onforming Energy" means Net Output produced by the Facility prior to
the Commercial Operation Date.
1.48 "Non-Conforming Energy Purchase Price" means the applicable price for
Non-Conforming Energy and capacity, specified in Section 5.1.
1,49 "Off-Peak Hours" means all hours of the week that are not On-Peak Hours.
1,50 "On-Peak Hours" means hours from 6:00 a.m. to 10:00 p.m. Pacific
Prevailing Time, Monday through Saturday, excluding Westem Electricity Coordinating
Council (WECC) and North American Electric Reliability Corporation (NERC) holidays.
L51 "Output Shortfall" and "Output Shortfall Damages" shall have the
meanings set forth in Section 4.5 of this Agreement.
1.52 "PacifiCorp" is defined in the first paragraph of this Agreement, and
excludes Paci fi Corp Transmission.
1,53 "PacifiCorp Transmission" means PacifiCorp, an Oregon corporation,
acting in its interconnection and transmission function capacity.
1,54 "Planned Outage" means an outage of predetermined duration that is
scheduled in Seller's Energy Delivery Schedule. Boiler overhauls, turbine overhauls or
inspections are typical planned outages. Maintenance Outages and Forced Outages are not Planned
Outages.
1.55 "Point of Delivery" means the point of interconnection between the Facility
and the System, as specihed in the Generation Interconnection Agreement and in Exhibit B.
1.56 "Premises" means the real property on which the Facility is or will be
located, as more fully described on Exhibit A.
157 "Prime Rate" means the rate per annum equal to the publicly announced
prime rate or reference rate for commercial loans to large businesses in effect from time to
time quoted by JPMorgan Chase & Co. If a JPMorgan Chase & Co. prime rate is not available,
the applicable Prime Rate shall be ttre announced prime rate or reference rate for commercial loans
Meqdow Creek P roj ect Company LLC-Ftue Pine
in effect from time to tirne quoted by a bank with $10 billion or more in assets in New York City,
N.Y., selected by the Party to whom interest based on the prime rate is being paid.
1.58 "Production Tax Credits" means producfion tax credits under Section 45 of the
Internal Revenue Code as in effect from time to time during the term hereof or any successor
or other provision providing for a federal tax credit determined by reference to renewable
electric energy produced from wind resources and any conelative state tax credit determined by
reference to renewable elecfic energry produced from wind resotuces for which the Facility is eligible,
Production Tax Credits do not include any tax credit determined by reference to investment.
1.59 "Prudent Electrical Practices" means any of the practices, methods and acts
engaged in or approved by a significant portion of the electrical utility industry or any of the
practices, methods or acts, which, in the exercise of reasonable judgment in the light of the
facts known at the time a decision is made, could have been expected to accomplish the desired
result at the lowest reasonable cost consistent with reliability, safety and expedition. Prudent
Electrical Practices is not intended t0 be limited to the optimum practice, method or act to the
exclusion of all others, but rather to be a spectrum of possiblepractices, methods or acts.
l,fi "QF" means "Qualifying Facility", as that term is defined in the version of
FERC Regulations (codified at 18 CFR Part292) in effect on the date of this Agreement.
l.6l 'Required Facility Documents" means all deeds, titles, leases (including
Wind Leases), licerses, permits, authorizations, and agreements demonstating that Seller contols
the necessary property rights and government authorizations to constuct operate, and maintain the
Facility, including without limitation those set forth in Exhibit C.
1.62 'Requirements of Law" means any applicable and mandatory (but not
merely advisory) federal, state and local law, statute, regulation, rule, code or ordinance
enacted, adopted, issued or promulgated by any federal, state, local or other Govemmental Auttrority
or regulatory body (including those pertaining to electrical, building, zoning, environmsntal and
occupational safety and health requirements).
1.63 "Scheduled Commercial Operation Date" means December 31,2012, as
such date shall be extended from time to time as a result of Force Majeure; provided, that the
Scheduled Commercial Operation Date shall not be extended beyond September 30,2013,
1.64 "Scheduled Monthly Energy Delivery" means the Net Energy scheduled to be
delivered during a given calendar month, as specified by Seller in the Energy Delivery
Schedule.
1.65 "Shared Interconnection Facilities" means that portion of the
Interconnection Facilities used by the Facility and one or more other Qualiffing Facilities as
further described in Exhibit B.
1,66 'oSeller's Forecast-Cost Share" and "Sellerts Capped Forecast-Cost
Share" shall have the meanings set forth in Sections 8.2 and 8.3 respectively.
1.67 "Subsequent Energy Delivery Schedule" shall have the meaning set forth in
Section 4.3.3,
Meadow Creek Project Company LLC-Five Pine
1.68 "System" means the electric transmission substation and transmission or
distribution facilities owned, operated or maintained by Transmission Provider, which shall
include, after conshuction and installation of the Facility, the circuit reinforcements,
extensions, and associated terminal facility reinforcements or additions required to
interconnect the Facility, all as set forth in the Generation Interconnection Agreement.
1.69 "Tariff' means the PacifiCorp Transmission FERC Elechic Tariff Seventh
Revised Volume No, I I Pro Forma Open Access Transmission Tariff or the Transmission
Provider's corresponding FERC tariff or both, as revised from time to time.
1.70 "Transmission Provider" means PacifiCorp Transmission or a successor,
including any regional transmission organization ("RTO").
"Wind Leases" means the memoranda of wind lease and redacted wind leases recorded in
the county in which the Facility is located in connection with the development of the Facility,
as the same may be supplemented, amende4 extended, restated, or replaced from time to time.
L.ll "Wind Turbine" nreans the type of wind turbine specified and more fully
described in Exhibit A as such Exhibit A may be updated pursuant to Section 2.2.7.
l.l2 "WREGIS" means the Western Renewable Energy Generation Information
System.
1.73 "WREGIS Certificate" means "Certificate" as defined by WREGIS in the
WREGIS Operating Rules.
1,74 "WREGIS Operating Rules" means the operating rules and requirements
adopted by WREGIS.
SECTION 2. TERM; COMMERCIAL OPERATION DATE
2.1 This Agreement shall become effective after execution by both Parties and
after approval by the Commission pursuant to a final and non-appealable order ("Effective
Date'), that the prices to be paid for energy and capacity me just and reasonable, in the public
interest and that the costs incuned by PacifiCorp for purchases of capacity and energy from Seller
are legitimate expenses, all of which the Commission will allow PacifiCorp to recover in
rates in Idaho in the event other jurisdictions deny recovery of their proportionate share of
said expenses. Unless earlier terminated as provided herein, this Agreement shall remain in effect
until the hventieth (20th) anniversary of the earlier of the Commercial Operation Date or the
Scheduled Commercial Operation Date ("Expiration Date"),
2.2 Time is of the essence ofthis Agreernent and Seller's ability to meet certain
requirements prior to the Commercial Operation Date and to achieve Commercial Operation
by the Scheduled Commsrcial Operation Date is critically important. Therefore,
2,2,1 By the date that is four (4) months prior to the Scheduled Commercial
Operation Date, Seller shall obtain and provide to PacifiCorp copies ofall govemmental permits
and authorizations listed in Exhibit C.
Meadow Creek Project Company LLC-Fhn Pine
2.2.2 By the date that is thirty (30) days after the Effective Date, Seller shall
provide one hundred percent ( 100%) of the Delay Security required under Section I I .1.1, as
applicable,
223 By December 31,20L1, Seller: (i) has provided all information and
paid all fees the Transmission Provider requires to designate the Facility as a Network
Resource in accordance with the Tariff(OA'fD; and (ii) has provided all information reasonably
required by PacifiCorp to submit a transmission service request for the Facility to the
Transmission Provider pursuant to the Tariff
2.2.4 PacifiCorp, within ten (10) days of receiving from Seller the
information identified in Section 2.2.3, shall (i) withdraw the request with respect to the
facility (as defined in the Original PPA) and (ii) request designation of the Facility as a
Network Resource for the purposes of serving Network Load.
2.2.5 Seller shall provide written confirmation of the expected Facility
Capacity Rating for the Facility on or before January 31,2012. This notice shall definitively
establish a single Capacity Rating for the Facility within the range contemplated in the
Expected Facility Capacity Rating.
2.2,6 At least ten (10) business days prior to delivery of any energy from the
Facility to PacifiCorp, Seller shall provide PacifiCorp with an executed Generation
Interconnection Agreement.
2.2.7 Within one hundred eighty (180) days prior to the Scheduled
Commercial Operation Date, Seller shall provide PacifiCorp with amended Exhibits, which
may include the designation of alternative Wind Turbines for the Facility, and such other
updates to the information contained therein.
2.2.8 Prior to the Commercial Operation Date, Seller shall provide Default
Security required under Section 11.2, if applicable.
2.2.9 Prior to the Commercial Operation Date, Seller shall provide
PacifiCorp with an As-built Supplement reasonably acceptable to PacifiCorp.
2.2.10 Seller shall use commercially reasonable efforts to achieve
Commercial Operation by 00:00 PPT December 31,2012.
2.3 Beginning on January 6,2012 and on the fifth (5th) business day of each
month thereafter until the Commercial Operation Date, Seller shall provide PacifiCorp with a
one-page monthly update by e-mail on the progress of financing and/or construction of the
Project and status of completion of the milestones in Section 2.2.
2.4 Establishing Cgmmgcial,Operation. Seller shall provide written notice to
PacifiCorp stating when Seller believes that the Facility has achieved Commercial Operation.
PacifiCorp shall have ten (10) business days after receipt either to confirm to Seller that all
of the conditions to Commercial Operation have been satisfied or have occurred, or to state with
specificity what PacifiCorp reasonably believes has not been satisfied, I[ within such ten (10)
business day period PacifiCorp either does not respond or else confirms that the Facility has
achieved Commercial Operation, the original date of receipt of Seller's notice shall be the
l0
Meadow Creek Project Company UC--FilePine
Commercial Operation Date. If PacifiCorp notifies Seller within such ten (10) business day period
that PacifiCorp reasonably believes the Facility has not achieved Commercial Operation,
Seller may, if it has a good faith belief that Commercial Operation has been achieved, submit a
Technical Diqpute Notice, or else Seller shall address the concems stated in PacifiCorp's notice to
the mutual satisfaction of both Parties. If Seller submits a Technical Dispute Notice and the
Technical Expert determines that Commercial Operation has been achieved, then the
Commercial Operation Date shall be ttre date, as determined by the Technical Expert, that the Facility
first met all the requirements of Commercial Operation; otherwise the date upon which Seller has
addressed the concerns stated in PacifiCorp's notice to PacifiCorp's reasonable satisfaction, as
specified in a notice from PacifiCorp to Seller, shall be the Commercial Operation Date. If
Commercial Operation is achieved at less than one hundred percent (100%) ofthe expected Facility
Capacity Rating and Seller informs PacifiCorp that Seller intends to bring the Facility to one
hundred percent (10070) ofthe expected Facility Capacity Rating, Sello shall provide PacifiCorp wittr
a list of all items to be completed in order to achieve the expected Facility Capacity Rating,
2.4.1 Technical Expert. If, and only if, a dispute regards (i) whether or not
Commercial Operation has been achieved, and/or (ii) the date when Commercial Operation was
achieved, the Parties may have such dispute, and only such dispute, resolved pursuant to this
Section 2.4.1. Any such dispute will be determined by an independent technical expe$ who shall be
a mutually acceptable third party with raining and experience in the disciplines relevant to the
matters with respect to which such person is called upon to provide a certification, evaluation or
opinion (the "Technical Expert"), which determination shall be (X) made (subject to the
terms in this Section 2.4)tnaccordance with the Constuction Industry Arbination Rules and
Mediation Procedures (Including Procedures for Large, Complex Construction Disputes) of the
AAA, as amended and effective on October 7,2009 (the "Technical Dispute Procedures"),
notwithstanding any dollar amounts or dollar limitations contained therein, and (Y) binding
upon the Parties.
(a) Either Party may commence the dispute process as to the
matters set forth in paragraph2.4.l, above, with the American Arbitration Association
("AAA") by notifying A,rM and the other Paxty in writing ("Technical Dispute Notice") of such
Party's desire that the dispute be resolved through a determination by a Technical Expert.
(b) The determination shall be conducted by a sole Technical Expert.
The Parties may select any mutually acceptable Technical Expert. If the Parties cannot agree on a
Technical Expert within five (5) days after ttre date of the Technical Dispute Notice, then the AuM's
Artitation Administator shall send a list and resumes of tluee (3) available technical experts meeting
ttre qualifications set foflh in Section 2.4.1 to the Parties, each ofwhom shall stike one narne, and the
remaining person shall be appointed as the Technical Expert. If more than one name remains,
either because one or both Parties have failed to respond to tlrc A\rM's Arbifation Administator
within five (5) days after receiving the list or because one or both Parties have failed to stike a name
from the list orbecause both Parties strike the same name, the AAA's Arbitation Adminisfrator
will choose the Technical Expert from the remaining names. If the designated Technical Expert
shall die, become incapable or, unwilling to, or unable to serve or proceed with the determination,
a substitute Technical Expert shall be appointed in accordance with the selection procedwe
described above, and such substitute Technical Expert shall have all such powers as if he or she has
been originally appointed herein.
ll
Meadow Creek Project Company LLC-Fivv Pine
G) Within thifty (30) days of the appoinrnent of the Technical Expert
pursuant to the foregoing sub-section, each Party shall submit to the Technical Expert (and copy the
o*rer Party) a written report containing its position with respect to the dispute, and arguments
therefor together with supporting documentation and calculations. Discovery shall be limited to
Facility documentation relating to the disputed matter. Within sixty (60) days from receipt of such
submissions, the Technical Expert shall select one or the other Party's position with respect to the
disputed, arbitrateable issues set forth in Section 2.4.1 above, whereupon such selection shall be a
binding determination upon the Parties for all purposes hereofl The costs of ttre Technical Expert,
including his or her fees and expenses, shall be bome by the Party whose position was not selected by
the Technical Expert; each Party shall otherwise bear its own expenses. If the Technical Expert fails
to render a decision within ninety (90) days from receipt of each Party's submissions, either Party
may, prior to the Technical Expert's final decision, initiate litigation, in which case the Technical
Expert's final decision shall not be binding on the Parties unless otherwise agreed.
2.4.2 All vertal and written communications between the Parties and issued or
prepared in connection with this Section 2,4.I shall be deemed prepared and communicated in
furtherance, and in the context, of dispute settlement, and shall be exempt from discovery and
production, and shall not be admissible in evidence (whettrer as admission or otherwise) in any
litigation or other proceedings for the resolution of ttre dispute.
2.4.3 All deadlines specified in this Section 2.4 may be extended by mutual
agreement of the Parties.
2.5 Delay Damages. Seller shall cause the Facility to achieve Commercial
Operation on or before the Scheduled Commercial Operation Date. If Commercial Operation occu6
afterthe Scheduled Commercial Operation Date, Seller shall be liable to pay PacifiCorp
delay damages for the number of days ('Delay Period') that the Commercial Operation Date occurs
after October l,20l3,ru:til the earlier of occurrence ofthe Commercial Operation Date or the
termination of this Agreement (Delay Liquidated Damages'); provided that Seller shall not accrue
any Delay Liquidated Damages after: (i) Seller has timely achieved the milestone in Section 2,2,3;
and (ii) Seller has satisfied all requirements of Commercial Operation except for one or more
requirements in Section L5.6. Billings and payments for Delay Liquidated Damages shall be made
in accordance with Section I l,l.
2.5.1 Delay LiqUidAtqd Damages. Delay Liquidated Damages equals the sum of:
for each day in the Delay Period, the greater of (l) the Delay Daily Minimum or (2) the
Delay Price times the Delay Volume,
Where:
"Delay Daily Minimum" equals (a) for the first forty-five (45) calendar days
following the Scheduled Commercial Operation Date: one-ninetieth (1 /90th) of forty-
five dollars ($45) multiplied by the Maximum Facility Delivery Rate with the
Maximum Facility Delivery Rate being measured in kW; O) after the forty-fifth
(45*) calendar day following the Scheduled Commercial Operation Date: the Delay
Price times the Delay Volume,
"Delay Price" equals the positive difference, if any, of the Index Price minus the
weighted average of the On-Peak and Of[-Peak monthly Conforming Enerry
Purchase Prices; and
l2
Meadow Creek Project Company AC-FivePine
"Delay Volume" equals the applicable Scheduled Monthly Energy Delivery
divided by the number of days in that month.
2.5,2 Appropriateness of Damages. The Parties agree that the damages
PacifiCorp would incur due to delay in the Facility achieving Commercial Operation on or before
the Scheduled Commercial Operation Date would be difficult or impossible to predict with
certainty, and that the Delay Liquidated Damages are an appropriate approximation of such
damages.
SECTION 3. REPRESENTATIONS AND WARRANTIES
3.I PacifiCorp represents, covenants, and warrants to Seller that:
3.1.1 PacifiCorp is duly organized and validly existing under the laws of the
State of Oregon.
3.1.2 PacifiCorp has the requisite corporate power and authority to enter
into this Agreement and to perform according to the terms ofthis Agreement.
3.1.3 PacifiCorp has taken all corporate actions required to be taken by it to
authorize the execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby.
3.1.4 Subject to Commission approval, the execution and delivery of this
Agreement does not contravene any provision of, or constifute a default under, any
indenture, mortgage, or other material agreement binding on PacifiCorp or any valid order of
any court, or any regulatory agency or other body having authority to which PacifiCorp is
subject.
3.1.5 Subject to Commission approval, this Agreement is a valid and legally
binding obligation of PacifiCorp, enforceable against PacifiCorp in accordance with its terms
(except as the enforceability of this Agreement may be limited by bankruptcy, insolvency, bank
moratorium or similar laws affecting creditors' rights generally and laws resticting the availability
of equitable remedies and except as the enforceability of this Agreement may be subject to general
principles of equity, whether or not such enforceability is considered in a proceeding at equity or
in law).
3.2 Seller represents, covenants, and warrants to PacifiCorp that:
3.2.1 Seller is a limited liability company duly organized and validly
existing under the laws of Delaware,
3.2.2 Seller has the requisite power and authority to enter into this
Agreement and has, or will have at the date of Commercial Operation of the Facility, all
requisite power and authority to perform according to the terms hereof, including all required
regulatory authority to make wholesale sales from the Facility.
3.2,3 Seller's shareholders, directors, and officers have taken all actions
required to authorize the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby.
l3
Meadow Creek Project Company LLC-Fiw Ptue
3.2.4 The execution and delivery of this Agreement does not contravene any
provision of or constitute a default under, any indenture, mortgage, or other material
agreement binding on Seller or any valid order of any court, or any regulatory agency or
other body having authority to which Seller is subject.
3.2.5 This Agreement is a valid and legally binding obligation of Seller,
enforceable against Seller in accordance with its terms (except as the enforceability of this
Agreement may be limited by bankruptcy, insolvency, bank moratorium or similar laws
affecting creditors' rights generally and laws reshicting the availability of equitable remedies
and except as the enforceability of this Agreement may be subject to general principles of
equity, whether or not such enforceability is considered in a proceeding at equity or in law).
3.2.6 The Facility is and shall for the term of this Agreement continue to be a
QF. Within thirty (30) days after the Effective Date, Seller shall provide the appropriate QF
certification, which may include a Federal Energy Regulatory Commission self-certification to
PacifiCorp. At any time thereafter that PacifiCorp has reason to believe during the ierm ofthis
Agreement that Seller's status as a QF is in question, PacifiCorp may require Seller to provide
PacifiCorp with a written Iegal opinion from an attomey in good standing in the state of Idaho and
who has no economic relationship, association or nexus with the Seller or the Facility (other than
in a capacity as counsel providing such requested legal opinion), stating that the Facility is a
QF and providing sufficient proof (including copies of all documents and data as PacifiCorp
may request) demonstrating that Seller has maintained the Facility as a QF.
3.2.7 Neither the Seller nor any of its principal equity owrers is or has
within the past two (2) years been the debtor in any bankruptcy proceeding, is unable to pay
its bills in the ordinary course of its business, or is the subject of any legal or regulatory
action, the result of which could reasonably be expected to impair Seller's ability to own and
opgrate the Facility in accordance with the terms of this Agreement.
3,2.8 Seller has not at any time defaulted in any of its payment obligations
for electricity purchased from PacifiCorp.
3.2.9 Seller is not in default under any of its other material agreements that
would result in Seller's failure to perform its material obligations hereunder.
3.2.t0 Seller owns all right, title and interest in and to the Facility, free and
clear of all liens and encumbrances other than liens and encumbrances created by or through
Seller related to third-party financing of the Facility, and Seller (or its successor in interest)
will continue to own for the term of this Agreement, all right, title and interest in and to the
Facility, free and clear of all liens and encumbrances other than liens and encumbrances
related to third-party financing of the Facility,
3.2.11 In entering into this Agreement and the undertaking by Seller of the
obligations set forth herein, Seller has investigated and determined that it is capable of
performing hereunder and has not relied upon the advice, experience or expertise of
PacifiCorp in connection with the transactions contemplated by this Agreement.
3.2.12 All professionals or experts including, but not limited to, engineers,
attorneys or accountants, that Seller may have consulted or relied on in undertaking the
transactions contemplated by this Agreement have been solely those of Seller.
t4
Meadow Creek Project Company ILC-Fivv Pirw
3,2.13 All leases of real properly required for the operation of the Facility or
the performance of any obligations of Seller hereunder are set forth and accurately described
in Exhibit C. Upon request by PacifiCorp, Seller shall provide copies of the Wind Leases to
PacifiCorp.
3.2.14 All information about the Facilify set forth in Exhibit A, Exhibit B, and
Exhibit C has been verified by Seller and is accurate to the best of its knowledge.
3.3 Notice. If at any time during this Agreement, any Party obtains actual knowledge
of any event or information which would have caused any of the representations and
warranties in this Section 3 to have been materially untrue or misleading when made, such Parfy
shall provide the other Parry with written notice of the event or information, the
representations and warranties affected, and the action, if any, which such Party intends to take to
make the representations and warranties true and correct. The notice required pursuant to this
Section shall be given as soon as practicable after the occrurence ofeach such event,
SECTION 4. DELIVERY OF POWER; AVAILABILITY GUARANTY
4.1 Delive"ry.ar-rd Accepta0ce ofNet Output. Except for any curtailment specified in
Section 6.3, unless otherwise provided herein, PacifiCorp will purchase and Seller will sell
all Net Output from the Facilify.
4.2 No Sales to Third Parties, Dwing the term of this Agreement, Seller shall not
sell any Net Output from the Facility to any entity other than PacifiCorp,
4.3 EngrF,v Delivery Schedule. Seller shall prepare and provide to PacifiCorp, on an
ongoing basis, a written schedule of Net Energy expected to be delivered by the Facility
("Energy Delivery Schedule"), in accordance with the following:
4.3.1 During the first twelve full calendar months following the Commercial
Operation Date, Seller predicts that the Facility will produce and deliver the following
monthly amounts ("Initial Year Energy Delivery Schedule"):
Enerev Peliverv (kW-h)
9,881,887
8,1 91,635
11,360,594
9,085,733
l0,l 85,73 g
8,069,166
7,384,339
8,155,779
7,590,732
8,615,123
10,166,694
10,324,201
Mqqth
January
February
March
April
May
June
July
August
September
October
November
December
Averase kW
13,247
12,170
15,282
12,608
13,686
11,212
9,935
10,933
10,574
11,61I
14,125
13,885
t5
TOTAL:l0g,0l1,621
Meadow Creek Project Company ILC-Fiw Pine
12,439
4.3.2 Seller may revise the Initial Year Energy Delivery Schedule any time
prior to the Commercial Operation Date.
4.3.3 Beginning at the end of ttre ninth full calendar month of operation, and at the
end of every third month thereafter, Seller shall supplement the Energy Delivery Schedule wittr ttree
additional months of forward estimates (which shall be appended to this Agreementusing the format
specified in Exhibit D) ('Subsequent Energy Delivery Schedule'), such that the Enerry Delivery
Schedule will provide at least three months of scheduled e,nergy estimatos at all times. Seller shall
provide Subsequent Energy Delivery Schedules no later than 5:00 pm PPT of the 5th day after the
due date, If Seller does not provide a Subsequent Energy Delivery Schedule by the above deadline,
scheduled enerry for the omitted period shall equal the amounts scheduled by Seller for the same
three-month period during the previous year.
4.3.4 Upon and after the Commercial Operation Date, Seller may no longer
revise the Energy Delivery Schedule for the first six full calendar months of Commercial Operation,
After 5:00 p.m. PPT of the fifth business day following the end of the third full calendar month of
Commercial Operation and the end of each third calendar month thereafteq Seller may no longer
rwise the Energy Delivery Schedule for the six calendar months immediately following zuch third
month. Subject to the foregoing restictions in this Secfion 4.3.4, Seller may revise the Energy
Delivery Schedule for any unresticted month by providing written notice to PacifiCorp. Failure to
provide timely written notice of changed amounts will be deemed to be an election of no change.
4,4 Minimum Availabilitv Qbligatign. Seller shall cause the Facility to achieve an
Availability ofat least 85% during each month ('Guaranteed Availability').
4,5 Liquidated Damages for Output Shortfall. If the Availability in any given
month falls below the Guaranteed Availability, the resulting shortfall shall be expressed in
kWh as the "Output Shortfall." The Output Shortfall shall be calculated in accordance with
the following formula:
Output Shortfall : (Guaranteed Availability - Availability) *
Scheduled Monthly Energy Delivery
Seller shall pay PacifiCorp for any Output Shortfall at the lower of (l) the positive difference, if any,
of the lndex Price minus the weighted average of ttre On-Peak and Off-Peak monthly Conforming
Enerry Purchase hices; or (2) the werghted average ofthe On-Peak and Off-Peak monthly
Conforming Enerry Purchase Prices ('Output Shorffall Ilamages ).
Output Shortfall Damages = Output Shortfall * Output Shortfall Price
Where:
Output Shortfall Price : (Index Price - Weighted Average CEPP), except
that if OuBut Shortfall Price < 0, then Output
Shortfall Price : 0, and except that if Output
Shortfall Price > Weighted Average CEPP, then
Output Shortfall Price = Weighted Average
CEPP
l6
Meadow Creek Project Company LLC-FhnPbw
Weighted Average CEPP: the Weighted Average On-Peak and Off-Peak
Conforming Energy Purchase Prices for the
month of Output Shortfall
If an Output Shortfall occurs in any given month, Seller may owe PacifiCorp liquidated
damages. Each Party agrees and acknowledges that (a) the damages that PacifiCorp would
incur due to the Facility's failure to achieve the Guaranteed Availability would be difficult or
impossible to predict with certainty, and (b) the liquidated damages contemplated in this
Section 4.5 are a fair and reasonable calculation of such damages.
4.6 AudIRigh.ts, In addition to data provided under Sections 9.3 and9.4,
PacifiCorp shall have the right, but not the obligation, to audit the Facility's compliance with
its Guaranteed Availability using any reasonable methods. Seller agroes to retain all
performance related data for the Facility for a minimum of three years, and to cooperate with
PacifiCorp in the event PacifiCorp decides to audit such data.
4,7 For a period of ten (10) years from the Commercial Operation Date, Seller
shall have title to the Green Tags immediately upon the generation of the Output at the
Facility that gives rise to such Green Tags. On the tenth (10m) anniversary of the
Commercial Operation Date through and including the Expiration Date, PacifiCorp shall
have title to the Green Tags immediately upon the generation of the Output at the Facility
that gives rise to such Green Tags. Each Parfy shall execute all additional documents and
instruments reasonably requested by the other Party in order to further document the
ownership of the Green Tags during the respective Party's ownership. Without limiting the
generality of the foregoing, Seller shall, on or before the 1Oth day of each month during
which PacifiCorp has ownership rights to the Green Tags, deliver to PacifiCorp a Green
Tags Attestation and Bill of Sale (in the form attached as Exhibit 4.7(A)) for all Green Tags
delivered to PacifiCorp hereunder in the preceding month, along with any verification that is
in conformance with the then-current Center for Resource Solution's Green-e program, or
any successor program. The Party having ownership of the Green Tags at the time (the
"Green Tag Owner"), at its own cost and expense, shall register with, pay all fees required
by, and comply with, all reporting and other requirements of WREGIS relating to the Facility
or Green Tags. The Seller shall ensure that the Facility will participate in and comply with,
during the Term, all aspects of WREGIS. The Green Tag Owner shall be responsible for any
costs charged by the qualified reporting entity for the Facility to participate in and comply
with, during the Term, all aspects of WREGIS. The Green Tag Owner shall, at its sole
expense, use WREGIS as required pursuant to the WREGIS Operating Rules, including but
not limited to those rules related to effectuating the transfer of WREGIS Certificates and
transferring such WREGIS Certificates in accordance with WREGIS reporting protocols and
WREGIS Operating Rules and as required under this Agreement. Seller may either elect to
enter into a Qualified Reporting Entity Services Agreement with PacifiCorp in a form similar
to that in Exhibit 4.1(B) or elect to act as its own WREGIS-defined Qualified Reporting
Entity. Seller shall upon written request from PacifiCorp provide copies of all
documentation submitted to WREGIS in connection with the Facility. Further, upon
notification by WREGIS or CAMD that any transfers of Green Tags contemplated by this
Agreement have not been recorded, the Parties shall promptly cooperate in taking all
reasonable actions necessary so that such transfers can be recorded. Seller shall at its
expense cause the Facility to maintain its registration in good standing with the Center for
Resource Solution's Green-e program, or any successor program, throughout the Term;
t7
Meqdow Creek Project Company ILC-Fiw Ptue
provided, however that each Party shall (a) not take any action (other than the provision of
truthful information) to impair the Facility's good standing with such program and (b) shall
provide such information as is reasonably requested to maintain such registration, The
Parties shall reasonably cooperate in any regishation of the Facility in the renewable
portfolio standard or equivalent program in all such further states and programs in which the
Parties may wish to register or maintained registered the Facility by providing copies of all
such information as reasonably required for such regishation. Neither Party represents or
warrants that the Green Tags can be used for any purpose. The Parties acknowledge that the
Green Tags may be subject to action by Governmental Authority and neither Party is liable
to the other Party for action taken by a Governmental Authority in connection with the Green
Tags that is not a result of a breach of this Agreement
SECTION 5. PURCHASE PRICES
5.1 Energy Purchase Price, Except as provided in Section 5,3, PacifiCorp will pay
Seller Conforming Energy Purchase Prices or Non-Conforming Energy Purchase Prices, as
applicable, for Net Output adjusted for the month and On-Peak Hours or Off-Peak Hours and
the wind integration cost using the following formulae:
Conforming Energy Purchase Price = (AR"" * MPM) - WIC
Where:
Non-Conforming Energy Purchase Price: (An"" * MPM) - WIC
= Conforming Energy annual rate from Table 1, below, for the
year of the Net Output.
: the lower of.
85% of the Conforming Energy annual rate from Table
I below, for the year of Net Output
ARce
ARrre
MPM
WIC
Example calculations are provided in Exhibit G.
Table l: Conforming Energr Annual Rates
or
85% ofaverage ofthe daily Index Pricc for each day of
the month, or portion of month, of Net Output.
monthly On-Peak or Off-Peak multiplier from Table 2 below,
that corresponds to the month of the Net Output and whether
the Net Output occuned during On-Peak Hours or Off-Peak
Hours,
$6.50/IvIWh, the wind integration cost prescribed in
Commission Order No. 3 1021.
l8
Meadow Creek Project Company ALlive Pine
Year Conforming Energy
Annual Rate (AR")
S/MWh
2012 63.97
2013 67.51
2014 71.32
20t5 75.40
201,6 77.76
2017 80.07
2018 82.58
201q 85.05
2020 87.61
2021 g0 63
2022 93.78
)M1 97 05
2024 00.44
202s 03.98
2026 06.98
2027 10.07
2028 11 26
2029 16.s5
2030 19.9s
2031 24.51
2032 28.50
2033 32.64
2034 36.92
Table 2: Monthly On-Peak/OfrPeak Multipliers
Month On-Peak
Hours
Off-Peak
If nrrrc
.Tanua.rv 103%94.o/"
Februarv t0s%97o/o
March 95o/"80o/"
Aoril 95%76%
Mav 9)o/"510/"
June 940 6s%
Julv t2t%92%
Aupmst t2l%l060/"
Seotember 109%994/"
October tt5%105%
November t0%96%
December t29%120%
5.2 Payment,
For each Billing Period in each Contact Year, PacifiCorp shall pay Seller as follows:
For delivery of Conforming Energy:
Payment = (CEnergyq,.Peak*CEPPriceon-peak/1000)+
t9
Meadow Creek Project Compony UC--Fiw Pine
(Chergroir-Pcak * CEPkicmn-Peak/ l0m)
For delivery of Non-Conforming Energy:
Payment =(NCEnerrym.Pcak * NCEPPricqr,-peak /1000) +
(NCErcrgroir-Pcak * NCEPPriceoir-Pcak/l 000)
Conforming Energy in kwh
ConformingEnerry Purchase Price in $AdWh
Non-Conforming Energy Purchase Price in kWh
Non-Conforming Energy Purchase hice in $A4Wh
CEnergy :
CEPPrice =
NCEnergy =
NCEPPrice =
On-Peak
OflPeak
= the conesponding value for On-Peak Hours
= the coneqponding value for OFPeak Hours
5.3 Inadvertent Enerry. So long as acceptance of Inadvertent Energy does not cause
PacifiCorp to violate the terms of its Network Transmission Service and is consistent with
Prudent Elecrical Practices, PacifiCorp will accept Inadvsrtent Energy, but will not purchase or pay
for Inadvertent Energy.
5.4 Additional Compensation. Seller shall not be entitled to any compensation
over and above the Conforming Energy Purchase Prices or Non-Conforming Energy
Purchase Prices, as the case may be, for the Green Tags associated therewith.
SECTION 6. OPERATION AND CONTROL
6.1 As-Built Supplement. Upon completion of any construction affecting the
Facility, Seller shall provide PacifiCorp an As-built Supplement bearing the stamp of a Licensed
Professional Engineer that accurately depicts the Facility as built. The As-built Supplement
must be reviewed and approved by PacifiCorp, which approval shall not unreasonably be
withheld, conditioned or delayed.
6.2 Operation, Seller shall operate and maintain the Facility in a safe manner in
accordance with the Generation Interconnection Agreement, Prudent Electrical Practices and
in accordance with the requirements of all applicable federal, state and local laws and the National
Electric Safety Code as such laws and code may be amended from time to time. PacifiCorp
shall have no obligation to purchase Net Output from the Facility to ttre extent the interconnection
between the Facility and PacifiCorp's elecfic systun is disconnected, suspended or intemrpted, in
whole or in part, pursuant to the Generation Interconnection Agreement, or to the extent
generation crxtailment is required as a rezult of Seller's non-compliance with the Generation
Interconnection Agreement. PacifiCorp shall have the right to inspect the Facility to confirm that
Seller is operating the Facility in accordance with the provisions of this Section 6 upon
reasonable notice to Seller. Seller is solely responsible for the operation and maintenance of the
Facility. PacifiCorp shall not, by reason of its decision to inspect or not to inspect the Faciliff, or by
any action or inaction taken with respect to any such inspection, assume or be held responsible
for any liability or occurrence arising from the operation and maintenance by Seller of the Facility.
6.3 Curtailme.nt. PacifiCorp shall not be obligated to purchase, receive, pay for, or
pay any damages associated with, Net Ouput (or associated Production Tax Credits or
20
Meqdow Creek Project Company ILC-Fiw Pine
Environmental Atfibutes) if such Net Output (or associated Production Tax Credits or
Environmental Attributes) is not delivered to the System or Point of Delivery due to any of the
following: (a) the interconnection between the Facility and the System is disconnected,
suspended or intemrpte( in whole or in parf consistent with the terms of the Generation
Interconnection Agreement, (b) the Transmission Provider or Network Service Providq directs a
general ctrtailment, reduction, or rediqpatch of generation in the area (which would include the Net
Outpr| for any reason, even if such curtailment or redispatch directive is canied out by PacifiCorp,
which may fulfill such directive by acting in its sole discretion; or if PacifiCorp curtails or
otherwise reduces the Net Output in order to meet its obligations to the Transmission Provider or
Network Service Provider to operate within system limitations, (c) the Facility's Output is not
received because the Facility is not fully integrated or synchronized with the System, or (d) an
event of Force Majeure prevents either Party from delivering orreceiving Net Output. Sellershall
reasonably determine the MWh amount of Net Output curtailed pursuant to this Section 6.3 after the
fact based on the amount of enerry that could have been generated at the Facitty and delivered to
PacifiCorp as Net Output but that wa^s not generated and delivercd because of the curtailment. Seller
shall determine the quantity of such curtailed energy based on (x) the time and duration of the
curtailment period and (y) wind conditions recorded at the Faciliff during the period of curtailrnent
and the powsr curve specified for the Wind Turbines as shown in Exhibit A. Seller shall promptly
provide PacifiCorp with access to such information and data as PacifiCorp may reasonably
require to confirm to its reasonable satisfaction the amount of energy that was not generated or
delivered because of a curtaiknent described in this Section 6.3.
6.4 PacifiCom as Mqrchant. Seller acknowledges that PacifiCorp, acting in its
merchant capacity function as purchaser under this Agreemen! has no responsibility for or contol
over PacifiCorp Transmission or any successor Transmission Provider.
6.5 Outages.
6.5.I Planned Outages. Except as otherwise provided herein, Seller shallnot
schedule Planned Outage during any portion of the months of November, December, January,
February, June, July, and August, except to the exlent a Planned Outage is reasonably required to
enable a vendor to satisfy a guarantee requirement in a situation in which the vendor is not otherwise
able to perform the guarantee work at a time other than during one of the months qpecified above or to
the extent such Planned Outage is required in accordance with Prudent Elecfical Practices. Seller
shall, in Exhibit D, provide PacifiCorp with an annual forecast ofPlarured Outages for each Contact
Year at least one (l) mont}, but no more that three (3) months, before the first day of that
Contract Year, and shall promptly update such schedule, or otherwise change it only, to the
extent that Seller is reasonably required to change it in order to comply with Prudent Electical
Practices, Seller shall not schedule more than one hundred fifty (150) hours of Planned Outages for
each calendar year. Seller shall notiff PacifiCorp of any deviation to the annual Planned
Outage schedule, above, on the Monday preceding the scheduling week in which the sooner of the
following will occur: (a) the outage as predicted in the Planned Outage schedule; or (b) the
outage per Seller's revised plans. Such notice shall consist of a Monday-Srmday, howly
spreadsheet showing the revised total Facility curtaihne,nt MW) for that scheduling week. Seller
shall not schedule any maintenance of Shared lnterconnection Facilities during November,
December, January, February, June, July, or August, without the prior written approval of
PacifiCorp, which approval may be reasonably withheld by PacifiCorp.
2l
Meadow Creek Project Company LLC-File Pbw
6.5.2 Maintena&ce Outages. If Seller reasonably determines that it is necessary to
schedule a Maintenance Outage, Seller shall notify PacifiCorp of the proposed Maintenance
Outage as soon as practicable but in any event at least five (5) days before ttre outage begins (or zuch
shorter period to which PacifiCorp may reasonably consent in light of then existing wind conditions).
Upon such notice, the Parties shall plan the Maintenance Outage to mutually accommodate the
reasonable requirements of Seller and the service obligations of PacifiCorp, Seller shall take all
reasonable measures and use commercially reasonable efforts consistent with Prudent Electrical
Practices to not schedule any Maintenance Outage during the following periodsl June l5 through June
30, July, August, and September I *rough September 15. Seller shall include in such notice of a
proposed Maintenance Outage the expected start date and time of the outage, the amount of
geaeration capacity of ttre Facility that will not be available, and the expected completion date and
time of the outage. Seller may provide notices under this Section 6,5 .2 orally. Seller shall confirm
any such oral notification in writing as soon as practicable. PacifiCorp shall promptly respond
to such notice and may request reasonable modifications in the schedule for the outage. Seller
shall use all reasonable efforts to comply with PacifiCorp's request to modify the schedule for a
Maintenance Outage if such modification has no substantial impact on Seller. Seller shallnotify
PacifiCorp of any subsequent changes in generation capacity of the Facility dwing such Maintenance
Outage and any changes in the Maintenance Outage completion date and time. Seller shall take all
reasonable measures and exercise its commercially reasonable efforts consistent with Prudent
Electical Practices to minimize the frequenry and duration ofMaintenance Outages.
6,5,3 Borced 9utages. Seller shall promptly provide to PacifiCorp an oral
report, via telephone to a number specified by PacifiCorp, of any Forced Outage of the Facility. Such
report shall include the amount of generation capacity of the Facility that will not be available because
ofthe Forced Outage and the expected retum date and time of such generation capacity. Seller shall
promptly update the report as necessary to advise PacifiCorp of changed circumstances. Ifthe
Forced Outage resulted in more thanll% ofthe Facility Capacity Rating of the Facility being
unavailablq Seller shall confirm ttre oral report in writing as soon as practicable. Seller shall take all
reasonable measures and exercise its commercially reasonable efforts consistent with Prudent
Electical Practices to avoid Forced Outages and to minimize their duration.
6.5.4 Notice of Deratings and Outaees. Without limiting other notice
requirements, Seller shall notify PacifiCorp, via telephone or via electronic mail, to a number
or email address specified by PacifiCorp, of any limitation, restriction, derating or outage
known to Seller that affects the generation capacity ofttre Facility in an amount geater than five
percent (5%) of the Facility Capacity Rating for the following day, Seller shall promptly
update such notice to reflect any material changes to the information in such notice.
6.5.5 Effect of Outages on Estimated Outout. Seller shall factor Planned
Outages and Maintenance Outages ttrat Seller reasonably expects to encounter in ttre ordinary
course of operating the Facility into the Scheduled Monttrly Energy Delivery amounts in the Energy
Delivery Schedule set forth in Exhibit D.
6.6 Scheduling,
6.6,1 Cooperation and $tandards, With respect to any and all scheduling
requirements in this Agreement, (a) Seller shall cooperate with PacifiCorp with respect to scheduling
Net OuQut and (b) each Party shall designate autlrorized representatives to communicate with regard
to scheduling and related matters arising hereunder,
Meadow Creek Proj ect Comparry LLC-Five Pine
6.6.2 Schedule Coordination. If, as a resultof this Agreement, PacifiCorp is
deemed by an RTO to be financially responsible for Seller's performance under the Generation
Interconnection Agreement due to Seller?s lack of standing as a'oscheduling coordinator" or other
RTO recognized designation, qualification or otherarise, then (a) Seller shall acquire such RTO
recognized standing (or shall conract with a third party who has such RTO recognized standing)
such ttrat PacifiCorp is no longerresponsible for Seller's performance under the Generation
Interconnection Agreement, and (b) Seller shall defend, indemnify and hold PacifiCorp harmless
against any liability arising due to Seller's performance or failure to perform under the Generation
lnterconnection Agreement or RTO requirement.
6.7 Delivery Exceeding the Maximum GIA Delivery Rate. Seller shall not deliver
energy from the Facility to the Foint of Delivery atarate that exceeds the Maximum GIA
Delivery Rate. Seller's failure to limit such deliveries to the Maximum GIA Delivery Rate
shall be abreach of a material obligation subject to Section 12.1.8.
6.8 Access Rigbts. Upon reasonable priornotice and subjectio the prudent safety
requirements of Seller, and Requirements of Law relating to workplace health and safety,
Seller shall provide PacifiCorp and its authorized agents, employees and inspectors
("PacifiCorp Representatives') with reasonable access to ttre Facility: (a) for the purpose of reading
or testing metering equipment, (b) as necessary to witness any acceptance tests, (c) for purposes of
implementing Section 4.6, and (d) for other reasonable purposes at the reasonable request of
PacifiCorp, PacifiCorp shall release Seller against and from any and all any and all loss, fines,
penalties, claims, actions or suits, including costs and attorney's fees, both at trial and on
appeal resulting from actions or omissions by any of the PacifiCorp Representatives in connection
with their access to the Facility, except to the extent that such damages are caused or by the
intentional or grossly negligent act or omission of Seller.
SECTION 7. MOTIYE FORCE
Prior to the execution of this Agreement, Seller provided to PacifiCorp Wind Leases and a
motive force plan including an hourly wind profile acceptable to PacifiCorp in its reasonable
discretion and attached hereto as Exhibit F-1. Within three (3) months after the Effective
Date, Seller will provide a wind report from any of GL Garrad Hassan, AWS Truepower,
LLC, or DNV Global Energy Concepts, Inc. certiffing that the implementation of the fuel or
motive force plan can reasonably be expected to provide fuel or motive force to the Facility
for the duration of this Agreement adequate to generate power and energy in quantities
necessary to deliver the Average Annual Net Output. Seller will provide an updated estimate
of Average Annual Net Output at the time it provides an amended Exhibit A pursuant to
Section 2.2.7 it Seller has selected different Wind Turbines.
SECTION 8. GENERATION FORECASTING COSTS
8.1 Forecast Service Election. PacifiCorp may, in its discretion, add forecasting
services for Seller's Facility to PacifiCorp's existing contract with a qualified wind-energy-
production forecasting vendor, which contact and vendor may change during the term of ttris
Agreement.
/.J
Meadow Creek Project Company LLC-FiwPirw
8.2 Seller's Forecast-Cost Share. Pursuant to Commission Order No, 30497,
Seller shall be responsible for 50o/o of PacifiCorp's cost of adding such forecasting services
('Seller's Forecast-Cost Share") up to Seller's Capped Forecast-Cost Share.
8.3 Cap on Seller's Forecast-Cqst Share. Seller's Forecast-Cost Share for a given
Contract Year is capped at0.lo/o of totalpayments made by PacifiCorp to Seller for Net
Output during the previous Contract Year ("Seller's Capped Forecast-Cost Share"). If the last
Contract Year of this Agreement is shorter than a full calendar year, the cap will be prorated
for that shortened year. For the year(s) prior to the second Contact Year of this agreement that
equals a full calendar year, Seller's Forecast-Cost Share is capped at}.l%o of estimated payments for
Net Output based on the Energy Delivery Schedule.
8.4 Paymggt, Seller shall pay to PacifiCorp Seller's Forecast-Cost Share
uncapped by Section 8.3 for each Contract Year in equal payments for each month of such
year except the last month of such year. (For example, in a Contract Year equaling a full
calendar year, Seller would pay llllth of Seller's Forecast-Cost Share during each of the fint l1
months.) In the last monttr of each Conhact Year, PacifiCorp shall refi.nd to Seller fte amount paid
by Seller under this Section in excess, if any, of Seller's Capped Forecast-Cost Share. For a
Contract Year encompassed by just one calendar month, Seller's payment to PacifiCorp and
PacifiCorp's refund to Seller shall be calculated and paid simultaneously. To the extent
practicable, payments and refirnds under this Section shall be included in monthly payments and
invoices under Section 1 0.
SECTION 9. METERING: REPORTS AND RECORDS
9.1 Metering Adju.stment. Metering will be performed at the location specified in
Exhibit B and in the manner specified in the Generator Interconnection Agreement. All
quantities ofenerry purchased hereunder shall be adjusted in accordance with Addendum L, so that
the purchased amount reflecB the net amount of power flowing into the System at the Point of
Delivery.ll
9.2 Metering Errors. If any inspections or tests made pursuant to the Generator
Interconnection Agreement discloses an error exceeding two percent (2o/o), either fast or
slow, proper correction, based upon the inaccuracy found, shall be made of previous readings
for the actual period during which the metering equipment rendered inaccurate
measurements if that period can be ascertained. If the actual period cannot be ascertained, ttre
proper conection shall be made to the measurements taken dwing the time the metering equipment
was in service since last tested, but not exceeding three Billing Periods, in the amount the
metering equipment shall have been shown to be in error by such test. Any correction in billings
or payments resulting from a correction in the meter records shall be made in the next monthly
billing or payment rendered.
9.3 Telemetedng. [n accordance with the Generation lnterconnection Agreement,
Seller shall provide telemetering eguipment and facilities capable of transmitting to
Transmission Provider (who will share it with PacifiCorp as authorized by Exhibit H, "Seller
Authorization to Release Generation Data to PacifiCorp ) the following information conceming the
I If station service is zupplied via separate facilities, PacifiCorp will deduct station service tom the metered facility
output to calculate Net Output,
Meadow Creek Project Company AC-FiwPine
Facility on a real-time basis, and will operate such equipment when requested by PacifiCorp to
indicate:
(a) instantaneous M W output at the Point of Delivery;
(b) Net Output;
(c) the Facility's total instantaneous generation capacity; and
(d) wind velocity at turbine hub height.
Seller shall also transmit to PacifiCorp any other data from the Facility that Seller receives
on a real-time basis, including meteorological data, wind speed data, wind direction data and
gross ouput data. Seller shall provide such real-time data to PacifiCorp in the same detail
that Seller receives the data (e.g., if Seller receives the data in four second intervals,
PacifiCorp shall also receive the data in four second intervals). PacifiCorp shall have the
right from time to time to require Seller to provide additional telemetering equipment and facilities
to the extent necessary and reasonable.
9.4 Monthly Reports and Logs and Other Information.
9.4.1 Reoorts. Within thirly (30) calendar days after the end of each Billing
Period, Seller shall provide to PacifiCorp a report in electronic format, which report shall
include (a) summaries of the Facility's wind and output datafor the Billing Period in intervals not to
exceed one hour (or such shorter period as is reasonably possible with commercially available
technology), including information from the Facility's computer monitoring system;
(b) summaries of any other significant events related to the construction or operation of ttre
Facility for the Billing Period; (c) details ofAvailability of the Facility for the Billing Period
suffrcient to calculate Availability and including hourly average wind velocity measured at
turbine hub height and ambient air temperahre; and (d) any zupporting information that
PacifiCorp may from time to time reasonably request (including historical wind data for the Faciliry),
9.4.2 Electronic Fault Log. Seller shall maintain an electronic fault log of
operations of the Facility during each hour of the term of this Agreernent commencing on the
Commercial Operation Date. Seller shall provide PacifiCorp with a copy of the elecftonic fault log
within thirty (30) calendar days after the end of the Billing Period to which the fault log applies.
9,4.3 Upon the request of PacifiCorp, Seller shall provide PacifiCorp the
manufacturers' guidelines and recommendations for maintenance ofthe Facility equipment.
9.4.4 By each January 10 following the Commercial Operation Date, Seller shall
provide to PacifiCorp written certification that Seller has completed all the manufacturers'
guidelines and recommendations for maintenance of the Facility equipment applicable to the
previous calendar year.
9.4.5 At any time from the Effective Date, one (l) year's advance notice of the
termination or expiration of any agreement, including Wind Leases, pursuant to which the Facility
or any equipment relating thereto is upon the Facility site; provided that the foregoing does not
authorize any early termination of any land lease,
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Meadaw Creek Project Company AC-Ftue Pine
9.4.6 As soon as it is known to Seller, Seller shall disclose to PacifiCorp, the
extent of any material violation of any environmental laws or regulations arising out of the
construction or operation of the Facility, or the presence of Environmental Contamination at the
Facility or on the hemises, alleged to exist by any Govemmental Authority having jurisdiction over
the Premises, or the present existence of, or the occumence during Seller's occupancy of the
Premises oe any enforcement,legal, or regulatory action or proceeding relating to zuch alleged
violation or alleged presence of Environmental Contamination presently occurring or having
occurred during ttre period of time that Seller has occupied the Premises.
9.5 Mainteqance ofMeterins Equipment. To the extent not otherwise provided in the
Generator lnterconnection Agreement, PacifiCorp shall inspect, test, repair and replace the
metering equipment periodically, or at the request of Seller if Seller has reason to believe
metering may be offand requests an inspection in writing. To the extent not otherwise provided in
the Generator Interconnection Agreement, all PacifiCorp's costs relating to designing, installing,
maintaining, and repairing metering equipment installed to accommodate Seller's Facility shall be
borne by Seller.
9.6 WREGIS Metering. Seller shall cause the Facility to implement all necessary
generation information communications in WREGIS, and report generation information to
WREGIS pursuant to a WREGIS-approved meter that is dedicated to the Facility and only
the Facility.
SECTION 10. BILLINGS. COMPUTATIONS AND PAYMENTS
10.1 Payment for Net Outpqt. On or before the thirtieth (30th) day following the
end of each Billing Period, PacifiCorp shall send to Seller payment for Seller's deliveries of
Net Output to PacifiCorp, together with computations supporting such payment. PacifiCorp may
offset any such paymurt to reflect amounts owing from Seller to PacifiCorp pursuant to this
Agreement or the Generation lnterconnection Agreement. Any zuch offsets shall be separately
itemized on the statement accompanying each payment to Seller.
10.2 Annual Invoicine for Output Shortfall. Thirty calendar days after the end of
each Contact Yem, PacifiCorp shall deliver to Seller an invoice showing PacifiCorp's computation of
Output Shortfall, if any, for all Billing Periods in the prior Contract Year and Output
Shortfall Damages, if any. In preparing such invoices, PacifiCorp shall utilize the meter data
provided to PacifiCorp for the Contract Year in question, but may also rely on historical
averages and such other information as may be available to PacifiCorp at the time of invoice
preparafion if the metff data for zuch Conhact Year is then incomplete or otherwise not available. To
the extent required, PacifiCorp shall prepare any such invoice as promptly as practicable following
its receipt of actual results for the relevant Contract Year. Seller shall pay to PacifiCorp, by
wire ffansfer of immediately available funds to an account specified in writing by PacifiCorp or by
any other means agreed to by the Parties in writing from time to time, the amount set for*r as due in
such invoice, and shall within thirry (30) days after receiving the invoice raise any objections
regarding any disputed portion of the invoice. Objections not made by Seller within the ttrirty-day
period shall be deemed waived.
10.3 Interest on Overdue Amounts. Any amounts owing after the due date thereof
shall bear interest at the Prime Rate on the date the amount became due, plus two percent
26
Meadow Cr eek Proj ect Company LLC-Five Pirw
(2%), from the date due until paid;provided, however, that the interest rate shall at no time
exceed the maximum rate allowed by applicable law.
10.4 Disputed Amounts. If either Party, in good faith, disputes any amount due
pursuant to an invoice rendered hereunder, such Party shallnoti$r the other Party of the
specific basis for the dispute and, if the invoice shows an amount due, shall pay that portion of
the statement that is undisputed, on or before the due date, Any such notice shall be provided
within two (2) years of the date ofthe invoice in which the error first occrured. If any amount
disputed by such Party is determined to be due to the other Party, or if the Parties resolve the
payment dispute, the amount due shall be paid within five (5) days after such determination
or resolution, along with interest in accordance with Section 10,3,
SECTION 1I.
I l.l Delay Security:
SECURITY
I L 1.1 Dutv to Post Security. By the date provided in Section 2.2.2, Seller shall
post a Letter of Credit, cash or aparental guaranty, each in a form acceptable to PacifiCorp, in
the amount calculated pursuant to Section ll.l.2 ("Delay Security'). To the extent PacifiCorp makes
a drawing under the Delay Security, Seller shall, within fifteen (15) calendar days, restore the Delay
Security as ifno such deduction had occurred.
ll.l.2 Calculation of Delay Security. The dollar value of Delay Security shall
equal the greater of: (l) forty-five dollars ($ail multiplied by the Maximum Facility Delivery Rate
with the Maximum Facility Delivery Rate being measured in kW (based on the final Facility
Capacity Rating determined by January 31,2012); or (2) the sum of the products, for each of the
first three calendar months after the Delay Period Commencement Date, ofl
the energy in the Initial Year Energy Delivery Schedule for the month (kwh)
multiplied by the monthly weighted average On-Peak and Off-Peak
Conforming Energy Pwchase Price for ttre months ($/lAW1 divided by 1000.
Such amount shall be fixed upon execution of this Agreement.
11.1.3 Rieht.b qaw on Securitv, PacifiCorp shall have the rightto draw on the
Delay Security to collect Delay Liquidated Damages. Commencing on or about first of each month,
PacifiCorp will invoice Seller for Delay Liquidated Damages inctured, if any, during the preceding
month. If insufficient Delay Secwity is available, Seller shall pay PacifiCorp forinvoiced Delay
Liquidated Damages no later than five business days after receiving such invoice. The Parties will
make billings and payments for Delay Liquidated Damages in accordance with Section 10.
ll.l,4 Partial Release of DelaLSecurity. Provided that Sellerhas maintained
Delay Security in accordance with Section I l.l.l, PacifiCorp shall release one-third of the original
amount of Delay Security stated in Section I l.l .I each time Seller accomplishes a milestone
(a) or (b), below:
(a) Seller has (i) executed the Generation Interconnection Agreemurt
with Transmission Provider; and (ii) paid in full any interconnection and/or system upgrade
costs Seller is obligated to pay in advance of interconnection construction.
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Meadow Creek Project Company AC-FiwPine
@) Seller has poured the concrete foundation at each of its planned
individual Wind Turbine locations.
PacifiCorp shall make the partial refund of Delay Security required above within ten business
days of the date Seller provides PacifiCorp written notice (along with satisfactory documentation
thereof) that it has accomplished milestone (a) or (b) above.
I 1.1.5 Full Release of Delay Securitv. Unless PacifiCorp disputes whettrer Seller
has paid all Delay Liquidated Damages, PacifiCorp shall release all remaining Delay Security upon
the earlier of the 30th calendar day following commencement of Commercial Operation or the
60th calendar day following PacifiCorp's termination of this Agreement.
I l.l .6 Default. Seller's failure to post and maintain Delay Security in accordance
with Section I l,l will constitute an event of default, unless cured in accordance with Section 12,1.1 of
this Agreement.
ll,2 Default Security (Levelized Pricing Only). (Reserved)
SECTION 12. DEFAULTS AND REMEDIES
The following events shall constitute defaults under this Agreement:
l2.l.l Non-Payment. A Party's failure to make a payment when due under this
Agteement or post and maintain security in conformance with the requirements of Section 1 I or
maintain insuance in conformance with the requirements of Section 14 of this Agreement, if the
failure is not cured wittrin ten (10) business days after the non-defaulting Party gives the
defaulting Pafi a notice of the default,
12.12 Breach of Rppresentation. Breach by a Parfy of a representation or
warranty set forth in this Agreement, if such failure or breach is not cured within thirty (30) days
following written notice.
12.1,3 Defaul!on Other A8Leements. Seller's failure to cure any default under the
Generation lnterconnection Agreement or any other agreement between ttre pmties related to ttris
Agreement, the Generation lnterconnection Agreement, or the Facility within ttre time allowed for a
cure under such agreement or instument.
12.1.4 Insqlvency. A Party (a) makes an assignment for the benefit of its
creditors; (b) files a petition or otherwise commences, authorizes or acquiesces in the
commencement of a proceeding or cause of action under any bankruptcy or similar law for the
protection of creditors, or has such a petition filed against it and such petition is not withdrawn or
dismissed within sixty (60) days after such filing;(c) becomes insolvent; or (d) is unable to pay
its debts when due.
12.1.5 Material Adverse Chan&. A Material Adverse Change has occuned with
respect to Seller and Seller fails to provide such performance assurances as are reasonably
requested by PacifiCorp, within thirty (30) days from the dat€ of such request.
12.1.6 Sale to Third-Partv. Seller's sale ofNet Output to an entity other than
PacifiCorp, as prohibited by Section 4,2.
Meadow Creek Project Company LLC-Five Pire
12.1.7 Non-Delivery. Unless excused by an event of Force Majeure (including
PacifiCorp's breach of its obligations lmder this Agreement), Seller's failure to deliver any Net
Energy for three consecutive calendar months,
12,1.8 A Parly otherwise fails to perform any material obligation (including but not
limited to failure by Seller to meet any deadline set forth in Section 2.2.1 through2.2.l0,but
excluding Sections 4.7 and9.6) imposed upon that Party by this Agreement if the failure is not cured
within thirty (30) days after ttre non-defaulting Party gives the defaulting Party notice ofthe default.
For ttre avoidance of doubt, the failure of Seller to achieve the Commercial Operation Date by
December 3l , 2012 shall not give rise to an Event of Default pursuant to this Section 12. I .8 and the
failure to achieve Commercial Operation Date shall be exclusively govemed by Section 12,1.9.
12,1.9 Seller fails to achieve the Commercial Operation Date by the 9l't day
following the Delay Period Commencement Date,provided, however, that, upon written
notice fiom the defaulting Parfy delivered prior to ttre ninety-nrst (gt) day of delay, this ninety (90)
day period shall be extended by an additional one hundred and fifty (150) days if(a) Sellerhas
poured ttre concrete foundation ateachof its planned individual wind turbine locations; and (b) Seller
replenishes Delay Default Security in accordance with Section 1 I,1.1. Seller shall continue to accrue
Delay Liquidated Damages in accordance with Section 2.5 @elay Price times the Delay Value) until
the hoject achieves Commercial Operation or this Agreement is terminated.
122 In the event of any default hereunder, the non-defaulting Party must notiff the
defaulting Party in witing of the circumstances indicating the default and outlining the
requirements to cwe ttre default. If ttre default has not been cured within the prescribed time, above,
the non-defaulting Party may terminate ttris Agreement at its sole discretion by delivering written
notice to the other Party and may pursue any and all legal or equitable remedies provided by law or
pursuant to this Agreement. The rights provided in this Section 12 are cumulative such that ttre
exercise ofone or more rights shall not constitute a waiver of any other rights.
123 In the event this Agreement is terminated because of Seller's default and Seller
wishes to again sell Net Ouput from the Facility using the same motive force to PacifiCorp
following such termination, PacifiCorp in its sole discretion may require that Seller do so
subject to the terms of this Agreement, including but not limited to the purchase prices as set forttr in
(Section 5), until the Expiration Date (as set forth in Section 2.1). At such time Seller and
PacifiCorp agree to execute a written document ratiffing the terms of this Agreement.
12.4 If this Agreement is terminated as a result of Seller's default, in addition to and not
in limitation of any other right or remedy under this Agreement or applicable law (including
any right to set-off, counterclaim, or otherwise withhold payment), Seller shall pay
PacifiCorp Output Shortfall Damages for a period of eighteen (18) months from ttre date of
terminationplus the estimated administrative cost to acquire the replacement power. The
Parties agree that the damages PacifiCorp would incur due to termination resulting from Seller's
default would be difficult or impossible to predict with certainty, and that the damages in this
Section 12.4 are an appropriate approximation of such damages,
12.5 Recoupment of Damages.
(a) Default Securitv Available. If Seller has posted Default
Security, PacifiCorp may draw upon that security to satisfy any damages, above.
Meadow Creek Project Company LLC-FilePiw
(b) Default Securitv Unavailable. If Seller has not posted Default
Security, or if PacifiCorp has exhausted the Default Security, PacifiCorp may collect any rernaining
amoturt owing by partially withholding future payments to Seller over a reasonable period of time,
PacifiCorp and Seller shall work together in good faith to establish the period, and monthly
amounts, of such withholding so as to avoid Seller's default on its commercial or financing
agreernents necessary for its continued operation ofttre Facility.
12.6 Upon an event of default or Mrnindbr event resulting from default under this
Agreement, in addition to and not in limitation of any other right or remedy under this
Agreement or applicable law (including any right to set-off counterclaim, or otherwise
withhold payment), the non-defaulting Parly may at its option set-ofi, against any amounts owed to
ttre defaulting Party, any amounts owed by the defaulting Party under any contract(s) or
agreemen(s) between ttre Parties. The obligations of the Parties shall be deemed satisfied and
discharged to the extent of any such set-off The non-defaulting Party shall give the defaulting Parry
written notice of any set-off, but failure to give such notice shall not affect ttre validity of the set-
off.
12.7 Amounts owed by Seller pursuant to this Section l2 shall be due within five
(5) business days after any invoice from PacifiCorp for the same,
SECTION 13.
t3.l Indemnities.
INDEMNIFICATION : LIABILITY
l3,l.l Indemnitv by Seller. Seller shall release, indemniff and hold harmless
PacifiCorp, its directors, officers, agents, and representatives against and from any and all
loss, fines, penalties, claims, actions or suits, including costs and attomey's fees, both at tial and on
appeal, resulting from, or arising out of or in any way connected with (a) the energy delivered by
Seller under this Agreement to and at the Point of Delivery, @) any facilities on Seller's side
of the Point of Delivery, (c) Seller's operation and/or maintenance of the Facility, or (d) arising
from Seller's breach of this Agreement, including wittrout limitation any loss, claim, action or suiq
for or on account of injury, bodily or otherwise, to, or death of, persons, or for damage to, or
destruction or economic loss of property belonging to PacifiCorp, Seller or others, excepting
only such loss, claim, action or suit as may be caused solely by the fault or gross negligence of
PacifiCorp, its directors, officers, employees, agents or representatives.
13.1.2 IfrSlemnity by PacifiCom. PacifiCorp shall release, indemnify and hold
harmless Seller, its directors, offrcers, agents, lenders and representatives against and from any and
all loss, fines, penalties, claims, actions or suits, including costs and attorney's fees, both at trial and
on appeal, resulting from, or mising out of or in any way connected with the energy delivered by
Seller under this Agreement after the Point of Delivery, including without limitation any loss, claim,
action or suit, for or on account of injury, bodily or otherwise, to, or death o{, persons, or for damage
to, or destruction or economic loss of property, excepting only such loss, claim, action or zuit as
may be caused solely by the fault or gross negligence of Seller, its directors, officen, employees,
agents, lenders or representatives.
13.2 No Dediggrtign. Nothing in this Agreement shall be construed to create any
duty to, any standard of care with reference to, or any liability to any person not a Party to
this Agreement. No undertaking by one Party to the other under any provision of this
Meadow Creek Project Company AC-FiwPine
Agreement shall constitute the dedication of that Party's system or any portion thereof to the
other Parly or to the public, nor affect the status of PacifiCorp as an independent public utility
corporation or Seller as an independent individual or entity,
13.3 No Warranty, Any review, acceptance or failure to review Seller's design,
specifications, equipment or facilities shall not be an endorsement or a confirmation by
PacifiCorp and PacifiCorp makes no warranties, expressed or implied, regarding any aspect of
Seller's design, specifications, equipment or facilities, including, but not limited to, safety,
durability, reliability, strength, capacity, adequacy or economic feasibility,
13,4 CONSEqUENTIAL DAMAGES, EXCEPT TO THE EXTENT SUCH
DAMAGES ARE INCLUDED IN THE LIQUIDATED DAMAGES, DELAY DAMAGES,
OR OTHER SPECIFIED MEASURE OF DAMAGES DGRESSLY PROVIDED FOR IN THIS
AGREEMENT, NEITFIER PARTY SHALL BE LIABLE TO TIIE OTTMRPARry FOR
SPECIAL, PUNITIVE, INDIRECT, DGMPLARY OR CONSEQIJENTIAL DAMAGES,
WHETHER SUCH DAMAGES ARE ALLOWED OR PROVIDED BY CONTRACT,
TORT (INCLTJDING NEGLIGENCE), STRICT LIABILITY, STATUTE OR OTHERWISE.
SECTION 14.INSURANCE
l4.l Qertif,catps. Prior to connection of the Facility to the System, Seller shall
secure and continuously carry insurance in compliance with the requirements of this Section.
Seller shall provide PacifiCorp insurance certificate(s) (of "ACORD Form" or the equivalent)
certiffing Seller's compliance with the insurance requirements hereunder. Commercial
General Liability coverage written on a "claims-made" basis, if any, shall be specifically identified on
the certificate, If requested by PacifiCorp, a copy of each insurance policy, certified iN a fue copy
by an authorized representative of the issuing insurance company, shall be fumished to
PacifiCorp.
142 Required Policies and Coverages. Without limiting any liabilities or any other
obligations of Seller under this Agreement, Seller shall secure and continuously carry with
an insurance company or companies rated not lower than "A-:VII" by the A.M. Insurance
Reports the insurance coverage specified below:
142.1 Commercial General Liability insurance, to include conhactual liability,
with a minimum single limit of $1,000,000 per occurrence to protect against and from all loss
by reason of injury to persons or damage to property based upon and arising out of the activity
under this Agreement.
14.2.2 All Risk Properly insurance providing coverage in an amount at least
equal to 80% ofthe replacement value of ttre Facility against "all risks" ofphysical loss or damage,
including coverage for earth movement flood, and boiler and machinery. The Property policy may
contain separate sub-limits and deductibles subject to insurance company underwriting guidelines.
The Risk Policy will be maintained in accordance with terms available in the insurance market
for similar facilities.
14.3 The Commercial General Liability policy required herein shall include
(i) provisions or endorsements naming PacifiCorp, its Board of Directors, Officers and employees
as additional insureds, and (ii) cross liability coverage so that the insurance applies
3l
Meadow Creek Project Company ILC-FivvPine
separately to each insured against whom claim is made or suit is brought even in instances where
one insured claims against or sues another insured.
14.4 All liability policies required by this Agreement shall include provisions that
such insurance is primary insurance with respect to the interests of PacifiCorp and that any
other insurance maintained by PacifiCorp is excess and not contributory insurance with the
insurance required hereunder, and provisions that such policies shall not be canceled or their limits
of liability reduced without (i) ten (10) business days prior written notice to PacifiCorp if canceled
for nonpayment of premium, or (ii) thirty (30) business days prior written notice to
PacifiCorp if canceled for any other reason.
14.5 Commercial General Liability insurance coverage provided on a'oclaims-made"
basis shall be maintained by Seller for a minimum period of five (5) years after the
completion of this Agreement and for such o*rer length oftime necessary to cover liabilities arising
out ofthe activities under this Agreement.
SECTION 15.FORCE MAJEURE
15,I As used in this Agreement, "Force Majeure" or "an event of Force
Majeure" means any cause beyond the reasonable control of the Seller or of PacifiCorp which,
despite the exercise of due diligence, such Party is unable to prevent or overcome, By way of
example, Force Majeure may include but is not limited to acts of God, flood, storms, wars,
hostilities, civil stife, sfikes, and other labor disturbances, earthquakes, fires, lightning, epidemics,
sabotage, restaint by court order or other delay or failure in the performance as a result of any action
or inaction on behalf of a public authority which is in each case (i) beyond the reasonable
control ofsuch Purty, (ii) bV the exercise ofreasonable foresight such Party could not
reasonably have been expected to avoid and (iii) by the exercise of due diligence, such Party shall
be unable to prevent or overcome. Force Majeure, however, specifically excludes the cost or
availability of fuel or motive force to operate the Facility or changes in market conditions that
affect the price of energy or transmission. If either Party is rendered wholly or in part unable to
perform its obligation under this Agreement because of an event of Force Majeure, bottr Parties
shall be excused from whatever performance is affected by the event of Force Majeure,
provided that:
15.1.1 the non-performing Party, shall, as soon as practicable but no later than within
two (2) weeks after the occurence of the Force Majeure, give the other Party written notice
describing the particulars of the occurrence, including the start date of the Force Majeure, the
cause of Force Majeure, whether the Facility remains partially operational and the expected end date
ofthe Force Majeure;
15.1.2 the suspansion of performance shall be of no geater scope and of no
longer duration than is required by the Force Majeure;
15,1.3 the non-performing Party uses its best efforts to remedy its inability to
perform;and
15. I ,4 the non-performing Party shall provide prompt \ nitten notice to the other
Party at the end of the Force Majetne event detailing the atd date, cause thereof, damage caused there
by and any repairs that were required as a result of ttre Force Majeure event, and the end date of the
Force Majeure.
32
Meqdow Creek Project Company LLC-FiwPine
15.2 No obligations of either Party which arose before the Force Majeure causing the
suspension of performance shall be excused as a result of the Force Majeure.
15.3 Neither Party shall be required to settle any strike, walkout, lockout or other
labor dispute on terms which, in the solejudgment ofthe Party involved in ttre dispute, are contrary to
the Party's best interests.
SECTION 16. SEVERAL OBLIGATIONS
Nothing contained in this Agreement shall ever be construed to create an association, trust,
parkrership or joint venture or to impose a trust or partnership duty, obligation or liability
between the Parties. If Seller includes fwo or more parties, each such party shall be jointly
and severally liable for Seller's obligations under this Agreement.
SECTION 17.CHOICE OF LAW
This Agreement shall be interpreted and enforced in accordance with the laws of the state of Idaho,
excluding any choice of law rules which may direct the application of the laws of another
jurisdiction.
SECTION 18. PARTIAL INVALIDITY
It is not the intention of the Parties to violate any laws goveming the subject matter ofthis
Agreement. If any of the terms of the Agreement are finally held or determined to be invalid illegal
or void as being confrary io any applicable law or public policy, all other terms of the Agreement
shall remain in effect. If any terms are finally held or determined to be invalid, illegal or void, the
Parties shall enter into negotiations conceming the terms affected by such decision for the purpose of
achieving conformity with requirements of any applicable law and the intent of the Parties to this
Agreement.
SECTION 19.WAIVER
Any waiver atany time by either Party of its rights with respect to a default under this
Agreement or with respect to any other matters arising in connection with ttris Agreement must be in
writing, and such waiver shall not be deemed a waiver with respect to any subsequent default or
other matter.
SECTION 20. GOVERNMENTAL JURISDICTION AND AUTHORIZATIONS
PacifiCorp's compliance with the terms ofthis Agreement is conditioned on Seller's submission to
PacifiCorp prior to the Commercial Operation Date of copies of all local, state and federal licenses,
permits and other approvals as then may be required by law for the consfuction, operation and
maintenance ofthe Facility. Failure to maintain such lawful status after the Commercial Operation
Date shall be an event of defatrlt, subject to Section 12.
SECTION 21. SUCCESSORS AND ASSIGNS
2l.l This Agreement and all of the terms and provisions hereof shall be binding upon and
inure to the benefit of the respective successors and assigns of the Parties hereto, except that
no assignment hereofby either Party shall become effective without the written consent of both
33
Meadow Creek Project Company LLC-Fiw Phe
Parties being frst obtained. Such consent shall not be unreasonably withheld; provided that the
Parties agree that commercially reasonable written amendments to the Exhibits to this
Agreement and such other written updates to the information contained therein related to the
Facility may be made in the event of any assignment of this Agreement pursuant to the terms
of this Section 2l.l. Notwithstanding the first sentence of this Section, (a) any entity with which
PacifiCorp may consolidate, or into which it may merge, or to which it may convey or transfer
substantially all of its electric utility assets, shall automatically, without further act, and
without need of consent or approval by the Seller, succeed to all of PacifiCorp's rights,
obligations, and interests under this Agreement and (b) Seller shall have the right to assign
this Agreement, subject to PacifiCorp's written consent, which consent shall not be
unreasonably withheld or delayed, for collateral security purposes to one or more financing
entities (or a collateral agent acting on their behalf) providing financing to Seller for the
Facility, in which event PacifiCorp agrees to provide a written consent in favor of Seller's
financing entities in form and substance similar to consents executed by PacifiCorp in
connection with non-recourse project financings. This article shall not prevent a financing
entity with recorded or secured rights from exercising all rights and remedies available to it under
law or contract. PacifiCorp shall have the right to be notified by the financing entity that it is
exercising such rights or remedies and all such other rights as provided in the written
consent.
21.2 Notwithstanding Section2l.I, if, as of December 31,2012, Seller has not
achieved Commercial Operation, then Seller shall have the right to terminate this Agreement
by providing written notice of termination to PacifiCorp on or before January 5, 2013. Upon
PacifiCorp's receipt of written notice of termination from Seller, the Original PPA shall
automatically be deemed to be reinstated and in full force and effect. Upon such
termination, PacifiCorp shall return the Delay Security to Seller and Seller shall have no
further liability or obligations of any kind under this Agreement.
21.3 Seller and all successors and assigns acknowledge that this Agreement is in
part the result of a settlement stipulation between PacifiCorp, CCW and the Staff of the
Idaho Public Utilities Commission that was approved by the Idaho Public Utilities
Commission is Case Nos. PAC-E-11 -01 through PAC-E-11-05 (the "Stipulation"). This
Agreement is subject to, and incorporates, the terms of the Stipulation.
SECTION 22. ENTIRE AGREEMENT
22,1 This Agreement supersedes all prior agreements, proposals, representations,
negotiations, discussions or letters, whether oral or in writing, regarding PacifiCorp's
purchase of Net Output from the Facility. No modification of this Agreement shall be
effective unless it is in writing and signed by both Parties.
22.2 By executing this Agreement, each Party releases the other from any claims,
known or unknown, that may have arisen prior to the execution date of this Agreement wittr
respect to the Facility and any predecessor facility proposed to have been consffucted on ttre site of the
Facility,
34
Meadow Creek Project Company LLG-FiwPfue
SECTION 23. NOTICES
All notices exc€pt as otherwise provided in this Agreement shall be in writing, shall be directed as
follows and shall be considered delivered if delivered in person or when deposited in the
U.S. Mail, postage prepaid by certified or registered mail and return receipt requested.
Notices
All Notices
Notices
All Invoices:
Scheduling:
Payments:
WircTfansfer:
Credit and
Collections
PacifiCorp
PacifiCorp
825 NE Multromatr Street Portlan4
oR97232
At[r: Contact Administation,
Suite 600
Phone:(503)8 I 3-5380
Facsimile: (503) 813-
6291E-mail:
Duns: 00-790-901 3
Federal Tax ID Nurnber: 93-0246090
Seller
Meadow Creek Project Company LLC
83 S. King Street, Suite 200
Seattle, WA 98104
Attn: Joan Hutchinson
Phone: [phone]
Facsimile: 503-296-5450
E-mail : jhutchinson@rl-en,com
Duns: [TBDI
Federal Tax ID Nurnber: 80-0326448
PacifiCorp
Attn: Back Office, Suite
700 Phone:(503)8 I 3-5578
Facsimile: (503) 813 -5580
Attrr: Resource Planning Suite 600
Phone: (503) 813 - 6090
Facsimile: (503) 8 1 3-6265
Attn: Back Office, Suite
700 Phone:(503)8 I 3-5578
Facsimile: (503) 8 13-5580
Bank One N.A.
Tobe provided in separate letter from
PacifiCorp to Seller
Attr: CreditManager, Suite 700
Phone:(503)8 I 3-5684
Facsimile: (503) 8l 3-5609
Seller
Attn: Lindsay Whitney
Controller
Phone: [phone]
Email: [e-mail]
Atkr: JoanHutchinson
SVP - Origination & Marketing
Phone: [phone]
ihukhinson(&l-en.com
Attn: Lindsay Whitney
Conholler
Phone: [phone]
Email: [e-mail]
Attn: Lindsay
Controller
Phone: [phone]
Email: lwhitney@rl-en,com
Attn: Lindsay Whitney
Controller
Phone: [phone]
Email: [e-mail]
Meadow Cr eek Proj ect Co mpany LIE-1ile Ptue
rilith Additional Atlr PacifiC.orp Gensral Cousel Attn: Legal Department
Notices of an Phone:[phone] Facsimile: Email: [e-mail]
EventofDefault [phone] Phone: [phone]
or Potential
Eventof Default
to:
The Parties may change the person to whom such notices are addressed, or their addresses,
by providing written notices thereof in accordance with this Section.
36
Meadow Creek Project Comparry LIE4tve Pim
In WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of
the date first above written:
PACIFICORP,
an Oregon corporation
MEADOW CREEKPROJECT
COMPANYLLC
a Delaware limited liability company
t5 (
't't
37
Meadow Creek Project Company LLC-FhrPhe
DGIIBITA
DESCRIPTION OF SELLER'S FACILITY
Selle/s Facility consists of 19 wind flrbine generator(s) manufactured by Suzlon. More
specifically, each generator at the Facility is described as:
Tlpe (synchronous or inductive): Asynchronous with Inverter
Model: Suzlon 597-2.1
Number of Phases: Three
Rated Output (kW): 2,100 Rated Output (kVA): 2,234kYA
Rated Voltage Qine to line): Line side converter: 600V, machine side converter: 600V
Rated CurrentLin{A): Line side converter: 500A, machine side converter:435 A
Maximum kW Outputt2l}} kW Maximum kVA Output: 2,234kYA
Minimum kW Outpufi {0 ldil
Manufacturerrs Published Cut-in Wind Spee4: 3.5 meterc/second
Facility Capacity Rating: 39.900 kW pt or above rated wind spged and below cut-out
Sneed
MaximumFacilityDeliveryRate: 39.900 kW atPacifiCorp Goshen
Substationat 16l kV
Maximum GIA Delivery Rate I 19.700 kW fcombined wift t]re other Ridgeline
Projects described in Addendum Ll
Identify the maximum output of the generato(s) and describe any differences between that
output and the Nameplate Capacity Rating: Maximum generator output is 2100 kW (same as
Nameplate Capacity Rating)
Station service requirements, and other loads served by the Facility, if an5 arc described
as follows: Station service requirements consist of Ridgeline Energy Operations and
Maintenance building loads, turbine standby loads, and nubine cutout loads. Average turbine
standby load for Five Pine is approximately 45-60 kW. Cutout loads would be infrequent and
not concurrent with standby loads.
Location of the Facility: The Facility is located in Bonneville County,Idaho. The location
is more particularly described as follows: 43o 31.347'Latitude, I I l' 48.313' Longitude
WGS84. Locations of each turbine tower relative to ottrer qualifying facilities owned by the
same entity showing compliance with the spacing requirements in I 8 C.F.R . $ 292.204 are
attached hereto.
Power factor requiremenh:
Rated Power Factor (PF) or reactive load (WAR):O.94Leading to 0.94 Lagging
Seller has provided a copy of manufacturer's Power Curve for ttre Suzlon 597-2.1. PacifiCorp
maintains the power curve in its files pursuant to a Non-Disclosure Agreement between
PacifiCorp and Seller
A-l
38
L
2.
Meadow Creek Projeet Company LLG-FiwPtne
DGIIBIT A - Attachments
Five Pine Wind Farm Site Map
Distance Between Wind Turbines of Adjacent Qualifytng Facilities
A-2
39
Meadow Creek Project Company LLC-Fiw Pine
Meadow Creek Project Company UC-FivePine
The table below lists the distance between turbines in separate QualiflTing Facilities.
Five Pine
4l
Five Pine
TURBINE #DTSTANCE (FT)
Meadow Creek Project Company LLG-Fivv Pine
EXHIBITB
POINT OF DELTVERY / PARTIES' INTERCONMCNON FACILITIES
[Seller has provided the following single line drawing of the Facility interconnection facilities
including metering points used to calculate Net Output and any ffansmission facilities on Seller's
side of the Point of Delivery.l
The Point of Delivery is the PacifiCorp l6lkV bus at fhe Goshen substation. The Metering
Point is the high side ofthe 34.5-l6lkv step up tansformer at Meadow Creek substation.
The meters will be compensated for losses to the Point of Delivery.
North Point and Five Pine will share the Meadow Creek 34.5kv-l6lkV collector substation.
Each project will have 34.5kV breakers ttratwill connect to a common 34.5kV bus. The bus will
connect to a single 34.5-16lkv Power Transformer, l6lkv breaker, metering equipment, line
disconnectswitch and a 5 mile l6lkv transmission line to the Jolly Hill Substation.
42
Meadow Creek
To Jolly Hill Sub
Meadow Creek Sub
81/10ry135tVIVA , r I
161R4.5/13.8kV :,,d{r<t +\,f\r.A_,
=r ffi
IITIvv
To Five Pines ll
1OWTGs 9WTGs
39.9trlTW
l
IOWTGS
t
Point ll
gWTG's IOWfG'S
^, 5 mile, 161kV
Meadow Cree k Proj ec t Compony ILC-Fiw Pine
{'l-l'l-l-l
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CREEI( SUASTATION
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JO-L'Y TIItt: WOTVERINE CREEK
IOlIV TRANSMISSION LINE +
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JOLLY I{ILL SUSSTATION
&!: kHNrr*uffiM:E.z aYfi&Hruto$fffiiJBYPdr@
wptcAt GF t.Slriw flrRBlNFAiIO PAD MOUNT XFMR
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44
Meqdow Creek Project Company LlC-lhrePine
E}GIBIT C
REQUIRED FACILIry DOCLMENTSQualifrng Facility Number to be obtained from FERC
The following Documents are required prior to delivery of any output from the Facility:
Generation Interconnection Agreement
Agreeme,nt permitting Seller access to shared interconnection facilities
Property rights required to maintain and operate the Project in accordance with this
Agreement (site leases, transmission easements, etc).
The following Permits are required on or before the milestone date qpecified in Section 2.2,1.
Federal Aviation Administration Determination of No Hazard Bonneville County
Special Use Permit Crossing agreements with parties other ttran PacifiCorp Transmission
c-l
45
Meadow Creek Project Company LLC*Fb,ePine
EXHIBITD
SUBSEQUENT ENERGY DELI\'ERY SCHEDULE
Five Pine Wind Project
Scheduled Monthly
Energy Delivery(kwh) Ave kWmo
January 9"881.887 13,247
February 8,191,635 12,170
March 11.360.594 15,282
April 9.085.733 12,608
May 10.185.738 13,696
June 8.069.166 ll,2l2
July 7.384.339 9,935
August 8.ts5.779 10,933
September 7.590.732 10,574
October 8.615.123 I l,6l I
November 10,166,694 14,125
December 10,324,201 13,885
TOTAL:l0g,0l1,621 12,439
Plature4 Outages. Seller will provide a Planned Outage schedule annually not to exceed 150
hours per year.
D-t
46
Meadow Creek Project Company ILC*Ftue Pine
EXHIBIT E
START-UP TESTING
Required factory testing includes such checks and tests necessary to determine that the
equipment systems and subsystems have been properly manufacfured and installed, function
properly, and are in a condition to permit safe and efficient start-up of the Facility, which may
include but are not limited to:
L Test of mechanical and elecffical equipment;2. Calibration ofall monitoring instruments;3. Operating tests of all valves, operators, motor starters and motor;4. Alarms, signals, and fril-safe or system shutdown control tests;5. Point-to-pointcontinuitytests;6, Bench tests ofprotective devices; and7. Tests required by manufacturers) and designer(s) of equipment.
Required start-up tests are those checks and tests necessary to determine that all features
and equipment, systems, and subsystems have been properly installed and adjusted, function
properly, and are capable of operating simultaneously in such condition that the Facility is
capable of continuous delivery into PacifiCorp's electrical system, which may include but are
not limited to:
L Turbine/generatormechanicalruns and functionality;2. System operation tests;3. Brake tests;4. Energization oftansformers;5. Synchronizing tests (manual and auto);6. Excitation and voltage regulation operation tests;7. Auto stop/start sequence;8. Completion ofany state and federat environmental testing requirements; and9. Tests required by manufacturer(s) and designer(s) of equipment.
For wind projects only, the following Wind Turbine Generator Installation Checklists are required
documents to be signed off by Manufacturer or Subcontract Category Commissioning Personnel
as part of the Commissioning and startup testing:
Turbine hstallation
Foundation Inspection (by Ownu's independent inspector)
ContollerAssembly
Power Cables
Cablelnsta[ationChecklistsincluding: Contoller
Top Deck/Yaw DeckTower
Top Section / Saddle Mid
Section Cables or buss bars
Base Section
Tower Base Section
Tower Lights and Outlets
TowerMid Section
TowerTop Section
Nacelle & Rotor
47
Meadow Creek Project Company LLC-FivePine
E}fiIIBIT F.I
MOTTVEFORCEPLAI{
WIND SPEED DATA SI.JMIVIARTES & HOURLY WIND PROFIIT
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l TTF
Meqdow Creek Project Company LLC-FivePine
Exhibit F 2
deleted
Meadow Creek Project Company AC-FhePine
E)ilIIBITG
SAMPLE ENERGY PURCHASE PRICE CALCULATIONS
The following are samples of calculations of energy purchase prices using ttre formula and tables
in Section 5.1.
The calculation for the non-levelized purchase price during an On-Peak Hour in May of 2012
equals $60.244dwh (the 2012 annual rate for Conforming Energy) multiplied by 92% (0.92)
(ttre May Onfeak Hour multiplier) minus $6.5044Wh (the wind integration cost), which equals
$48.92lMWh.
Table 1: Sample calculations for non-levelized On-Peak Conforming Energy n2012: Purchase
Price : (annual rate * monthly On-Peak multiplier) - wind integration cost.
Month Conlbrming
Energy
AnnualRate
for 2012
(perMWh)
0n-Peak
Hour
Multiplier
Wind
Integration
Cost
Calculated Purchase
Price for 20l2On-
PeakConforming
Enerry @er MWh)
Januarv $60.24 103%$6.50 $55.5s
Februarv $60.24 1,05%$6.s0 $s6.75
March 960.24 950h $6.s0 $50.73
Aoril $60.24 9s%$6.50 $s0.73
Mav $60.24 g20h $6.s0 $48.92
June $60.24 94%s6.s0 $s0. l 3
Iulv $60.24 l2lo $6.50 $66.39
Auzust $60.24 t2t%$6.50 $66.39
September s60.24 1090 $6.50 $59. l6
October $60,24 ll5Yo $6.50 $62.78
November $60.24 tt0%$6.50 $s9.76
December $60,24 r29%$6.s0 $7t.21
Table 2: Sample calculations for non-levehzed OflPeak Conforming Enerry n2012: Purchase
Price : (annual rute * monthly Off-Peak multiplier) - wind integration cost.
Month Conlbrming
Energy
Annual Rate
for 2012
@erMWh)
Off-Peak
Hour
Multiplier
Wind
Integration
Cost
Calculated Purchase
Price for ?0l?Ofl-
Peak Conforming
Energy (per MWh)
Januarv $60.24 94%$6.50 $50. I 3
February $60.24 97%$6.50 $51.93
March s60.24 80Yo $6.50 $41.69
52
Meadow Creek Project Company LLC-FivvPine
Month Conforming
Energy
Annual Rate
for 2012
(per MWh)
Off-Peal
Hour
Multiplier
Wind
Integration
Cost
Calculated Purchase
Price for 2012 Off-
Peak Conforming
Energy (per MWh)
April $60.24 760 $6.s0 s39.28
Mav s60.24 63%$6.s0 s3l .45
June $60.24 65%$6.s0 $32.66
Julv $60.24 92Yo $6.50 $48.92
August $60.24 106Y.$6.50 $57.35
September s60,24 990h s6.s0 $s3.14
October $60.24 l05o/o $6,s0 $56.7s
November $60.24 96Yo $6.s0 ss1.33
December $60.24 l20o/o $6.s0 $6s.79
Meqdow Creek Project Company ILC--FivePine
EXHIBIT H
SellerAuthorization to Release Generation Data to PacifiCorp
Ridgeline Energy LLC
1300 N Northlake Way
Seattle, WA 98103
Director, Transmission Services
PacifiCorp
825 NE Multnomah, Suite 1600
Podland, OR 97232
29 Noveurber, 201 I
To Whom itMay Concern:
Ridgeline Energy LLC, on behalf of Meadow Creak Project, (r'Seller") hereby voluntarily
authorizes PaoifiCorp's Transmission business unit to share Seller's interconnoction information
with Marketing Affliate cmployocs of PacifiCorp Energy, including but nol limited to those in
the Commercial and Trading group. Seller acknowledgcs that PaciflCorp did not provide it aay
prefereuces, either operational or rate-r€lated, in exchange for this voluntary coneent.
54
Meadow Creek Project Company LLC-FivePine
ADDENDT]M L
To be Revised
STATION LOAD, LOSSES, and NET OL-IPUT
ALLOCATION ALGORITHM FOR THE
CEDAR CREEK WIND, LLC PROJECTS
This Addendum L is hereby made a part of, and clarifies certain terms in, the Power Purchase
Agreement between Cedar Creek Wind, LLC relating to FIVE PINE, and PacfiCorp
("Agreement") entered into the22nd day of Deceryber,20l0. Capitalized terms not defined
herein shall have the meaning set form in the Agreement. Cedar Creek Wind, LLC ("Seller")
and PacifiCorp are at times referred to herein individually as a "Pafty" or collectively as the
"Parties".
Cedar Creek Wind, LLC shall own a complex of five (namely, Coyote Hill, Five Pine, Steep
Ridge, North Point, and Rattlesnake Canyon) separate, lda]ro small wind Qualifying Facilities
(each, a "Cedar Creek Project" and collectively, the "Cedar Creek Projects") that share
collector wires, a 34,51345 kV substation (Cedar Creek Substation), and related equipment,
which connect the Qualitzing Facilities to the Point of Delivery ("Shared Interconnection
Facilities").
PacifiCorp has agreed to buy (and Seller has agreed to sell), at the Point of Delivery, Seller's
total energy output net of: (l) Seller's station service; (2) enagy provided by Seller to another
Cedar Creek Project for station service; (3) Selle/s share of the transformation losses; and (4)
Seller's share of the line losses between Seller's Facility and the Point of Delivery (together
Seller's "Station Auxiliary Load and Losses"). However, Seller and PacifiCorp agree that it is
impossible to measure Seller's Station Auxiliary Load and Losses separate and apart from the
Station Auxiliary Load and Losses of the other Cedar Creek Projects. Therefore, in order to
implement an objective, practicable, and equitable process by which PacifiCorp may quantify
energy delivered by Seller to the Point of Delivery (net of its Station Auxiliary Load and
Losses), the Parties do agree as follows:
A. Billing Formulae. PacifiCorp shall determine Seller's Net Output in kWh for purposes of
the Agreement using the method specified below.
l. Definitions
NRj : the nameplate rating (a/WaFacility Capacity Rating) of Cedar Creek Project i.
NRr : the sum of all the nameplate ratings of Cedar Creek Projects (i: I to 5).
PALLI: the accumulated purchased energy from Utiliff Supplier, as determined at the Point
of Delivery, to supply the net total station auxiliaty load and losses for the Shared
lnterconnection Facilities for Cedar Creek Projects i : I to 5 whenever such total
load and losses exceeds total generation output.
55
OPr
Nq
NOi
Meadow Creek Project Cornpany ILC-Five Pine
PALL; = the allocated share of PALLr for Project i as determined by multiplying PALLr by
NRj and dividing by NRr.
OP; : for a givor integration interval, the metered output energy of Cedar Creek Project i,
as determined by PacifiCorp's meter at the point where Cedar Creek Project i
connects to the Shared lnterconnection Facilities. For any integration interval
drring which any energy is delivered to a Project frorn the Shared Interconnection
Facilities, such delivered energy is accumulated in a separate meter register and
does not decrement the register used to measure accumulated OPj, Therefore OPj is
by definition always greata than or equal to zao, and in the event the meter records
OPj less than zero, OPi shall be deemed to equal zero,
: the sum of all OPi (i : I to 5).
: for a given integration interval, the total energy delivered to the Point of Delivery
(345 kV bus at Goshen Substation). NOr shall be as measured at PacifiCorp's
meter near the Point of Delivery (kwh, in lO-minute intervals), adjusted for any
transformation losses between the meter and the Point of Delivery. For any
integration interval during which any energy is delivered to the Point of Delivery
from PacifiCorp's system, such delivered energy is accumulated in a separate meter
register of the PacifiCorp meter and does not decrement the register used to
measure accumulated Net Ouput energy. Therefore NOr is by definition always
greater than or equal to zero and in the event the meter records NOr less thanzero,
NOr shall be deemed to equal zero.
the net energy sold to PacifiCorp by Cedar Creek Project i during the integration
interval,
SALLI: the total of all station auxiliary load and losses for the Shared Interconnection
Facilities for Cedar Creek Projects (i = I to 5) when NOr is positive.
SALLj : the allocated share for Cedar Creek Project i of SALLT,
2, Calculations
Calculations shall be reconciled and settled monthly. Calculations shall be based upon raw data
gathered from specified meters using a metering integration interval of S, 10, or IS minutes at
PacifiCorp's election to match the metering installation PacifiCorp specified ("integration
interval"). Calculations shall be rounded to the nearest kilowatt-hour in the final step.
.fa). Whe\ Total Generation Outpl,tt <: Station Anxiliary Load and Losses
When, for any integration interval, the total of all OPj Project ouput amounts of energy among
all Cedar Creek Projects (OPr) is less than or equal to the total station auxiliary load and losses
for the Shared Interconnection Facilities, the meters at the Point of Delivery will accumulate the
Utility Supplier's delivery of purchased energy, PALLT, to supply such net total load and losses
in a meter register that is separate from that which accumulates NOr and NOr shall equal zero ot
if negative, be deemed to equal zero. The "Utility Supplier" shall be the utility providing retail
elecfic service at the Facility (Rocky Mountain Power). PacifiCorp shall have no obligation to
serve any of the Cedar Creek Projects'retail elecffic needs absent a separate written agreement
Meodow Creek Project Company LIC-FivePine
with PacifiCorp and then only with the permission of Seller's Utility Supplier. None of the costs
associated with provision of retail electic service to Seller shall be bome by PacifiCorp.
(D. Wen Tolal Gqneration Output > Station Auxiliar! Load and Losses
When, for any integration interval, the total generation of enerry among all Cedar Creek Projects
is greater than the total station auxiliary load and losses for ttre Shared lnterconnection Facilities,
the meters at the Point of Delivery will accumulate in a separate register PacifiCorp's receipt of
the total combined energy from all the Projects (NOr). The difference between OPr and NOr for
that interval (SALL| is allocated to each Cedar Creek Project in proportion to its generation
output (OPj) in the same integration interval to determine NOj by the formulae:
Let SALLr =[OPr-NO1] and
SALti : [SALLT] * [OPi/OPr]
The Net Output energy sold by each Project i is then determined as:
NOj : t OPj - SALLi I and substituting fot SALLi;
NOj = NOr*[OPi/OPr]
B. Limitation of PacifiCorp Purchase Liability. PacifiCorp's total purchase obligation to ttre
Cedar Creek Projects shall at no time exceed total energy delivered by the Cedar Creek Projects
to the Point of Delivery. Therefore, in the event the sum of the Net Output energy (calculated
according to ttre preceding formulae) for all the Cedar Creek Projects is greater than NOr, then
PacifiCorp shall reduce calculated Net Output anergy from each Cedar Creek Project, pro rata
each Cedar Creek Project's share of the OPt, such that the total energy purchased from all the
Cedar Creek Projects at the Point of Delivery by PacifiCorp equals NOr.
C. PacifiCorp Right to Offset. In the event PacifiCorp determines it has underpaid one or
more Cedar Creek Projects (due to metering error or other.wise) and, as a result of underpaying
one or more Cedar Creek Projects, has overpaid Seller, PacifiCorp may adjust Seller's future
payment(s) accordingly in order to recapture any overpa)ment received by Seller in a reasonable
time.
D. Condition Subsequent This Addendum L was negotiated jointly among the Cedar Creek
Projects and PacifiCorp and is intended by all of the Cedar Creek Projects and PacifiCorp to be
one of five identical bilateral agreements, each between PacifiCorp and a Cedar Creek Project,
but each related to ttre other. Therefore, in the event one or more Cedar Creek Projects does not
agree to be bound by the terms and conditions set forttr in this Addendum L, PacifiCorp may,
upon thirty days written notice, cancel all Addendum L agreements. In the event PacifiCorp
cancels this Addendum L in accordance with this Section D, PacifiCorp may satisfy its
obligation to pay Seller by depositing when due, with an escrow agent chosen by the Cedar
Creek Projects, the total payment due to all Cedar Creek Projects under their respective Power
Purchase Agreements, less offsets (if any) calculated based upon NOt and the Confact Price.
IENDI
57
Arrwk Nnxnt;;
Office of the Secretary
Servioe Date
December 21,2011
BETORE TTM MAIIO PUBLIC UTILITIES COMMISSION
. On July 27,2A11, the Commission issued Final Order on Reconsideration No. 32302
affirming its prior decision to not approve five Power Purchase Agreements (PPAs or
A.greements) entered into between Cedar Creek Wind and PacifiCorp dba Rocky Mountain
Powor pursuant to the federal Public Utility Regulatory Policies Act of 1978 (PURPA). Based
upon the expressed terms of the live Agreements, the Commission found that the PPAs were not
effective prior to December 14,2010 - the date on which the eligibility for PURPA published
avoided cost rates in Idaho ohanged from 10 average megawatts (aMW) to 100 kilouatts (kW)
for wind and solar qualifying facilities (QFs). Order No. 32260. Because each of the PPAs
IN THE MATTER OF THE APPLICATION OT
PACItr'ICORP DBA ROCKY MOUI{TAIN
POWER FOR A DETERMINATION
REGARDING A T'IRMENERGY SALES
AGREEMET.IT BETWEEN RO CIC{
MOI]NTAIN POWER AI\D CEDAR CREEK
WIND, LtC (RATTLESNAKE CANYON
PROJECT (11-01), COYOTD IIILL PROJECT
(11-02), NORTH POINT PROJECT (11-03),
STEEP RIDGE PROJECT (11-04), AND TTYE
PrNE PROJECT (11-0s).
CEDAR CREEK WIND, LLC,
Petitioner/Appellant,
v.
IDAHO PUBLIC UTILTTIES COMMISSION,
' Respondent, Respondent on Appeal'
and
PACIFICORP DBA ROCI(Y MOUNTAIN
POWER,
Rmnondent.
SUPREME COURT
DOCKET NO. 39134-2011
IPUC CASE NOS. PAC.E-11.0I
PAC-8,11-02
PAC-E-I1.03
PAC-E 11-04
PAC-E-I1-05
PUC ORDER NO. 32419
ORDERNO, 32419
reqxested published avoided cost rates but the projects were in excess of 100 kW, the
Commission found that the published rate was no longer available to the projeots.
On August 5,2011, Cedar Creek filed a Petition with the Federal Energy Regulatory
Commission (FERC) claiming that the Commission's Order No. 32302 was inconsistent with
FERC's regulations implementing PURPA, While its Petition to FERC was pending, Cedar
Creek, on August 31,2011, also appealed the Commission's Order to the Idaho Supreme Court.
On October 4,2011, FERC issued an Order concluding that the Courmission's Order was
inconsistent with PURPA and FERC's PURPA regulations.
On October 24,2011, the Conamission and Cedar Creek filed a Stipulated Motion
with the Idaho Supreme Court that the appeal be ternporarily suspended and the rnatter remanded
to the Commission.! Suspending the appeal would allow the Commissionto reconsider its Order
No. 32302 in light of the FERC Order and provide the parties wittr an opportunity to discuss the
possibility of resolving the dispute, I.A.R. 13.3. On November 9,2017, the Court issued an
Ordff suspending the appeal and remanding the matter to the Commission for further review.
On remand, the Commission invited settlement of the entire dispute and authorized the
Commission Staff to participate in the settlement negotiations. Order No. 32386 cfling Rules
352 and 353. Cedar Creek, Rocky Mountain and Staff(collectively the "Parties") convened four
settlement conferences. On December 15, 2}ll, the Parties filed a Motion to approve a
"stipulation of Settlement and Request for Approval of Power Purchase Agreements"
("settlement Stipulation") that proposed to settle all the disputed issues.
Having reviewed the underlying administrative record, the FERC Order and the
Settlement Stipulation, the Commission issues this final Reconsideration Order on Remand, As
explained in greater detail below, the Commission approves the Settlement Stipulation and
approves the three modified PPAs, Accordingly, the Commission amends and clarifies its prior
OrderNo. 32302to be consistentwittr this Order. Iclaha Code $ 6l-624,
I When the Stipulated Motion was tilod, Rocky Mountain had not yet beur grant€d intervention by the Court.
Nevertheless, Rocky Mount4in supported the suspension and remand.
ORDERNO. 32419
BACKGROUNI)
A, Eligibtlity Cap Case
Prior to the filing of the five Cedar Creek PPAs, Avista Corporation, Idaho Power
Company, and Rocky Mountain (colleclively "the Utilities") petitioned the Commission on
November 5, 2010, to initiate a generic investigation to address various PURPA issues. The
Utilities also requested that while the investigation was underway, the Comrnission
"immediately" reduce the eligibility cap or ceiling for the "published" avoided cost rate from 10
al\ilW per month to l00 kW per month. Order Nos. 32212 and 32302.2 The Commission issued
a Nofice and Ordsr opening a separate investigation (GNR-E-10-04), solicited initial and reply
comments, and oonveled an oral argument to address the proposed reduction in the eligibility
cap. Order No . 32131 at 6-7.
The Commission subsequently found that the Utilities had made a convincing case to
temporarily "reduse the eligibility cap for published avoided cost rates from l0 aMW to 100 kW
for wind and solar IOFsI_qply while the Commission further investigates" other PURPA issues.
Order No. 32176 at 9 (emphasis original). Consistent with its prior Notice, the Commission
ordered that the eligibility cap for tlre published rate be reduced from l0 aMW to 100 kW for
wind and solar projects effective December 14,2010. Order Nos. 32176,32212,32302. No
party, including Cedar Creek, appealed the Commission's decision to rcduce the eligibility cap.
OrderNo. 32302 at 5, l4-15.
B, The Five OriginalAgreements
The procedural history of this consolidated case is complex and lengthy, but the
pertinenl points are summarized here. On Decembu 22,2010, Rocky Mountain Powcr and
Cedar Cteek executed five separate PPAs for five wind QF projects.3 Under the terms of each
Agreement, each project agreed to sell energy to Rocky Mountain for a 20-year term using the
published avoided cost rate set by the Commission. Taken together, the five projects had a
2 Pursuant to FERC's PURPA regulations, state oommissions must 'fublish" an avoided cost rate for small QFs
with the dosign oapacity of 100 kW or less. 18 C,F.R. $ 292.304(cXl). However, PURPA regulations also declaro
that state commissions "may" set standards or published rates at a higher capacity amount. 18 C.F.R. $
292.3M($QA). In February 2008, the Commission established the eligibility cap for published Evolded cosl rates
for each of the tkee utilities at 10 altdW. frerNo. 30488 at 17.
3 Because of the similarity between each of the fivo AgnoemenB, the Commission found it reasonable and
appropriate to consolidate the cases and issue a consolidated Order. Order No. 32260 at n.l.
ORDERNO. 32419
nameplate capacity of 133.4 M\M.4 Under normal and/or average conditions, each wind project
was to have sold its output of not more than l0 aI\4W per month to Rocky Mountain at the
published rate. The projects all selected October 1,2012as flre scheduled commercial operation
date (COD). Order No. 32302 at 3.
On January 10,2011, Rocky Mountain frled the Applications requesting that the
Commission issue an Order l'accepting or rejecting" the five Cedar Creek PPAs. On February
24,2017, the Commission issued a consolidated Notice of Application and Notice of Modified
Procedure for the five Applications, Cedar Creek and Commission Stafffiled timely comments
in response to the Notice of Modified Procedure. Rocky Mountain and Cedar Creek both filed
reply comments.
In its final Order No. 32260 issued June 8, 2011, the Commission declared that 'the
primary issue to be determined in these [Cedar Creek] cases is whether the Agreements were
executed before the eligibility cap for published rates was lowered to 100 kW on December 14,
2010." Order No. 32260 at 9. The Commission found that.the five PPAs were not fully-
executed (i.e., signed by both parties) prior to December 14,2010. Relying on the actual terms
of the PPAs, the Commission found that each PPA stated that "the 'Effective Date' of [each]
Agreement is 'after execution by both Parties and after,approval by the Commi$rion :" I/. citing
PPA lllJ 1.13, 2.1. (emphasis added).5 Because the Commission had previously reduced the
eligibility cap for the published avoided cost rate from l0 aIr4W to 100 kW, the five PPAs
"contained an essential term that was no longer available to the Projects." OrderNo.32302 atZ,
Cedar Creek timely filed a Joint Petition for Reconsideration of the Commission's
final Order No. 32260. On reconsideration, Cedar Creek argued that the Commission's Order
wal elroneous besause a "legally enforceable obligation" existed between Cedar Creek ard
Rocky Mountain prior to the reduction in the eligibility cap on December 14, 2010. As a result,
Cedar Creek maintained that it was entitled to published avoided cost rates and urged the
Commission to "expeditiously approve tlre Agreements as submitted." Order No. 32302 at 2.
a The Applications for Rattlesnake Canyon, Coyoto Hill and Norttr Point indicated that each of thess projects would
have a maximum namoplate capacity of 27.6 MW, whilc Steep Ridge and Five Phe would each have a maximum
nameplato capacity of 25,3 MW.
5 tthe Cornmission also obs€rved that the opening paragraph of each Agreemont states 0rat the Agreemurt is
"entsred into tris 22nd day of Decomber 2OlO,'; Id
0RDERNO.324t9
On reconsideration, the Commission affirmed its prior decision that the five PPAs all
contained express language that the effective date of each Ageement is when both parties signed
the PPAs - Dooember 22,2A10. The Commission noted that it was undisputed that Cedar Creek
signed the PPAs on December 13, 20lQ and Rocky Mountain signed on December 22,20t0. Id.
Agreements Tu l.13, 2,1, Order No, 32302 at 4,6,8. Given the agreed upon effective date, the
Commission affrrmed that each Agreement did not become effective until after execution by
both Parties, Order No. 32302 at 9. The Commission also found that it is.not in the public
intErest to allow parties with contracts exocuted on or after Decetnbet 14, 2010, to avail
themselves of an eligibility cap, and thus published rates, that are no longer applicable. Order
D, The flERC Case und theAppeal
On August 5;2011, Cedar Creek filed a Petition with FERC requesting that the
federal agency bring an enforcement action against the Commission pursuaqt to 16 U.S.C. $
IzafiQt)Q) or, in the altemative, to make certain findings related to the Commission's decision.
Cedar Creek claimed that the Commission's Order is inconsistent with FERC's regulations
implementing PURPA. On Ostober 4,2lll, FERC issued an Order deolining to bring an
enforcement action against the Commission. However, FERC deterurined that the Commission's
Orderwas inconsistent with PURPA and FERC's implementing regulations. Notice of Intent not
to A,ct and Declaratory Order, 137 F'ERC n 61,006 (Oct. 4, 20tl). In particular, FERC
construed the Commission's final Order Noi 32260 as "limiting the creation of a legally
enforceable obligation only to QFs that have [PPAs] . . . signed by both parties to the
agreement." Id. af 126. FERC interpreted the Commission's Order as requiring a fully-executed,
contract as a condition precedent to the creation of a legally enforceable obligation between the
parties. Id. at nn 30, 35. Although this Commission has a long line of cases to the contrary,
FERC ooncluded that the Commission did not recognize that "a legally enforceablo obligation
may be insurred before the fomal memorialization of a contractto witing.': Id. all36.
FERC did not rule whether Cedar Creek. had perfected a legally enforceable
obligation for the five projects. Id. at![t[38 (whether there is a "legally enforceable obligation ; ,
. is not befbre us."); 39. Civen the issuance of the FERC Order and Cedar Creek's appeal to the
Idatro Supreme Court, Cedar Creek and the Commission filed a Stipulated Motion for the appeal
to be temporarily suspended and the matter remanded to the Commission.
oRDERNO. 32419
THE SETTLEMENT STIPULATION
Cedar Creek, Rocky Mountain and Staff (collectively the "Parties") convened four
settlement conferences on October 20 and 27, November 16, and December l,20ll. As a result
of these settlement discussions, the Parties on December 15, 201l, filed a Motion to Approve the
Settlement Stipulation and Request for Approval of Power Purchase Ageements (the
"settlement Stipulation'), The Parties disclosed that they have resolved all disputes between and
among themselves.
The Parties requested that the Commission modiff its Order on Reconsicleration No.
32302 and approve three of the five original PPAs as amended in the Settlement Stipulation.
More specifically, the Parties requested that the Commission approve the amendments to the
North Point project (Case No. PAC-E-I1-03); the Five Pine project (Casc No,'PAC-E-I l-05);
and the Coyote Hill project (Case No. PAC-E-I 1-02) (together, the "Agxeements"). In additioru
Cedar Creek and Roclry Mountain agreed to withdraw the remaining two Applications and
accompanying PPAs. Stipulation at $ 2.6
The Parties agreed tha-t Cedar Creek had established a legally enforceable obligation
tmder FUFJA no later than December 13, 2010. Stipulatioo at $$ l, 4. Because such obligation
arose prior to Deoember 14,2010, the Partie's agree that the surviving PPAs should be approved
by the Commission at the avoided cost rates contained in the Original Agreements. /d. at $.5.
Thus, Cedar Creek and Rocky Mountain are restored to their relative positions under the original
PPAs. The three sunriving PPAs will have a combined narneplate capacity not to exceed 133.4
MW and Rocky Mountain shall not be required to purchase more than 438,000 MWh (i.e,,
approximately 50 aMW) of output in any given oalendar year, Id. at$ 7; PPAs at 1.30, 1.43,4.1.
The North Point PPA will be modified to have an 80 MW nameplate capacity,while the Five
Pine and Coyote Hill.PPAs will have a total nameplate capacity not to exceed 53.4 MW.
Stipulation, Exh, A, B, C.
Both the North Point and Five Pine PPAs provide that these PPAs may be assigned to
Ridgeline at its Meadow Creek site, .Id. at $ 21.2. Because the Meadow Creek facility already
has its trarumission intersonneotion with PacifiCorp, assignment to Ridgeline would allow the
scheduled commercial operation date (COD) for both facilities to be December 31, 2012.
6 Tho two Applications and PPAs to be withdrawn are: the Steep Ridge project (Case No. PAC-E-I1.04) and the
Rattlesnake Canyon project (Case No. PAC-E-Il-01) (together, the "Withdrawn Agreements"). Stipulation at 2.
ORDERNO, 32419
Utilizing the Meadow Creek facility would allow Cedar Creek/Ridgeline to obtain Treasury
grants and other tax incentives before they are set to expire on Decembet 31, 2012. Any
assignment of North Point and Five Pine to Ridgeline must occur within 90 days of the effective
date ofthe PPAs as modified, approximately on or before March 31,2012. Exh. A, B, C $ 21,2.7
The Coyote Hill project is contemplated at ttre original Cedar Creek site.
In addition, ttie PPAs firther provide that Cedar Creek and Rocky Mountain shall
share the "Environmental Atfributes" (including but not limited to renewablo energy credits
(REC$ and Gresn Tags) attributed to the swviving PPAs. More specifically, Cedar Cresk shall
be entitled to the environmental attributes for the fust l0 years of operation, while Rocky
Mowttain shall be entitled to the environmental attributes for the last 10 years of the 20-year
Agreements: Exh. A, B, C at $$ 1.17, 1.26,4.6.
The Parties assert that the settlement of their dispute inoluding the modifications of
the surviving PPAs represents a fair, just and reasonable resolution of the disputed claims, and
are consistent with applicable law and regulatory policies. Stipulation at $$ l, 6, 12. The Parties
fixther maintain that the settlement represents a negotiated compromise between the Panies and
is in the public interest. The Parties agree that ttre Settlement Stipllation'tesolves all issues
raised by any parry in the captioned [CommissionJ dookets, in the FERC hoceeding, and in
Cedar Creek's appeal to the Idatro Supreme Court. If the Commission adopts the Settlement
Stipulation, each waives, releases and discharges the other Parties from any and all causes of
action, suils, claims, demands, and liability whatsoever in law or equity." /d. at $ 17. The
Parties urge the Commission to approve this Settlement Stipulation and the PPAs in their entirety
and they stand ready to support the Stipulation. /d. at $ 13.
COMMISSION X'INDINGS
At the outset, we commond the Parties for their diligence and efforts at resolving the
underlying disputes. Consistent with our authority under ldaho Code $ 61-624 and Rules 352
and 353, we invited settlement of all of the disputes arising from our Order Nos. 322ffi and
32302. Order No. 3 2386 at 2.
7 Although the Ridgelinefi\,teadow Ctpok transmission line is already completed, this line may havo capacity
limitations. Consequently, ttre PPAs allow for a combination of goneration sizes at the Five Pine and Coyote Hill
projeots so long as &o total generation for all the projects not exceed 438,000 MWh. this purchase cap shall be
rued-up annually. Stipulation at $ 7.
0RDERNO. 32419
Rule 356 provides that the Commission is not bound by the Parties' Sottlement
Agreement. IDAPA 31.01.01.356. The Commission will "independently review any settlement
proposed to it to determine whether the setflement is just, fair and reasonable, in the public
interest or otherwise in accordance with law or regulatory policy." /d. The Commission may
accept, rejqct, or modiff settlement provisions. Moreovet, proponents of settlements on appeal
carry the burdea of showing that the settlement is reasonable and in the public interest. Rule
355. When a settlement of an appeal - such as this case - calls for Commission action, the
Commission will presctibe an appropnate procedure to examine a proposed settlement. In this
case, the Parties to the appeal have asked the Commission to arnend Reconsideration Order No.
32302 issued Jily 27,2011, and approve three modified PPAs. Idaho Code $ 61-624 provides
that the Commission "may at any time, upon notice to the public utility afected, , . . rescind,
alter or amend any order or decision made by it."
After having reviewed the record in this case, the FERC Order, the Stipulation of
Settlement and Request for Approval of Power Purchase Agreements, and the modified PPAs,
we find the record is comprehensive and further proceedings are not necessary. Rule 354. Based
upon our review of the entire record and the particular facts of this caso, we find that the
Settlement is fair, just and reasonable, and in the public interest. As noted by the Parties, the
Stipulation represents a reasonable compromise of the positions held by the Parties.
In our initial decision, this Commission made a determination about whether to
approve the Agreements based on the express terms contained within each Agreement. In our
' past experience, when a QF wants a deterrnination that there is a legally enforceable obligation,
it files a complaint against a utility that it alleges has failed to negotiate. This is the first time the
Commission has reviewed the facts of this case for evidence regarding the existence of a legally
enforceable obligation outside the express terms of the original five Agreements entered into by
Rocky Mountain and Cedar Creek.
There are several reasons supporting our determination that the settlement is fair and
reasonable to Cedar Creek, Ro"ky Mountain, and ratepayers. First, the Stipulation retums Cedar
Creek and Rocky Mountain to their respective positions prior to the issuance of our Orders
disapproving the PPAs. Based upon the Parties' assertions in the Settlement Stipulation and our
review of the record, we find that the record reveals that Cedar Creek had perfected a legally
enforceable obligation no later than December 13, 2010. As such, Cedar Creek was entitled to
ORDERNO.324t9
the published avoided cost rates available to l0 aMW QFs in effect as of December 13, 2010.
The thrree modified PPAs equate to the original five PPAs.
Second, PacifiCorp and ratepayers are protected under the settlement and the tfuee
rnodified PPAs by being obligatcd to purchase no moro than the total equivalent of 50 alvlW of
net output as originally contemplated under the five PPAs. Assignment also allows the COD
date to advance, thereby providing benefit to Cedar Creek.
Third, ratepayers and Rocky Motrntain are fr:rther advantaged because the modified
PPAs recognize that the environmental attributes produced by the three modified projects will be
equally apportioned between Rocky Mountain and Cedar Creek, Under the PPAs, Cedar Creek
will be entitled to the environmental atffibutes for the first 10 years of the Agreements and
Rocky Mountain wiil be entitled to the environmental atfiibutes for the last l0 years of the
Agreements. This is an improvement over the original PPAs because the assignment of the
environmental attributes or RECs was not clearly delineated in the original Agreements.
Moreover, subsequent revenues derived from the environmental attributes will offset Ro"ky
Mountain's purchase of ttre output from the srrviving PPAs over the last l0 years of the
Agreements
Finally, we find that resolution of this matter will avoid uncertainty and conserve
resources (both time and money). This is benefioial to Cedar Creek, Rocky Mountain and
ratepayers. The settlement avoids the likelihood of litigation in multiple forums and represents a
significant benefit to all Parties. Here the settlement brings the dispute to a reasonable
conclusion and benefits Cedm Creek, Rocky Mountain and ratepayers. Rules 354-355; Aguirre
v, Hamlin,80 Idaho 176,327 P.2d 349 (1958).
ORDER
IT IS HEREBY ORDERED that the Motion for Approval of the Stipulation of
Settlement and Request for Approval of Power Purchase Agreements frled by the Parties is
granted. In addition, we approve the three modified Agreements identified in Exhibit A (North
Point), ExhibitB (five Pine), and Exhibit C (Coyote Hill).
IT IS FURTHER ORDERED that Rocky Mountain Power's request to withdraw the
Steep Ridge Application and Agreenent (Case No. PAC-811-M) and the Rattlesnake Canyon
Application and Agreemont (Case No. PAC-E-I l-01) is granted.
IoRDERNO.32419
IT IS FURTHER ORDERED that OrderNo. 32302 issued luly 27,2011, is amended
consistent with the findings and discussions set out in this Order pursuant to ldaho Code $ 6l-
624.
THIS IS A FINAL, RECONSIDERATION ORDER ON REMAND. Any party
aggrieved by this Order may appeal to the Supreme Court of Idatro as provided by the Public
Utilities Law and the Idaho Appellate Rules. See ldaho Code $ 6l-627,
DONE by Order of ttre ldaho Public Utilities Commission at Boise, Idaho this *l tt
day of December 2011.
MACK A. REDFORD, COMMISSIONER
ATTEST:
Assistant Commissiofr Secretary
bls/oPAc-E-l l"0l_PAC-E-l 142_PAC.E-1 I-03_PAC-E l l-o4_PAGE.t l-05_dh3
H. SMITH, COMMISSIONER
oRDERNO.324t9 l0
BEFORE THE IDAHO PUBLIC UTTLITIES COMMISSION
IN THE MATI'ER OFTHE APPLICATION OF
PACIII'ICORP DBA ROCI(Y MOUNTAIN
POWER FOR A DETERMINATION
REGARDING A FIRM ENIRGY SALES
AGREIIMENT BETWEEN ROCKY MOUN'TAIN
POWER AND CEDAR CREEK WIND, LLC
0TATTLESNAKE CANYON PROJECT)
IN THE MATTEROFTHE APPI,ICATION OF'
PACI}'ICORP DBA ROCKY MOI,'NTAIN
POWER FOR A DETERMINATION
REGARDING A TIRM ENERGY SALES
AGREEMNNT BETWEEN ROCKY MOUNTAIN
POWER AND CEDAR CREEK WTND, LLC
(coYoTE HILL PROJECT)
IN'I'I{E MATT'ER OFTHE APPI.,ICATION OF
PACIFICORP DB,A ROCKY MOUNTAIN
POWER FOR A DETERMINATION
REGARDING A F'IRM DNDRGY SALES
AGREEMENT BETWEEN ROCKY MOUNTAIN
POWER AND CEDAR CREEK WIND, LLC
(NORTH POINT PROJECT)
IN THE MATTER OF TIIE APPLICATION OT
PACIITICORP DI}A ROCKY MOUNTAIN
POWER FOR A DETERMINATION
RI}GARDING A FIRM ENERGY SALES
AGRIIEMENT BETWEI}N ROCKY MOUNTAIN
POWER AND CEDAR CREEK WIND, LLC
(srEEP RrDcE PROJECT)
IN THE MA'I'TITR OII T'HE APPLICATION OF
PACIFICORP DBA ROCKY MOUNTAIN
POWER F'OIT A DITERMINATION
REGART'ING A FIRM ENERGY SALI1S
AGREPMENT BETWEEN ROCKY MOUNTAIN
POWEL AND CEDAR CREEI( WIND, LLC
(r'rvE PrNII PROJECT)
CASE NO, PAC.E.II .OI
cAsE NO. PAC-E-il-02
CASE NO. PAC-E-II-03
CASE NO. PAC-E-II-04
cAsE NO, PAC-E-11-05
DSMDT]"2989964v I 3D
Meadow Creek Project Company llQ-NorthPoirn
AMEI\DED AND RESTATBD ROTI/ER, PURCHASE AGREUVIEI.{T
BETWEEN
MEADOW CREEK PROJECT COMPANY LLC
AIND
PACIFICORP
Relating to North Point Project, an 80 It{W Wind Turbine Generation Project
a non-fueld on-systerq hrtemittent Resource with Mechanical Availability Guarantee,
Idaho Qualifying Facility
(i)
SECTION T.
SECTION 2.
SECTION 3.
SECTION 4.
SECTION 5.
SECTION 6.
SECTION 7.
SECTION 8.
SECTION 9.
SECTION TO.
SECTION 11.
SECTION 12.
SECTION 13.
SECTION 14.
SECTION 15.
SECTION 16.
SECTION 17.
SECTION 18.
SECTION 19.
SECTION 20.
SECTION 21.
SECTION 22.
SECTION 23.
Meadow C ree k P roj ec t C omp any Ll,C--Norlh Potnt
Table ofContenb
DEFTNITIONS ......,..... ........................2
TERM; COMMERCIAL OPERATION DATE.... ....................9
REPRESENTATIONS AND WARRANTIES ..... 13
DELIVERY OF POWER; AVAILABILITY GUARANTY ..................... 15
PURCHASE PRICES .....18
OPERATION AND CONTROL ,,,,,,,,20
MOTIVE FORCE ,,.,.,,,,,,,,23
GENERATION FORECASTING COSTS,...,, .,.,,24
METERING: REPORTS AND RECORDS....,..,... ................,.24
BILLINGS. COMPUTATIONS AND PAYMENTS.,,....,,.,....,,,,.,,,,.,,,, 26SECURIry ..,,,,,.,,,,,,.,,27
DEFAULTS AND REMEDIES................ ...,.,..28
INDEMNIFICATION: LIABILITY ...,......,,,....30INSURANCE,...,........... ......,......,... 3l
FORCE MAJEURE ............,..........32
SEVERAL OBLIGATIONS.......... ................... 33
CHOICE OF LAW ...,,,33
PARTIAL INVALIDITY ............ ...................., 33WAIVER ............,........33
GOVERNMENTAL JURISDICTION AND AUTHORIZATIONS,,,.. 34
SUCCESSORS AND ASSIGNS .,,,.,,..,,,.,,,,,.,.,34
ENTTRE AGREEMENT...........,..., ...,.,..........,.. 35NOTICES.. ...,......,........35
Meadow Creek Project Company LLC*NotthPoiru
A}IM{DED AJ\D RESTA.TtrI} FOWER PURCHASE AGREEVIENT
THIS A\{ENDED A}.lD RBSTATED POWER PURCHASE AGREEMENT, reldine to NORTH
POINT, an 80 MW wind ffitine generation project, entered into this tlttay of Januiry, 2012, is
between Meadow Creek Project Company LLC, a Delaware limited liability company (tlre
"Seller') and PacifiCorp, an Oregon corporation acting in it merchant functisn capacity
("PacifiCorp'). SellEr and PacifiCorp are refenpd to collectively as the "Partles" &nd
individually as a "Pnrty",
Bpffrdts
A Cedff CtCIek Wind, LLC ('CCly) md PacifiCorp ei$ered into tirat c€rtain Power
Pnrchase Agreement dated as of December l4,l}ll (tre'CIriginal PPA'), pr.nswurt to which CCW
has becn granted the right tro assign the Orignal PPA to an affiliate ofRidgeline Enqry, LL,C.
B, CCW has elected to exencise its right to assign tlre Original PPA to Sellu, an affiliate
of Ridgeline Enqgy, LlC, urd pursuant to the tenns of the Original PPA, effective upon such
a.ssignmurt, the Original PPA is to be rnended and restated on the tenns sst forth in this Agreement.
C, Sell€r intmds to mruftrd, owrl, orperate ard maintain a wind facihty, including
Seller's Interconnection Facilities, for the generation of electic power located in ldaho, wittr an
orpected Facility Capacity Rating of 80 megavatts as ftrther described in Exhibit A and Exhibit B
("Faeility").
D. Seller has securod rights to deliver outprfi liom iB Facility to PacifiCorp across ttre
interconnection and other thcilities as fi"uther described in Addendum L.
E Seller intends to operate ttre Faoility as a Qualiffing Facility, as sush term is
defined in Section 1.59 below, and to sell Net Output to PacifiCorp in ldaho.
F. Seller estimates that the aveftrge anrual Nd ft$fi to be deliverod by tre Facility to
PaoifiCorp is 238,483,850 kilowatt hours (kWh) ('Average Annual Net OuQuf) plsuant to the
kritial Year Enerry Delivery Sdredule in Section 4.3,1, which amount of eirqr PacifiCorp will
include in its rssource plauning.
G. Sells intends to sell and PacifiCorp intends to pr:rchase all the Net Output fi.om the
facility in accordance wittr the terrns and mnditions of this Agreernent"
H, PacifiCorp intends to designate
purposes of serving Network Load.
I This Agreunent is a'Nor QF
Cost Allocation Revised Protocol.
Sello's Fsoility a.s a Netwouk Resowco for the
Confract" under the PacifiCory l1s-Jwisdictional
J, Seller has authorized Transmission Provider to release generation data to
PacifiCorp, [f yes, the authorization is attached as Exhibit H.
NOW, TI{EREFORE, t}re Parties mutually agee to unend urd restatod the Original PPA fi)
read in ih enthely as foliows:
SECTION 1.
Meadow Creek Project Company LLC-NorthPoittt
DEFINITIONS
When used in this Agreement, the following terms shall have the following meanings:
l. I "As-built Supplemenf' shall be a supplement to Exhibit A, provided by Seller
following completion of construction of the Facility, accurately describing the completed
Facility.
1.2 "Availabilifsr" means, for any Billing Period, the ratio, expressed as a
percentage, of (x) the aggregate sum of the turbine-minutes in which each of the Wind
Turbines at the Facility was available to generate at the Maximum Facility Delivery Rate
during the Billing Period over (y) the product of the number of Wind Turbines that comprise
the Facility Capacity Rating as of Commercial Operation multiplied by the number of
minutes in such Billing Period. A Wind Turbine shall be deemed not available to operate
during minutes in which it is (a) in an emergency, stop, service mode or pause state; (b) in
"run" status and faulted; or (c) otherwise not operational or capable of delivering at the
Maximum Facility Delivery Rate to the Point of Delivery; unless if unavailable due solely to
(i) a default by PacifiCorp; (ii) to the extent not caused by Seller's actions, a curtailment in
accordance with Section 6.3 or (iii) insufficient wind (including the normal amount of time
required by the generating equipment to resume operations following a period when wind
speed is below the Cut-In Wind Speed).
1.3 "Billing Period" means the time period between PacifiCorp's reading of its
power purchase meter at the Facility, which for this Agreement shall coincide with calendar
months.
1.4 "CAMD" means the Clean Air Markets Division of the Environmental
Protection Agency or successor administrator, or any state or federal entity given jurisdiction
over a program involving Green Tags or any attribute thereof.
1.5 "Commercial Operation" means that not less than the90% of the expected
Facility Capacity Rating is fully operational and reliable and the Facility is fully
interconnected, fully integrated, and synchronized with the System, all of which shall be
Seller's responsibility to receive or obtain, and which occurs when all of the following
events (i) have occurred, and (ii) remain simultaneously hue and accurate as of the date and
moment on which Seller gives PacihCorp notice that Commercial Operation has occurred:
1.5.1 PacifiCorp has received a certificate addressed to PacifiCorp from a
Licensed Professional Engineer (a) stating the Facility Capacity Rating of the Facility at the
anticipated time of Commercial Operation and (b) stating that the Facility is able to gensrate
electic power reliably in amounts required by this Agreement and in accordance with all other terms
and conditions of this Agreement.
1,5.2 Start-Up Testing of the Facility has been completed in accordance
with Exhibit E.
1.5.3 PacifiCorp has received a certificate addressed to PacifiCorp from a
Licensed Professional Engineer, an attorney in good standing in Idaho, or a letter from
Transmission Provider, stating that, in accordance with the Generation Interconnection
Meadow Creek Project Cornpany LLC-NorthPoint
Agreement, all required interconnection facilities have been constructed, all required
interconnection tests have been completed and the Facility is physically interconnected with
the System in conformance with the Generation Interconnection Agreement and able to
deliver energy consistent with the terms of this Agreement, and the Facility is fully
integrated and synchronized with the System.
1.5.4 PacifiCorp has received a certificate addressed to PacifiCorp from a
Licensed Professional Engineer, or an attorney in good standing in Idaho, stating that Seller
has obtained all Required Facility Documents and, if requested by PacifiCorp in writing,
Seller shall have provided copies of any or all such requested Required Facility Documents.
1.5.5 Sellcr has complied with the security requirements of Section I 1.
1.5.6 Network Resource Designation 4nd Transmission Service Request,
(i) PacifiCorp has received confirmation from the Transmission Provider that the Facility has
been designated as a Network Resource and (ii) PacifiCorp has received confirmation from the
Transmission Provider that the transmission serviqe request has been granted in sufficient
capacity to meet or exceed the Maximum Facility Delivery Rate and the Seller has paid all
costs associated with any requirements ofthe tansrnission service request,
1.6 "Commercial Operation Date" means the date, as designatedby PacifiCorp
pursuant to Section 2.4,the Facility first achieves Commercial Operation.
1.7 "Commission" means the Idaho Public Utilities Commission.
L8 "Conforming Energy" means all Net Energy except Non-Conforming
Energy,
1,9 "Conforming Energy Purchase Price" means the applicable price for
Conforming Energy and capacity, specified in Section 5.1.
Ll0 "Contract Year" means a twelve (12) month period commencing at 00:00
hours Pacific Prevailing Time ("PPT") on January I and ending on 24:00 hours PPT on
December 31; provided, however, that the first Contract Year shall commence on the
Scheduled Commercial Operation Date and end on the next succeeding December 31, and
the last Contract Year shall end on the Expiration Date, unless earlier terminated as provided
herein.
l.l1 "Cut-in Wind Speed" means the wind speed at which a stationary wind
turbine begins producing Net Energy, as specified by the turbine manufacturer and set forth
in Exhibit A.
l,l2 "Default Security" shall have the meaning set forth in Section I L2 of this
Agreement.
Ll3 'oDelay Liquidated Damages", "Delay Daily Minimum", "Delay Period",
"Delay Price" and "Delay Volume" shall have tle meanings set forth in Section 2.5 of this
Agreement.
Meadow Creek Project Company LLC-NorthPoint
l.l4 "Delay Period Commencement Date" means October l,2Al3.
1.15 "Delay Security" shall have the meaning set forth in Section I1.1.1 of this
Agreement.
I . I 6 "Effective Date" shall have the meaning set forth in Section 2. I of this
Agreement.
1.17 "Energy Delivery Schedule" shall have the meaning set forth in Section 4.3
of this Agreement.
L l8 'oEnvironmental Attributes" means any and all claims, credits, emissions
reductions, offsets, and allowances, howsoever entitled, associated with the generation of
Output from the Facility or the avoidance of the emission of any gas, chemical, or other
substance to the air, soil or water, that is capable ofbeing measured, verified, or calculated.
Environmental Attributes include but are not limited to: (l) any avoided emissions of pollutants to the
air, soil, or water such as (subject to the foregoing) sulflr oxides (SOx), nitrogen oxides (NOx),
carbon monoxide (CO), and other pollutants; (2) any avoided emissions of carbon dioxide
(C02), methane (CH4), and other gteenhouse gases (GHGs) that have been determined by the
United Nations Intergovernmental Panel on Climate Change to con[ibute to the actual or
potential threat of altering the Earth's climate by tapping heat in the atmosphere; and, (3) all
WREGIS Certificates, Environmental Attributes do not include (i) Production Tax Credits or
certain other tax incentives existing now or in the future associated wittr the construction,
ownership or operation of the Facility, or (ii) adverse wildlife or environmental impacts.
1.19 "Environmental Contamination" means the inhoduction or presence of
Hazardous Materials at such levels, quantities or location, or of such form or character, as to
constitute a violation of federal, state or local laws or regulations, and present a material risk under
federal, state or local laws and regulations that the Premises will not be available or usable for the
purposes contemplated by this Agreement.
1.20 "Expiration Date" shall have the meaning set forth in Section 2,1 of this
Agreement,
l.2l 'oFacility''is defined in Recital A of this Agreement.
1.22 "Facility Capacity Rating" means the sum of the Nameplate Capacity
Ratings for all Wind Turbine generators comprising the Facility.
1.23 "Force Majeure" has the meaning set forth in Section 15.1.
1.24 "Forced Outage" means an outage that requires removal of one or more
Wind Turbines from service, another outage state or a reserye shutdown state before the end
of the next weekend. Maintenance Outages and Planned Outages are not Forced Outages.
1.25 "Generation Interconnecfion Agreement" means the generation
interconnection agreement entered into separately between Seller and Transmission Provider,
as applicable, speciffing the Point of Delivery and providing for the construction and
operation of the Interconnection Facilities.
Meadow Creek Project Company AC-NorthPoint
1,26 "Green Tags" means (a) the Environmental Attributes associated with all
Output, together with (b) the Green Tag Reporting Rights associated with such energy and
Environmental Attributes, however commercially transferred or traded under any or other
product names, such as "Renewable Energy Credits," "Green-e Certified," or otherwise. One
Green Tag represents the Environmental Attributes made available by the generation of one
MWh of energy from the Facility,
1,27 "Green Tag Reporting Rights" means the exclusive right of a purchaser of
Environmental Attributes to report ownership of Environmental Attributes in compliance
with federal or state law, if applicable, and to federal or state agencies or other parties at such
purchaser's discretion, and include reporting under Section 1605(b) of the Energy Policy Act
of 1992, or under any present or future domestic, international, or foreign emissions trading
program or renewable portfolio standard.
1.28 o'Goyernmental Authority" means any supranational, federal, state or other
political subdivision thereof, having jurisdiction over Seller, PacifiCorp or this Agreement,
including any municipality, township or county, and any entity or body exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining to government,
including any corporation or other entify owned or controlled by any of the foregoing.
1.29 'oHazardous Materials" means any waste or other substance that is listed,
defined, designated or classified as or determined to be hazardous under or pursuant to any
environmental law or regulation,
1.30 "fnadvertent Energy" means energy delivered to the Point of Delivery at a rate
exceeding the Maximum Facility Delivery Rate on an hour-averaged basis. Inadvertent
Energy is not included in Net Energy,
l.3l "Index Price", for each day, shall mean the weighted average of the average Peak and
Off-Peak firm energy market prices, as published in the Intercontinental Exchange (ICE)
Day Ahead Power Price Reporl for the Palo Verde Hub for such day. For Sunday and NERC
holidays, the 24-Hour Index Price shall be used, unless ICE shall publish a Firm On-Peak and Firm
OFPeak Price for such days for Palo Verde, in which event such indices shall be utilized for such
days, If the ICE index or any replacernent of that index ceases to be published during the term of ttris
Agreement, PacifiCorp shall select as a replacement a substantially equivalent index that,
after any appropriate or necessary adjustments, provides the most reasonable substitute for
the index in question, PacifiCorp's selection shall be subject to Seller's consent, which Seller
shall not unreasonably withhold, condition or delay.
Ln "Initial Year Energy Delivery Schedule" shall have the meaning set forth in
Section 4.3.1.
L33 "Interconnection Facilities" means all the facilities and ancillary equipment used to
interconnect the Facility to the System, as defined in the Generation Interconnection
Agreement,
l.y "Letter of Credit" means an irrevocable standby letter of credit in a form
reasonably acceptable to PacifiCorp, naming PacifiCorp as the party entitled to demand
payment and present draw requests thereunder. Such letter of credit shall be provided by an
5
. Meadow Creek project Company AC-Northpoiw
institution that is a United States office of a commercial bank or tust company organized under ttre
laws of the United States of America or a political subdivision thereof, with a credit rating on its
long-term senior unsecured debt of at least "A" from Standard & Poor's and"Mu from Moody's
lnvestor Services, and (unless otherwise agreed) having assets of at least $10,000,000,000 (net of
reserves),
1.35 "Licensed Professional Engineer" mearu aperson acceptable to PacifiCorp in its
reasonable judgment who is licensed to practice engineering in the state of Idaho, who has
training and experience in the engineering disciplin{s) relevant to the matters with respect to which
such person is called to provide a certification, evaluation and/or opinion, who has no economic
relationship, association, or nexus wittr Seller, and who is not a representative of a consulting
engineer, contactor, designer or other individual involved in the development of the Facility, or of a
manufacturer or supplier of any equipment installed in the Facility. Such Licensed Professional
Engineer shall be licensed in an appropriate engineering discipline for the required certification being
made. The engagement and payment of a Licensed Professional Engineer solely to provide the
certifications, evaluations and opinions required by this Agreement shall not constitute a
prohibited economic relationship, association ornexrx with Seller, so long as such engineer has no
other economic relationship, association or nexus with the Seller.
I .36 'Maintenance Outage" means any outage of one or more Wind Turbines that is not
a Forced Outage or a Planned Outage. A Maintenance Outage is an outage that can be
defened until after the end of the next weekend, but that requires that the Wind Turbine(s) be
removed from service before the next Planned Outage. A Maintenance Outage may occur any time
during the year and must have a flexible start date.
1,37 "Material Adverse Change" shall mean, with respect to the Seller, if the Seller
has experienced a change in facts or circumstances related to development or operation of
the Facility that materially and adversely impact Seller's ability to fulfill its obligations
under this Agreement.
1.38 "Maximum Facility Delivery Rate" means the maximum instantaneous rate
(kW) at which the Facility is capable of delivering Net Output at the Point of Delivery, as
specified in Exhibit A, and in compliance with the Generation Interconnection Agreement.
1.39 "Maximum GIA Delivery Rate" means the maximum rate (kW) at which the
Generator Interconnection Agreement allows the Facility to deliver energy to the Point of
Delivery and is set forth in Exhibit A.
1.40 'T{ameplate Capactty Rating" means ttre maximum instantaneous generating
capacity of any qualiffing small power or cogenerafion generating unit supplying all or part
of the energy sold by the Facility, expressed in MW or kW, when operated consistent with
the manufachuer's recommended power factor and operating parameters, as set forth in a notice
from Seller to PacifiCorp delivered before the Commercial Operation Date and, if applicable,
updated in the As-built Supplement.
l.4l "NERC" means the North American Electric Reliability Corporation.
1.42 "Net Energy" means the energy component in kWh, of Net Output. Net
Energy does not include Inadvertent Energy.
6
Meadow Creek Project Company ILC-NonhPoittt
1,43 "Net Outpuf ' means all energy and capacity prduced by the Facility, less station use
and less transformation and transmission losses and other adjustments, if any. For purposes
of calculating payment under this Agreement, Net Output of energy shall be calculated as set forth
in Addendum L. Net Output does not include Inadvertent Enerry.
1A4 "Network Resource" shall have the meaning set forth in the Tariff.
lA5 "Network Service Provider" means PacifiCorp Transmission, as a provider
of network service to PacifiCorp under the Tariff.
1.46 "Non{onforming Energy" means Net Output produced by the Facility prior to
the Commercial Operation Date.
1,47 "Non-Conforming Energy Purchase Price" means the applicable price for
Non-Conforming Energy and capacity, specified in Section 5.1,
1.48 "Off-Peak Hours" means all hours of the week that are not On-Peak Hours.
1.49 "On-Peak Hours" means hours from 6:00 a.m. to 10:00 p.m. Pacific
Prevailing Time, Monday through Saturday, excluding Western Electricity Coordinating
Council (WECC) and North American Electric Reliability Corporation (NERC) holidays.
1.50 "Output Shortfall" and "Output Shortfall Damages" shall have the
meanings set forth in Section 4.5 of this Agreement,
1.51 "PacifiCorp" is defined in the first paragraph of this Agreement, and
excludes PacifiCorp Transmission,
1.52 "PacifiCorp Transmission" means PacifiCorp, an Oregon corporation,
acting in its interconnection and transmission function capacity.
L53 "Planned Outage" means an outage of predetermined duration that is
scheduled in Seller's Energy Delivery Schedule, Boiler overhauls, turbine overhauls or
inspections are typical planned outages. Maintenance Outages and Forced Outages are not Plarured
Outages.
1.54 "Point of Delivery" means the point of interconnection between the Facility
and the System, as specified in the Generation Interconnection Agreement and in Exhibit B.
1.55 "Premises" means the real property on which the Facility is or will be
located, as more fully described on Exhibit A.
1.56 "Prime Rate" means the rate per annum equal to the publicly announced
prime rate or reference rate for commercial loans to large businesses in effect from time to
time quoted by JPMorgan Chase & Co. If a JPMorgan Chase & Co. prime rate is not available,
the applicable Prime Rate shall be the announced prime rate or reference rate for commercial loans
in effect from time to time quoted by a bank with $10 billion or more in assets in New York City,
N.Y,, selected by the Parfy to whom interest based on the prime rate is being paid.
Meadow Creek Project Company LLC-NorthPoiw
157 '?roduction Tax Credih" means production tax credits under Section 45 of the
Internal Revenue Code as in effect from tirire to time during the term hereof or any successor
or other provision providing for a federal tax credit determined by reference to renewable
elechic energy produced from wind resources and any correlative state tax credit determined by
reference to renewable electic enerry produced from wind resources for which the Facility is eligible.
Production Tax Credits do not include any tax credit determined by reference to investment,
1.58 "Prudent Electrical Practices" means any of the practices, methods and acts
engaged in or approved by a significant portion of the electrical utility industry or any of the
practices, methods or acts, which, in the exercise of reasonable judgment in the light of the
facts known at flre time a decision is made, could have been expected to accomplish the desired
result at the lowest reasonable cost consistent with reliability, safety and expedition. Prudent
Electrical Practices is not inteuded to be limited to the optimum practice, method or act to the
exclusion of all others, but rather to be a spectum of possible practices, methods or acts.
1.59 "QF"' means "Qualiffing Facility", as that term is defined in the version of
FERC Regulations (codified at 18 CFR Pat292) in effect on the date of this Agreement.
1.60 'T.equired Facility Documents" means all deeds, titles, leases (including
Wind Leases), licenses, permits, authorizations, and agreements demonstrating that Seller
controls the necessary property rights and government authorizations to construct, operate,
and maintain the Facility, including without limitation those set forth in Exhibit C.
l,6l 'S.equirements of Law" means any applicable and mandatory (but not
merely advisory) federal, state and local law, statute, regulation, rule, code or ordinance
enacted, adopted, iszued or promulgated by any federal, state, local or other Govemmental Authority
or regulatory body (including ttrose pertaining to electical, building, zoning, environrnental and
occupational safety and health requirements).
1.62 "scheduled Commercial Operation Date" means December 31,2012, as
such date shall be extended from time to time as a result of Force Majeure; provided, that the
Scheduled Commercial Operation Date shall not be extended beyond September 30, 2013.
1.63 "Scheduled Monthly Enerry Deliveq/'means the Net Energy scheduled to be
delivered during a given calendar month, as specified by Seller in the Energy Delivery
Schedule.
1.64 "Shared Interconnection Facilities" means that portion of the
Interconnection Facilities used by the Facility and one or more other Quali$ring Facilities as
further described in Exhibit B.
L65 "Seller's Forecast-Cost Share" and "Seller's Capped Forecast-Cost
Share" shall have the meanings set forth in Sections 8.2 and 8,3 respectively.
1.66 "Subsequent Energy Delivery Schedule" shall have the meaning set forth in
Section 4.3.3.
1.67 "System" means the electric transmission substation and transmission or
distribution facilities owned, operated or maintained by Transmission Provider, which shall
Meadow Creek Project Company AC-NorthPoint
include, after construction and installation of the Facility, the circuit reinforcements,
extensions, and associated terminal facility reinforcements or additions required to
interconnect the Facility, all as set forth in the Generation Interconnection Agreement.
1.68 "Tariff' means the PacifiCorp Transmission FERC Electric Tariff Seventh
Revised Volume No. I I Pro Forma Open Access Transmission Tariff or the Transmission
Provider's corresponding FERC tariff or both, as revised from time to time.
1.69 'oTransmission Provider" means PacifiCorp Transmission or a successor,
inc luding any re gional transmi ss i on or ganization ("RTO").
1.70 "Wind Leases" means the memoranda of wind lease and redacted wind
leases recorded in the county in which the Facility is located in connection with the
development of the Facility, as the same may be supplemented, amended, extended, restated, or
replaced from time to time.
l.7l "Wind Turbine" mears the type of wind turbine specified and more fully
described in Exhibit A as such Exhibit A may be updated pursuant to Section 2,2.6,
1.72 "WREGIS" means the Western Renewable Energy Generation Information
System.
1.73 "WREGIS Certificate" means "Certificate" as defined by WREGIS in the
WREGIS Operating Rules.
1.74 "WREGIS Operating Rules" means the operating rules and requirements
adopted by WREGIS.
SECTION 2. TERM; COMMERCIAL OPERATION DATE
2.1 This Agreement shall become effective after execution by both Parties and
after approval by the Commission pursuant to a final and non-appealable order ('Tffective
Date'), that ttre prices to be paid for energy ondcqpapity are just and reasonable, in the public
interesf, and that the costs incuned by PacifiCorp for purchases of capacity and energy from Seller
are legitimate expenses, all of which the Commission will allow PacifiCorp to recover in
rates in Idaho in the event otherjurisdictions deny recovery oftheir proportionate share of
said expenses. Unless earlier terminated as provided herein, this Agreernent shall remain in effect
untilthi twentieth (20th) anniversary of the earlier of the Commercial Operation Date or the
Scheduled Commercial Operation Date ("Expiration Date").
2.2 Time is ofthe esssnce ofthis Agreement, and Seller's ability to meet certain
requirements prior to the Commercial Operation Date and to achieve Commercial Operation
by ttre Scheduled Commercial Operation Date is critically imporhnt. Therefore,
2.2.1 By the date that is four (4) months prior to the Scheduled Commercial
Operation Date, Seller shall obtain and provide to PacifiCorp copies ofall governmental permits
and authorizations iisted in ExNbit C.
Meadow Creek Project Compony LlC-NorthPoint
2.2.2 By the date that is thirty (30) days after the Effective Date, Seller shall
provide one hundred percent (100%) of the Delay Security required under Section I L1.1, as
applicable.
2.2.3 By Decemb er 31, 201l, Seller: (i) has provided all information and
paid all fees the Transmission Provider requires to designate the Facility as a Network
Resource in accordance with the Tariff (OATT); and (ii) has provided all information reasonably
required by PacifiCorp to submit a transmission service request for the Facility to the
Transmission Provider pursuant to thc Tariff.
2.2.4 PacifiCorp, within ten (10) days of receiving from Seller the
information identified in Section 2.2.3, shall (i) withdraw the request with respect to the
facility (as defined in the Original PPA) and (ii) request designation of the Facility as a
Network Resource for the purposes of serving Network Load.
2.2.5 At least ten (10) business days prior to delivery of any energy from the
Facility to PacifiCorp, Seller shall provide PacifiCorp with an executed Generation
Interconnection Agreement.
2.2,6 Within one hundred eighty (180) days prior to the Scheduled
Commcrcial Operation Date, Seller shall provide PacifiCorp with amended Exhibits, which
may include the designation of alternative Wind Turbines for the Facility, and such other
updates to the information contained therein.
2.2.7 Prior to the Commercial Operation Date, Seller shall provide Default
Security required under Section ll.2, if applicable.
2.2.8 Prior to the Commercial Operation Date, Seller shall provide
PacifiCorp with an As-built Supplement reasonably acceptable to PacifiCorp.
2.2.9 Seller shall use commercially reasonable efforts to achieve
Commercial Operation by 00:00 PPT December 31,2012.
23 Beginning on January 6,2012 and on the fifth (5th) business day of each
month thereafter until the Comrnercial Operation Date, Seller shall provide PacifiCorp with a
one-page monthly update by e-mail on the progress of financing and/or construction of the
Project and status of completion of the milestones in Section 2.2.
2.4 Establishine Commercial Operation. Seller shall provide written notice to
PacifiCorp stating when Seller believes that the Facility has achieved Commercial Operation.
PacifiCorp shall have ten (10) business days after receipt either to confirm to Seller that all
of the conditions to Commercial Operation have been satisfied or have occurred, or to state with
specificity what PacifiCorp reasonably believes has not been satisfied. Il within zuch ten (10)
business day period PacifiCorp either does not respond or else confirms that the Facility has
achieved Commercial Operation, the original date of receipt of Seller's notice shall be the
Commercial Operation Date. If PacifiCorp notifies Seller within such ten (10) business day period
that PacifiCorp reasonably believes the Facility has not achieved Commercial Operation,
Seller may, if it has a good faittr belief that Commercial Openrtion has been achieved, submit a
Technical Dispute Notice, or else Seller shall address the concems stated in PacifiCorp's notice to
l0
Meadow Creek Project Company LLC-NonhPoint
the mutual satisfaction of both Parties. If Seller submits a Technical Dispute Notice and the
Technical Expert determines that Commercial Operation has been achieved, then the
Commsrcial Operation Date shall be the date, as determined by ttre Technical Expert, that the Facility
frst met all the requirements of Comrnercial Operation; otherwise ttre date upon which Seller has
addressed the concems stated in PacifiCorp's notice to PacifiCorp's reasonable satisfaction, as
specified in a notice from PacifiCorp to Seller, shall be the Commercial Operation Date. If
Commercial Operation is achieved al less than one hundred percent (100%) of the expected Facility
Capacity Rating and Seller informs PacifiCorp that Seller intends to bring the Facility to one
hrmdred percent (10070) of the expected Facility Capacity kting, Seller shall provide PacifiCorp with
a list of all items to be completed in order to achieve the expected Facilify Capacity Rating.
2.4.1 Teghnical Expert. If, and only if, a dispute regards (i) whether or not
Commercial Operation has been achieved, and/or (ii) the date when Commercial Operation was
achieved, the Parties may have such dispute, and only such dispute, resolved pursuant to this
Secfion 2.4.1. Any such diqpute will be determined by an independent technical experL who shall be
a mutually acceptable thnd parfy with taining and experience in the disciplines relevant to the
matters with respect to which such person is called upon to provide a certification, evaluation or
opinion (the "Technical Expert"), which determination shall be (X) made (subject to the
terms in this Section 2.4)rraccordance with the Constuction Industry Arbitation Rules and
Mediation Procedures (Including Procedures for Large, Complex Constuction Disputes) of the
AAA, as amended and effective on October 1,2009 (the "Technical Dispute Procedures'),
notwithstanding any dollar amounts or dollar limitations contained therein, and (Y) binding
upon the Parties.
(a) Either Party may commence the dispute process as to the
matters set forth in paragraph2.4.l, above, with the American Arbitration Association
("ArL{") by notifying Ar\A and the other Party in writing ("Technical Dispute Notice") of such
Party's desire that the dispute be resolved through a determination by a Technical Expert.
(b) The determination shall be conducted by a sole Technical Expert.
The Parties may select any mutually acceptable Technical Expert, If the Partias cannot agree on a
Technical Expert wittrin five (5) days after the date of the Technical DisputeNotice, then the AvLf s
Arbitation Administator shall send a list and rezumes of tlree (3) available technical experts meeting
the qualifications set forth in Section 2.4.1tuthe Part-ies, each ofwhom shall strike one narne, and the
remaining person shall be appointed as the Technical Expert, If more than one name remains,
either because one or both Parties have failed to respond 1s ths fu{{'s Arbitation Administrator
within five (5) days after receiving the list or because one or both Parties have failed to strike a name
from the list or because both Parties sffike the same name, the AAA's Arbitration Administator
will choose the Technical Expert from the remaining names, If the designated Technical Expert
shall die, become incapable or, unwilling to, or unable to serve or proceed with the determination,
a substitute Technical Expert shall be appointed in accordance wittr the selection procedure
described above, and such substitute Technical Expert shall have all such powers as ifhe or she has
been originally appointed herein.
(c) Within thirty (30) days of the appointnent ofthe Technical Expert
pursuant to the foregoing zub-sectiorl each Party shall submit to the Technical Expert (and copy the
ottrer Party) a written report containing its position with respect to the dispute, and arguments
therefor together with supporting documentation and calculations, Discovery shall be limited to
ll
Meadow Creek Project Company LLC--NorthPoint
Facility documentation relating to the disputed matter. Within sixty (60) days from receipt of such
submissions, the Technical Expert shall select one or the other Party's position with respect to the
disputed, arbitrateable issues set forth in Section 2.4,1 above, whereupon such selection shall be a
binding determination upon the Parties for all purposes hereof The costs of the Technical Expert,
including his or her fees and expensas, shall be bome by the Party whose position was not selected by
the Technical Expert; each Party shall otlrerwise bear its own expenses. If the Technical Expert fails
to render a decision within ninety (90) days from receip of each Party's submissions, either Party
may, prior to the Technical Expert's final decision, initiate litigation, in which case the Technical
Expert's final decision shall not be binding on the Parties unless otherwise agreed.
2.4.2 All verbal and written communications betwee,n the Parties and issued or
prepared in connection with this Section 2,4.1 shall be deemed prepared and communicated in
furtherance, and in the context of dispute settlement, and shall be exempt from discovery and
production, and shall not be admissible in evidence (whe*rer as admission or otherwise) in any
litigation or other proceedings for the resolution of the dispute.
2.4.3 All deadlines specified in this Section 2.4 may be extended by mutual
agreement of the Parties.
2.5 Delay Damages. Seller shall cause the Facility to achieve Commercial
Operation on orbeforc the Scheduled Commercial Operation Date. If Commercial Operation occurs
after the Scheduled Commercial Operation Date, Seller shall be liable to pay PacifiCorp
delay damages for the number ofdays ('I)elay Period") that ttre Commercial Operation Date occurs
after October l,z}l3,until the earlier of occurrence ofthe Commercial Operation Date orthe
termination ofttris Agreernent ("Delay Liquidated Damages'); prwided thar Seller shall not accrue
any Delay Liquidated Damages after: (i) Seller has timely achieved the milestone in Section 2.2.3;
and (ii) Seller has satisfied all requirements of Commercial Operation except for one or more
requirements in Section 1.5.6, Billings and payments for Delay Liquidated Damages shall be made
in accordance with Section 1 l. I .
2.5.1 Delay Liquidated Damages, Delay Liquidated Damages equals the sum of:
for each day in the Delay Period, the greater of (l) the Delay Daily Minimum or (2) the
Delay Price times the Delay Volume,
Wherc:
"Delay Daily Minimum" equals (a) for the first forty-five (45) calendar days
following the Scheduled Commercial Operation Date: one-ninetieth (l /90th) of forty-
five dollars ($45) multiplied by the Maximum Facility Delivery Rate with ttre
Maximum Facility Delivery Rate being measured in kW; (b) after the forty-fifttr
1+Sm; calendar day following the Scheduled Commercial Operation Date: tlre Delay
Price times the Delay Volume,
'Delay Price" equals the positive difference, if any, of the Index Price minus the
weighted average of the On-Peak and OflPeak monthly Conforming Energy
Purchase Prices; and
"Delay Volume" equals ttre applicable Scheduled Monthly Energy Delivery
divided by the number of days in that month.
t2
Meadow Creek Project Company AC-NorlhPoirt
2.5.2 Appropriateness of Damages. The Parties agree that the damages
PacifiCorp would incur due to delay in the Facility achieving Commercial Operation on or before
the Scheduled Commercial Operation Date would be difficult or impossible to predict with
certainty, and that ttre Delay Liquidated Damages are an appropriate approximation of such
damages.
SECTION 3. REPRESENTATIONS AND WARRANTIES
3.1 PacifiCorp represents, covenants, and warrants to Seller that:
3,1.1 PacifiCorp is duly organized and validly existing under the laws of the
State of Oregon.
3.1.2 PacifiCorp has the requisite corporate power and authority to enter
into this Agreement and to perform according to the terms of this Agreement
3.1.3 PacifiCorp has taken all corporate actions required to be taken by it to
authorize the execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby.
3,1.4 Subject to Commission approval, the execution and delivery of this
Agreement does not contravene any provision of, or constitute a default under, any
indenture, mortgage, or other material agreement binding on PacifiCorp or any valid order of
any court, or any regulatory agency or other body having authority to which PacifiCorp is
subject.
3.1,5 Subject to Commission approval, this Agreement is a valid and legally
binding obligation of PacifiCorp, enforceable against PacifiCorp in accordance with its terms
(except as the enforceability of this Agreementmaybe limitedbybanlauprcy, insolvency, bank
moratorium or similar laws affecting creditors' rights generally and laws resticting the availability
of equitable remedies and except as ttre enforceability of ttris Agreement may be zubject to general
principles of equity, whether or not such enforceability is considered in a proceeding at equity or
in law).
3.2 Seller represents, covenants, and warrants to PacifiCorp that:
3.2.1 Seller is a limited liability company duly organized and validly
existing under the laws of Delaware.
3,2,2 Seller has the requisite power and authority to enter into this
Agreement and has, or will have at the date of Commercial Operation of the Facility, all
requisite power and authority to perform according to the terms hereof, including all required
regulatory authority to make wholesale sales from the Facility.
3.2.3 Seller's shareholders, directors, and officers have taken all actions
required to authorize the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby.
l3
Meadow Creek Projecl Company ILC-NorthPoint
3.2.4 The execution and delivery of this Agreement does not contravene any
provision of, or constitute a default under, any indenfure, mortgage, or other material
agreement binding on Seller or any valid order of any court, or any regulatory agency or
other body having authority to which Seller is subject.
3.2,5 This Agreement is a valid and legally binding obligation of Seller,
enforceable against Seller in accordance with its terms (except as the enforceability of this
Agreement may be limited by bankruptcy, insolvency, bank moratorium or similar laws
affecting creditors' rights generally and laws restricting the availability of equitable remedies
and except as the enforceabilify of this Agreement may be subject to general principles of
equity, whether or not such enforceability is considered in a proceeding at equity or in law).
3.2.6 The Facility is and shall for the term of ttris Agreement continue to be a
QF. Within thirty (30) days after the Effective Date, Seller shall provide the appropriate QF
certification, which may include a Federal Energy Regulatory Commission self-certification to
PacifiCorp, At any time thereafter that PacifiCorp has reason to believe during the term ofthis
Agreement that Seller's status as a QF is in question, PacifiCorp may require Seller to provide
PacifiCorp with a written legal opinion from an attorney in good standing in the state of Idaho and
who has no economic relationship, association or nexus with the Seller or the Facility (other than
in a capacity as counsel providing such requested legal opinion), stating that the Facility is a
QF and providing sufficient proof (including copies of all documents and data as PacifiCorp
may request) demonstrating that Seller has maintained the Facility as a QF,
3.2.7 Neither the Seller nor any of its principal equity owners is or has
within the past fwo (2) years been the debtor in any bankruptcy proceeding, is unable to pay
its bills in the ordinary course of its business, or is the subject of any legal or regulatory
action, the result of which could reasonably be expected to impair Seller's ability to own and
operate the Facility in accordance with the terms of this Agreement.
3.2.8 Seller has not at any time defaulted in any of its payment obligations
for electricity purchased from PacifiCorp.
3.2.9 Seller is not in default under any of its other material agreements that
would result in Seller's failure to perform its material obligations hereunder.
3.2.1,0 Seller owns all right, title and interest in and to the Facility, free and
clear of all liens and encumbrances other than liens and encumbrances created by or through
Seller related to third-party financing of the Facility, and Seller (or its successor in interest)
will continue to own for the term of this Agreement, all right, title and interest in and to the
Facility, free and clear of all liens and encumbrances other than liens and encumbrances
related to third-party financing of the Facility.
3.2.11 In entering into this Agreement and the undertaking by Seller of the
obligations set forth herein, Seller has investigated and determined that it is capable of
performing hereunder and has not relied upon the advice, experience or expertise of
PacifiCorp in connection with the transactions contemplated by this Agreement.
Meadow Creek Project Company AC-NorthPoint
3.2.I2 All professionals or experts including, but not limited to, engineers,
attorneys or accountants, that Seller may have consulted or relied on in undertaking the
transactions contemplated by this Agreement have been solely those of Seller.
3.2,13 All leases of real property required for the operation of the Facility or
the performance of any obligations of Seller hereunder are set forth and accurately described
in Exhibit C, Upon request by PacifiCorp, Seller shall provide copies of the Wind Leases to
PacihCorp.
3.2.14 All information about the Facility set forth in Exhibit A, Exhibit B, and
Exhibit C has been verified by Seller and is accurate to flre best of its knowledge.
3.3 Notice. If at any time during this Agreement, any Party obtains actual knowledge
of any event or information which would have caused any of the representations and
warranties in this Section 3 to have been materially untrue or misleading when made, such Parry
shall provide the other Parly with written notice of the event or information, the
representations and wamanties affected, and the action, if any, which such Party intends to take to
make the representations and warranties true and correct. The notice required pursuant to this
Section shall be glven as soon as practicable after the occrrrence ofeach such event.
SECTION 4. DELIVERY OF POWER; AVAILABILITY GUARANTY
4,1 Delivery and Accepance. of Net Output. Except for any curtailment specified in
Section 6.3, unless otherwise provided herein, PacifiCorp will purchase and Seller will sell
all Net Output from the Facility.
4.2 No Sales to Third Parties. During the term of this Agreement, Seller shall not
sell any Net Output from the Facility to any entity other than PacifiCorp.
4.3 Energy Delivery Schedule. Seller shall prepare and provide to PacifiCorp, on an
ongoing basis, a written schedule of Net Energy expected to be delivered by the Facility
("Energy Delivery Schedule"), in accordance with the following:
4.3.1 During the first twelve full calendar months following ttre Commercial
Operation Date, Seller predicts that the Facility will produce and deliver the following
monthly amounts ("Initial Year Energy Delivery Schedule"):
Month
January
February
March
April
May
June
July
August
Enerev- Deliverv.(kWh)
21,405,435
17,789,164
24,579,189
19,941,059
22,123,757
17,864,218
16,469,162
19,120,502
Averase kW
28,728
26,494
33,037
27,691
29,686
24,739
22,105
24,339
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Meadow Creek Projecl Company LLC-NorthPoinl
September
October
November
December
TOTAL:
16,867,192
18,958,152
22,001,634
22,364,385
238,483,850
23,461,
25,536
30,563
30,085
27,205
4.3.2 Seller may revise the Initial Year Energy Delivery Schedule any time
prior to the Commercial Operation Date.
4.3.3 Beginning atthe end ofthe ninth full calendar month of operation, and at the
end of every third month thereafter, Seller shall supplement the Energy Delivery Schedule with three
additional months of forward estimates (which shall be appended to this Agreeme,nt using the format
specified in ExhibitD) ('subsequentEnerryDelivery Schedule"), suchthatthe EnerryDelivery
Schedule will provide at least three months of scheduled energy estimates at all times. Seller shall
provide Subsequent Energy Delivery Schedules no later tlnn 5:00 pm PPT of the 5th day after the
due date. If Seller does not provide a Subsequent Energy Delivuy Schedule by the above deadline,
scheduled snergy for the omitted period shall equal the amormts scheduled by Seller for the same
ttrree-month period during the previous year,
4,3.4 Upon and after the Commercial Operation Date, Seller may no longer
revise the Enerry Delivery Schedule for the frst six full calendax months of Cornmercial Operation.
After 5:00 p.m. PPT of the fifth business day following the end of the third full calendar month of
Commercial Operation andthe end of each third calendar month lhereafter, Sellermay no longer
revise the Energy Delivery Schedule for the six calendar months immediately following zuch third
month. Subject to the foregoing restrictions in this Section 4.3.4, Seller may revise the Enerry
Delivery Schedule for any umesticted month by providing written notice to PacifiCorp. Failure to
provide timely written notice of changed amounts will be deerned to be an election of no change.
4.4 Minimum Availabilitv Obligation. Seller shall cause the Facility to achieve an
Availability of at least 85% during each month ('Guaranteed Availability'),
4.5 Liquid4tqd Damases for Output Shortfall. If the Availability in any given
month falls below the Guaranteed Availability, the resulting shortfall shall be expressed in
kWh as the "Output Shortfall." The Output Shortfall shall be calculated in accordance with
the following formula:
Output Shortfall : (Guaranteed Availability - Availability) *
Scheduled Monthly Energy Delivery
Seller shall pay PacifiCorp for any Ouput Shortfall at the lower of (1) the positive difference, if any,
of the lndex Price minus the weighted average ofthe On-Peak and OflPeakmonthly Conforming
Energy Purchase Prices; or (2) the weighted average of the On-Peak and OflPeak monthly
Conforming Enerry Purchase Prices ('Output Shot"lfall Damages').
Output Shortfall Damages = Ouput Shortfall * Ouput Shortfall hice
(Index Price - Weighted Average CEPP), except
16
Wtrere:
Output Shortfall Price =
Meadow Creek Proj ect Company AC-North Point
that if Output Shortfall Price < 0, then Output
Shortfall Price = 0, and except that if Output
Shortfall Price > Weighted Average CEPP, then
Output Shortfall Price: Weighted Average
CEPP
Weighted Average CEPP = the Weighted Average On-Peak and Off-Peak
Conforming Energy Purchase Prices for the
month of Output Shortfall
If an Output Shortfall occurs in any given month, Seller may owe PacifiCorp liquidated
damages. Each Parly agrees and acknowledges that (a) the damages that PacifiCorp would
incur due to the Facility's failure to achieve the Guaranteed Availability would be difficult or
impossible to predict with certainty, and (b) the liquidated damages contemplated in this
Section 4.5 are a fair and reasonable calculation of such damages.
4.6 Audit Riehts. In addition to data provided under Sections 9.3 and9.4,
PacifiCorp shall have the right, but not the obligation, to audit the Facility's compliance with
its Guaranteed Availability using any reasonable methods. Seller agrees to retain all
performance related data for the Facility for a minimum of three yea-rs, and to cooperate with
PacifiCorp in the event PacifiCorp decides to audit such data,
4.7 For a period of ten (10) years from the Commercial Operation Date, Seller
shall have title to the Green Tags immediately upon the generation of the Ouput at the
Facility that gives rise to such Green Tags, On the tenth (l0th) anniversary of the
Commercial Operation Date through and including the Expiration Date, PacifiCorp shall
have title to the Green Tags immediately upon the generation of the Output at the Facility
that gives rise to such Green Tags. Each Party shall execute all additional documents and
instruments reasonably requested by the other Party in order to further document the
ownership of the Green Tags during the respective Party's ownership. Without limiting the
generality of the foregoing, Seller shall, on or before the lOth day of each month during
which PacifiCorp has ownership rights to the Green Tags, deliver to PacifiCorp a Green
Tags Attestation and Bill of Sale (in the form attached as Exhibit 4.7(A)) for all Green Tags
delivered to PacifiCorp hereunder in the preceding month, along with any verification that is
in conformance with the then-current Center for Resource Solution's Green-e program, or
any successor program. The Party having ownership of the Green Tags at the time (the
"Green Tag Owner"), at its own cost and expense, shall register with, pay all fees required
by, and comply with, all reporting and other requirements of WREGIS relating to the Facility
or Green Tags, The Seller shall ensure that the Facility will participate in and comply with,
during the Term, all aspects of WREGIS. The Green Tag Owner shall be responsible for any
costs charged by the qualified reporting entify for the Facility to participate in and comply
with, during the Term, all aspects of WREGIS. The Green Tag Owner shall, at its sole
expense, use WREGIS as required pursuant to the WREGIS Operating Rules, including but
not limited to those rules related to effectuating the transfer of WREGIS Certificates and
transferring such WREGIS Certificates in accordance with WREGIS reporting protocols and
WREGIS Operating Rules and as required under this Agreement. Seller may either elect to
enter into a Qualified Reporting Entity Services Agreement with PacifiCorp in a form similar
to that in Exhibit 4.7(B) or elect to act as its own WREGIS-defined Qualified Reporting
t7
Meadow Creek Project Company ILC-NorthPoiw
Entity. Seller shall upon written request from PacifiCorp provide copies of all
documentation submitted to WREGIS in connection with the Facilify. Further, upon
notification by WREGIS or CAMD that any transfers of Green Tags contemplated by this
Agreement have not been recorded, the Parties shall promptly cooperate in taking all
reasonable actions necessary so that such hansfers can be recorded. Seller shall at its
expense cause the Facility to maintain its registration in good standing with the Center for
Resource Solution's Green-e program, or arly successor program, throughout the Term;
provided, however that each Party shall (a) not take any action (other than the provision of
truthful information) to impair the Facility's good standing with such program and (b) shall
provide such information as is reasonably requested to maintain such registration. The
Parties shall reasonably cooperate in any registration of the Facility in the renewable
portfolio standard or equivalent program in all such further states and programs in which the
Parties may wish to register or maintained registered the Facility by providing copies of all
such information as reasonably required for such registration. Neither Party represents or
warrants that the Green Tags can be used for any purpose, The Parties acknowledge that the
Green Tags may be subject to action by Governmental Authority and neither Party is liable
to the other Party for action taken by a Governmental Authority in connection with the Green
Tags that is not a result of a breach of this Agreement.
SECTION 5. PURCHASE PRICES
5.1 Energ.v Purchase Price. Except as provided in Section 5.3, PacifiCorp will pay
Seller Conforming Energy Purchase Prices or Non-Conforming Energy Purchase Prices, as
applicable, for Net Output adjusted for the month and On-Peak Hours or Off-Peak Hours and
the wind integration cost using the following formulae:
Conforming Energy Purchase Price = (ARo * MPM) -WIC
Non-Conforming Energy Purchase Price = (An"" * MPM) - WIC
Where:
ARce Conforming Energy annual rate from Table l, below, for the
year of the Net Output.
the lower of,
85% of the Conforming Energy annual rate from Table
1 below, for the year of Net Output
or
85% ofaverage ofthe daily Index Price for each day of
the month, or portion of month, of Net Output.
monthly On-Peak or Off-Peak multiplier from Table 2 below,
that corresponds to the month of the Net Output and whether
the Net Output occurred during On-Peak Hours or Off-Peak
Hours.
ARrre
MPM
l8
Meadow Creek Project Company LLC-NorthPoiril
WIC : $6.504{Wh, the wind integration cost prescribed in
Commission Order No. 31021.
Example calculations are provided in Exhibit G.
Table 1: Conforming Enerry Annual Rates
Year Conforming Energy
Annual Rate (AR")
S/MWh
20 2 $.q7
20 3 57.51
20 4 71.32
20 5 75 40
20 5 77.76
7,(7 R0 07
2(8 82 58
20 9 85.05
2020 87.61
2021 90.63
2022 93.78
2023 q7.o5
2024 00.44
2025 03.98
2026 06.98
2027 0.07
2028 1.26
202q 6_56
2030 9.95
2031 24.51
2032 28.50
2033 32.64
2034 36.92
Table 2: Monthly On-Peak/OffiPeak Multiplien
l9
Month On-Peak
Hours
Off-Peak
Ifnrrrs
Januarv 103%94o/"
Februarv t05%97o/o
March 95o/"80o/"
Antil 95o/o 760/"
Mav g)o/"670/"
June 940/"65o/"
Julv t2t%92%
AuEust t2t%l06Yo
SeDtember 109%99o/"
October 115%1O5o/"
November 100/"960/"
December 129%120%
Meadow Creek Project Conpany AC-NofihPoittt
5.2 Payment.
For each Billing Period in each Con0act Year, PacifiCorp shall pay Seller as follows:
For delivery ofConforming Energy:
Payment : (CEnqgrq,.Peak * CEPPriceon-p"ft /1000)+
(CFrmgroir-Pcak * CEPPriceon-Peak/ I 0m)
For delivery of Non-Conforming Energy:
Payment :(NCEnerrys.,.Pcak * NCEPPriceon-peak /l tt00) +
(NCEnogroir-Pcak * NCtrPricmir-Pcak /1 000)
Conforming Energy in kwh
Conforming Enogy Purchase hice in $/IvIWh
Non-C.onforming Energy Purchase Price in kwh
Non-Conforming Enerry Purchase Price in $/Ivfwh
Wherc:
CEnergy :
CEPPrice =
NCEnerry :
NCEPPrice :
OrFPeak
OnPeak
= the correqponding value for On-Peak Hours
: the correqponding value for OflPeak Hours
5.3 tladvertent Energ.v. So long as acceptance of hadvertent Energy does not cause
PacifiCorp to violate the terms of its Network Transmission Service and is consistent with
Prudent Electical Practices, PacifiCorp will accept Inadvertent Energy, but will not purchase or pay
for Inadvertent Energy.
5.4 Additional Compensation. Seller shall not be entitled to any compensation
over and above the Conforming Energy Purchase Prices or Non-Conforming Energy
Purchase Prices, as the case may be, for the Green Tags associated therewith.
SECTION 6. OPERATION AND CONTROL
6.1 As-Built Supplefnent. Upon completion of any construction affecting the
Facility, Seller shall provide PacifiCorp an As-built Supplement bearing the stamp of a Licensed
Professional Engineer that accurately depicts the Facility as built. The As-built Supplement
must be reviewed and approved by PacifiCorp, which approval shall not unreasonably be
withheld, conditioned or delayed.
6.2 Operation. Seller shall operate and maintain the Facility in a safe manner in
accordance with the Generation Interconnection Agreement, Prudent Electrical Practices and
in accordance wittr ttre requirements of all applicable federal, state and local laws and the National
Electric Safety Code as such laws and code may be amended from time to time. PacifiCorp
shall have no obligation to purchase Net Output from ttre Facility to the extent the intercormection
between the Facility and PacifiCorp's elecffic system is disconnected, suspended or intemrpte4 in
whole or in part, pursuant to the Generation Interconnection Agreement, or to the extent
generation curtailrnart is required as a result of Seller's non-compliance with the Generation
Interconnection Agreement. PacifiCorp shall have the right to inspect the Facility to confirm that
20
Meadow Creek Project Company LLC-NorthPoht
Seller is operating the Facility in accordance with the provisions of this Section 6 upon
reasonable notice to Seller. Seller is solely responsible for the operation and maintenance ofttre
Facility, PacifiCorp shall not by reason of its decision to inspect or not to inqpect the Facility, or by
any action or inaction taken with respect to any such inspection, assume or be held responsible
for any liability or occrtrrence arising from the operation and maintenance by Sellu of the Facilify.
6.3 Curtailment. PacifiCorp shall not be obligated to purchase, receive, pay for, or
pay any damages associated with, Net Output (or associated Production Tax Credits or
Environmental Attributes) if such Net Output (or associated Production Tax Credits or
Environmental Attributes) is not delivered to the System or Point ofDelivery due to any ofthe
following: (a) the interconnection between the Facility and the System is disconnected,
suspended or intemrpted, in whole or in part consistent with the terms ofthe Generation
Interconnection Agreement @) the Trarsmission Provider or Network Service Provider directs a
general curtailment reduction, or redispatch of generation in the area (which would include the Net
Output) for any reason, even if such curtailment or redispatch directive is canied out by PacifiCorp,
which may fulfill such directive by acting in its sole discretion; or if PacifiCorp curtails or
otherwise reduces the Net Output in order to meet its obligations to the Transmission Provider or
Network Service Provider to operate within system limitations, (c) the Facility's Output is
not received because the Facility is not fully integrated or synchronized with the System, or
(d) an event of Force Majeure prevents either Party from delivering or receiving Net Output. Seller
shall reasonably determine ttre MWh amount ofNet Output curtailed pursuant to this Section 6.3 after
the fact based on the amount of energy ttrat could have been generated at the Facility and delivered to
PacifiCorp as Net Output but that was not generated and delivered because of the curtailment. Seller
shalldeterminethequantityofzuchcurtailedenergybasedon(x) the time and duration of the
curtailment period and (y) wind conditions recorded at the Facility during the period of
curtailment and the power cuwe specified for the Wind Turbines as shown in Exhibit A. Seller shall
promptly provide PacifiCorp with access to such information and data as PacifiCorp may
reasonably require to confirm to its reasonable satisfaction ttre amount of energy that was not
generated or deliveredbecause of a curtailment described in this Section 6.3.
6.4 PacifiCorp as Merchant. Seller acknowledges that PacifiCorp, acting in its
merchant capacity function as purchaser under this Agreement, has no responsibility for or
conffol over PacifiCorp Transmission or any successor Transmission hovider.
6.5 Outages.
6,5,I Planned Outages. Except as otherwise provided herein, Seller shall not
schedule Planned Outage during any portion of the months of November, December, January,
February, June, July, and August, except to the extent a Planned Outage is reasonably required to
enable a vendor to satisfr a guarantee requirement in a situation in which the vendor is not otherwise
able to perform the guarantee work at a time other than during one of the months specified above or to
the extent such Planned Outage is required in accordance with Prudent Electical Practices. Seller
shall, in Exhibit D, provide PacifiCorp with an annual forecast of Planned Outages for each Contact
Year at least one (1) month, but no more that three (3) months, before the first day of that
Contract Year, and shall promptly update such schedule, or otherwise change it only, to the
extent that Seller is reasonably required to change it in order to comply with Prudent Electical
Practices. Seller shall not schedule more than one hundred fifty (150) hours of Planned Outages for
each calendar year. Seller shall notiff PacifiCorp of any deviation to the annual Planned
21
Meadow Creek Project Company LlC-NorthPoint
Outage schedule, above, on the Monday preceding the scheduling week in which the sooner of the
following will occur: (a) the outage as predicted in the Planned Outage schedule; or (b) the
outage per Seller's revised plans. Such notice shall consist of a Monday-Sunday, hourly
spreadsheet showing the revised total Facility curtailment MW) for that scheduling week. Seller
shall not schedule any maintenance of Shared Interconnection Facilities during Novanber,
December, January, February, June, July, or August, without the prior written approval of
PacifiCorp, which approval may be reasonably withheld by PacifiCorp.
6.5,2 Mainlenance Outages, If Seller reasonably determines that it is necessary to
schedule a Maintenance Outage, Seller shall notify PacifiCorp of the proposed Maintenance
Outage as soon as practicable but in any event at least five (5) days before the outage begins (or zuch
shorter period to which PacifiCorp may reasonably conse,nt in light of then existing wind conditions).
Upon such notice, the Parties shall plan the Maintenance Outage to mutually accommodate the
reasonable requirements of Sellsr and the service obligations of PacifiCorp. Seller shall take all
reasonable measures and use commercially reasonable efforts consistent with Prudent Electrical
Practices to not schedule any Maintenance Outage during ttre following periods: June 15 through Jrure
30, July, August, and September I ttrough September 15. Seller shall include in such notice of a
proposed Maintenance Outage the expected start date and time of ttre outage, the amorurt of
generation capacity of the Facility that will not be available, and the expected completion date and
time of ttre outage, Seller may provide notices under this Section 6,5.2 orally. Seller shall confirm
any such oral notification in writing as soon as practicable. PacifiCorp shall promptly respond
to such notice and may request reasonable modifications in the schedule for the outage. Seller
shall use all reasonable efforts to comply with PacifiCorp's request to modify the schedule for a
Maintenance Outage if such modification has no substantial impact on Seller. Seller shall notify
PacifiCorp of any subsequent changes in generation caparity of the Facility during such Maintenance
Outage and any changes in the Maintenance Outage completion date and time. Seller shall take all
reasonable measures and exercise its commercially reasonable efforts consistent wittr Prudent
Electrical Practices to minimize the frequency and duration of Maintenance Outages.
6.5.3 Forced.Outages. Seller shall promptly provide to PacifiCorp an oral
report, via telephone to a number specified by PacifiCorp, of any Forced Outage of the Facility. Such
report shall include the amount of generation capacrty of the Facility that will not be available because
ofthe Forced Outage and the expected retum date and time of such generation capacity. Seller shall
promptly update the report as necessary to advise PacifiCorp of changed circumstances. Ifttre
Forced Outage resulted in more than 15% ofthe Facility Capacity Rating ofthe Facility being
unavailable, Seller shall confirm the oral report in vwiting as soon as practicable, Seller shall take all
reasonable measures and exercise its commercially reasonable efforts consistent with Prudent
Elecffical Practices to avoid Forced Outages and to minimize their duration.
6.5,4 Notice of Deratings and gutages. Without limiting other notice
requirements, Seller shall notiff PacifiCorp, via telephone or via electronic mail, to a number
or email address specified by PacifiCorp, of any limitation, restriction, derating or oubge
known to Seller that affects the generation capacity ofthe Facility in an amount greater than five
percent (5%) of the Facility Capacity Rating for the following day, Seller shall promptly
update such notice to reflect any material changes to the information in such notice,
6.5.5 Effect of Outageq on-Estimated Output. Seller shall factor Planned
Outages and Maintenance Outages that Seller reasonably expects to encounter in the ordinary
Meadow Creek Project Company LLG-Not'thPoint
couse of operating the Facility into the Scheduled Monthly Energy Delivery amounts in the Energy
Delivery Schedule set forth in Exhibit D.
6.6 Scheduling,
6.6.1 Cooperatio!.qnd St4pdards. With respect to any and all scheduling
requirements in this Agreement, (a) Seller shall cooperate with PacifiCorp with respectto scheduling
Net Outpu! and (b) each Party shall designate authorizedrepresentatives to communicate wittr regard
to scheduling and related matters arising hereunder.
6.6.2 Schedule Coordingtion. I{ as a result of ttris Agreement, PacifiCorp is
deemed by an RTO to be financiallyresponsible for Seller's performance under the Generation
Interconnection Agreement due to Seller's lack of standing as a "scheduling coordinatof 'or other
RTO recognized designation, qualification or otherwise, then (a) Seller shall acquire such RTO
recognized standing (or shall contact with a third party who has zuch RTO reco$lzed standing)
such ttrat PacifiCorp is no longer responsible for Seller's performance under the Generation
lnterconnection Agreement and (b) Seller shall defend, indemnify andhold PaciflCorp hannless
against any liability arising due to Seller's performance or failure to perform under the Generation
Interconnection Agreement or RTO requirement.
6,7 Delivery Exceeding thp MaximurE GIA Delivgry Rate. Seller shall not deliver
energy from the Facility to the Point of Delivery at arate that exceeds the Maximum GIA
Delivery Rate. Seller's failure to limit such deliveries to the Maximum GIA Delivery Rate
shall be a breach of a material obligation subject to Section 12.1.8.
6.8 Access Rightq. Upon reasonable prior notice and subject to the prudent safety
requirements of Seller, and Requirements of Law relating to workplace health and safety,
Seller shall provide PacifiCorp and its authorized agents, employees and inspectors
("PacifiCorp Representatives') with reasonable access to the Facility: (a) for the purpose of reading
or tesfing metering equipment, (b) as necessary to wi0ness any acceptance tests, (c) for purposes of
implementing Section 4.6, and (d) for other reasonable purposes at the reasonable request of
PacifiCorp. PacifiCorp shall release Seller against and from any and all any and all loss, fines,
penalties, claims, actions or suits, including costs and attorney's fees, both at trial and on
appeal rezulting from actions or omissions by any ofthe PacifiCorp Representatives in connection
wittr their access to the Facility, except to the extent that such damages are caused or by the
intentional or grossly negligent act or omission of Seller.
SECTION 7. MOTIVE FORCE
Prior to the execution of this Agreement, Seller provided to PacifiCorp Wind Leases and a
motive force plan including an hourly wind profile acceptable to PacifiCorp in its reasonable
discretion and attached hereto as Exhibit F-1. Within three (3) months after the Effective
Date, Seller will provide a wind report from any of GL Garrad Hassan, AWS Truepower,
LLC, or DNV Global Energy Concepts,Inc, certifying that the implementation of the fuel or
motive force plan can reasonably be expected to provide fuel or motive force to the Facility
for the duration of this Agreement adequate to generate power and energy in quantities
necessary to deliver the Average Annual Net Output. Seller will provide an updated estimate
of Average Annual Net Output at the time it provides an amended Exhibit A pursuant to
Section 2.2.6 it Seller has selected different Wind Turbines.
23
Meadow Creek Project Company lLG*NofihPoint
SECTION 8. GENERATION FORECASTING COSTS
8,1 Forecast Service Elqction. PacifiCorp may, in its discretion, add forecasting
services for Seller's Facility to PacifiCorp's existing contract with a qualified wind-energy-
production forecasting vendor, which conffact and vendormay change during the term of ttris
Agreement.
8.2 Seller's Forecast-Cost Share. Pursuant to Commission Order No, 30497,
Seller shall be responsible for 50Yo of PacifiCorp's cost of adding zuch forecasting services
("Seller's Forecast-Cost Share") up to Seller's Capped Forecast-Cost Share.
8.3 Cap on $e]lef.'s Fo{egasl-9optShare. Seller's Forecast-Cost Share for a given
Contract Year is capped at0.lo/p of total payments made by PacifiCorp to Seller for Net
Output during the previous Contract Year ("Seller's Capped Forecast-Cost Share"). If the last
Contract Year of this Agreement is shorter than a full calendar year, the cap will be prorated
for that shortened year, For the year(s) prior to the second Contract Year of this agreement that
equals a full calendaryear, Seller's Forecast-Cost Share is capped at}.l%of estimatedpayments for
Net Output based on the Energy Delivery Schedule.
8.4 Paymegt, Seller shall pay to PacifiCorp Seller's Forecast-Cost Share
uncapped by Section 8.3 for each Contract Year in equal payments for each month of such
year except the last month of such year. (For example, in a Contract Year equaling a full
calendar year, Seller would pay llllth of Seller's Forecast-Cost Share durirg each ofthe first 1l
months.) In the last month of each Contact Year, PacifiCorp shall refi.rnd to Seller the amourt paid
by Seller under this Section in excess, if any, of Seller's Capped Forecast-Cost Share. For a
Conhact Year encompassed by just one calendar month, Seller's payment to PacifrCorp and
PacifiCorp's refund to Seller shall be calculated and paid simultaneously. To the extent
practicable, payments and refi.urds under this Section shall be included in monthly payrnents and
invoices under Section 10.
SECTION 9. METERING: REPORTS AND RECOR.DS
g.l Metering Adjustment. Metering will be performed at the location specified in
Exhibit B and in the manner specified in the Generator Interconnection Agreement, All
quantities of energy purchased hereunder shall be adjusted in accordance with Addendum
L, so that the purchased amount reflects the net amount of power flowing into the System at the
Pointof Delivery.rr
g.2 M.ets.rine Enors. Ifany inspections or tests made pursuant trc the Generator
Interconnection Agreement discloses an error exceeding two percent (2o/o), either fast or
slow, proper correction, based upon the inaccuracy found, shall be made of previous readings
for the actual period during which the metering equipment rendered inaccurate
measurements if that period can be ascertained. If the actual period cannot be ascertained, the
propff correction shall be made to the measurements taken during the time ttre metering equrpment
was in service since last tested, but not exceeding three Billing Pefiods, in the amoirnt the
I If station service is zupplied via separate facilities, PacifiCorp will deduct station service from the metered facility
output to calculate Net Output,
Meadow Creek Project Company LlC-NorthPobtt
metering equipment shall have been shown to be in enor by such test. Any conection in billings
or payments resulting from a correction in the meter records shall be made in the next monthly
billing or payment rendered.
9.3 Telemeterine. In accordance with the Ge,neration Interconnection Agreement,
Seller shall provide telemetering equipment and facilities capable of transmitting to
Transmission Provider (who will share it with PacifiCorp as authorized by Exhibit H,
"Seller Authorization to Release Generation Data to PacifiCorp') the following information
conceming the Facility on a real-time basis, and will operate such equipment when requested
by PacifiCorp to indicate:
(a) instantaneous M W output at the Point of Delivery;
(b) Net Output;
(c) the Facility's total instantaneous generation capacity; and
(d) wind velocity at turbine hub height.
Seller shall also transmit to PacifiCory any other data from the Facility that Seller receives
on a real-time basis, including meteorological data, wind speed data, wind direction data and
gross output data. Seller shall provide such real-time datato PacifiCorp in the same detail
that Seller receives the data (e.g., if Seller rqceives the data in four second intervals,
PacifiCory shall also receive the data in four second intervals). PacifiCorp shall have the
right from time to time to require Seller to provide additional telemetering equipment and facilities
to the extent necessary and reasonable.
g.4 Monthly Reports and Logs and Other Information
g,4.1 Reports. Within thirty (30) calendar days after the end of each Billing
Period, Seller shall provide to PacifiCorp a report in electronic format, which report shall
include (a) zummaries of the Facility's wind and output data for ttre Billing Period in intervals not to
exceed one hour (or such shorterperiod as is reasonably possible with commercially available
technology), including information from the Facility's computer monitoring system;
(b) summaries of any other significant events related to the construction or operation of the
Facility for the Billing Period; (c) details of Availability of the Facility for the Billing Period
suflicient to calculate Availability and including hourly average wind velocity measured at
turbine hub height and ambient air temperahue; and (d) any supporting information that
PacifiCorp may from time to time reasonably request (including historical wind data for the Facility).
9.4.2 Electonic Fault Log, Seller shall maintain an elecftonic fault log of
operations of the Facility dwing each hour ofthe term of this Agreement commencing on the
Commercial Operation Date, Seller shall provide PacifiCorp with a copy of the electonic fault log
within thrty (30) calendar days afterthe end of the Billing Period to which the fault log applies.
9.4.3 Upon the request of PacifiCorp, Seller shall provide PacifiCorp ttre
manufacturers' guidelines and recommendations for maintenance of the Facility equipment.
25
Meadow Creek Project Compony LLC-NorthPoittt
9.4.4 By each January l0 following the Commercial Operation Date, Seller shall
provide to PacifiCorp written certification that Seller has completed all the manufacturers'
guidelines and recommendations for maintenance of the Facility equipment applicable to the
previous calendar year.
9,4.5 At any time from the Effective Date, one (l) year's advance notice of the
termination or expiration of any agreement, including Wind Leases, pursuant to which the Facility
or any equipment relating thereto is upon the Facility site; provided that ttre foregoing does not
authorize any early termination of any land lease.
9,4.6 As soon as it is known to Seller, Seller shall disclose to PacifiCorp, the
extent of any material violation of any environmental laws or regulations arising out of the
consfuction or operation of the Facility, or the presence of Environmental Contamination at the
Facility or on the Premises, alleged to exist by any Govemmental Authority having jurisdiction over
the Premises, or the present existence of, or the occurrence during Seller's occupancy of the
Premises oq any enforcement, legal, or regulatory action or proceeding relating to such alleged
violation or alleged presence of Environmental Contamination presently occurring or having
occurred dwing the period of time that Seller has occupied the Premises.
9.5 Maintenance of Metering Equipment, To the extent not otherwise provided in the
Generator Interconnection Agreement, PacifiCorp shall inspect, test, repair and replace the
metering equipment periodically, or at the request of Seller if Seller has reason to believe
metering may be offand requests an inspection in writing. To ttre extart not othenvise provided in
the Generator Interconnection Agteement, all PacifiCorp's costs relating to designing, installing,
maintaining, and repairing metering equipment installed to accommodate Seller's Facility shall be
borne by Seller.
g.6 WREQIS Metering. Seller shall cause the Facility to implement all necessary
generation information communications in WREGIS, and report generation information to
WREGIS pursuant to a WREGIS-approved meter that is dedicated to the Facility and only
the Facility,
SECTION 10. BILLINGS. COMPUTATIONS AND PAYMENTS
l0.l Pay{ner-rt fof Net Oplput. On or before the thirtieth (30th) day following the
end of each Billing Period, PacifiCorp shall send to Seller payment for Seller's deliveries of
Net Ouput to PacifiCorp, together with computations supporting zuch payment. PacifiCoqp may
offset any such payment to reflect amouats owing from Seller to PacifiCorp pursuant to this
Agreement or the Generation Interconnection Agreement. Any zuch offsets shall be separately
itemized on the statement accompanying each payment to Seller.
102 Annual Invoicing for Output Shortfall. Thirty calendar days after the end of
each Contact Year, PacifiCorp shall deliver to Seller an invoice showing PacifiCorp's computation of
Output Shortfall, if any, for all Billing Periods in the prior Conhact Year and Output
Shortfall Damages, if any. In preparing such invoices, PacifiCorp shall utilize the meter data
provided to PacifiCorp for the Contract Year in question, but may also rely on historical
averages and such other information as may be available to PacifiCorp at the time of invoice
preparation if the meter data for such Contact Year is then incomplete or otherwise not available. To
the extent required, PacifiCoqp shall prepare any such invoice as promptly as practicable following
26
Meadow Creek Project Company LLC-NorthPoint
its receipt of actual results for the relevant Contract Year. Seller shall pay to PacifiCorp, by
wire transfer of immediately available flrnds to an account qpecified in writing by PacifiCorp or by
any other means agreed to by ttre Parties in writing from time to time, the amount set forth as due in
such invoice, and shall within thirry (30) days after receiving the invoice raise any objections
regarding any disputed portion of the invoice, Objections not made by Seller within the thifiy-day
period shall be deemed waived.
10,3 Interest on Oyerdue Amounts. Any amounts owing after the due date thereof
shall bear interest at the Prime Rate on the date the amount became due, plus two percent
(2o/o), from the date due until paid; provided, however, that the interest rate shall at no time
exceed the maximum rate allowed by applicable law.
104 Disputed Amounts,If either Party, in good faith, disputes any amount due
pursuant to an invoice rendered hereunder, such Party shall notiff the other Parly of the
specific basis for the dispute and if the invoice shows an amount due, shall pay that portion of
the statement that is undisputed, on or before the due date, Any such notice shall be provided
within two (2) years ofttre date of the invoice in which the error first occuned. If any amount
disputed by such Party is determined to be due to the other Party, or if the Parties resolve the
payment dispute, the amount due shall be paid within five (5) days after such determination
or resolution, along with interest in accordance with Section 10,3,
SECTION 11.
I l,l Delay Security:
SECURITY
I L 1.1 Duly to Post Securitv. By the date provided in Section 2.2.2, Seller shall
post a Letter of Credit, cash or a parental guaranty, each in a form acceptable to PacifiCorp, in
the amount calculated pursuant to Section ll.l.2 ('Delay Security"). To the extent PacifiCorp makes
a drawing under the Delay Security, Seller shall, within fifteen (15) calendar days, restore ttre Delay
Security as ifno such deduction had occurred.
ll.l.2 Calculatiofr of Delay Securitv. The dollar value of Delay Security shall
equal the grcater of: (l) forty-five dollars ($a5) multiplied by the Maximum Facility Delivery Rate
with the Maximum Facility Delivery Rate being measured in kW; or (2) ttre sum of ttre products, for
each of the first three calendm months after the Delay Period Commencement Date, of:
the energy in the Initial Year Energy Delivery Schedule for the month (kwh)
multiplied by the monthly weighted average On-Peak and Off-Peak
Conforming Energy Purchase Price for the months ($/UWtr1 divided by 1000,
Such amount shall be fixed upon execution of this Agreement.
I1.1.3 Right to Draw op Securitv. PacifiCorp shall have ttre right to draw on the
Delay Security to collect Delay Liquidated Damages. Commencing on or about first of each month,
PacifiCorp will invoice Seller for Delay Liquidated Damages incuned, if any, during the preceding
month. If insufficient Delay Security is available, Seller shall pay PacifiCorp for invoiced Delay
Liquidated Damages no later than five business days after receiving such invoice, The Parties will
make billings and payments for Delay Liquidated Damages in accordance with Section 10.
27
Meadow Creeh Project Company LlC-NorthPoint
11,14 Partial Release of Delay SScuriE. Provided that Seller has maintained
Delay Security in accordance with Section I I . I . l, PacifiCorp shall release one-third of the original
amount of Delay Security stated in Section 11,1.1 each time Seller accomplishes a milestone
(a) or (b), below:
(a) Seller has (i) executed the Generation Interconnection Agreement
with Transmission Provider; and (ii) paid in full any interconnection and/or system upgrade
costs Seller is obligated to pay in advance of interconnection construction.
(b) Seller has poured the concrete foundation at each of its planned
individual Wind Turbine locations.
PacifiCorp shall make the partial refund of Delay Security required above within ten business
days of the date Seller provides PacifiCorp written notice (along with satisfactory documentation
thereof) that ithas accomplishedmilestone (a) or (b) above.
I l.l .5 Full.ReJease p{Delay SWufity, Unless PacifiCorp disputes whether Seller
has paid all Delay Liquidated Damages, PacifiCorp shall release all remaining Delay Security upon
the earlier of the 30th calendar day following commencement of Commercial Operation orthe
60th calendar day following PacifiCorp's termination of this Agreement.
I 1.1 ,6 Default. Seller's failure to post and maintain Delay Security in accordance
withSection ll,l willconstihrteaneventofdefault,unlesscuredinaccordancewithSection 12,l.l of
this Agreement,
ll.2 Default Security (Levelized Pricing Only). (Reserved)
SECTION 12. DEFAULTS AND REMEDIES
l2.l The following events shall constitute defaults under this Agreement:
l2.l,l Non-Pavment. A Party's failure to make a payrrrent when due under this
Agreement or post and maintain security in conformance with the requirements of Section 1l or
maintain insurance in conformance with ttre requiremeuts of Section 14 ofthis Agreement, ifthe
failure is not curedwithin ten (10) business days after the non-defaulting Party gives the
defaulting Party a notice of the default.
12.1.2 Breach of Represgntatign. Breach by a Parly of a representation or
wananty set forth in this Agreement, if such failure or breach is not cured within thirly (30) days
following written notice,
12.1.3 Default on Qther Agreements. Seller's failure to cure any default under the
Generation lnterconnection Agreement or any other agreement between ttre parties related to this
Agreement, the Generation Interconnection Agreement, or the Facility within ttre time allowed for a
cure under such agreemenl or instrument.
12J.4 Insolvency. A Party (a) makes an assignment for the benefit of its
creditors; (b) files a petition or otherwise commences, authorizes or acquiesces in the
corrmencement of aproceeding or cause of action tmder any bankuptcy or similar law for the
28
Meqdow Creek Project Company LLC-NorthPoint
protection of creditors, or has such apetition filed against it and such petition is not withdrawn or
dismissed within sixty (60) days after such filing; (c) becomes insolvent; or (d) is unable to pay
its debts when due.
12.1.5 Malerial Adverse Change. A Material Adverse Change has occuned with
respect to Seller and Seller fails to provide such performance assurances as are reasonably
requested by PacifiCorp, within thfly (30) days from the date of such request.
12.1.6 Sale to Third-Party, Seller's sale ofNet Output to an enfity other than
PacifiCorp, as prohibited by Section 4.2,
12,1.7 Non-Delivery. Unless excused by an event of Force Majeure (including
PacifiCorp's breach of its obligations under this Agreement), Seller's failure to deliver any Net
Energy for three consecutive calendarmonths.
12.1.8 A Paxty other',rrise fails to perform any material obligation (including but not
limited to failure by Seller to meet any deadline set forth in Section 2.2.1 through 2.29,bu1
excluding Sections 4.7 and9.6) imposed upon that Party by this Agreement if the failwe is not cured
within thlrty (30) days after ttre non-defaulting Party gives the defaulting Party notice ofthe default.
For the avoidance of doubt, the failtre of Seller to achieve the Commercial Operation Date by
December 31,2012 shall not give rise to an Event of Default pursuant to this Section 12.1.8 and the
failure to achieve Commercial Operation Date shall be exclusively govemed by Section 12.1.9.
l2.l.g Seller fails to achieve the Commercial Operation Date by the 91$ day
following the Delay Period Commencement Date, provided, however, that, upon written
notice from the defaulting Party delivered prior to ttre ninety-fi$t (91) day of delay, this ninety (90)
day period shall be extended by an additional one hundred and fifty (150) days if(a) Sellerhas
poured the concrete foundation at each of its planned individual wind turbine locations; and (b) Seller
replenishes Delay Default Security in accordance with Section l l . l .1 . Seller shall continue to accrue
Delay Liquidated Damages in accordance with Section 2.5 @elay Price times the Delay Value) until
the Project achieves Commercial Operation or this Agreement is terminated.
122 In the event of any default hereunder, the non-defaulting Party must notiff the
defaulting Party in writing of the circumstances indicating the default and outlining the
requirements to cure the default. If the default has not been cured within the prescribed time,
above, ttre non-defaulting Party may terminate this Agreernent at its sole discretion by delivering
written notice to the other Party and may ptrsue any and all legal or equitable remedies provided by
law or pusuant to this Agreement, The rights provided in this Section 12 me cumulative such ilrat the
exercise ofone or more rights shall not constitute a waiver of any otho rights.
123 In the event this Agreement is terminated because of Seller's default and Seller
wishes to again sell Net Output from the Facility using the same motive force to PacifiCorp
following such termination, PacifiCorp in its sole discretion may require that Seller do so
subject to the terms of this Agreement, including but not limited to the purchase prices as set forth in
(Section 5), until the Expiration Date (as set forth in Section 2,1). At such time Seller and
PacifiCorp agree to execute a written document ratiffing the terms of this Agreement.
12.4 Ifthis Ageement is terminated as a result of Seller's default, in addition to and not
in limitation of any other right or remedy under this Agreement or applicable law (including
29
Meadow Creek Project Company UC--NorthPoinl
any right to set-off, counterclaim, or otherwise withhold payment), Seller shall pay
PacifiCorp Output Shorfall Damages for a period of eighteen (18) monttrs from the date of
termination plus the estimated administrative cost to acquire the replacement power. The
Parties agree that the damages PacifiCorp would incur due to termination rezulting from Seller's
defaultwouldbe difficult or impossible to predict with certainty, and that the damages in this
Section 12.4 are an appropriate approximation of such damages,
12.5 Recoupment of Damages.
(a) Default Security Available, If Seller has posted Default
Security, PacifiCorp may draw upon that security to satisfy any damages, above.
O) De&ult Sqcurity Unavailable. If Seller has not posted Default
Security, or if PacifiCorp has exhausted ttre Default Security, PacifiCorp may collect any remaining
amount owing by partially wittrholding future payments to Seller over a reasonable period of time,
PacifiCorp and Seller shall work together in good faittr to establish the period, and monttrly
amounts, of such withholding so as to avoid Seller's default on its commercial or financing
agreements necessary for its continued operation ofttre Facility.
12.6 Upon an event of default or erninatior event resulting from default under this
Agreement, in addition to and not in limitation of any other right or remedy under this
Agreement or applicable law (including any right to set-off, counterclaim, or otherwise
withhold payment), the non-defaulting Party may at its option set-ofi against any amounts owed to
the defaulting Party, any amounts owed by the defaulting Party under any contract(s) or
agreemen(s) between the Parties. The obligations ofthe Parties shall be deemed satisfied and
discharged to the extent of any such set-off The non-defaulting Party shall give the defaulting Party
written notice of any set-off, but failure to give such notice shall not affect ttre validity of the set-
off.
12,7 Amounts owed by Seller pursuant to this Section l2 shall be due within five
(5) business days after any invoice from PacifiCorp for the same.
SECTION13. INDEMNIFICATION:LIABILITY
13,I Indemnities.
13.1.1 krdemnitv by Seller. Seller shall release, indemnify and hold harmle,ss
PacifiCorp, its directors, officers, agents, and representatives against and from any and all
loss, fines, penalties, claims, actions or suits, including costs and attomey's fees, both at tial and on
appeal, resulting from, or arising out of or in any way connected with (a) the energy delivered by
Seller under this Agreement to and at the Point of Delivery, (b) any facilities on Seller's side
of the Point of Delivery, (c) Seller's operation and/or maintenance of the Facility, or (d) arising
from Seller's breach of this Agreement, including without limitation any loss, claim, action or zui!
for or on account of injury, bodily or otherwise, to, or death of, persons, or for damage to, or
destruction or economic loss of properly belonging to PacifiCorp, Seller or others, excepting
only such loss, claim, action or suit as may be caused solely by the fault or gross negligence of
PacifiCorp, its directors, officers, employees, agents or representatives.
30
Meqdow Creek Project Company IIC-NonhPoint
13.12 krdemnitv by PacifiCorp. PacifiCorp shall release, indemnify and hold
harmless Seller, its directors, officers, agents, lenders and representatives against and from any and
all loss, fines, penalties, claims, actions or suits, including costs and attomey's fees, both at trial and
on appeal, resulting from, or arising out of or in any way connected with the energy delivered by
Seller under this Agreement after the Point of Delivery, including without limitation any loss, claim,
action or suiq for or on account of injury, bodily or otherwise, to, or death of, persons, or for damage
to, or destuction or economic loss of properfy, excepting only such loss, claim, action or suit as
may be caused solely by ttre fault or gross negligence of Seller, its directors, officers, employees,
agents, lenders or representatives,
132 No. Dedication. Nothing in this Agreement shall be construed to create any
duty to, any standard of care with reference to, or any liabilify to any person not a Parly to
this Agreement. No undertaking by one Party to the other under any provision of this
Agreement shall constitute the dedication of that Party's system or any portion thereof to the
other Party or to the public, nor affect the status of PacifiCorp as an independent public utility
corporation or Seller as an independent individual or entity.
13,3 No Warranty. Any review, acceptance or failure to review Seller's design,
specifications, equipment or facilities shall not be an endorsement or a confirmation by
PacifiCorp and PacifiCorp makes no wananties, expressed or implied, regarding any aspect of
Seller's design, specifications, equipment or facilities, including, but not limited to, safety,
durability, reliability, strength, capacity, adequacy or economic feasibility,
13.4 CQNSEQUENTIAL DAMAGES. EXCEPT TO THE EXTENT SUCH
DAMAGES ARE INCLUDED IN THE LIQUIDATED DAMAGES, DELAY DAMAGES,
OR OTHER SPECITI]ED MEASURE OF DAMAGES DGRESSLY PROVIDED FOR IN THIS
AGREEMENT, NEITI{ER PARTY SHALL BE LIABLE TO TFIE OTHER PARTY FOR
SPECIAL, PLINTITVE, INDIRECT, DGMPI-A.RY OR CONSEQUENTIAL DAMAGES,
WHETHER SUCH DAMAGES ARE ALLOWED OR PROVIDED BY CONTRACT,
TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTE OR OTTMRWISE.
SECTION 14.INSURANCE
l4J CertificateF. Prior to connection of the Facility to the System, Seller shall
secure and continuously carry insurance in compliance with the requirements of this Section,
Seller shall provide PacifiCorp insurance certificate(s) (of "ACORD Form" or the equivalent)
certifying Seller's compliance with the insurance requirements hereunder. Commercial
General Liability covemge wriuen on a "claims-made" basis, if any, shall be specifically identified on
the certificate, If requested by PacifiCorp, a copy of each insurance policy, certified as a tue copy
by an authorized representative of ttre issuing insurance company, shall be furnished to
PacifiCorp.
142 Requir_ed Policies and 9overages. Without limiting any liabilities or any other
obligations of Seller under this Agreement, Seller shall secure and continuously carry with
an insurance company or companies rated not lower than "A-:VII" by the A.M, Insurance
Reports the insurance coverage specified below:
142,1 CommercialGeneral Liability insurance, to include conftachral liability,
with a minimum single limit of $1,000,000 per occurence to protect against and from all loss
31
Meadow Creek Project Company AC*NonhPoiw
by reason of injury to persons or damage to properly based upon and arising out of the activity
under this Agreement.
14.2.2 All Risk Property insurance providing coverage in an amount at least
equal to 80% of the replacement value of the Facility against "all risks" of physical loss or damage,
including coverage for earth movement, flood, and boiler and machinery. The Prope(ypolicymay
contain separate sub-limits and deductibles zubject to insurance company underwriting guidelines.
The fusk Policy will be maintained in accordance with terms available in the insurance market
for similar facilities.
14.3 The Commercial General Liability policy required herein shall include
(i) provisions or endorsements naming PacifiCorp, its Bomd of Directors, Officers and employees
as additional insureds, and (ii) cross liability coverage so that the insurance applies
separately to each insured against whom claim is made or zuit is brought even in instances where
one insured claims against or sues another insured.
14.4 All liability policies required by this Agreement shall include provisions that
such insurance is primary insurance with respect to the interests of PacifiCorp and that any
other insurance maintained by PacifiCorp is excess and not contributory insurance with the
insurance required hereunder, and provisions that such policies shall not be canceled or their limits
of liability reduced without (i) ten (10) business days prior written notice to PacifiCorp if canceled
for nonpayment of premium, or (ii) thirty (30) business days prior written notice to
PacifiCorp ifcanceled for any other reason.
14.5 Commercial General Liability insurance coverage provided on a "claims-made"
basis shall be maintained by Seller for a minimum period of five (5) years after the
completion of this Agreement and for such other length of time necessary to cover liabilities arising
out ofthe activities under this Agreement,
SECTION 15.FORCE MAJEURE
15.1 As used in this Agreement, "Force Majeure" or o'an event of Force
Majeure" means any cause beyond the reasonable control of the Seller or of PacifrCorp
which, despite the exercise of due diligence, such Pa(y is unable to prevent or overcome. By
way of example, Ferce Majeure may include but is not limited to acts of God, flood, storms,
wars, hostilities, civil strife, stikes, and other labor disturbances, earthquakes, fires, lightning,
epidemics, sabotage, resfaint by court order or other delay or failure in the performance as a result
of any action or inaction on behalf of a public authority which is in each case (i) beyond the
reasonable control of such Putty, (ii) by the exercise of reasonable foresight such Party could
not reasonably have been expected to avoid and (iii) by the exercise of due diligence, such
Party shall be unable to prevent or overcome. Force Majeure, however, specifically excludes the
cost or availability of fuel or motive force to operate the Facility or changes in market conditions
that affect the price of energy or transmission. If eittrer Parry is rendered wholly or in part unable
to perform its obligation under this Agreement because of an event of Force Majeure, both Parties
shall be excused from whatever performance is affected by the event of Force Majeure,
provided that:
l5.l.l ttre non-performing Party, shall, as soon as practicable but no later than within
two (2) weeks after the occurence of the Force Majeure, give the other Party written notice
32
Meadow Creek Project Company LlC-NorthPoint
describing the particulars of the occurrence, including the start date of the Force Majeure, the
cause of Force Majeure, whether the Facility remains partially operational and the expected end date
ofthe Force Majeure;
15.1.2 the suspension of performance shall be of no greater scope and of no
longer duration than is required by the Force Majeure;
15.1.3 the non-performing Party uses its best efforts to remedy its inability to
perform; and
15,1.4 the non-performing Party shall provide prompt written notice to the other
Party at the end ofthe Force Majeure event detailing the end date, cause thereofi damage caused t]rere
by and any repairs that were required as a result of the Force Majeure event, and the end date of the
Force Majeure.
15.2 No obligations ofeittrer Party which arose before the Force Majeure causing the
suspension of performance shall be excused as a result of the Force Majeure.
15.3 Neither Party shall be required to settle any strike, walkout, lockout or other
labor dispute on terms which, in the solejudgment ofthe Party involved in the dispute, are confary to
the Parfy's best interests.
SECTION 16. SEVERAL OBLIGATIONS
Nothing contained in this Agreement shall ever be construed to create an association, trust,
partnership or joint venture or to impose a trust or partnership duty, obligation or liability
between the Parties. If Seller includes two or more parties, each such party shall'be jointly
and severally liable for Seller's obligations under this Agreement,
SECTION 17.CHOICE OF LAW
This Agreement shall be interpreted and enforced in accordance with the laws of the state of ldaho,
excluding any choice of law rules which may direct the application of the laws of another
jurisdiction.
SECTION T8. PARTIAL INVALIDITY
It is not the intention of the Parties to violate any laws governing the subject matter of this
Agreement. If any of the terms of the Agreement are finally held or determined to be invalid,
illegal or void as being contrary to any applicable law or public policy, all other terms of the
Agreement shall remain in effect. If any terms are finally held or determined to be invalid, illegal
or void, the Parties shall enter into negotiations conceming the terms affected by such decision for
the purpose of achieving conformity with requirements of any applicable law and the intent
of the Parties to this Agreement.
SECTION I9.WAIVER
Any waiver at any time by either Party of its rights with respect to a default under this
Agreement or with respect to any other matters arising in connection with this Agreement must be in
33
Meadow Creek Project Company LLC*North Poht
writing, and such waiver shall not be deemed a waiver with respect to any subsequent default or
other matter.
SECTION20. GOVERNMENTALJURISDICTIONANDAUTHORIZATIONS
PacifiCorp's compliance wittr ttre terms ofthis Agreement is conditioned on Seller's submission to
PacifiCorp prior to the Commercial Operation Date of copies of all local, state and federal licenses,
permits and other approvals as then may be required by law for the construction, operation and
maintenance ofthe Facility, Failure to maintain such lawful status after the Commercial Operation
Date shall be an event ofdefault, sdectto Section 12.
SECTION 21. SUCCESSORS AND ASSIGNS
2l.l This Agreement and all ofthe terms and provisions hereof shall be binding trpon and
inure to the benefit of the respective successors and assigns of the Parties hereto, except that
no assignment hereof by either Party shall become effective without the written consent of both
Parties being first obtained. Such consent shall not be unreasonably withheld; provided that the
Parties agree that commercially reasonable written amendments to the Exhibits to this
Agreement and such other written updates to the information contained therein related to the
Facility may be made in the event of any assignment of this Agreement pursuant to the terms
of this Section 21.1. Notwithstanding the first ssntenc€ of tttis Section, (a) any entity with which
PacifiCorp may consolidate, or into which it may merge, or to which it may convey or transfer
substantially all of its electric utility assets, shall automatically, without further act, and
without need of consent or approval by the Seller, succeed to all of PacifiCorp's rights,
obligations, and interests under this Agreement and (b) Seller shall have the right to assign
this Agreement, subject to PacifiCorp's written consent, which consent shall not be
unreasonably withheld or delayed, for collateral security purposes to one or more financing
entities (or a collateral agent acting on their behalf) providing financing to Seller for the
Facility, in which event PacifiCorp agrees to provide a written consent in favor of Seller's
financing entities in form and substance similar to consents executed by PacifiCorp in
connection with non-recourse project financings. This article shall not prevent a financing
entity with recorded or secured rights from exercising all rights and remedies available to it under
law or contract. PacifiCorp shall have the right to be notified by the financing entity that it is
exercising such rights or remedies and all such other rights as provided in the written
consent.
21.2 Notwithstanding Section 2l,l,if, as of December 31,2012, Seller has not
achieved Commercial Operation, then Seller shall have the right to to terminate this
Agreement by providing written notice of termination to PacifiCorp on or before January 5,
2013. Upon PacifiCorp's receipt of written notice of termination from Seller, the Original
PPA shall automatically be deemed to be reinstated and in full force and effect, Upon such
termination, PacifiCorp shall return the Delay Security to Seller and Seller shall have no
further liability or obligations of any kind under this Agreement.
21.3 Seller and all successors and assigns acknowledge that this Agreernent is in
part the result of a settlement stipulation between PacifiCorp, CCW and the Staff of the
Idaho Public Utilities Commission that was approved by the Idaho Public Utilities
Commission is Case Nos. PAC-E-11 -01 through PAC-E-l l-05 (the "Stipulation"). This
Agreement is subject to, and incorporates, the terms of the Stipulation,
34
Meadow Creek Project Company llC-NorthPoint
SECTION 22. ENTIRE AGREEMENT
22.1 This Agreement supercedes all prior agrcements, proposals, representations,
negotiations, discussions or letters, whether oral or in writing, regarding PacifiCorp's
purchase of Net Output from the Facility. No modification of this Agreement shall be
effective unless it is in writing and signed by both Parties.
22.2 By executing ttris Agreement, each Parly releases the other from any claims,
known or unknown, that may have arisen prior to the execution date of this Agreement with
respect to the Facility and any predecessor facility proposed to have been constructed on the
site of the Facility.
SECTION 23. NOTICES
All notices except as otherwise provided in this Agreement shall be in writing, shall be directed as
follows and shall be considered delivered if delivered in person or when deposited in the
U.S. Mail, postage prepaid by certified or registered mail and return receipt requested.
Notices
All Notices
Notices
All Invoices:
Scheduling:
PacifiCorp
PacifiCorp
825 NE Multromah Steet Portland,
oR97232
Atfr: Contact A&ninistation,
Suite 600
Phone:(503)8 I 3-5380
Facsimile: (503) 813-
6291E-mail:
Duns: 00-790-9013
Fderal Tax ID Nwnbq: 93 .o246CF0
Seller
Meadow Creek Project Company LLC
83 S. King Street, Suite 200
Seattle, WA 98104
Attn: Joan Hutchinson
Phone: [phone]
Facsimile: 503-296-5450
E-mail: jhutchinson@r1-en, com
Duns: ITBDI
Federal Tax ID Numb€r 80-0326448
PacifiCorp
Attn: Back Office, Suite
700 Phone:(503)8 I 3-5578
Facsimile: (503) 813 -5580
Ath: Resource Planning, Suite 600
Phone: (503) 813 - 6090
Facsimile: (503) 8l 3-6265
Seller
Attn: Lindsay Whitney
Controller
Phone: [phone]
Email: [e-mail]
Athr: Joan Hutchinson
SVP - Origination & Marketing
Phone:2A6424846
ihutchinson@/-en.com
35
Payments:
WireTransfer:
Credit and
Collections
\YithAdditional
Notices of an
Eyent of Default
or Potential
Eventof Default
to:
Attn: Back Office, Suite
700 Phone:[phone]
Facsimile: [phone]
Bank One N,A.
To be provided in separate letter from
PacifiCorp to Seller
Atfin: Credit Man&ge\ Suite 700
Phone:[phone]
Facsimile: (503) 8l 3-5609
Afin: PacifiCorp General Counsel
Phone:(503)8 I 3-5029 Facsimile:
(so3) 813-6761
Meadow Creek Project Company LLG-NorlhPoiw
Attn: Lindsay Whitney
Controller
Phone: [phone]
Email: [e-mail]
Attn: Lindsay Whitney
Controller
Phone: [phone]
Email: lwhitney@rl-en,com
Attn: Lindsay Whitney
Conholler
Phone: [phone]
Email: [e-mail]
Attn: Legal Department
Email: leFal@rl:en.cgrn
Phone: [phone]
The Parties may change the person to whom such notices are addressed, or their addresses,
by providing written notices thereof in accordance with this Section.
36
Meadow Creek hoject Connpany LLC_iIUfiIPoi,lr
.,t
In WITMSS WHEREOF, the Parties have caused this Agreement to be duly exeouted as of
the date fust above written:
PACIFICORP,
an Oregoncorporation
MEADOW CREEK PROJECT
COMPAI\IY LLC
a Delaware limited liability company
DarlNrS ( n
W@rca..Yt
37
Meadow Creek Project Company LLC-NorthPotut
E)(HIBITA
DESCRIPTION OF SELLER'S FACILITY
Seller's Facility consists of 38 wind turbine generato(s) manufactured by Suzlon. More
specifically, each generator at the Facility is described as:
Type (synchronous or inductive): Asynchronous with Inverter
Model: Srzlon 597A,1
Number of Phases: Three
Rated Output 0<W): 2,100 Rated Output (kVA): 2,234kYA
Rated Voltage Qine to line): Line side converter: 600V, machine side convefier: 600V
Rated Current Line(A): Line side converter: 500A, machine side converter:435 A
Maximum kW Outputt2l}} kW Maximum kVA Output 2,234kYA
Minimum kW Outpufi {0 t<W
Manu,facturer's Publish$ Cut-in WEd Speed: 3.5 metenVsecond
Facility Capacity Rating: 79.800 kW at or ebove rated wind speed and belorv cut-out
s@
Maximum Facility Delvery Rate:
Substationat 161kV
kW atPacifiCorp Goshen
MaximumGIADeliveryRate 119J00 kW[combinedwiththeotherRidgeline
Projects described in Addendum LJ
Identify the maximum output of ttre generator(s) and describe any differences between that
output and the Nameplate Capacity Rating: Maximum generator ouput is 21CI kW (same as
Nameplate Capacity Rating)
Station service requirements, and other loads served by the Facility, if any, arc described
as follows: Station service requirements consist of Ridgeline Energy Operations and
Maintenance building loads, hrbine standby loads, and turbine cutout loads. Average turbine
standby load for North Point is approximately 45-60 kW, Cutout loads would be inftequent
and not concurrent with standby loads.
Location of the Facility: The Facility is located in Bonneville County, Idaho. The location
is more particularly described as follows: 43" 33,895'Latitude, I I l" 48,313'Longitude
WGS84. Locations of each hrbine tower relative to other qualifying facilities owned by the
same entity showing compliance with ttre spacing requirements in I 8 C.F.R . $ 292.204 we
attached hereto.
Power factor requiremenb:
Rated Power Factor (PF) or reactive load (WAR): 0.94 Leading to O.94Lagging
Seller has provided a copy of manufacturer's Power Ctwe for the Suzlon 597 -2.1 , PacifiCorp
maintains the power curve in its files pursuant to a Non-Disclosure Agreement between
PacifiCorp and Seller
79.800
A-l
l.
2.
Meadow Creek Project Company LLC--NorthPoiw
EXHIBIT A - Attachments
Norlh PointWindFarm Site lvlap
Distance Between Wind Turbines ofAdjacent Quatifying Facilities
Meadow Creek Project Company LLC-NorthPoit*
40
Meadow Creek Project Company LLC--NorkPoittt
The table below lists the distance between furbines in separate Qualifying Facilities.
Five Pine
TURBINE #
Meadow Creek Project Company LLC*-NorthPotnt
E}ilIIBITB
POINT OF DELIVERY / PARTIES' INTERCONNECTION FACILITIES
[Seller has provided t]re following single line &awing ofthe Facility interconnection facilities
including metering points used to calculate Net Output and any tansmission facilities on Seller's
side of the Point of Delivery.l
The Point of Delivery is the PacifiCorp l6lkV bus at the Goshen substation. The Metering
Point is the high side-ofthe 34,5-161kV st€pup tansformeratMeadow Creek substation.
The meters will be compensated for losses to the Point of Delivery
Norttr Point and Five Pine *iil ,h** ttre Meadow Creek 34.5kv-16lkV collector substation.
Each project will have 34.5kV breakers that will connect to a common 34,5kV bus, The bus will
co*.rt io a single 34.5-l61kv Power Transformer, l6lkv breaker, metering equipmsnt, line
disconnect swihh and a 5 mile l6lkv transmission line to the Jolly Hill Substation.
42
Meadow Creek Project Company LLC--NorthPoint
Meadow Creek
To Jolly Hill Sub
Meadow Creek Sub
j'a__:_:-*__-"1
t1,l?n1r:ry1 s161i34.5/13.8kV = ---<-,JE-:!. fffn
I
To Five
.IOWTG'S
3S
It
Pines ll
$ WTGs
9[14ry
I
10WTG'$10WTG's
^,5 mile, 161kV
t{ov€rnber 27 .2411
43
Meadow Creek Project Company LLC--NorthPoful
44
Meadow Creek Project Company LLC-NorthPoirt
EXHIBITC
REQI-]IRED FACILITY DOCUMENTS
Quali$ring FacilityNurnber tc be obtained ftom FERC
The following Documents are required prior to delivery of any ouput from the Facility:
Ge,neration Interconnection Agreement
Agreement permitting Seller access to shared interconnection facilities
Property rights required to maintain and operate the Project in accordance with this
Agreement (site leases, transmission easements, etc).
The following Permits are required on or before the milestone date specified in Section 2,2,l.
Federal Aviation Adminishation Determination of No Hazard Bonneville County
Special Use Permit Crossing agreements withparties otherthanPacifiCorp Transmission
45
Meadow Creek Project Company LLC--NorthPoint
E)CIIBITI)
SUBSEQUENT ENERGY DELIVERY SCHEDULE
North Point Wind Proiect
Scheduled Monthly Energy
Delivery Ave kWmo
Januarv 2t-405.435 28728
Februarv t7.789.164 26.494
March 24.579.189 33.037
Anril 19.941.059 27.691
May 22-t23.757 29.686
June 17.864.218 24.738
Julv 16 469.162 22.105
Auzust 18.120.502 24.339
Seotember 16.867.192 23.461
October I 8.958.1s2 25 536
November 22.00t.634 30.563
December 22-364.385 30.085
TOTAL:238,483,850 27,205
Planned Outages. Seller will provide a Planned Outage schedule annually not to exceed 150
hours per year.
D-l
46
Meadow Creek Project Company LLC-NorkPoiw
EXHIBIT E
START.UP TESTING
Required factory testing includes such checks and tests necessary to determine that the
equipment systems and subsystems have been properly manufactured and installed, function
properly, and are in a condition to permit safe and efficient start-up of the Facility, which may
include but are not limited to:
l, Testofmechanical and electical equipment;2. Calibration ofall monitoring insfuments;3, Operating tests of all valves, operators, motor startos and motor;4, Alarms, signals, and fail-safe or system shutdown control tests;5, Point-to-pointcontinuitytests;6. Bench tests ofprotective devices; and7. Tests required by manufacturers) and designe(s) of equipment,
Required start-up tests are those checks and tests necessary to determine that all features
and equipment, systems, and subsystems have been properly installed and adjusted, function
properly, and are capable of operating simultaneously in such condition that the Facility is
capable of continuous delivery into PacifiCorp's electrical system, which may include but are
not limited to:
l. Turbine/generator mechanical runs and functionality;2. System operation tests;3. Brake tests;4. Energization of tansformers;5. Synchronizing tests (manual and auto);6. Excitation and voltrage regulation operation tests;7. Auto stop/start sequence;8, Completion of any state and federal environmental testing requirernents; and9. Tests required by manufacturer(s) and designer(s) of equipment.
For wind projects only, the following Wind Turbine Generator Installation Checklists are required
documents to be signed off by Manufacturer or Subcontract Category Commissioning Personnel
as part of the Commissioning and startup testing:
Turbine Installation
Foundation kspection (by Owner's independent inspector)
ContollerAssembly
PowerCables
CablekutallationChecklistsincluding: Contoller
Top Deck/YawDeckTowsr
Top Section/ SaddleMid
Section Cables orbuss bars
Base Section
Tower Base Section
Tower Lights and Outlets
TowerMid Section
TowerTop Section
Nacelle & Rotor
47
Meadow Creek Project Company LLC---l,lorth Poin
E)CIIBITF.I
MOTTYEFORCE PI-AI{
WIND SPEED DATA SUMMARIES & HOURLY WIND PROF{LE
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Meadow Creek Project Company LLC--Nofii Poiw
ExldbitF2
Deleted
Meadow Creek Project Company LLC---l,lorth Point
E)ilIIBITG
SAMPLE ENERGY PURCFIASE PRICE CArcUT..A.TTONS
The following are samples of calculations of energy pwchase prices using the formula and tables
in Section 5.1.
The calculation for the non-levelized purchase price during an On-Peak Hour in May of 2012
equals $60.24lIvIWh (the 2012 annual rate for Conforming Energy) multiplied by 92% (0.92)
(ttre May On-Peak Hour multiplier) minus $6.50/I\{Wh (the wind integration cost), which equals
s48.92A4Wh.
Table l: Sample calculations for non-levelized On-Peak Conforming Energy n2012: Purchase
Price = (annual rate * monttrly On-Peak multiplier) - wind integration cost.
Month Conforming
Energy
AnnualRate
for 2012
(perMWh)
On-Peak
Hour
Multiplier
Wind
lntegration
Cost
Calculated Purchase
Price for 2012 On-
Peak Conforming
Energy (per MWh)
Januarv $60,24 103%s6.s0 $55,55
February $60.24 t05%$6.s0 $s6.7s
March $60.24 950h $6.50 $50.73
April $60,24 95o/o $6.s0 $s0.73
May $60.24 92o/o $6.s0 $48.92
June $60.24 94%$6.50 $50.13
July $60.24 t2t%$6.s0 $66.39
Aueust $60.24 t2t%$6.50 $66,39
September $60.24 109%$6.s0 $s9.16
October $60.24 tt5%$6.50 $62.78
November $60.24 ll00/,$6.s0 $59.76
December $60,24 t29%$6,50 $71.21
Table 2: Sample calculations for non-levelized Off-Peak Conforming Enerry n2012: Purchase
Price = (annual rate * monthly Off-Peakmultrplier) - wind integration cost.
Month Conforming
Energy
AnnualRate
for 2012
(per MWh)
OfrPeak
Hour
Multiplier
Wind
Integration
Cost
Calculated Purchase
Price for 2012 Off-
Peak Conforming
Enerry (per MWh)
Januarv $60.24 94%$6.s0 s50. I 3
Februarv $60.24 97%$6.s0 $51.93
March $60.24 80o/o $6.s0 $41,69
52
Meadow Creek Project Company LLC--I{orth Point
Month Conforming
Energy
Annual Rate
for 2012 (per
Nrwh)
Off-Peak
Hour
Multiplier
Wind
Integration
Cost
Calculated Purchase
Price for 2012 Otf-
Peak Conforming
Energy (per MWh)
April $60.24 760/0 $6.s0 $39.28
Mav $60.24 63%s6.s0 $3 r,4s
June $60.24 6s%$6.s0 $32.66
Julv s60.24 92o/o $6.50 $48.92
Auzust s60.24 1060h $6.s0 $57.3s
September s60.24 99o/o $6.50 $53.14
October $60.24 l05o/o $6.s0 $56.75
November $60.24 960/0 $6.s0 $51 .33
December $60.24 120%$6.50 $6s.79
53
Meadow Creek Project Company LLC-NorthPoin
EXHIBIT H
Seller Authorization to Release Generation Data to PacifiCorp
Ridgeline Energy LLC
1300 NNorthlake Way
Seattle, WA 98103
Direc'tor, Transmission Services
PacifiCorp
825 NE Multnomah, Suite 1600
Portland, OR 97232
29 Novsmber, 2011
To Whom it May Concern:
Ridgeline Energy LLC, on behalf of Meadow Creak Project, ("Seller") hereby voluntarily
authorizes PacifiCorp's Transmission business unit to sharc Sellet's interconnection information
with Marketing Affrliate employees of PaoifiQorp Energy, including but not limited to those in
the Comrnercial and Trading group, Seller acknowledges that PacifiCorp did not provide it any
preferences, either operational or rate-relate4 in exchange for this voluutary consent.
Joan Huochinson
svP
Ridgeline Energy LLC
54
Meadow Creek Project Company LLC--NorthPoira
ADDENDT]M L
TO BE REWSED
STATION LOAD, LOSSES, and NET OUTPUT
ALLOCATION ALGORITHM FOR THE
CEDAR CREEK WIND, LLC PROJECTS
This Addendum L is hereby made aparl of and clarifies certain terms in, the Power Purchase
Agreement between Cedar Creek Wind, LLC relating to FIVE PINE, and PacifiCorp
("Agreement") entered into the 22ld-day of December,20l0, Capitalized terms not defined
herein shall have the meaning set form in the Agreement, Cedar Creek Wind, LLC ("Seller")
and PacifiCorp are at times referred to herein individually as a "Party" or collectively as the
"Parties".
Cedar Creek Wind, LLC shall own a complex of five (namely, Coyote Hill, Five Pine, Steep
Ridge, North Point, and Rattlesnake Canyon) separate, Idaho small wind Qualiffing Facilities
(each, a "Cedar Creek Project" and collectively, the "Cedar Creek Projects") that share
collector wires, a 34.51345 kV substation (Cedar Creek Substation), and related equipment,
which connect the Qualiffing Facilities to the Point of Delivery ("Shared lnterconnection
Facilities").
PacifiCorp has agreed to buy (and Seller has agreed to sell), at the Point of Delivery, Seller's
total energy output net of: (l) Seller's station service; (2) energy provided by Seller to another
Cedar Creek Project for station service; (3) Selle/s share of the tansformation losses; and (a)
Selle/s share of the line losses between Seller's Facility and the Point of Delivery (together
Seller's "Station Auxiliary Load and Losses"). However, Seller and PacifiCorp agree that it is
impossible to measure Seller's Station Auxiliary Load and Losses separate and apart from the
Station Auxiliary Load and Losses of ttre other Cedar Creek Projects. Therefore, in order to
implement an objective, practicable, and equitable process by which PacifiCorp may quantify
energy delivered by Seller to the Point of Delivery (net of its Station Auxiliary Load and
Losses), the Parties do agree as follows:
A. Billing Formulae. PacifiCorp shall determine Seller's Net Output in kWh for purposes of
the Agreement using the method specified below.
1. Definitions
I.IRj = the nameplate rating (a/Wa Facility Capacity Rating) of Cedar Creek Project i.
NRr : the sum of all the nameplate ratings of Cedar Creek Projects (i : I to 5).
PALLI= the accumulated purchased energy from Utility Supplier, as determined at the Point
of Delivery, to supply the net total station auxiliary load and losses for the Shared
lnterconnection Facilities for Cedar Creek Projects i : I to 5 whenever such total
load and losses exceeds total generation output.
PALL; : the allocated share of PALLI for Project i as determined by multiplying PALLr by
NRj and dividing by NRr.
55
oPr
Nq
NOi
Meadow Creek Project Company LLC--NorthPoint
OP; : for a given integration interval, the metered output energy of Cedar Creek Project i,
as determined by PacifiCorp's meter at the point where Cedar Creek Project i
connects to the Shared Interconnection Facilities. For any integration interval
during which any energy is delivered to a Project from the Shared Interconnection
Facilities, such delivered energy is accumulated in a separate meter register and
does not decrement the register used to measure accumulated OPj. Therefore OPj is
by definition always greater ftran or equal to zero, and in the event the meter records
OPj less thanzero, OPi shall be deemed to equal zero.
: the sum of all OPj (i: I to 5).
= for a given integration interval, the total energy delivered to the Point of Delivery
(345 kV bus at Goshen Substation). NOr shall be as measured at PacifiCorp's
meter near the Point of Delivery GWh, in l0-minute intervals), adjusted for any
transformation losses between the meter and the Point of Delivery, For any
integration interval during which any energy is delivered to the Point of Delivery
from PacifiCorp's system, such delivered energy is accumulated in a separate meter
register of the PacifiCorp_meter and does not decrement the register used to
measure accumulated Net Output energy. Therefore NOr is by definition always
greater than or equal to zero and in the event the meter records NOr less than zero,
NOr shall be deemed to equal zero.
the net energy sold to PacifiCorp by Cedar Creek Project i during the integration
interval.
SALLI = the total of all station auxiliary load and losses for the Shared Interconnection
Facilities for Cedar Creek Projects (i = I to 5) when NOr is positive.
SALLj : the allocated share for Cedar Creek Project i of SALLT.
2. Calculations
Calculations shall be reconciled and settled monthly. Calculations shall be based upon raw data
gathered from specified meters using a metering integration interval of S, 10, or IS minutes at
PacifiCorp's election to match the metering installation PacifiCorp specified ("integration
interval"). Calculations shall be rounded to the nearest kilowatt-hour in the final step.
fal. When Total Generatiorl Output <: Station Auxil,iary) Load and,Losses
When, for any integration interval, the total of all OPj Project output amounts of energy among
all Cedar Creek Projects (OPr) is less than or equal to the total station auxiliary load and losses
for ttre Shared lnterconnection Facilities, the meters at the Point of Delivery will accumulate the
Utility Supplier's delivery of purchased energy, PALLT, to supply such net total load and losses
in a meter regrster that is separate from that which accumulates NOr and NOr shall equal zero or
if negative, be deerned to equal zero. The "Utility Supplier'r shall be the utility providing retail
electic service at the Facility (Rocky Mountain Power). PacifiCorp shall have no obligation to
serve any of the Cedar Creek Projects'retail elecffic needs absent a separate written agreement
with PacifiCorp and then only with ttre permission of Seller's Utilify Supplier. None of the costs
associated with provision of retail electric service to Seller shall be bome by PacifiCorp.
56
Meadow Creek Project Company LLC-NorthPoiw
ft\. When Total Gener,ation Output > $tation Autriliary !.oad and [.osses
When, for any integration interval, the total generation of energy among all Cedar Creek
Projects is greater than the total station auxiliary load and losses for the Shared
lnterconnection Facilities, the meters at the Point of Delivery will accumulate in a separate
register PacifiCorp's receipt of ttre total combined energy from all the Projects (NOr). The
difference between OPr and NOr for that interval (SALLT) is allocated to each Cedar Creek
Project in proportion to its generation output (OPj) in the same integration interval to
determineNOj by the formulae:
Let SALLr :[OPpNOl] and
SALLi : [SALLT] * [OPi/OPr]
The Net Output energy sold by each Project i is then determined as:
NOj
Noj
: tOPj - SALLi I and substituting for SALLi;
: NOr * [OPi/OPr]
B. Limitation of PacifiCorp Purchase Liability. PacifiCorp's totalpurchase obligation to
the Cedar Creek Projects shall at no time exceed total energy delivered by the Cedar Creek
Projects to the Point of Delivery. Therefore, in the event the sum of the Net Output energy
(calculated according to the preceding formulae) for all the Cedar Creek Projects is greater
than NOr, then PacifiCorp shall reduce calculated Net Output energy from each Cedar
Creek Project, pro rata each Cedar Creek Project's share of the OPt, such that the total
energy purchased from all the Cedar Creek Projects at the Point of Delivery by PacifiCorp
equals NOr.
C. PaciliCorp Right to Offset. In the event PacifiCorp determines it has underpaid one
or more Cedar Creek Projects (due to metering effor or otherwise) and, as a result of
underpaying one or more Cedar Creek Projects, has overpaid Seller, PacifiCorp may adjust
Seller's future payment(s) accordingly in order to recapture any overpayment received by
Seller in a reasonable time.
D. Condition Subsequent. This Addendum L was negotiated jointly among the Cedar
Creek Projects and PacifiCorp and is intended by all of the Cedar Creek Projects and
PacifiCorp to be one of five identical bilateral agreements, each between PacifiCorp and a
Cedar Creek Project, but each related to the other. Therefore, in the event one or more
Cedar Creek Projects does not agree to be bound by the terms and conditions set forth in
this Addendum L, PacifiCorp may, upon thirty days written notice, cancel all Addendum
L agreements. In the event PacifiCorp cancels this Addendum L in accordance with this
Section D, PacifiCorp may satisfy its obligation to pay Seller by depositing when due,
with an escrow agent chosen by the Cedar Creek Projects, the total payment due to all
5'.1
Meadow Creek Project Company LLC-NorihPoin
Cedax Creek Projects under their reqpective Power Purchase Agwmeifs, less offsets (if
any) calculated based upon NOr and tlrc Contract Price,
IENDI
58
SETTLN]MENT AGREEMENT ANT} .RELEASE
1. The parties to this Settlement Agreement and Release ("Agreement") aie
PacifiCorp, an Oregon corporation, Windland,Inc., a California corporation
("Windland"), Power County Wind ParkNorth,LLC, a Delaware limited liability
company ("Wind ParkNorth"), End Power County Wind Park South,LLC, a Delaware
limited liability company ("Wind Park South"). Windland is the manager and sole
member of Wind ParkNorth and Wind Park South. PacifiCorp, Windland, Wind Park
North, and Wind Park South may be referred to singly as a "PartS/" and collectively as the
"Parties."
2. In consideration of the promises and covenants in this Agreement and subject to
the terms and conditions of this Agreement, the Parties agree as follows:
(a) PacifiCorp and Wind Park North shall execute the Power County Wind Park
North power purchase agreement and attached Addendum L (copy attached as Exhibit A)
when they execute this Agreement;
(b) PacifiCorp and Wind Park South shall execute the Power County Wind Park
South power purchase agreement and attached Addendum L (copy attached as Exhibit B)
when they execute this Agreement;
(c) Upon execution of this Agreement the Parties shall suspend all discovery
deadlines, including without limitation suspending Windland's August 6,2010 deadline
for discovery responses by the Idaho Public Utilities Commission ("IPUC") staff, and
shall suspend all other litigation actions under the Parties' control in IPUC Case No.
PAC-E-10-05 until the IFUC has taken action on the application to be filed by PacifiCorp
pursuant to Section 2(Q of this Agreement;
(d) Within five (5) business days of execution ofthis Agreement, PacifiCorp shall
make a formal request to PacifiCorp Transmission for Network Transmission Service for
Power County Wind Park North and Power County Wind Park Souttr as Network
Resources;
(e) Windland agrees that its complaint against PacifiCorp in IPUC Case No. PAC-
E-10-05 shall be dismissed with prejudice at the same time the IPUC approves the Power
County Wind Park North power purchase agreement and the Power County Wind Park
South power purchase agreement, and Windland hereby authorizes PacifiCorp to apply to
the IPUC to approve the power purchase agreements and dismiss the pending complaint.
(f) Within five (5) business days of execution of this Agreement, PacifiCorp shall
apply to the IPUC using the application attached hereto as Exhibit C in order to (1) obtain
IPUC review and approval of both the executed Power County Wind Park North power
purchase agteement and the executed Power County Wind Park South power purchase
agreement and, subject to IPUC approval of both power purchase agreements, (2) dismiss
with prejudice Windland's pending complaint in IPUC Case No. PAC-E-10-05; and
SETTLEMENT AGREEMENT AND' RELEASE I of 7
(g) Within five (5) business days of execution of this Agreement, Windland shall
withdraw its pending Idaho Supreme Court appeal of IPUC Case No. GNR-E-10-01.
3. This Agreement shall operate as a full and complete general release of PacifiCorp
("Released Party') by Windlan4 Wind Park North, andWind Park South (the "Releasing
Parties"), despite the discovery of any new, different, or additional facts than were
known to the Releasing Parties at the time they executed this Agreement from any and all
claims, demands, actions, suits, and causes of action arising out of, or in any way related
to the subject matter of Windland's complaint in IPUC Case No. PAC-E-10-05 filed on
or about April 6,2010 with regard to the Power County Wind ParkNorth project or the
Power County Wind Park South project. In addition, with regard to any qualifying
facility projects presently or hereafter owned, controlled or promoted by the Releasing
Parties or their affiliates, subsidiaries, successors or assigns, this Agreement shall operate
as a full and complete general release by the Releasing Pmties of any and all claims,
demands, actions, suits, and causes of action against the Released Party arising out of or
in any way related to the assertion that any Releasing Party's qualifying facility is
entitled to published avoided cost rates, including wind integration cost adjustments, in
effect in Idaho prior to the effective date of IPUC Order No. 31025. The terms in this
par4graph will continue in full force and effect even after the Parties have complied with
all other conditions in this Agreement
4. This Agreement is binding upon and shall inure to the benefit of the Parties and
their respective heirs, administrators, executors, trustees, legal representatives, corporate
parents, corporate subsidiaries, corporate affiliates, successors, predecessors, assigns,
directors, officers, agents, employees, insurers and transferees.
5. For the purposes of this Agreement, "PacifiCorp" includes PacifiCorp and all of its
parent, subsidiary, affiliate, predecessor and successor organizations, corporations or
franchises as well as all of the current or former corporate officers, investors, directors,
employees, shareholders, insurers, independent consultants, agents or assigns, including
those connected with all organizations and corporations referred to in this paragraph.
6. This Agreement is made and entered into for the purpose of settiing and
compromising disputed claims and is not, and shall not be construed as, an adrnission of
any sort by PacifiCorp. PacifiCorp expressly denies any wrongdoing and any liability.
7. Each Party has read this Agreement and understands its contents. The Parties
acknowledge that they were represented by independent counsel of their choice
throughout all negotiations that preceded the o(ecution of this Agreement. The Parties
acknowledge and represent that each has had sufficient time to consider and understand all
of the terms of this Agreement. This Agreement shall not be construed against the
drafter.
SETTLEMENT AGREEMENT AND RELEASE 2of1
8. The rights and obligations of the Parties to this Agreement shall be construed and
enforced in accordance with, and govemed by, the laws of the State of Idaho.
9. This Agreement contains the entire agreement and understanding between the
Parties and supersedes and replaces all prior negotiations and proposed agreements,
written or oral. No amendments, modificittions or supplements to this Agreement may be
made other than by a signed writing.
10. Each Party shall bear its own costs in IPUC Case No. PAC-E-10-05.
11. This Agreement may be executed in counterparts, each of which is an original and
all of which taken together constitute one and the same instrument.
12. Each person siguing this Agreement on behalf of a Party represents and warrants
that he or she has full authority to bind such Party and that all action necessary for such
Party to enter into this Agreement has been taken.
1.3. If the IPUC has not approved the Power County Wind Park North power purchase
agreement and the Power County Wind Park South power purchase agreement within one
hundred and twenty (120) calendar days of the execution of this Agreement, any Party
may terminate this Agreement upon written notice to the other Parties.
[Signature P4ge Follows]
SETTLEMENT AGREEMENT AND RELEASE 3 of 7
IT IS SO AGREED:
PacifiCorp Windlandr Inc.
yi
(
itl
B
T
Date:
Senior Vice President and
General Counsel, Rocky Mountain
Power
(the "Effective,
e: President
,2070 Date: A * ,/A.2o1o
Power County Wind Park North, L,LC
Title: Manager
oate: **/6 ,zoto
Power County Wind Park South, LLC
By:
Doskeland
Manager
I -/6 ,roro
Title:
Date:
SETTLEMENT AGREEMENT AND RELEASE 4of7
POWER PURCHASE AGREEMENT
BETWEEN
POWER COUNTY WIND PARKNORTH, LLC
[a non-fueled, on-system, Intermittent Resource with Mechanical Availability Guarantee,
Idaho Qualifuing Facility-l 0alvlWilvlonth or lessl
A}ID
PACIFICORP
Section 1: Definitions............. ..................... I
Section 2: Term, Commercial Operation Date......... ....................... 9
Section 3: Representations and Warranties............ ...... 11
Section 4: Delivery of Power; Availability Guaranty... ................. 13
Section 5: Purchase Prices ....... 16
Section 6: Operation and Control ................ ................ 18
Section 7: Motive Force........ .....................22
Section 8: Generation Forecasting Costs .....................22
Section 9: Metering; Reports and Records................ ....................23
Section l0: Billings, Computations and Payments.. .....................25
Section 11: Security .................26
Section 12: Defaults and Remedies........... ..,..............27
Section 13: Indemnification; Liability... .....................29
Section 14: Insurance.............. ..................30
Section 15: Force Majeure.... ....................31
Section 16: Several Obligations................ ..................32
Section 17: Choice of Law...... ..................32
Section 18: Partial lnvalidity ....................32
Section 19: Waiver ..................33
Section 20: Governmental Jurisdiction and Authorizations .........33
Section 21: Successors and Assigns ......... 33
Section 2Z:EfiteAgreement ...................33
Section 23: Notices............... ....................34
POWERPURCHASE AGREEMENT to+L
THIS POWER PURCHASE AGREEMENT ("Agreemenf '), entered into this I O day ofgqcp&_,209 is between Power County Wind Park North,LLC, Delaware limited liability
cdmpany (ttre "Seller") and PacifiCorp, an Oregon corporation acting in its merchant function
capacity (6'PacifiCorp"). Seller and PacifiCorp are referred to collectively as the "Parties" and
individually as a 6'Party".
RECITALS
A. Seller intends to construct, own, operate and maintain a wind facility, for the
generation of electric power located in Power, County, Idaho with an expected Facility Capacity
Rating of 21,780 kilowatts (kW) as further described in Exhibit A and Exhibit B ("f,'acility")
B. Seller has secured rights to deliver output from its Facility to PacifiCorp across
interconnection facilities owned by Power County Wind Park South, LLC (a Qualifying
Facility); Seller and Power County Wind Park South, LLC have agreed to allocate comingled
line losses on those interconnection facilities as set forth in Addendum L.
C. Seller intends to operate the Facility as a Quali8ring Facility, as such tenn is
defined in Section 1.57 below, and to sell Net Output to PacifiCorp in Idaho.
D. Seller estimates that the average annual Net Output to be delivered by ttre Facility
to PacifiCorp is 67,311,441 kilowatt-hours GIfh) ("Average Annual Net Output") pursuant to
the monthly Energy Delivery Schedule in Exhibit D hereto, which amount of energy PacifiCorp
will include in its resource planning.
E. Seller intends to sell and PacifiCorp intends to purchase all the Net Output from
the Facility in accordance with the terms and conditions of this Agreement.
F. PacifiCorp intends to designate Seller's Facility as a Network Resource for the
purposes of serving Network Load.
G. This Agreement is a "New QF Contracf'under the PacifiCorp Inter-Jurisdictional
Cost Allocation Revised Protocol.
H. Seller E has [_] has not authorized Transmission Provider to release generation
data to PacifiCorp. If yes, the authorization is attached as Exhibit H.
I. This Agreement is part of a compromise of a legal dispute between PacifiCorp
and Seller. As such, this Agreement shall not establish any precedent regarding PacifiCorp's
treatment of Qualifying Facilities.
NOW, THEREFORE, the Parties mutually agree as follows:
SECTION 1: DEI'INITIONS
When used in this Agreement, the following terms shall have the following meanings:
1.1 Supplement" shall be a supplement to Exhibit A, provided by
of the Facility, accurately describing theSeller following completion of construction
completed Facility.
L.2 "Availability" means, for any Billing Period, the ratio, expressed as a
percentage, of (x) the aggregate sum of the turbine-minutes in which each of the Wind
Turbines at the Facility was available to generate at the Maximum Facility Delivery Rate
during the Billing Period over (y) the product of the number of Wind Turbines that comprise
the Facility Capacity Rating as of Commercial Operation multiplied by the number of
minutes in such Billing Period. A Wind Turbine shall be deemed not available to operate
during minutes in which it is (a) in an emergency, stop, service mode or pause state; (b) in(6run" status and faulted; or (c) otherwise not operational or capable of delivering at the
Maximum Facility Delivery Rate to the Point of Delivery; unless if unavailable due solely to
(i) a default by PacifiCotp; (ii) to the extent not caused by Seller's actions, a curtailrnent in
accordance with Section 6.3; (iii) insufficient or surplus wind (including the normal amount
of time required by the generating equipment to resume operations following a period when
wind speed is below the Cut-In Wind Speed or above the Cut-Out Wind Speed); (iv) a
Planned Outage or Maintenance Outage in accordance with Section 6.5.1 or 6.5.2
(respectively) up to a maximum of 36 hours per Wind Turbine per year; or (v) Force Majeure
events under Section 15.1.
1.3 "Billing Period" means the time period between PacifiCorp's reading of its
power purchase meter at the Facility and for this Agreement shall coincide with calendar
months.
1.4 'oBusiness Day" means any calendar day, from 8 a.m. to 5 p.m. prevailing
Mountain Time on which banks in the State of Idaho are required to be open for business
except Saturday and Sunday.
1.5 "Commercial Operation" means that not less than the 90Yo of the expected
Facility Capacity Rating is fully operational and reliable and the Facility is fully
interconnected, fully integrated, and synchronized with the System, all of which shall be
Seller's responsibility to receive or obtain, and which occurs when all of the following events
(i) have occurred, and (ii) remain simultaneously true and accurate as of the date and moment
on which Seller gives PacifiCorp notice that Commercial Operation has occurred:
1.5.1 PacifiCorp has received a certificate addressed to PacifiCorp from a
Licensed Professional Engineer (a) stating the Facility Capacity Rating of the Facility at
the anticipated time of Commercial Operation and (b) stating that the Facility is able to
generate electric power reliably in amounts required by this Agreement and in accordance
with all other terms and conditions of this Agreement.
1.s.2
with Exhibit E.
1.5.3
Start-Up Testing of the Facility has been completed in accordance
PacifiCorp has received a certificate addressed to PacifiCorp from a
Licensed Professional Engineer, an attorney in good standing in Idaho, or a letter from
2
Transmission Provider, stating that in accordance with the Generation Interconnection
Agreement, all required interconnection facilities have been constructed, all required
interconnection tests have been completed and the Facility is physically interconnected
with the System in conformance with the Generation Interconnection Agreement and able
to deliver energy consistent with the terms of this Agreement, and the Facility is fully
integrated and synchronized with the System.
r.5.4 PacifiCorp has received a certificate addressed to PacifiCorp from a
Licensed Professional Engineer, or an attorney in good standing in Idaho, stating that
Seller has obtained all Required Facility Documents and, if requested by PacifiCorp in
writing, Seller shall have provided copies of any or all such requested Required Facility
Documents.
1.5.5
1.5.6
Seller has complied with the security requirements of Section 11.
Network Resource Desisnation and Transmission Service Request.
(a) Seller has provided all data required by the Transmission Provider
to enable the Facility to be designated as a Network Resource in
accordance with the Tariff.
(b) PacifiCorp has received confirmation from the Transmission
Provider that the Facility has been designated as a Network
Resource.
(c) Seller has provided all data required for PacifiCorp to submit a
transmission service request for the Facility pursuant to the Tariff.
(d) PacifiCorp has received confirmation from the Transmission
Provider that the transmission service request has been granted in
sufficient capacity to meet or exceed the Maximum Facility
Delivery Rate and the Seller has paid all costs associated with any
requirements of the transmission service request.
1.6 "Commercial Operation Date" means the date, as designated by PacifiCorp
pursuant to Section 2.4,the Facility first achieves Commercial Operation.
t.7 "Commission" means the Idaho Public Utilities Commission.
1.8 'oConforming Energy" means all Net Energy except Non-Conforming Energy.
1.9 "Conforming Energy Purchase Price" means the applicable price for
Conforming Energy and capacity, specified in Section 5.1.
l.l0 "Contract Year" means a twelve (12) month period commencing at 00:00
hours Mountain Prevailing Time ("MPT") on January I and ending on 24:00 hours MPT on
December 3l; provided, ltowever, that the first Contract Year shall commence on the
Commercial Operation Date and end on the next succeeding December3l, and the last
Contract Year shall end on the Expiration Date, unless earlier terminated as provided herein.
1.11 "Cut-in Wind Speed" means the predicted wind speed at which a stationary
wind turbine begins producing Net Energy, as specified by the turbine manufacturer and set
forttr in Exhibit A.
l.l2 "Cut-out Wind Speed" means the predicted wind speed at which an operating
Wind Turbine stops producing Net Energy due to excess wind speed, as specified by the
turbine manufacturer and set forth in Exhibit A.
1.13 "I)elay Liquidated I)amages", "Delay Daily Minimum", "Delay Period",
"Delay Price" and "Delay Volumeo' shall have the meanings set forth in Section 2.5 of this
Agreement. "Delay Security" shall have the meaning set forth in Section 11.1.1 of this
Agreement.
l.l4 "Default Security''shall have the meaning set forth in Section 11.2 of this
Agreement.
1.15 "Effective Date" shall have the meaning set forth in Section 2.1 of this
Agreement.
1.16 "Energy Delivery Schedule" shall have the meaning set forttr in Section 4.3 of
this Agreement.
l.l7 "Environmental Attributes" means any and all claims, credits, benefits,
emissions reductions, offsets, and allowances, howsoever entitled, resulting from the
avoidance of the emission of any gas, chemical, or other substance to the air, soil or water,
which are deemed of value by PacifiCorp. Environmental Attributes include but are not
limited to: (1) any avoided emissions of pollutants to the air, soil, or water such as (subject
to the foregoing) sulfur oxides (SOx), nitrogen oxides (NOx), carbon monoxide (CO), and
other pollutants; and (2) any avoided emissions of carbon dioxide (CO2), methane (CH4),
and other greenhouse gases (GHGs) that have been determined by the United Nations
Intergovernmental Panel on Climate Change to contibute to the actual or potential threat of
altering the Earth's climate by trapping heat in the atmosphere. Environmental Attributes do
not include (i) Production Tax Credits or certain other tax incentives existing now or in the
future associated with the construction, ownership or operation of the Facility, (ii) matters
designated by PacifiCorp as sources of liability, or (iii) adverse wildlife or environmental
impacts.
l.l8 "Environmental Contamination" means the inhoduction or presence of
Hazardous Materials at such levels, quantities or location, or of such form or character, as to
constitute a violation of federal, state or local laws or regulations, and present a material risk
under federal, state or local laws and regulations that the Premises will not be available or
usable for the purposes contemplated by this Agreement.
1.19 "Expiration I)ate" shall have the meaning set forth in Section 2.1 of this
Agreement.
1.20 "Facility" is defined in Recital A of this Agreement.
l.2l "Facility Capacity Rating" means the sum of the Nameplate Capacity Ratings
for all generators comprising the Facility.
1.22 "Force Majeure" has the meaning set forth in Section 15.1.
1.23 "Forced Outage" means an outage that requires removal of one or more Wind
Turbines from seryice, another outage state or a reserve shutdown state before the end of the
next weekend. Maintenance Outages and Planned Outages are not Forced Outages.
1.24 "Generation Interconnection Agreement" means the generation
interconnection agreement entered into separately between Seller and Transmission Provider,
as applicable, specifuing the Point of Delivery and providing for the construction and
operation of the Interconnection Facilities.
1.25 "Governmental Authority" means any supranational, federal, state or other
political subdivision thereof, having jurisdiction over Seller, PacifiCorp or this Agreement,
including any municipality, township or county, and any entity or body exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining to government,
including any corporation or other entity owned or controlled by any of the foregoing.
1.26 "flazardous Materials" means any waste or other substance that is listed,
defined, designated or classified as or determined to be hazardous under or pursuant to any
environmental law or regulation.
1.27 "Inadvertent Energy" means: (1) energy delivered to the Point of Delivery in
excess of the Maximum Monthly Purchase Obligation; and (2) energy delivered to the Point
of Delivery at a rute exceeding the Maximum Facility Delivery Rate on an hour-averaged
basis. Inadvertent Energy is not included in Net Energy.
I.28 "Index Price", for each day, shall mean the weighted average of the average
Peak and Off-Peak firm energy market prices, as published in the Intercontinental Exchange
(ICE) Day Ahead Power Price Report for the Palo Verde Hub. For Sunday and NERC
holidays, the 24-Hour Index Price shall be used, unless ICE shall publish a Firrr On-Peak
and Firm Off-Peak Price for such days for Palo Verde, in which event such indices shall be
utilized for such days. If the ICE index or ary replacement of that index ceases to be
published dwing the term of this Agreement, PacifiCorp shall select as a replacement a
substantially equivalent index that, after any appropriate or necessary adjustments, provides
the most reasonable substitute for the index in question. PacifiCorp's selection shall be
subject to Seller's consent, which Seller shall not unreasonably withhold, condition or delay.
1.29 "Initial Year Energy Delivery Schedule" shall have the meaning set forth in
Section 4.3.1.
1.30 "fnterconnection f,'acilities" means all the facilities and ancillary equipment
used to interconnect the Facility to the System, as defined in the Generation Interconnection
Agreement.
1.31 "Letter of Credit" means an irrevocable standby letter of credit in a form
reasonably acceptable to PacifiCorp, naming PacifiCorp as the party entitled to demand
payment and present draw requests thereunder. Such letter of credit shall be provided by an
institution that is a United States office of a commercial bank or trust company organized
under the laws of the United States of America or a political subdivision thereof, with a
credit rating on its long-term senior unsecured debt of at least "A" from Standard & Poor's
and"AZ" from Moody's Investor Services, and having assets of at least $10,000,000,000 (net
ofreserves).
1.32 "Licensed Professional Engineer" means a person acceptable to PacifiCorp in
its reasonable judgment who is licensed to practice engineering in the state of Idaho, who has
training and experience in the engineering discipline(s) relevant to the matters with respect to
which such person is called to provide a certification, evaluation and/or opinion, who has no
economic relationship, association, or nexus with the Seller, and who is not a representative
of a consulting engineer, contractor, designer or other individual involved in the development
of the Facility, or of a manufacturer or supplier of any equipment installed in the Facility.
Such Licensed Professional Engineer shall be licensed in an appropriate engineering
discipline for the required certification being made. The engagement and payment of a
Licensed Professional Engineer solely to provide the certifications, evaluations and opinions
required by this Agreement shall not constitute a prohibited economic relationship,
association or nexus with the Seller, so long as such engineer has no other economic
relationship, association or nexus with the Seller.
1.33 'oMaintenance Outage" means any outage of one or more Wind Turbines that
is not a Forced Outage or a Planned Outage. A Maintenance Outage is an outage that can be
deferred until after the end of the next weekend, but that requires that the Wind Turbine(s) be
removed from service before the next Planned Outage. A Maintenance Outage may occur
any time during the year and must have a flexible start date.
1.34 "Material Adverse Change" shall mean, with respect to the Seller, if the
Seller, in the reasonable opinion of PacifiCorp, has experienced a material adverse shange in
ability to fulfill its obligations under this Agreement.
1.35 'oMaximum f,'acility Delivery Rate" means the maximum instantaneous rate
(kW) at which the Facility is capable of delivering Net Output at the Point of Delivery, as
specified in Exhibit A, and in compliance with the Generation Interconnection Agreement.
1.36 'oMaximum GIA Delivery Rate" means the maximum rate (kW) at which the
Generator Interconnection Agreement allows the Facility to deliver energy to the Point of
Delivery and is set forth in Exhibit A.
1.37 "Maximum Monthly Purchase Obligation" means the maximum amount of
energy PacifiCorp is obligated to purchase under this Agreement in a calendar month. ln
accordance with Commission Order No. 29632, the Maximum Monthly Purchase Obligation
for a given month, in kWh, shall equal 10,000 kW multiplied by the total number of hours in
that month and prorated for any partial month.
1.38 "Nameplate Capacity Rating" means the maximum instantaneous generating
capacity of any qualiffing small power or cogeneration generating unit supplying all or part
of the energy sold by the Facility, expressed in MW or kW, when operated consistent with
the manufacturer's recommended power factor and operating parameters, as set forth in a
notice from Seller to PacifiCorp delivered before the Commercial Operation Date and, if
applicable, updated in the As-built Supplement.
1.39 "NERC" means the North American Electric Reliability Corporation.
1.40 "Net Energy" means the energy component, in kWh, of Net Output. Net
Energy does not include Inadvertent Energy.
l.4l "Net Ou@ut" means all energy and capacity produced by the Facility, less
station use and less fransformation and transmission losses and other adjustments, if any. For
purposes of calculating payment under this Agreement, Net Output of energy shall be the
amount of energy flowing through the Point of Delivery, less any station use not provided by
the Facility. Net Output does not include Inadvertent Energy.
1.42 "Network Resource" shall have the meaning set forth in the Taritr
1.43 "Network Service Provider" means PacifiCorp Transmission, as a provider of
network service to PacifiCorp under the Tariff.
1.44 "Non-Conforming Energy" means Net Output produced by the Facility prior
to the Commercial Operation Date.
1.45 "Non-Conforming Energy Purchase Price" means the applicable price for
Non-Conforming Energy and capacity, specified in Section 5.1.
1.46 "Off-Peak Hours" means all hours of the week that are not On-Peak Hours.
1.47 "On-Peak Hours" means hours from 7:00 a.m. to 11:00 p.m. Mountain
Prevailing Time, Monday through Saturday, excluding Western Electricity Coordinating
Council (WECC) and North American Electric Reliability Corporation (NERC) holidays.
1.48 "Output Shortfall" and "Output Shortfall Damages" shall have the
meanings set forth in Section 4.5 of this Agreement.
1.49 "PacifiCorp" is defined in the first paragraph of this Agreement, and excludes
Pacifi Corp Transmission.
1.50 "PacifiCorp Transmission" means PacifiCorp, an Oregon corporation, acting
in its interconnection and transmission function capacity.
1.51 "Planned Outage" means an outage of one or more Wind Turbines of
predetermined duration that is scheduled in Seller's Energy Delivery Schedule. Boiler
overhauls, turbine overhauls or inspections are typical planned outages. Maintenance
Outages and Forced Outages are not Planned Outages.
7
1.52 "Point of Delivery" means the high side of the generation step-up
transformer(s) located at the point of interconnection between the Facility and the System, as
specified in the Generation Interconnection Agreement and in Exhibit B.
1.53 o'Premises" means the real property on which the Facility is or will be located,
as more fully described on Exhibit A.
1.54 "Prime Rate" means the rate per annum equal to the publicly announced
prime rate or reference rate for commercial loans to large businesses in effect from time to
time quoted by JPMorgan Chase & Co. If a JPMorgan Chase & Co. prime rate is not
available, the applicable Prime Rate shall be the announced prime rate or reference rate for
commercial loans in effect from time to time quoted by a bank with $10 billion or more in
assets in New York City, N.Y., selected by the Pafiy to whom interest based on the prime
rate is being paid.
1.55 "Production Tax Credits" means production tax credits under Section 45 of
the Internal Revenue Code as in effect from time to time during the term hereof or any
successor or other provision providing for a federal tax credit determined by reference to
renewable electric energy produced from wind resources and any correlative state tax credit
determined by reference to renewable electric energy produced from wind resources for
which the Facility is eligible. Production Tax Credits do not include any tax credit
determined by reference to investrnent.
1.56 "Prudent Electrical Practices" means any of the practices, methods and acts
engaged in or approved by a significant portion of the electrical utility indusfiry or any of the
practices, methods or acts, which, in the exercise of reasonable judgment in the light of the
facts known at the time a decision is made, could have been expected to accomplish the
desired result at the lowest reasonable cost consistent with reliability, safety and expedition.
Prudent Electrical Practices is not intended to be limited to ttre optimum practice, method or
act to the exclusion of all others, but rather to be a spectrum of possible practices, methods or
acts.
1.57 ('Qtrr" means "Qualifying Facility", as that tenn is defined in the version of
FERC Regulations (codified at 18 CFR Pafi292) in effect on the date of this Agreement.
1.58 "Required Facility l)ocuments" means all deeds, titles, leases (including
Wind Leases), licenses, permits, authorizations, and agreements demonstrating that seller
controls the necessary property rights and government authorizafions to construct, operate,
and maintain the Facility, including without limitation those set forth in Exhibit C.
1.59 "Requirements of Law" means any applicable and mandatory (but not merely
advisory) federal, state and local law, stafute, regulation, rule, code or ordinance enacted,
adopted, issued or promulgated by any federal, state, local or other Governmental Authority
or regulatory body (including those pertaining to electrical, building, zoning, environmental
and occupational safety and health requirements).
1.60 "Scheduled Commercial Operation Date" means the date by which Seller
promises to achieve Commercial Operation, as specified in Section 2.2.6.
1.61 "Scheduled Monthly Energy Delivery" means the Net Energy scheduled to
be delivered during a given calendar month, as specified by Seller in the Energy Delivery
Schedule.
1.62 "Seller's Forecast-Cost Share" and "Seller's Capped Forecast-Cost Share"
shall have the meanings set forth in Sections 8.2 and 8.3 respectively.
1.63 'oSubsequent Energy Delivery Schedule" shall have the meaning set forth in
Section 4.3.3.
1.64 'oSystem" means the electric transmission substation and transmission or
distribution facilities owned, operated or maintained by Transmission Provider, which shall
include, after construction and installation of the Facility, the circuit reinforcements,
extensions, and associated terminal facility reinforcements or additions required to
interconnect the Facility, all as set forth in the Generation Interconnection Agreement.
1.65 "Tariff' means the PacifiCorp Transmission FERC Electric Tariff Seventh
Revised Volume No.l1 Pro Forma Open Access Transmission Tariff or the Transmission
Provider's corresponding FERC tariffor both, as revised from time to time.
1.66 "Transmission Provider" means PacifiCorp Transmission or a successor,
including any regional transmission organizatton ('RTO").
1.67 "Wind Leases" means the memoranda of wind lease and redacted wind leases
recorded in the county in which the Facility is located in connection with the development of
the Facility, as the same may be supplemented, amended, extended, restated, or replaced
from time to time.
1.68 "Wind Turbine" means a Vestas V100, 1.8 megawatt wind turbine. At its fulI
Facility Capacity Rating, the Facility will consistof 12 Wind Turbines.
SECTION 2: TERM. COMMERCIAL OPERATION DATE
2.1 This Agreement shall become effective after execution by both Parties and
after approval by the Commission ("Effective Date"); provided, however, this Agreement
shall not become effective until the Commission has determined that the prices to be paid for
energy and capacity are just and reasonable, in the public interest, and that the costs incurred
by PacifiCorp for purchases of capacity and energy from Seller are legitimate expenses, all of
which the Commission will allow PacifiCorp to recover in rates in Idaho in the event other
jurisdictions deny recovery of their proportionate share of said expenses. PacifiCorp shall
seek such Commission approval promptly upon execution of this Agreement.
Unless earlier terminated as provided herein, the Agreement shall remain in effect until24:00
MPT December 31,2031 ("Expiration Date").
2.2 Time is of the essence of this Agreement, and Seller's ability to meet certain
requirements prior to the Commercial Operation Date and to achieve Commercial Operation
by the Scheduled Commercial Operation Date is critically important. Therefore,
2.2.1 By June l, 2011, Seller shall obtain and provide to PacifiCorp
copies of all govemmental pennits and authorizations necessary for construction of the
Facility.
2.2.2 By the date 30 calendar days after the Effective Date, Seller shall
provide Delay Security required under Section 11.1.1, as applicable.
2.2.3 At least ten business days prior to delivery of any energy from the
Facility to PacifiCorp, Seller shall provide PacifiCorp with an executed Generation
Interconnection Agreement.
2.2.4 Prior to Commercial Operation Date, Seller shall provide Default
Security required under Section 11.2, as applicable.
2.2.5 Prior to Commercial Operation Date, Seller shall provide PacifiCorp
with an As-built Supplement acceptable to PacifiCorp.
2.2.6 By 24200 MPT December 31, 2011, Seller shall achieve
Commercial Operation ("Scheduled Commercial Operation Date").
2.3 Beginning on the first day of the first month following the Effective Date,
Seller shall provide PacifiCorp a one-page monthly update by e-mail on the progress of the
milestones in Section 2.2.
2.4 Establishing Commercial Operation. To achieve Commercial Operation,
Seller must provide, subject to PacifiCorp's written approval which will not be unreasonably
withheld, written notice to PacifiCorp stating when Seller believes that the Facility has
achieved Commercial Operation accompanied by the certificates described in Section 1.5.
PacifiCorp's approval, if given, shall designate the Commercial Operation Date. In no event
will delay in achieving the Scheduled Commercial Operation Date postpone the Expiration
Date specified in Section2.l.
2.5 Delay Damages. Seller shall cause the Facility to achieve Commercial
Operation on or before the Scheduled Commercial Operation Date. If Commercial Operation
occurs after the Scheduled Commercial Operation Date, Seller shall be liable to pay
PacifiCorp delay damages for the number of days ("Delay Period") the Commercial
Operation Date occurs after the Scheduled Commercial Operation Date, until the earlier of
occrrrence of the Commercial Operation Date or the tennination of this Agreement ("Delay
Liquidated Damages"). Billings and payments for Delay Liquidated Damages shall be made
in accordance with Section 11.1.
10
2.5.1 Delay Liquidated Damages. Delay Liquidated Damages equals the sum
of: for each day in the Delay Period, the greater of (1) the Delay Daily Minimum or (2)
the Delay Price times the Delay Volume
Where:
"Delay Daily Minimum" equals (a) for the frst 90 calendar days
following the Scheduled Commercial Operation Date: one-ninetieth
(1/90th) of trventy-five dollars ($ZS1 multiplied by the Maximum Facility
Delivery Rate with the Maximum Facility Delivery Rate being measured
in kW; (b) after the 90th calendar day following the Scheduled
Commercial Operation date: $0.
"Delay Price" equals the positive difference, if any, of the Index Price
minus the weighted average of the On-Peak and Off-Peak monthly
Conforming Energy Furchase Prices; and
"Delay Volume" equals the applicable Scheduled Monthly Energy
Delivery divided by the number of days in that month.
2.5.2 Appropriateness of Damages. The Parties agree that the damages
PacifiCorp would incur due to delay in the Facility achieving Commercial Operation on
or before the Scheduled Commercial Operation Date would be difficult or impossible to
predict with certainty, and that the Delay Liquidated Damages are an appropriate
approximation of such damages.
SECTION 3: REPRESENTATIONS AND WARRANTIES
3.1 PacifiCorp represents, covenants, and warrants to Seller that:
3.1.1 PacifiCorp is duly organized and validly existing under the laws of
the State of Oregon.
3.1.2 PacifiCorp has the requisite corporate power and authority to enter
into this Agreement and to perform according to the terms of this Agreement.
3.1.3 PacifiCorp has taken all corporate actions required to be taken by it
to authorize the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby.
3.1.4 Subject to Commission approval, the execution and delivery of this
Agreement does not contravene any provision of or constitute a default under, any
indenfure, mortgage, or other material agreement binding on PacifiCorp or any valid
order of any court, or any regulatory agency or other body having authority to which
PacifiCorp is subject.
3.1.5 Subject to Commission approval, this Agreement is a valid and
legally binding obligation of PacifiCorp, enforceable against PacifiCorp in accordance
with its terms (except as the enforceability of this Agreement may be limited by
ll
bankruptcy, insolvency, bank moratorium or similar laws affecting creditors' rights
generally and laws restricting the availability of equitable remedies and except as the
enforceability of this Agreement may be subject to general principles of equity, whether
or not such enforceability is considered in a proceeding at equity or in law).
3.2 Seller represents, covenants, and warrants to PacifiCorp that:
Seller is a limited liability company duly organized and validly3.2.1
existing under the laws of Idaho.
3.2.2 Seller has the requisite power and authority to enter into this
Agreement and to perfonn according to the terms hereof, including all required
regulatory authority to make wholesale sales from the Facility.
3.2.3 Seller's shareholders, directors, and offrcers have taken all actions
required to authorize the execution, delivery and performance of this Agreernent and the
consummation of the transactions contemplated hereby.
3.2.4 The execution and delivery of this Agreement does not contravene
any provision of, or constifute a default under, any indenture, mortgage, or other material
agreement binding on Seller or any valid order of any court, or any regulatory agency or
other body having authority to which Seller is subject.
3.2.s This Agreement is a valid and legally binding obligation of Seller,
enforceable against Seller in accordance with its tenns (except as the enforceabilrty of
this Agreement may be limited by bankruptcy, insolvency, bank moratorium or similar
laws afflecting creditors'rights generally and laws resficting the availability of equitable
remedies and except as the enforceability of this Agreement may be subject to general
principles of equity, whether or not such enforceability is considered in a proceeding at
equity or in law).
3.2.6 The Facility is and shall for the term of this Agreement continue to
be a QF. Seller has provided the appropriate QF certification, which may include a
Federal Energy Regulatory Commission self-certification to PacifiCorp prior to
PacifiCorp's execution of this Agreement. At any time PacifiCorp has reason to believe
during the tenn of this Agreement that Seller's status as a QF is in question, PacifiCorp
may require Seller to provide PacifiCorp with a written legal opinion from an attomey in
good standing in the state of Idaho and who has no economic relationship, association or
nexus with the Seller or the Facility, stating that the Facility is a QF and providing
suffrcient proof (including copies of all documents and data as PacifiCorp may request)
demonstrating that Seller has maintained and will continue to maintain the Facility as a
QF.
3.2.7 Neither the Seller nor any of its principal equity owners is or has
within the past two (2) years been the debtor in any bankruptcy proceeding, is unable to
pay its bills in the ordinary course of its business, or is the subject of any legal or
12
regulatory action, the result of which could reasonably be expected to impair Seller's
ability to own and operate the Facility in accordance with the terms of this Agreement.
3.2.8 Seller has not at any time defaulted in any of its payment obligations
for electricity purchased from PacifiCorp.
3.2.9 Seller is not in default under any of its other agreements and is
current on all of its financial obligations.
3.2.10 Seller owns, and will continue to own for the term of this
Agreement, all right, title and interest in and to the Facility, free and clear of all liens and
encumbrances other than liens and encumbrances related to third-party financing of the
Facility.
In entering into this Agreement and the undertaking by Seller of the3.2.11
obligations set forth herein, Seller has investigated and determined that it is capable of
performing hereunder and, except for reliance upon PacifiCorp expertise in relation to
Generation Interconnection related issues, has not relied upon the advice, experience or
expertise of PacifiCorp in connection with the transactions cortemplated by this
Agreement.
3.2.12 Al1 professionals or experts including, but not limited to, engineers,
attorneys or accountants, that Seller may have consulted or relied on in undertaking the
transactions contemplated by this Agreement have been solely those of Seller.
3.2.13 A11 leases of real property required for the operation of the Facility
or the performance of any obligations of Seller hereunder are set forth and accurately
described in Exhibit C. Upon request by PacifiCorp, Seller shall provide copies of the
Wind Leases to PacifiCorp.
3_2.t4 All information about the Facility set forlh in Exhibit A, Exhibit B,
and Exhibit C has been verified by Seller and is accurate to the best of its knowledge.
3.3 Notice. If at any time during this Agreement, ffiy Party obtains actual
knowledge of any event or information which would have caused any of the representations
and warranties in this Section 3 to have been materially untrue or misleading when made,
such Party shall provide the other Party with written notice of the event or infonnation, the
representations and warranties affected, and the action, if any, which such Party intends to
take to make the representations and warranties true and correct. The notice required
pursuant to this Section shall be given as soon as practicable after the occurrence of each
such event.
SECTION 4: DELIVERY OF POWERI AVAILABILITY GUARANTY
4.1 Delivery and Acceptance of Net Output. Unless otherwise provided herein,
PacifiCorp will purchase and Seller will sell all Net Output from the Facility.
l3
4.2 No Sales to Third Parties. Dr:ring the term of this Agreement, Seller shall not
sell any Net Output from the Facility to any entity other than PacifiCorp.
4.3 Energy Delivery Schedule. Seller shall prepare and provide to PacifiCorp, on
an ongoing basis, a written schedule of Net Energy expected to be delivered by the Facility
("Energy Delivery Schedule"), in accordance with the following:
4.3.1 During the first twelve full calendar months following the
Commercial Operation Date, Seller predicts that the Facility will produce and deliver the
following monthly amounts ("lnitial Year Energy Delivery Schedule"):
Month
January
February
March
April
May
June
July
August
September
October
November
December
Enerw Deliverv (kWh)
6,919,152
6,387,656
6,gl2,7gl
5,924,079
5,239,214
4,049,629
3,931,940
3,694,149
4,575,147
5,276,901
6,250,931
7,251,062
4.3.2 Seller may revise the Initial Year Energy Delivery Schedule any
time prior to the Commercial Operation Date.
4.3.3 Beginning at the end of the ninth full calendar month of operation,
and at the end of every third month thereafter, Seller shall supplement the Energy
Delivery Schedule with three additional months of forward estimates (which shall be
appended to this Agreement as Exhibit D) ("Subsequent Energy Delivery Schedule"),
such that the Energy Delivery Schedule will provide at least three months of scheduled
energy estimates at all times. Seller shall provide Subsequent Energy Delivery Schedules
no later than 5:00 pm of the 5th day after the due date. If Seller does not provide a
Subsequent Energy Delivery Schedule by the above deadline, scheduled energy for the
omitted period shall equal the amounts scheduled by Seller for the same three-month
period during the previous year.
4.3.4 Upon and after the Commercial Operation Date, Seller may no
longer revise the Energy Delivery Schedule for the first six full calendar months of
t4
Commercial Operation. After 5:00 p.m. MPT of the fifth business day following the end
of the third fulI calendar month of Commercial Operation and the end of each third
calendar month thereafter, Seller may no longer revise the Energy Delivery Schedule for
the six calendar months immediately following such third rnonth. Subject to the
foregoing restrictions in this Section 4.3.4, Seller may revise the Energy Delivery
Schedule for any unreskicted month by providing written notice to PacifiCorp. Failure to
provide timely written notice of changed amounts will be deemed to be an election of no
change.
4.4 Minimum Availabilitv Obligation. Seller shall cause the Facility to achieve the
following Availability during each month of the Agreement ("Guaranteed Availability'):
Number of calendar months elapsed after the
Commercial Operation Date (COD):
Guaranteed Availability
Up to 3 months after COD:s5%
More than 3 months up to 6 months after COD:70%
Greater than 6 months after COD:85%
As used above, o'calendar month" includes the first month, or partial month, after the
Commercial Operation Date, and each subsequent calendar month (e.g. June, July, etc.).
4.5 Liquidated Damages for Output Shortfall. If the Availability in any given
month falls below the Guaranteed Availability, the resulting shortfall shall be expressed in
kWh as the "Output Shortfall." The Output Shortfall shall be calculated in accordance with
the following formula:
Output Shortfall : (Guaranteed Availability - Availability) *
Scheduled Monthly Energy Delivery
Seller shall pay PacifiCorp for any Output Shortfall at the lower of (1) the positive
difference, if any, of the Index Price minus the weighted average of the On-Peak and Off-
Peak monthly Conforrning Energy Purchase Prices; or (2) the weighted average of the On-
Peak and Off-Peak monthly Conforming Energy Purchase Prices ("Output Shortfall
Damages").
Output Shortfall Damages = Output Shortfall * Output Shortfall Price
Where:
(Index Price - Weighted Average CEPP), except
that if Output Shortfall Price < 0, then Output
15
Output Shorffall Price =
Shortfall Price : 0, and except that if Output
Shortfall Price > Weighted Average CEPP, then
Output Shortfall Price: Weighted Average CEPP
Weighted Average CEPP: the weighted average On-Peak and Off-Peak
Conforming Energy Purchase Prices for the month
of Output Shortfall
If an Output Shortfall occurs in any given month, Seller may owe PacifiCorp liquidated
damages. Each Party agrees and acknowledges that (a) the damages that PacifiCorp would
incur due to the Facility's failure to achieve the Guaranteed Availability would be diffrcult or
impossible to predict with certainty, and (b) the liquidated damages contemplated in this
Section 4.5 are a fair and reasonable calculation of such damages.
4.6 Audit Rights. In addition to data provided under Sections 9.3 and 9.4,
PacifiCorp shall have the right, but not the obligation, to audit the Facility's compliance with
its Guaranteed Availability using any reasonable methods. Seller agrces to retain all
performance retated data for the Facility for a minimum of three years, and to cooperate with
PacifiCorp in the event PacifiCorp decides to audit such data.
SECTION 5: PURCEASE PRICES
5.1 Energy Purchase Price. Except as provided in Section 5.3, PacifiCorp will pay
Seller Conforming Energy or Non-Conforming Energy Purchase Prices for Net Output
adjusted for the month and On-Peak Hours or Off-Peak Hours and the wind integration cost
using the following formulae, in accordance with Commission Order Nos. 30423, 31025, and
3t02t:
Conforming Energy Purchase Price = (AR"" n MPIO - WIC
Non-Conforming Energy Purchase Price = (ARn." * MPIO - WIC
Where:
A&"
ARo""
Conforming Energy annual rate from Table 1, below, for the year
of the Net Output.
the lower of.
85% of the Conforming Energy annual rate from Table 1
below, for the year of Net Output
or
85% of average of the daily Index Price for each day of the
month, or portion of month, of Net Output.
monthly On-Peak or Off-Peak multiplier from Table 2, below, that
corresponds to the month of the Net Output and whether the Net
Output occurred during On-Peak Hours or Off-Peak Hours.
MPM
t6
WIC : $6.504{Wh, the wind integration cost prescribed in Commission
OrderNo.3102l.
Example calculations are provided in Exhibit G.
Table 1: Conforming Energy Annual Rates (from Commission Order No. 31025).
Year
Conforming Energy
Annual Rate (AR"")
$/lvrwh
201 1 60.24
2012 63.97
2013 67.51
20t4 71.32
20t5 75.40
2016 77.76
20t7 80.07
2018 82.58
20t9 85.05
2020 87.61
2021 90.63
2022 93.78
2023 97.05
2024 100.44
202s r03.98
2026 106.98
2A27 110.07
2028 rt3.26
2029 I16.56
2030 119.95
2031 124.s1
Table 2: Monthly On-Peak/Off-Peak Multipliers (from Commission Order No. 30423)
Month On-Peak
Hours
Off-Peak
Hours
fanuarv 103%94%
February 105%97%
March 95%80%
April 95%76%
May 92%63%
June 94o/o 65%
Julv t2t%92%
Ausust t2r%106%
September l09o/o 99%
. If Seller has elected levelized pricing for Net Output, additional security requirements in
Section ll.2 apply.
l7
October tt5%1,05%
November tt0%96%
December 1,29%r20%
5.2 Payment. For each Billing Period in each Contract Year, PacifiCorp shall pay
Seller as follows:
For delivery of Conforming Energy:
Payment : (CEnergyon-peak * CEPPriceon-peak / 1000) +
(CEnergyoff-peak * CEPPriceoir-peak / I 000)
For delivery of Non-Conforming Energy:
Payment : (NCEnergyon-peak * NCEPPriceon-peak / 1000) +
(NCEnergy6ff-peak * NCEPPriceoff-peak / 1 000)
: Conforming Energy in kwhCEnergy
Conforming Energy Purchase Price in $AdWh
Non-Conforming Energy in kWh
Non-Confomring Energy Purchase Price in $/Ivtwh
On-Peak : the corresponding value for On-Peak Hows
Off-Peak : the corresponding value for Off-Peak Hours
5.3 Inadvertent Energy. PacifiCorp may accept Inadvertent Energy at its sole
discretion, but will not purchase or pay for Inadvertent Energy.
SECTION 6: OPERATION AND CONTROL
6.1 As-Built Supplement. Upon completion of any construction affecting the
Facility, Seller shall provide PacifiColp an As-built Supplement bearing the stamp of a
Licensed Professional Engineer that accurately depicts the Facility as built. The As-built
Supplement must be reviewed and approved by PacifiCorp, which approval shall not
unreasonably be withheld, conditioned or delayed.
6.2 Seller shall operate and maintain the Facility in a safe manner in accordance
with the Generation lnterconnection Agreement, Prudent Electrical Practices and in
accordance with the requirements of all applicable federal, state and local laws and the
National Electric Safety Code as such laws and code may be amended from time to time.
PacifiCorp shall have no obligation to purchase Net Output from the Facility to the extent the
interconnection between the Facility and PacifiCorp's electic system is disconnected,
suspended or intemrpted, in whole or in part, pursuant to the Generation Interconnection
Agreement, or to the extent generation curtailment is required as a result of Seller's non-
compliance with the Generation Interconnection Agreement. PacifiCorp shall have the right
to inspect the Facility to confirm that Seller is operating the Facility in accordance with the
Where:
CEPPrice :
NCEnergy :
NCEPPrice =
18
provisions of this Section 6 upon reasonable notice to Seller. Seller is solely responsible for
the operation and maintenance of the Facility. PacifiCorp shall not, by reason of its decision
to inspect or not to inspect the Facility, or by any action or inaction taken with respect to any
such inspection, assume or be held responsible for any liability or occrurence arising from
the operation and maintenance by Seller of the Facility.
6.3 Curtailment. PacifiCorp shall not be obligated to purchase, receive, pay for, or
pay arny damages associated with, Net Output (or associated Production Tax Credits or
Environmental Attributes) if such Net Output (or associated Production Tax Credits or
Environmental Attributes) is not delivered to the System or Point of Delivery due to any of
the following: (a) the interconnection between the Facility and the System is disconnected,
suspended or intemrpted, in whole or in part, consistent with the terms of the Generation
Interconnection Agreement, (b) the Transmission Provider or Network Service Provider
directs a general curtailment, reduction, or redispatch of generation in the area (which would
include the Net OutpuQ for any reasoq even if such curtailment or redispatch directive is
carried out by PacifiCorp, which may fulfill such directive by acting in its sole discretion; or
if PacifiCorp curtails or otherwise reduces the Net Output in order to meet its obligations to
the Transmission Provider or Network Service Provider to operate within System limitations,
(c) the Facility's Output is not received because the Facility is not fully integrated or
synchronized with the System, or (d) an event of Force Majeure prevents either Party from
delivering or receiving Net Output. Seller shall reasonably determine the MWh amount of
Net Output curtailed pursuant to this Section 6.3 after the fact based on the amount of energy
that could have been generated at the Facility and delivered to PacifiCorp as Net Output but
that was not generated and delivered because of the curtailment. Seller shall determine the
quantity of such curtailed energy based on (x) the time and duration of the curtailment period
and (y) wind conditions recorded at the Facility during the period of curtailment and the
power curve specified by the manufacturer for the Wind Turbines as shown in Exhibit A.
Seller shall promptly provide PacifiCorp with access to such information and data as
PacifiCorp may reasonably require to confirm to its reasonable satisfaction the amount of
energy that was not generated or delivered because of a curtailment described in this Section
6.3.
6.4 PacifiCorp as Merchant. Seller acknowledges that PacifiCorp, acting in its
merchant capacity function as purchaser under this Agreement, has no responsibility for or
control over PacifiCorp Transmission or any successor Transmission Provider.
6.5 Outages.
6.5.1 Planned Outages. Except as otherwise provided herein, Seller shall
not schedule Planned Outage during any portion of the months of November, December,
January, February, June, July, and August, except to the extent a Planned Outage is
reasonably required to enable a vendor to satisff a guarantee requirement in a situation in
which the vendor is not otherwise able to perform the guarantee work at a time other than
during one of the months specified above. Seller shall, in Exhibit D, provide PacifiCorp
with an annual forecast of total Facility curtailment (MW) due to Planned Outages for
each hour of each scheduling week (Monday-Sunday) of the Contract Year at least one
(1) month, but no more that three (3) months, before the first day of that Contract Year,
19
and shall promptly update such schedule, or otherwise change it, only to the extent that
Seller is reasonably required to change it in order to comply with Prudent Electrical
Practices. Seller shall notifr PacifiCorp of any deviation to the annual Planned Outage
schedule, above, on the Monday preceding the scheduling week in which the sooner of
the following will ocnr: (a) the outage as predicted in the Planned Outage schedule; or
(b) the outage per Seller's revised plans. Such notice shall consist of a Monday-Sunday,
hourly spreadsheet showing the revised total Facility curtailment (MW) for that
scheduling week. Seller shall not schedule any maintenance of Interconnection Facilities
during such months, without the prior written approval of PacifiCorp, which approval
may be withheld by PacifiCorp in its sole discretion.
6.5.2 Maintenance Outages. If Seller reasonably determines that it is
necessary to schedule a Maintenance Outage, Seller shall noti$r PacifiCorp of the
proposed Maintenance Outage as soon as practicable but in arry event at least five (5)
days before the outage begins (or such shorter period to which PacifiCorp may
reasonably consent in light of then existing wind conditions). Upon such notice, the
Parties shall plan the Maintenance Outage to mutually accommodate the reasonable
requirements of Seller and the service obligations of PacifiCorp. Seller shall take all
reasonable measures and use best efforts consistent with Prudent Electrical Practices to
not schedule any Maintenance Outage during the following periods: [June 15 through
June 30, July, August, and September 1 through September 15]. Seller shall include in
such notice of a proposed Maintenance Outage the expected start date and time of the
outage, the amount of generation capacity of the Facility that will not be available, and
the expected completion date and time of the outage. Seller may provide notices under
this Section 6.5.2 orally. Seller shall confirm any such oral notification in writing as soon
as practicable. PacifiCorp shall promptly respond to such notice and may request
reasonable modifications in the schedule for the outage. Seller shall use all reasonable
efforts to comply with PacifiCorp's request to modiff the schedule for a Maintenance
Outage if such modification has no substantial impact on Seller. Seller shall notify
PacifiCorp of any subsequent changes in generation capacity of the Facility during such
Maintenance Outage and any changes in the Maintenance Outage completion date and
time. Seller shall take all reasonable measures and exercise its best efforts consistent wittr
Prudent Electrical Practices to minimize the frequency and duration of Maintenance
Outages.
6.5.3 Forced Outages. Seller shall promptly provide to PacifiCorp an oral
report, via telephone to a number specified by PacifiCorp, of any Forced Outage of the
Facility. Such report shall include the amount of generation capacity of the Facility that
will not be available because of the Forced Outage and the expected return date and time
of such generation capacity. Seller shall promptly update the report as necessary to
advise PacifiCorp of changed circumstances. If the Forced Outage resulted in more than
15% of the Facility Capacity Rating of the Facility being unavailable, Seller shall confirm
the oral report in writing as soon as practicable. Seller shall take all reasonable measures
and exercise its best efforts consistent with Prudent Electrical Practices to avoid Forced
Outages and to minimize their duration.
20
6.5.4 Notice of Deratings and Outages. Without limiting other notice
requirements, Seller shall notiff PaciIiCorp, via telephone to a number specified by
PacifiCorp, of any limitation, restriction, derating or outage lorown to Seller that affects
the generation capacity of the Facility in an amount greater than five percent (5%) of the
Facility Capacity Rating for the following day. Seller shall promptly update such notice
to reflect any matei.ial changes to the information in such notice.
6.5.5 Effect of Outages on Estimated Output. Seller shall factor Planned
Outages and Maintenance Outages that Seller reasonably expects to encounter in the
ordinary course of operating the Facility into the Scheduled Monthly Energy Delivery
amounts in the Energy Delivery Schedule set forth in Exhibit D.
6.6 Scheduling.
Daily Scheduling. [not applicable]
6.6.2 Cooperation and Standards. With respect to any and all scheduling
requirements in this Agreement, (a) Seller shall cooperate with PacifiCorp with respect to
scheduling Net Output, and (b) each Party shall designate authorized representatives to
communicate with regard to scheduling and related matters arising hereunder.
6.6.1
6.6.3 Schedule Coordination. If, as a result of this Agreement, PacifiCorp
is deemed by an RTO to be financially responsible for Seller's performance under the
Generation Interconnection Agreement due to Seller's lack of standing as a "scheduling
coordinator" or other RTO recognized designation, qualification or otherwise, then (a)
Seller shall acquire such RTO recognized standing (or shall contract with a third parfy
who has such RTO recognized standing) such that PacifiCorp is no longer responsible for
Seller's performance under the Generation Interconnection Agreement, and (b) Seller
shall defend, indemnify and hold PacifiCorp harmless against any liability arising due to
Seller's performance or failure to perform under the Generation Interconnection
Agreement or RTO requirement.
6.7 Delivery Exceeding the Maximum GIA Delivery Rate. Seller shall not deliver
energy &om the Facility to the Point of Delivery at a rale that exceeds the Maximum GIA
Delivery Rate. Seller's failure to limit such deliveries to the Maximum GIA Delivery Rate
shall be a breach of a material obligation subject to Section 12.1 .8.
6.8 Access Rights. Upon reasonable prior notice and subject to the prudent safety
requirements of Seller, and Requirements of Law relating to workplace health and safety,
Seller shall provide PacifiCorp and its authorized agents, employees and inspectors
("PacifiCorp Representatives") with reasonable access to the Facility: (a) for the purpose of
reading or testing metering equipment, (b) as necessary to wibress any acceptance tests, (c)
for purposes of implementing Section 4.6, and (d) for other reasonable purposes at the
reasonable request of PacifiCorp. PacifiCorp shall release Seller against and from any and
all any and all loss, fines, penalties, claims, actions or suits, including costs and attomey's
fees, both at trial and on appeal resulting from actions or omissions by any of the PacifiCorp
2t
Representatives in connection with their access to the Facility, except to the extent that such
damages are caused or by the intentional or grossly negligent act or omission of Seller.
SECTION 7: MOTIVE FORCE
Prior to the execution of this Agreement, Seller provided to PacifiCorp Wind Leases and a
motive force plan including an hourly wind profile acceptable to PacifiCorp in its reasonable
discretion and attached hereto as Exhibit F-1, together with a certification from a Licensed
Professional Engineer to PacifiCorp attached hereto as Exhibit F-2, certiffing that the
implementation of the fuel or motive force plan can reasonably be expected to provide fuel or
motive force to the Facility for the duration of this Agreement adequate to generate power
and energy in quantities necessary to deliver the Average Annual Net Output.
SECTION 8: GENERATION FORECASTING COSTS
8.1 Forecast Service Election. PacifiCorp may, in its discretion, add forecasting
services for Seller's Facility to PacifiCorp's existing contract with a qualified wind-energy-
production forecasting vendor, which contact and vendor may change during the term of this
Agreement.
8.2 Seller's Forecast-Cost Share. Pursuant to Commission Order No. 30497,
Seller shall be responsible for 50% of PacifiCorp's cost of adding such forecasting services
("Seller's Forecast-Cost Share") up to Seller's Capped Forecast-Cost Share.
8.3 Cap on Seller's Forecast-Cost Share. Seller's Forecast-Cost Share for a given
Contract Year is capped at 0.lo/o of total payments made by PacifiCorp to Seller for Net
Output during the previous Contact Year ("Seller's Capped Forecast-Cost Share"). If the
last Contract Year of this Agreement is shorter than a full calendar year, the cap will be
prorated for that shortened year. For the year(s) prior to the second Contract Year of this
agreement that equals a full calendar year, Seller's Forecast-Cost Share is capped at 0.lo/o of
estimated payments for Net Output based on the Energy Delivery Schedule.
8.4 Payment. Seller shall pay to PacifiCorp Seller's Forecast-Cost Share uncapped
by Section 8.3 for each Contract Year in equal payments for each month of such year except
the last month of such year. (For example, in a Contract Year equaling a full calendar year,
Seller would pay lll lth of Seller's Forecast-Cost Share during each of the first 1l months.)
In the last month of each Contract Year, PacifiCorp shall refund to Seller the amount paid by
Seller under this Section in excess, if any, of Seller's Capped Forecast-Cost Share. For a
Contract Year encompassed by just one calendar month, Seller's payment to PacifiCorp and
PacifiCorp's refund to Seller shall be calculated and paid simultaneously. To the extent
practicable, payments and refunds under this Section shall be included in monthly payments
and invoices under Section 10.
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SECTION 9: METERING: REPORTS AND RECORDS
9.1 Metering Adjustment. Metering will be performed at the location and in the
manner specified in Exhibit B and the Generator Interconnection Agreement. All quantities
of energy purchased hereunder shall be adjusted to account for electrical losses, if any,
between the point of metering and the Point of Delivery, so that the purchased amount
reflects the net amount of power flowing into ttre System at the Point of Delivery.l The loss
adjustment shall be a reduction of 2Yo of the kWh energy production recorded on the Facility
output meter until actually measured and calibrated at the meter by PacifiCorp Transmission
and documented in a sigued letter to Seller from PacifiCorp's QF Contracts Administrator.
9.2 Metering Errors. If any inspections or tests made pursuant to the Generator
lnterconnection Agreement discloses an error exceeding two percent (2%), either fast or
slow, proper correction, based upon the inaccuracy found, shall be made of previous readings
for the actual period during which the metering equipment rendered inaccurate measurements
if that period can be ascertained. If the actual period cannot be ascertained, the proper
correction shall be made to the measurements taken during the time the metering equipment
was in service since last tested, but not exceeding three Billing Periods, in the amount the
metering equipment shal1 have been shown to be in error by such test. Any correction in
billings or payments resulting from a correction in the meter records shall be made in the
next monthly billing or payment rendered.
9.3 Telemetering. In accordance with the Generation Interconnection Agreement,
Seller shall provide telemetering equipment and facilities capable of transmitting to
Transmission Provider (who will share it with PacifiCorp as authorized by Exhibit II, "Seller
Authorization to Release Generation Data to PacifiCorp") the following information
concerning the Facility on a real-time basis, and will operate such equipment when requested
by PacifrCorp to indicate:
(a) instantaneous MW output at the Point of Delivery;
(b) Net Output;
(c) the Facility's total instantaneous generation capacity; and
(d) wind velocity at turbine hub height.
Seller shallalso transmit to PacifiCorp any other data from the Facility that Seller receives on
a real-time basis, including meteorological data, wind speed data, wind direction data and
gross output data. Seller shall provide such real-time data to PacifiCorp in the same detail
that Seller receives the data (e.g., if Seller receives the data in four second intervals,
PacifiCorp shall also receive the data in four second intervals). PacifiCorp shall have the
right from time to time to require Seller to provide additional telemetering equipment and
facilities to the extent necessary and reasonable.
I If station service is supplied via separate facilities, PacifiCorp will deduct station service from
the metered facility output to calculate Net Output.
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9.4 Monthly Reoorts and Logs and Other Information.
9.4.1 Reports. Within thirty (30) calendar days after the end of each
Billing Period, Seller shall provide to PacifiCorp a report in electronic format, which
report shall include (a) summaries of the Facility's wind and output data for the Billing
Period in intervals not to exceed one hour (or such shorter period as is reasonably
possible with commercially available technology), including information from the
Facility's computer monitoring system; (b) summaries of any other significant events
related to the construction or operation of the Facility for the Billing Period; (c) details of
Availability of the Facility for the Billing Period suflicient to calculate Availability and
including hourly average wind velocity measured at turbine hub height and ambient air
temperature; and (d) any supporting information that PacifiCorp may from time to time
reasonably request (including historical wind data for the Facility).
9.4.2 Electronic Fault Log. Seller shall maintain an electronic fault log of
operations of the Facility during each hour of the tenn of this Agreement commencing on
the Commercial Operation Date. Seller shall provide PacifiCorp with a copy of the
electronic fault log within thirty (30) calendar days after the end of the Billing Period to
which the fault log applies.
9.4.3 Upon the request of PacifiCorp, Seller shall provide PacifiCorp the
manufacturers' guidelines and recommendations for maintenance of the Facility
equipment.
9.4.4 By each January l0 following the Commercial Operation Date,
Seller shall provide to PacifiCorp written certification that Seller has completed all the
manufacturers' guidelines and recommendations for maintenance of the Facility
equipment applicable to the previous calendar year.
9.4.5 At any time from the Effective Date, one (1) year's advance notice
of the termination or expiration of any agreement, including Wind Leases, pursuant to
which the Facility or any equipment relating thereto is upon the Facility site; provided
that the foregoing does not authorize any early termination of any land lease.
9.4.6 As soon as it is known to Seller, Seller shall disclose to PacifiCorp,
the extent of any material violation of any environmental laws or regulations arising out
of the construction or operation of the Facility, or the presence of Environmental
Contamination at the Facility or on the Premises, alleged to exist by any Govemmental
Authority having jurisdiction over the Premises, or the present existence of, or the
occrurence during Seller's occupancy of the Premises of, any enforcement, legal, or
regulatory action or proceeding relating to such alleged violation or alleged presence of
Environmental Contamination presently occurring or having occurred during the period
of time that Seller has occupied the Premises.
9.5 Maintenance of Metering Equipment. To the extent not otherwise provided in
the Generator Interconnection Agreement, PacifiCorp shall inspect, test, repair and replace
the metering equipment periodically, or at the request of Seller if Seller has reason to believe
24
metering may be off and requests an inspection in writing. To the extent not otherwise
provided in the Generator Interconnection Agreement, all PacifrCorp's costs relating to
designing, installing, maintaining, ffid repairing metering equipment installed to
accommodate Seller's Facility shall be bome by Seller.
SECTION 10: BILLINGS. COMPUTATIONS AND PAYMENTS
10.1 Payment for Net Outout. On or before the thirtieth (30th) day following the
end of each Billing Period, PacifiCorp shall send to Seller payment for Seller's deliveries of
Net Output to PacifiCorp, together with computations supporting such payment. PacifiCorp
may offset any such payment to reflect amounts owing from Seller to PacifiCorp pursuant to
this Agreement, the Generation Interconnection Agreement, or any other agreement between
the parties related to this Agreement, the Generation Interconnection Agreement, or the
Facility. Any such offsets shall be separately itemized on the statement accompanying each
payment to Seller.
10.2 Corrections. PacifiCorp shall have up to thirry-six (36) months to adjust any
payment made pursuant to Section 10.1. In the event PacifiCorp determines it has overpaid
Seller (for Inadvertent Energy, calibration error, or otherwise), PacifiCorp may adjust
Seller's future payment accordingly in order to correct the error in a reasonable time.
10.3 Annual Invoicin&for Output Shortfall. Thilty calendar days after the end of
each Contract Year, PacifiCorp shall deliver to Seller an invoice showing PacifiCorp's
computation of Output Shortfall, if any, for all Billing Periods in the prior Contract Year and
Output Shortfall Damages, if any. In preparing such invoices, PacifiCorp shall utilize the
meter data provided to PacifiCorp for the Contract Year in question, but may also rely on
historical averages and such other information as may be available to PacifiCorp at the time
of invoice preparation if the meter data for such Contract Year is then incomplete or
otherwise not available. To the extent required, PacifiCorp shall prepare any such invoice as
promptly as practicable following its receipt of actual results for the relevant Contract Year.
Seller shall pay to PacifiCorp, by wire transfer of immediately available funds to an account
specified in writing by PacifiCorp or by any other means agreed to by the Parties in writing
from time to time, the amount set forth as due in such invoice, and shall within 120 days after
receiving the invoice raise any objections regarding any disputed portion of the invoice.
Objections not made by Seller within the 120-day period shall be deemed waived.
10.4 Interest on Overdue Amounts. Any amounts owing after the due date thereof
shall bear interest at the Prime Rate plus two percent (2%) fuom the date due until paid;
provided, however, that the interest rate shall at no time exceed the maximum rate allowed by
applicable law.
10.5 Disputed Amounts. If either Party, in good faith, disputes any amount due
pursuant to an invoice rendered hereunder, such Party shall notifu the other Party of the
specific basis for the dispute and, if the invoice shows an amount due, shall pay that portion
of the statement that is undisputed, on or before the due date. Except with respect to invoices
provided under Section 10.2, any such notice shall be provided within two (2) years of the
date of the invoice in which the error first occurred. If any amount disputed by such Party is
25
determined to be due to the other Party, or if the Parties resolve the payment dispute, the
amount due shall be paid within five (5) days after such determination or resolution, along
with interest in accordance with Section 10.4.
SECTION 11: SECURITY
I1.1 Delay Security:
11.1.1 Dutv to Post Securitv. By the date provided in Section2.2.2, Seller
shall post a Letter of Credit, cash or a parental guaranty, each in a form acceptable to
PacifiCorp, in the amount of $544,500, as calculated pursuant to Section 11.1.2 ("Delay
Security"). To the extent PacifiCorp receives payment from the Delay Security, Seller
shall, within fifteen (15) calendar days, restore the Default Security as if no such
deduction had occurred.
tl.l.z Calculation of Delay Securi8. The dollar value of Delay Security
specified in Section 11.1.1 shall equal twenty-five dollars ($25) multiplied by the
Maximum Facility Delivery Rate with the MCIrimum Facility Delivery Rate being
measured in kW. .
11.1.3 Right to Draw on Security. PacifiCorp shall have the right to draw
on the Delay Security to collect Delay Liquidated Damages. Commencing on or about
first of each month, PacifiCorp will invoice Seller for Delay Liquidated Damages
incurred, if any, during the preceding month. If insufFtcient Delay Security is available,
Seller shall pay PacifiCorp for invoiced Delay Liquidated Damages no later than five
business days after receiving such invoice. The Parties will make billings and payments
for Delay Liquidated Damages in accordance with Section 10.
11.1.4 Partial Release of Delay Securilv. Provided that Seller has
maintained Delay Security in accordance with Section 11.1.1, PacifiCorp shall release
one-fourth of the original amount of Delay Security stated in Section 11.1.1 each time
Seller accomplishes a milestone (a), (b), or (c), below:
(a) Seller has executed the Generation Interconnection Agreement
with Transmission Provider;
(b) Seller has poured the concrete foundation at each of its planned
individual wind turbine locations;
(c) Seller has received written approval from the Transmission
Provider to interconnect the Facility at the Marimum Facility
Delivery Rate.
PacifiCorp shall make the partial refund of Delay Security required above within ten
business days of the date Seller provides PacifiCorp written notice (along with
satisfactory documentation thereof) that it has accomplished milestone (a), (b), or (c).
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11.1.5 Full Release of Delay Security. Unless PacifiCorp disputes whether
Seller has paid all Delay Liquidated Damages, PacifiCorp shall release all remaining
Delay Security upon the earlier of the 30th calendar day following commencement of
Commercial Operation or the 60th calendar day following PacifiCorp's termination of
this Agreement.
11.1.6 Default. Seller's failure to post and maintain Delay Security in
accordance with Section ll.1 will constitute an event of default, unless cured in
accordance with Section 12.1.1 of this Agreement.
ll.2 Default Secwity (Levelized Pricing Only). If Seller has adopted levelized
pricing for Net Output, Seller will provide security to PacifiCorp pursuant to Commission
Order Nos. 21690, 21800, 29482,29587 and related orders ("Default Security") as set forth
in Addendum _fthis sub-Section 11.2 not applicable].
SECTION 12: DEFAULTS AND REMEDIES
l2.l The following events shall constitute defaults under this Agreement:
Lz.l.l Non-Payment. A Party's failure to make a payment when due under
this Agreement or post and maintain security in conformance with the requirements of
Section 11 or maintain insurance in conformance with the requirements of Section 14 of
this Agreement, if the failure is not cured within ten (10) business days after the non-
defaulting Party gives the defaulting Party a notice of the default.
12.1.2 Breach of Representation. Breach by a Party of a representation or
warranty set forttr in this Agreement, if such failure or breach is not cured within thirty
(30) days following written notice.
12.1.3 Default on Other A8reements. Seller's failure to cure any default
under the Generation Interconnection Agreement or any other agreement between the
parties related to this Agreement, the Generation Interconnection Agreement, or the
Facility within the time allowed for a cure under such agreement or instument.
12.1.4 Insolvency. A Party (a) makes an assignment for the benefit of its
creditors; (b) files a petition or otherwise corrmences, authorizes or acquiesces in the
commencement of a proceeding or cause of action under any bankruptcy or similar law
for the protection of creditors, or has such a petition filed against it and such petition is
not withdrawn or dismissed within sixty (60) days after such filing; (c) becomes
insolvent; or (d) is unable to pay its debts when due.
12.1.5 Material Adverse Change. A Material Adverse Change has occurred
with respect to Seller and Seller fails to provide such performance assurances as are
reasonably requested by PacifiCorp, within fifteen (15) days from the date of such
request.
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12.1.6 Sale to Third-Party. Seller's sale of Net Output to an entity other
than PacifiCorp, as prohibited by Section 4.2.
12.L.7 Non-Delivery. Unless excused by an event of Force Majeure,
Seller's failure to deliver any Net Energy for three consecutive calendar months.
12.1.8 A Party otherwise fails to perfonn any material obligation (including
but not limited to failure by Seller to meet any deadline set forth in Section 2.2) imposed
upon that Party by this Agreement if the failure is not cured within thfuty (30) days after
the non-defaulting Parly gives the defaulting Party notice of the default; provided,
however, that, upon written notice from the defaulting Party, this thirty (30) day period
shall be extended by an additional ninety (90) days if (a) the failure cannot reasonably be
cured within the thirty (30) day period despite diligent efforts, (b) the default is capable
of being cured within the additional ninety (90) day period, and (c) the defaulting Party
commences the cure within the original thirty (30) day period and is at all times thereafter
diligently and continuously proceeding to cure the failure.
12.2 In the event of any default hereunder, the non-defaulting Party must notiff the
defaulting Party in wrifing of the circumstances indicating the default and outlining the
requirements to cure the default. If the default has not been cured within the prescribed time,
above, the non-defaulting Party may terminate this Agreement at its sole discretion by
delivering written notice to the other Parly and may pursue any and all legal or equitable
remedies provided by law or pursuant to this Agreement. The rights provided in this Section
12 are cumulative such that the exercise of one or more rights shall not constitute a waiver of
any other rights.
t2.3 In the event this Agreement is terminated because of Seller's default and Seller
wishes to again sell Net Output from the facility using the same motive force to PacifiCorp
following such termination, PacifiCorp in its sole discretion may require that Seller do so
subject to the terms of this Agreement, including but not limited to the purchase prices as set
forth in (Section 5), until the Expiration Date (as set forth in Section 2.1). At such time
Seller and PacifiCorp agree to execute a written document ratiffing the tenns of this
Agreement.
12.4 If this Agreement is terminated as a result of Seller's default, in addition to and
not in limitation of any other right or remedy under this Agreement or applicable law
(including any right to set-off, counterclaim, or otherwise withhold payment), Seller shall
pay PacifiCorp Output Shortfall Damages for a period of twelve (12) months from the date of
termination plus the estimated administrative cost to acquire the replacement power. The
Parties agree that the damages PacifiCorp would incur due to termination resulting from
Seller's default would be difficult or impossible to predict with certainty, and that the
damages in this Section 12.4 are an appropriate approximation of such damages.
12.5 Recoupment of Damages.
(a) Default Security Available. If Seller has posted Default Security,
PacifiCorp may draw upon that security to satisSr any damages, above.
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O) Default Security Unavailable. If Seller has not posted Default Security, or
if PacifiCorp has exhausted the Default Security, PacifiCorp may collect
any remaining amount owing by partially withholding future payments to
Seller over a reasonable period of time. PacifiCorp and Seller shall work
together in good faith to establish the period, and monthly amounts, of
such withholding so as to avoid Seller's default on its commercial or
financing agreements necessary for its continued operation of the Facility.
12.6 Upon an event of default or termination event resulting from default under this
Agreement, in addition to and not in limitation of any other right or remedy under this
Agreement or applicable law (including any right to set-off, counterclaim, or otherwise
withhold payment), the non-defaulting Party may at its option set-off, against any amounts
owed to the defaulting Party, any amounts owed by the defaulting Parly under any contract(s)
or agreement(s) between the Parties. The obligations of the Parties shall be deemed satisfied
and discharged to the extent of any such set-off. The non-defaulting Party shall give the
defaulting Party written notice of any set-off, but failure to give such notice shall not affect
the validity of the set-off.
t2.7 Amounts owed by Seller pursuant to this Section 12 shall be due within five
(5) business days after any invoice from PacifiCorp for the same.
SECTION 13: INDEMNIFICATION: LIABILITY
13.1 Indemnities.
13.1.1 Indemni8 by Seller. Seller shall release, indemniff and hold
harmless PacifiCorp, its dkectors, officers, agents, and representatives against and from
any and all loss, fines, penalties, claims, actions or suits, including costs and attorney's
fees, both at trial and on appeal, resulting from, or arising out of or in any way connected
with (a) the energy delivered by Seller under this Agreement to and at the Point of
Delivery, @) any facilities on Seller's side of the Point of Delivery, (c) Seller's operation
and/or maintenance of the Facility, or (d) arising from this Agreement, including withput
limitation any loss, claim, action or suit, for or on account of injury, bodily or otherwise,
to, or death of, persons, or for damage to, or destruction or economic loss of property
belonging to PacifiCorp, Seller or others, excepting only such loss, claim, action or suit
as may be caused solely by the fault or gross negligence of PacifiCorp, its directors,
officers, employees, agents or representatives.
13.1.2 Indemn8 by PacifiCorp. PacifiCorp shall release, indemniff and
hold harmless Seller, its directors, offrcers, agents, lenders and representatives against
and from any and all loss, fines, penalties, claims, actions or suits, including costs and
attorney's fees, both at trial and on appeal, resulting from, or arising out of or in any way
connected with the energy delivered by Seller under this Agreement after the Point of
Delivery, including without limitation any loss, claim, action or suit, for or on account of
injury, bodily or otherwise, to, or death of, persons, or for darnage to, or destruction or
economic loss of property, excepting only such loss, claim, action or suit as may be
29
caused solely by the fault or gross negligence of Seller, its directors, officers, employees,
agents, lenders or representatives.
13.2 No Dedication. Nothing in this Agreement shall be construed to create any
duty to, any standard of care with reference to, or any liability to any person not a Party to
this Agreement. No undertaking by one Party to the other under any provision of this
Agreement shall constitute the dedication of that Party's system or any portion thereof to the
other Party or to the public, nor affect the status of PacifiCorp as an independent public
utility corporation or Seller as an independent individual or entity.
13.3 No Warranty. Any review, acceptance or failure to review Seller's desigu,
specifications, equipment or facilities shall not be an endorsement or a confirmation by
PacifiCorp and PacifiCorp makes no warranties, expressed or implied, regarding any aspect
of Seller's design, specifications, equipment or facilities, including, but not limited to, safety,
durability, reliability, stength, capacity, adequacy or economic feasibility.
13.4 CONSEOUENTIAL DAMAGES. EXCEPT TO THE EXTENT SUCH
DAMAGES ARE INCLUDED IN THE LIQIXDATED DAMAGES, DELAY DAMAGES,
OR OTHER SPECIFIED MEASURE OF DAMAGES EXPRESSLY PROVIDED FOR IN
THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY
FOR SPECIAL, PUNITIVE, INDIRECT, EXEMPLARY OR CONSEQUENTIAL
DAMAGES, WHETHER SUCH DAMAGES ARE ALLOWED OR PROVIDED BY
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTE OR
OTHERWISE.
SECTION 14: INSURANCE
l4.l Certificates. Prior to connection of the Facility to the System, Seller shall
secure and continuously carry insurance in compliance with the requirements of this Section.
Seller shall provide PacifiCorp insurance certificate(s) (of "ACORD Form" or the
equivalent) certiffing Seller's compliance with the insurance requirements hereunder.
Commercial General Liability coverage written on a "claims-made" basis, if any, shall be
specifically identified on the certificate. If requested by PacifiCorp, o copy of each insurance
policy, certified as a true copy by an authorized representative of the issuing insurance
company, shall be furnished to PacifiCorp.
14.2 Required Policies and Coverages. Without limiting any liabilities or any other
obligations of Seller under this Agreement, Seller shall secure and continuously carry with an
insurance company or companies rated not lower than "A-:VII" by the A.M. Insurance
Reports the insurance coverage specified below:
14.2.1 Commercial General Liability insurance, to include contractual
liability, with a minimum single limit of $1,000,000 per occurence to protect against and
from all loss by reason of injury to persons or damage to property based upon and arising
out of the activity under this Agreement.
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14.2.2 All Risk Property insurance providing coverage in an amount at least
equal to 80% of the replacement value of the Facility against "all risks" of physical loss
or damage, including coverage for earth movement, flood, and boiler and machinery.
The Property policy may contain separate sub-limits and deductibles subject to insurance
company underwriting guidelines. The Risk Policy will be maintained in accordance
with terms available in the insurance market for similar facilities.
14.3 The Commercial General Liability policy required herein shall include (i)
provisions or endorsements naming PacifiCorp, its Board of Directors, Officers and
employees as additional insureds, ffid (ii) cross liability coverage so that the insurance
applies separately to each insured against whom claim is made or suit is brought, even in
instances where one insured claims against or sues another insured.
14.4 A11 liability policies required by this Agreement shall include provisions that
such insurance is primary insurance with respect to the interests of PacifiCorp and that any
other insurance maintained by PacifiCorp is excess and not contributory insurance with the
insurance required hereunder, and provisions that such policies shall not be canceled or their
limits of liability reduced without (i) ten (10) business days prior written notice to PacifiCorp
if canceled for nonpayment of premium, or (ii) thirly (30) business days prior written notice
to PacifiCorp if canceled for any other reason.
14.5 Commercial General Liability insurance coverage provided on a "claims-
made" basis shall be maintained by Seller for a minimum period of five (5) years after the
completion of this Agreement and for such other length of time necessary to cover liabilities
arising out of the activities under this Agreement.
SECTION 15: FORCE MAJEURE
15.1 As used in this Agreement, "f,'orce Majeure" or 'oan event of tr'orce
Majeure" means any cause beyond the reasonable control of the Seller or of PacifiCorp
which, despite the exercise of due diligence, such Party is unable to prevent or overcome. By
way of example, Force Majeure may include but is not limited to acts of God, flood, storms,
wars, hostilities, civil strife, strikes, and other labor disturbances, earthquakes, fires,
lightring, epidemics, sabotage, restraint by court order or other delay or failure in the
performance as a result of any action or inaction on behalf of a public authority or other
Governmental Authority which is in each case (i) beyond the reasonable control of such
Party, (ii) by the exercise ofreasonable foresight such Party could not reasonably have been
expected to avoid and (iii) by the exercise of due diligence, such Party shall be unable to
prevent or overcome. Force Majeure, however, specifically excludes the cost or availability
of fuel or motive force to operate the Facility or changes in market conditions that affect the
price of energy or tansmission. If either Party is rendered wholly or in part unable to
perfonn its obligation under this Agreement because of an event of Force Majeure, both
Parties shall be excused from whatever performance is affected by the event of Force
Maj eure, provided that:
15.1.1 the non-performing Purly, shall, within two (2) weeks after the
occurrence of the Force Majeure, give the other Party written notice describing the
31
particulars of the occrrrence, including the start date of the Force Majeure, the cause of
Force Majeure, whether the Facility remains partially operational and the expected end
date of the Force Majeure;
15.1.2 the suspension of performance shall be of no greater scope and of no
longer duration than is required by the Force Majeure;
15.1.3 the non-performing Party uses its best efforts to remedy its inability
to perform; and
15.1.4 the non-performing Party shall provide prompt written notice to the
other Party at the end of the Force Majeure event detailing the end date, cause there of,
damage caused there by and any repairs that were required as a result of the Force
Majeure event, and the end date of the Force Majeure.
15.2 No obligations of either Party which arose before the Force Majeure causing
the suspension of performance shall be excused as a result of the Force Majewe.
15.3 Neither Party shall be required to settle any strike, walkout, lockout or other
labor dispute on tenns which, in the sole judgment of the Parly involved in the dispute, are
contrary to the Party's best interests.
SECTION 16: SEVERAL OBLIGATIONS
Nothing contained in this Agreement shall ever be construed to create an association, trust,
parfirership or joint venture or to impose a trust or parhrership duty, obligation or liability
between the Parties. If Seller includes two or more parties, each such party shall be jointly
and severally liable for Seller's obligations under this Agreement.
SECTION 17: CHOICE Of'LAW
This Agreement shall be interpreted and enforced in accordance with the laws of the state of
Idaho, excluding any choice of law rules which may direct the application of the laws of
another jurisdiction.
SECTION 18: PARTIAL INVALIDITY
It is not the intention of the Parties to violate any laws governing the subject matter of this
Agreement. If any of the terms of the Agreement are finally held or determined to be invalid,
illegal or void as being contrary to any applicable law or public policy, all other terms of the
Agreement shall remain in effect. If any terms are finally held or determined to be invalid,
illegal or void, the Parties shall enter into negotiations concerning the terms affected by such
decision for the purpose of achieving conformity with requirements of any applicable law
and the intent of the Parties to this Agreement.
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SECTION 19: WAIVER
Any waiver at any time by either Party of its rights with respect to a default under this
Agreement or with respect to any other matters arising in connection with this Agreement
must be in writing, and such waiver shall not be deemed a waiver with respect to any
subsequent default or other matter.
SECTION 20: GOVERNMENTAL JURISDICTION ANI)
AUTHORIZATIONS
PacifiCorp's compliance with the terms of this Agreement is conditioned on Seller's
submission to PacifiCorp prior to the Commercial Operation Date and Seller's maintenance
thereafter of copies of all local, state and federal licenses, permits and other approvals as then
may be required by law for the construction, operation and maintenance of the Facility.
SECTION 21: SUCCESSORS AND ASSIGNS
This Agreement and all of the terms and provisions hereof shall be binding upon and inure to
the benefit of the respective successors and assigns of the Parties hereto, except that no
assignment hereof by either Party shall become effective without the written consent of both
Parties being first obtained. Such consent shall not be unreasonably withheld, conditioned,
or delayed. Notwithstanding the foregoing, either Party may assign this Agreement without
the other Party's consent to a lender as part of a financing hansaction. Further
notwithstanding the foregoing, any entity with which PacifiCorp may consolidate, or into
which it may merge, or to which it may convey or transfer substantially all of its electric
utility assets, shall automatically, without further act, and without need of consent or
approval by the Seller, succeed to all of PacifiCorp's rights, obligations, and interests under
this Agreement. This article shall not prevent a financing entity with recorded or secured
rights from exercising all rights and remedies available to it under law or contract.
PacifiCorp shall have the right to be notified by the financing entity that it is exercising such
rights or remedies.
SECTION 22: ENTIRE AGREEMENT
22.1 This Agreement supersedes all prior agreements, proposals, representations,
negotiations, discussions or letters, whether oral or in writing, regarding PacifiCorp's
purchase of Net Output from the Facility. No modification of this Agreement sha1l be
effective unless it is in writing and signed by both Parties.
22.2 By executing this Agreement, each Party releases the other from any
claims, known or unknown, that may have arisen prior to the execution date of this
Agreement with respect to the Facility and any predecessor facility proposed to have been
constructed on the site of the Facility.
33
SECTION 23: NOTICES
All notices except as otherwise provided in this Agreement shall be in writing, shall be
directed as follows and shall be considered delivered if delivered in person or when deposited
in the U.S. Mail, postage prepaid by certified or registered mail and return receipt requested.
Notices PacifiCorp Seller
AII Notices PacifiCorp
825 NE Multnomah Street Portland,
oP.97232
Attn: Contract Administration,
Suite 600
Phone: (503) 813 - 5380
Facsimile: (503) 813 - 6291
Duns: 00-790-9013
Federal Tax ID Number: 93-0246090
Power County Wind Park North
Atbr: Roald Doskeland
Windland Inc.
7669W. Riverside Drive
Suite 102
Boise,Idaho 83714
Phone: [phone]
Fax: [phone]
All Invoices:Athr: Back Office, Suite 700
Phone: (503) 813 - 5578
Facsimile: (503) 813 - 5580
Same as above
Scheduling:Attn: Resource Planning, Suite 600
Phone: (503) 813 - 6090
Facsimile: (503) 813 -6265
Same as above
Payments:Attn: Back Office, Suite 700
Phone: (503) 813 - 5578
Facsimile: (503) 813 - 5580
Same as above
Wire Transfer:Bank One N.A.
To be provided in separate letter from
PacifiCorp to Seller
To be provide in a separate letter
Credit and
Collections:
Attn: Credit Manager, Suite 700
Phone: (503) 813 - 5684
Facsimile: (503) 8 l3-5609
Same as above
With Additional
Notices of an
Event of Default
or Potential
Event of Default
to:
Attn: PacifiCorp General Counsel
Phone: [phone]
Facsimile: [phone]
Same as above
34
The Parties may change the person to whom such nofices are addressed, or their addresses,
by providing wriuen notices thereof in accordance with this Section.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed in
their respective names as of the date first above written.
Manager, Power County Wind Park
North ,LLC
Title: Director,President, Windland Inc.
3s
EXHIBIT A
DESCRIPTION OF SELLER'S FACILITY
Seller's Facility consists of twelve (12) wind turbine generator(s) manufactured by Vestas. More
specifically, each generator at the Facility is described as:
Type (synchronous or inductive): Inductive
Model:
Number of Phases:
Rated Output (k$r):
Rated Output (kVA):
Rated Voltage Qine to line):
Rated Current (A): Stator: _ A; Rotor: _ A
Maximum kW Output: 1,815 kW Maximum kVA Output:
Minimum kW Output: 0 kW
Manufacturer's Guaranteed Cut-in Wind Speed:
Manufacturer' s Guaranteed Cut-out Wind Speed :
Vestas V100, 1.8 MW
3
1,815
2000@0.9 inductive
KVA
3 m/s
20 rn/s
Facility Capacity Rating: 21,780 kW
Maximum Facility Delivery Rate: 21,780 kW at
Maximum GIA Delivery Ratej tbd kW [speciff whether rate is instantaneous or hour-averaged]
Describe (1) any differences between the maximum output of the generator(s) and their
Nameplate Capacity Rating(s) and (2) any differences between the Facility Capacity Rating, the
Maximum Facility Delivery Rate, and the Maximum GIA Delivery Rate:
Station service requirements, and other loads served by the Facility, if any, are described
as follows: Station Service is estimated to be 220kwr line losses and transformer losses are
estimated to be 1,100 kYY.
Location of the Facility: The Facility is located in Power County, Idaho. The location is more
particularly described as follows:
North: T8S, R3lE, Section 13 and T8S, R3lE, Sections 6,7 ,8,17,18
Power factor requirements: tbd in GIA
Attach documentation of the power curve for the generator (see below)
A-l
L_
I
L-.
L-_6
L7*lsl-.----r9L..*--lroi..---._LLllnt--lljl
tL4
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t_.
t"_
5
1.225i 0.95; 0.975 i 1.025' 1.0s 1 1.07s tL tt L.!25 i 1.151 t.I.|lSl !.2 '; L.25 1..2751
15
L_lq
L*rqt, 20
A-2
EXHIBIT B
POINT OF DELTVERY / PARTIES' INTERCONNECTION FACILITIES
l. The Point of Delivery will be the high'side of Seller's 34.5/230kV transformer
interconnecting between structures 53 and 55 on the Brady-Treasureton 230kV
ffansmission line. Point of Metering for PCWP North is above the disconnect switch for
Collector circuit feeder #1.
2. Single line drawing of Facility is attached. There are no transmission facilities on Seller's
side of the Point of Delivery.
8,1
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t
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EXHIBIT C
REQUIRED FACILITY DOCUMENTS
Qualifying Facility Number from FERC: North - QF 10-349-000
The following Documents are required to complete this project:
Generation Interconnection Agrcement
Turbine commissioning certifications from the turbine manufacturer
Easements:
1. Memorandum of Lease, Kopp et al, instrumett# 195132
2. Memorandum of Lease, Deeg et a1, instrument #185679
3. Memorandum of Lease Amendment, Deeg et al, instrument# 195134
4. Memorandum of Lease, Isaak et al, instrument # 185678
5. Memorandum of Lease Amendment, Isaak et al, instrument # 195136
6. Memorandum of Lease, Meadows et al, instrumefi# L94226
7. Memorandum of Lease Amendment, Meadows et al, instrument # 195131
Pemrits (if required by the following agencies):
. Special Use Pemrit from Power County Planning and Zoning
. Power County Highway District Access Permit
. Southeast Diskict Health Department Septic Pennit
. Idaho Division of Building Safety Electrical Permit
. Idaho Transportation Department, Division of Aeronautics, FAA Form 7460
. Idaho Transportation Department, Overlegat load Permit
.Idaho Department of Environmental Quality, Dredge and Fill Permit
. Ffu{ Form 7460-l and7460-2 for each turbine
. US Army Corp of Engineers, Section 404 Clean Water Act
. US Environmental Protection Agency, Construction General Permit/Notice of Intent
Agreement between Power County Wind Park North and Power County Wind Park South
granting Power County Wind Park North rights to use interconnection facilities owned by Power
County Wind Park South to deliverNet Output
c-1
EXIIIBIT D
ENERGY DELIVERY SCHEDULE
D-1
EXHIBIT E
START-UP TESTING
Required factory testing includes such checks and tests necessary to detennine that the
equipment systems and subsystems have been properly manufactured and installed, function
properly, and are in a condition to permit safe and efficient start-up of the Facility, which may
include but are not limited to:
1. Test of mechanical and electrical equipment;
2. Calibration of all monitoring instruments;
3. Operating tests of all valves, operators, motor starters and motor;
4. Alarrrs, signals, and fail-safe or system shutdown control tests;
5. Point-to-pointcontinuitytests;6. Bench tests of protective devices; and
7. Tests required by manufacturer(s) and designer(s) of equipment.
Required start-up tests are those checks and tests necessary to determine that all features
and equipment, systems, and subsystems have been properly installed and adjusted, function
properly, and are capable of operating simultaneously in such condition that the Facility is
capable of continuous delivery into PacifiCorp's electrical system, which may include but are
not limited to:
1. Turbine/generator mechanical runs and functionality;2. System operation tests;3. Brake tests;4. Energization of transformers;
5. Synchronizing tests (manual and auto);6. Excitation and voltage regulation operation tests;
7. Auto stop/start sequence;8. Completion of any state and federal environmental testing requirements; and9. Tests required by manufacturer(s) and designer(s) of equipment.
For wind projects only, the following Wind Turbine Generator Installation Checklists are
required docurnents to be signed off by Manufacturer or Subcontract Category Commissioning
Personnel as part of the Commissioning and startup testing:
Turbine Installation
Foundation Inspection
Controller Assembly
Power Cables
CablelnstallationChecklistsincluding: Controller
Top Deck / Yaw Deck
Tower Top Section / Saddle
Mid Section Cables or buss bars
Base Section
Tower Base Section
Tower Lights and Outlets
Tower Mid Section
Tower Top Section
Nacelle
Rotor
E- 1
EXIIIBIT F-I
MOTIVE FORCE PLAN
WIND SPEED DATA SUMMARIES & HOURLY WIND PROFILE
Windland has collected wind data at the sites of Power County Wind Park North and South since
2002. Data have been collected on multiple met masts and site analyses have been performed by
Garrad Hassan, Windlogics, 3 Tier, Ron Nierenburg and V-bar LLC. The attached 12x24 table
was based on an analysis of wind data collected on site between January 2005 and December
2009. The basic analytical method employed was Measure-Correlate-Predict (MCP). The site
observations were correlated with data collected at the Pocatello airport to provide long term
wind speed adjustments. Monthly averages, diurnal variations and long term averages were used
to produce site frequency distributions including the 12x24 array attached.
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9*n 8*!ll 9{$}f6t9 ?1)?O 7EO3 gll tI*I ?tt8 69t8 9llt r0ts?w s*:9rl*8{&{??r3 Tttt sm 55?t xffis ?:ri 0N*ff It67l
r$0$I g;lxrl $&11 81lt[rusil &il85 *3$9 5*:il sE&9 ru?t 8It*$OTfi
$im 91*$$,ts&8t56 670r 0650 JH$T rffi:l fi{l*7t5;t ,t{t E!60
ffi?loGtr ffi?,8rt 616r 6?cll t*m Itiffi 6t11 6GS ,sor 9114
so*s $?5S ,6€?{t$ffi!il s[s8 *:$s$ir$$fiffi$?rlr fios3 $6$.r
*7$5 *?tr3 !ret??rtt t6rt *6m t7s ffig Strta 6a33 ?728 96t:l
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*:tr ffil sBl f,t[1 m/f9 t!$?stiN0 5*6!6E}?7rt}?3S1 t75n
ist6 EfiS Brt6 [o]c ,167 r$6 'ffir Gtgl c$r ?38!3197 *tt8
s$$0 E{i[j[f,??1 It$d I$S ?ffi*str?56tt ffis ?sx3 il$ilI &silas3s2{r taffi !6tE ?m!t ?$m 6r6t fis,,ffi ts*95tf xot90
m3r s*:s *7r0 t6r$,39t ff6i$6lts *7tt ?,jlt!tt6r gfi7E r$:l{
smI l0S,ril fff**;rsi,?ilito ?dsf,$T6I 65lI ?ffi mm sI75 10{$1
*til?t{xt3s 8ffit 8?tl.}tts6 ,$tl 0&60 Effi{?7t,199t roreI to7lg
s*$s 165d1 sot?$tm ,fi:!?5f1 8tsfi 53lt ?iHo 7'37 lolzl !atu
$*?u lSri5&$7?1 88Sil }MI rlte &tll s$u filst ?t$t s?5$!{,w!f,
Fl-1
EXHIBIT F.2
ENGINEER' S CERTIFICATION
(1) THAT THE WIND DATA SUMMARIES IN EXHIBIT F-I ARE ACCURATE;
[Licensed Professional Engineer's certifi cation]
(2) THAT THE AVERAGE ANNUAL NET OUTPUT ESTMATE IS 67,311,441 KWH
PER YEAR IN EACH FULL CALENDAR YEAR OF THIS AGREEMENT BASED ON
THE MOTTVE FORCE PLA}.I IN EXHIBIT F.1;
[Licensed Professional Engineer's certification]
(3) THAT THE FACILITY, I.]NDER AVERAGE DESIGN CONDITIONS, LIKELY WILL
GENERATE NO MORE THAN 10 AMW IN ANY CALENDAR MONTH.
[Licensed Professional Engineer's certification]
F2-l
EXHIBIT F-2
ENGINEER'S CERTIFICATION _ NORTH ARRAY
(1) THAT THE WIND DATA SUMMARIES IN EXHIBIT F-l ARE ACCURATE;
a/rr/n
(2) THAT THE AVERAGE ANNUAL NET OUTPUT ESTIMATE IS 67,3t1,44t KWH
PER YEAR IN EACH FULL CALENDAR YEAR OF THIS AGREEMENT BASED ON
THE MOTIVE FORCE PLAN IN EXHIBIT F.1;
a/t{p
(3) THAT THE FACILITY, UNDER AVERAGE DESIGN CONDITIONS, LIKELY WIL
GENERATE NO MORE THAN 10 aMW IN ANY CALENDAR MONTH.
ww,
ffiffi
Iru lr.
F2-l
EXHIBIT G
SAMPLE ENERGY PURCHASE PRICE CALCULATIONS
The following are samples of calculations of energy purchase prices using the fonnula and tables
in Section 5.1.
The calculation for the non-levelized purchase price during an On-Peak Hour in May of 2011
equals $60.24lNtwh (the 2011 annual rate for Conforming Energy) multiplied by 92% (0.92)
(the May On-Peak Hour multiplier) minus $6.50/\dwh (the wind integration cost), which equals
$48.9244Wh.
Table 1: Sample calculations for non-levelized On-Peak Conforming Energy in 2011: Purchase
Price = (annual rate * monthly On-Peak multiplier) - wind integration cost.
Month
Conforming
Energy
Annual Rate
for 2011
@er MWh)
On-Peak
Hour
Multiplier
Wind
Integration
Cost
Calculated Purchase
Price for 2011 On-
Peak Conforming
Energy (per MWh)
January $60.24 103%$6.s0 $ss.ss
February $60.24 rc5%$6.s0 $s6.7s
March $60.24 9s%s6.50 $s0.73
April $60.24 9s%$6.s0 $s0.73
May $60.24 92%$6.s0 $48.92
June s60.24 94%$6.s0 $s0.13
July $60.24 tzt%$6.s0 $66.39
August $60.24 t2L%$6.50 $66.39
September $60.24 t09%$6.50 $59.16
October $60.24 Its%$6.s0 $62.78
November $60.24 rt0%$6.s0 ss9.76
December $60.24 r29%$6.s0 $71.21
Table 2: Sample calculations for non-levelized Off-Peak Conforming Energy in 2011: Purchase
Price : (annual rate * monthly Off-Peak multiplier) - wind integration cost.
Month
Conforming
Energy
Annual Rate
for 2011
(per MWh)
Off-Peak
Hour
Multiplier
Wind
Integration
Cost
Calculated Purchase
Price for 2011 Off-
Peak Conforming
Energy (per MWh)
January $60.24 94%s6.s0 $50.13
February $60.24 97o/o $6.50 $51.93
March $60.24 80%$6.s0 $41.69
G-1
Month
Conforming
Energy
Annual Rate
for 2011
(per MWh)
Off-Peak
Hour
Multiplier
Wind
Integration
Cost
Calculated Purchase
Price for 2011 Off-
Peak Conforming
Energy (per MWh)
April $60.24 76%$6.50 $39.28
May $60.24 630/o $6.s0 $31.45
June s60.24 65%$6.s0 s32.66
July $60.24 92%$6.s0 $48.92
August $60.24 1,060/o $6.50 $s7.3s
September $60.24 99o/o s6.s0 $s3.14
October $60.24 t0s%$6.s0 $56.75
November $60.24 96%$6.s0 $51.33
December $60.24 120%s6.s0 $6s.79
G-2
EXHIBIT H
Seller Authorization to Release Generation Data to PaciliCorp
ffi,- twinctl/arlcLclean energy f rom wind
Transmission Ssnio'es
Attr: Dircctor, Trrnsmission Serrrices
825 NE Multnoaah, Suite 1600
Pordan4 OR 97232
RE: Power Couoty Wlnd Prrk North LLC Intercounecdon Request
Dear Sir:
Powcr County Wind Pat North LLC hccby vohntarily authorizm PacifiC,orp's Traosmissioo
bueiness urit to shaic Powc County Wind Park North LLC's gencralor hterconnegtion informatioa
ard goasator metor data Flaring to Power Comty Wind Pad< North u.C Quali&tng Facility located
neu the town of American Falls, Power Countn Idaho with Marketing ASliato cmployoce of
PacifiCorp Energy. includiug but ttot limitod to lhosc ir thc Cocrmercial and Tradirg group. Power
County Wind Park North LLC acknowledgcs that PacifiCorp did oot provide it rny proferences,
cither operarional or ratc-releted, in exchatryc for tbis voluntary couscnt.
Name: Michacl Heckler
Titlc: Dircctor, Marteting &Developmcnt
Date
?ff,377-7nf 7869W.RIVEr€IDEDR SUIIE:1Gt $O|SE.tDAh0fr3t!4 EAr(!C8.375-2S$rwilil-AND rf{coRPoRAlEo
H-l
clean energy f rom wind
Transmission Services
Attn: Director, Transmission Services
825 NE Mulnromah, Suite 1600
Portland, AR97232
RE: Power County \ilind Park North LLC Interconnection Request
Dear Sir:
Power County Wind Park North LLC hereby voluntarily authorizes PacifiCorp's Transmission
business unit to share Power County Wind Park North LLC's generator interconnection
information and generator meter data relating to Power County Wind Park North LLC
Qualiffing Facility located near the town of American Falls, Power County, Idaho with
Marketing Affiliate employees of PacifiCorp Energy, including, but not limited to those in the
Commercial and Trading group. Power County Wind Park North LLC acknowledges that
PacifiCorp did not provide it any preferences, either operational or rate-related, in exchange for
this vol
Doskeland
President, Windland Inc, Manager, Power County Wind Park North, LLC
WINDLAND INCOHPORATED 208.377.7777 7669 W. RIVERSIDE DH SUITE 102 BOISE, IDAHO 83714 FAX [phone]
ADDENDUM L
STATION LOAD, LOSSES, and NET OUTPUT
ALLOCATION ALGORITHM FOR THE
POWER COTJNTY WIND PARK NORTH, LLC PROJECT
This Addendum L is hereby made a part of and clarifies certain terms in, the Power
Purchase Agreement between Pqygg.County {ind Parl< North, LLC and Paci/iCorp
("Agreement") entered into the 'lDu' 6ay oftlt\&\_4{ 2010. Capitalized terms not
defined herein shall have the meaning set forth in &b Agreement. Power County Wind
Park North,LLC ("Seller") and PacifiCorp are at times referred to herein individually as
a "Party" or collectively as the "Parties".
Power County Wind Park North, LLC and Power County Wind Park South, LLC,
together, form a complex of separate,Idaho small wind Qualiffing Facilities ("Windland
Power County Projects") that share collector wires, a 34.5/230 kV substation, and
related equipment, which connect the Qualiffing Facilities to the Point of Delivery
("Shared Interconnection Facilities").
PacifiCorp has agreed to buy (and Seller has agreed to se11), at the Point of Delivery,
Seller's total energy output net of: (1) Seller's station service; (2) energy provided by
Seller to another Windland Power County Project for station service; (3) Seller's share of
the transformation losses; and (a) Seller's share of the line losses between Seller's
Facility and the Point of Delivery (together Seller's "Station Auxiliary Load and
Losses"). However, Seller and PacifiCorp agree that it is impossible to measure Seller's
Station Auxiliary Load and Losses separate and apart from the Station Auxiliary Load
and Losses of the other Windland Power County Projects. Therefore, in order to
implement an objective, practicable, and equitable process by which PacifiCorp may
quantiff energy delivered by Seller to the Point of Delivery (net of its Station Auxiliary
Load and Losses), the Parties do agree as follows:
A. Billing Formulae. PacifiCorp shall determine Seller's Net Output in kWh for
purposes of the Agreement using the method specified below.
1. Delinitions
NR; - the nameplate rating of Windland Power County Project i.
NR1 : the sum of all the nameplate ratings of Windland Power County Projects (i:
I to 2).
PALLr = the accumulated purchased energy from Utility Supplier(s), as determined at
the Point of Delivery, to supply the net total station auxiliary load and losses
for the Shared Interconnection Facilities for Windland Power County
Projects i = 1 to 2 whenever such total load and losses exceeds total
generation output.
L-1
oPr
Nor
PALLi : the allocated share of PALLI for Project i as determined by multiplying
PALLr by NRi and dividing by NRr.
OPi : for a given integration interval, the metered output energy of Windland
Power County Project i, as determined by PacifiCorp's meter at the point
where Windland Power County Project i connects to the Shared
Interconnection Facilities. For any integration interval during which any
energy is delivered to a Project from the Shared Interconnection Facilities,
such delivered energy is accumulated in a separate meter register and does
not decrement the register used to measure accumulated OPi. Therefore OP1
is by definition always greater than or equal to zero, and in the event the
meter records OP; less than zero, OPi shall be deemed to equal zero.
= the sum of allOPl(i: 1 to 2).
: for a given integration interval, the total energy delivered to the Point of
Delivery (230 KV Brady Treasureton transmission line). NOr shall be as
measured at PacifiCorp's meter near the Point of Delivery (kWh, in 10-
minute intervals), adjusted for any transformation losses between the meter
and the Point of Delivery. For any integration interval during which any
energy is delivered to the Point of Delivery from PacifiCorp's system, such
delivered energy is accumulated in a separate meter register of the
PacifiCorp meter and does not decrement the register used to measure
accumulated Net Output energy. Therefore NO1 is by definition always
greater than or equal to zero and in the event the meter records NOr less
than zero, NOrshall be deemed to equal zero.
NOi : the net energy sold to PacifiCorp by Windland Power County Project i
during the integration interval.
SALLI : the total of all station auxiliary load and losses for the Shared
lnterconnection Facilities for Windland Power County Projects (i : I to 2)
whenNOr is positive.
SALLi : the allocated share for Windland Power County Project i of SALL1.
Capitalized terms not defined in this Addendum shall have the meaning set forth in the
Agreement.
2. Calculations
Calculations shall be reconciled and settled monthly. Calculations shall be based upon
raw data gathered from specified meters using a metering integration interval of 5, 10, or
15 minutes at PacifiCorp's election to match the metering instaltation PacifiCorp
specified ("integration interval"). Calculations shall be rounded to the nearest
kilowatthour in the final step.
hl. Tlthen Total Generation Outout <= Station Auxiliarv Load and Losses
When, for any integration interval, the total of all OPi Project output amounts of energy
among all Windland Power County Projects (OPr) s less than or equal to the total station
auxiliary load and losses for the Shared Interconnection Facilities, the meters at the Point
of Delivery will accumulate the Utility Supplier's delivery of purchased energy, PALLT,
L-2
to supply such net total load and losses in a meter register that is separate from that which
accumulates NOr and NOr shall equal zero or if negative, be deemed to equal zero- The
"Utility Supplier" shall be the utility providing retail electric service at the Facility
(Rocky Mountain Power). PacifiCorp shall have no obligation to serve any of the
Windland Power County Projects' retail electric needs absent a separate written
agreement with PacifiCorp and then only with the permission of Seller's Utility Supplier.
None of the costs associated with provision of retail electric service to Seller shall be
bome by PacifiCorp.
(bl. When Total Generation Outout > Station Auxiliarv Load and Losses
When, for any integration interval, the total generation of energy among all Windland
Power County Projects is greater than the total station auxiliary load and losses for the
Shared Interconnection Facilities, the meters at the Point of Delivery will accumulate in a
separate register PacifiCorp's receipt of the total combined energy from all the Projects
(NOr). The difference between OP1 and NOr for that interval (SALLT) is allocated to
each Windland Power County Project in proportion to its generation output (OPi) in the
same integration interval to determine NOl by the formulae:
Let SALL1 : I OPr-NO1] and
SALLi : I SALLr] * [ OPi /OPr]
The Net Output energy sold by each Project i is then determined as:
NOi = [ OPi - SALLi ] and substituting for SALLi ;
= NOr * [OPi/OPr]Noi
B. Limitation of PacifiCorp Purchase Liability. PacifiCorp's total purchase
obligation to the Windland Power County Projects shall at no time exceed total energy
delivered by the Windland Power County Projects to the Point of Delivery. Therefore, in
the event the sum of the Net Output energy (calculated according to the preceding
formulae) for all the Windland Power County Projects is greater than NO1, then
PacifiCorp shall reduce calculated Net Output energy from each Windland Power County
Project, pro rata each Windland Power County Project's share of the OP1, such that the
total energy purchased from all the Windland Power County Projects at the Point of
Delivery by PacifiCorp equals NO1.
C. PacifiCorp Right to Offset. In the event PacifiCorp determines it has underpaid one
or more Windland Power County Projects (due to metering effor or otherwise) and, as a
result of underpaying one or more Windland Power County Projects, has overpaid Seller,
L-3
PacifiCorp may adjust Seller's future payment(s) accordingly in order to recapture aoy
overpayment received by Seller in a reasonable time.
D. Condition Subsequent. This Addendum L was negotiated jointly among the
Windland Power County Projects and PacifiCorp and is intended by all of the Windland
Power County Projects and PacifiCorp to be one of trvo identical bilateral agreements,
each between PacifiCorp and an Windland Power County Project, but each related to the
other. Therefore, in the event one or more Windland Power County Projects does not
agree to be bound by the terms and conditions set forth in this Addendum L, PacifiCorp
may, upon thirly days written notice, cancel all Addendum L agreements. In the event
PacifiCorp cancels this Addendum L in accordance with this Section D, PacifiCorp may
satisff its obligation to pay Seller by depositing when due, with an escrow agent chosen
by the Windland Power County Projects, the total payment due to all Windland Power
County Projects under their respective Power Purchase Agreements, less offsets (if any)
calculated based upon NOl and the Contract Price.
AGREED TO BY:
Title: Directo-r, Short Temr President, Windland Inc.
Manager, Power County
Wind Park North ,LLC
L-4
Office of the Secretary
Service Date
October 6, 2010
BEFORE TIIE IDAHO PUBLIC UTILITIES COMMISSION
WINDLAND,INC.
COMPLAINANT,
v.
PACIf,'ICORP DBA ROCKY MOUNTAIN
POWER,
CASE NO. PAC-E-10.05
DEF'ENDANT.
IN TTIE MATTER OT'THE APPLICATION
OF PACIF'ICORP DBA ROCI(Y MOUNTAIN
POWER FOR A.PPROVAL OF POWER
PURCIIASE AGREEMENTS BETWEEN
PACIFICORP AIID POWER COUNTY WIND
NORTH LLC AI\D POWER COUNTY WINI)
SOUTII LLC
0RDER NO. 32084
Complaint
On April 6,201,0, Windland, Inc. (Windland) Iiled a complaint with the Idaho Public
Utilities Commission (Commission) against PacifiCorp dba Rocky Mountain Power. Windland
claimed entitlement to and requested that PacifiCorp be required to execute two standard
PURPA Power Purchase Agreements for Windland's Power County Wind Park North and Power
County Wind Park South small power generation projects at the published PURPA avoided cost
rates in effect prior to March 12,2009, i.e., the higher grandfathered rates of Order No.30744.
On April 28,2010, a Summons was issued by the Commission directing PaciliCorp
to file au answer within 21 days. On April 29, 2010, PacifiCorp filed an answer with the
Commission requesting a Commission determination that Windland's Power County wind
projects are not entitled to grandfathered rates.
POWER PURCIIASE AGREEMENTS
(and Contingent Motion to Dismiss Complaint Application !T3)
On August 20,2010, PacifiCorp filed an Application with the Commission requesting
approval of two Power Purchase Agreements (PPAs; Agreements) entered into between
PacifiCorp dba Rocky Mountain Power and Power County Wind Park North LLC and Power
ORDER NO. 32084
County Wind Park South LLC dated August 18, 2010 (the LLCs). The locations of the two wind
facilities are described as follows:
North: T8S, R31E, Section l3 and T8S, R32E, Sections 6,'7,8,17, 18, Power
County,Idaho
South: T8S, R32E, Sections 19,20,29 and 30, Power County, Idaho
Agreements, Exh. A.
The total nameplate capacity for each of the two small power wind generation
facilities (QFs) is 21,780 MW. Agreements, Recital A. Average monthly output for each
facility will be below l0 MW. Agreements, Exh. D. The estimated average annual net output of
each facility is 67,311,441 kwh (Nortfr) and 60,523,733 kwh (South). Agreements, Recital D.
The QFs have elected December 31, 201 1 as the scheduled commercial operation date for their
facilities.
Windland and the LLCs have waived their claims to grandfathered rights to the
avoided cost rates contained in Order No. 30744. Application, fl 7. The Power Purchase
Agreements contain the current non-levelized published avoided cost rates established in Order
No. 31025. The $6.50/\,IWh wind integration charge approved by the Commission (Order No.
31021) and all other applicable interconnection charges and monthly O&M charges under the
generation interconnection agreement with PacifiCorp transmission will be assessed to the LLCs.
Agreements, Section 5. l.
Section 1l.l of the PPAs provides for Delay Security of $25 multiplied by the
Maximum Facilities' Delivery Rate measured in kilowatts. This results in delay security of
$544,500 under each PPA. Pursuant to Section I 1 .1.4 one-quarter of the Delay Security amount
is to be refunded to the QFs as each of four milestones are achieved. The approach to delay
security has been agreed to by the parties in compromise of Windland's pending complaint in
Case No. PAC-E-10-05 and is not intended to establish any precedent.
As reflected in Section 2.1 of the Agreements, the Agreements will not become
effective until the Commission has approved all the Agreements' terms and conditions and
declares that all payments that PacifiCorp makes to the wind projects for purchases of energy
will be allowed as prudently incuned expenses for ratemaking purposes.
ORDERNO. 32084
On September 2,2010, the Commission issued Notices of Complaint (and Contingent
Motion to Dismiss), Application, and Modified Procedure in Case No. PAC-E-10-05. The
deadline for filing written comments was September 30, 2010. Commission Staff was the only
party to fiIe comments.
Staff Comments
Staff recommends that the Commission approve all of the Agreements' terms and
conditions. Staff notes that Windland and the LLCs pursuant to negotiation have waived their
claims to grandfathered rights to the higher avoided cost rates contained in Order No. 30744
(Application 'll 7). The filed Power Purchase Agreements contain the cunent, lower non-
levelized published avoided cost rates established in Order No. 31025. As noted by Staff, and
represented by the Company, the approach to Delay Security set forth in the Agreements is part
of a negotiated settlement and compromise of Windland's pending complaint in Case No. PAC-
E-10-05 and is not intended to establish any precedent. Application t[ 8.
COMMISSION FINDINGS
The Commission has reviewed the filings of record in Case No. PAC-E-10-05,
including the complaint, the two Power Purchase Agreements and the Contingent Motion to
Dismiss. We have also reviewed the comments and recommendations of Commission Staff. We
continue to find it reasonable to process the Company's Application under Modified Procedure,
IDAPA 31.01.01.204.
PacifiCorp has presented two Firm Energy Sales Agreements for wind facilities in
Power County, Idaho. As represented and pursuant to agreement, under normal and/or average
conditions the individual projects will not exceed l0 aMW on a monthly basis. We thus find the
projects are qualified to receive the published avoided cost rates approved by the Commission.
The Commission finds that the Agreements submitted in this case contain acceptable
contract provisions and include the current non-levelized published rates approved by the
Commission in Order No. 31025. We find it reasonable that the submitted Agreements be
approved without further notice or procedure. We further find it reasonable to allow payments
made under the Agreements as prudently incurred expenses for ratemaking purposes.
Inasmuch as we have found it reasonable in this case to approve the two Power
Purchase Agreements, we further frnd it reasonable to grant the request of the parties to dismiss
the underlying complaint of Windland with prejudice.
oRDERNO. 32084
CONCLUSIONS OF LAW
The Idatro Public Utilities Commission has jurisdiction over PacifiCorp dba Rocky
Mountain Power, an electric utility, pursuant to the authority and power granted it under Title 6l
of the Idaho Code and the Public Utility Regulatory Policies Act of 1978 (PUFJA).
The Commission has authority under PURPA and the implementing regulations of
the Federal Energy Regulatory Commission (FERC) to set avoided costs, to order electric
utilities to enter into fixed+errn obligations for the purchase of energy from qualified facilities
(QF$ and to implement FERC rules.
ORDER
In consideration of the foregoing and as more particularly described above, IT IS
HEREBY ORDERED and the Commission does hereby approve the August 18, 2010, Power
Purchase Agreements entered into between PacifiCorp dba Rocky Mountain Power and Power
County Wind Park North LLC and Power County Wind Park South LLC,
IT IS FURTHER ORDERED and pursuant to agreement of the parties (Application fl
3) that the underlying complaint of Windland Inc. against PacifiCorp dba Rocky Mountain
Power is dismissed with prejudice.
THIS IS A FINAL ORDER. Any person interested in this Order may petition for
reconsideration within twenty-one (21) days of the service date of this Order. Within seven (7)
days after any person has petitioned for reconsideration, any other person may cross-petition for
reconsideration. See ldaho Code $ 61-626.
ORDERNO. 32084
DONE by Order of the Idaho Public Utilities Commission at Boise, Idatro this 4rf
day of October 2010.
n"i/^. I M.,9,-
MARSHA H. SMITH, COMMISSIONER
\*-q!
MACK A. REDFORD, COMMISSIONER
ATTEST:
bIVO;PAC-E-10-05 sw2
oRDERNO. 32084
SETTLfr]MENT AGREEMENT AN& RELEASE
1. The parties to this Settlernent Agreement and Release ("Agreemenf') are
PacifiCorp, an Oregon corporation, Windland,Inc., a California corporation
("Windland"), Power County Wind Park North,LLC, a Delaware limited liability
company ("Wind Park North"), and Power County Wind Park South,LLC, a Delaware
limited liability company ("Wind Park South"). Windland is the manager and sole
member of Wind ParkNorth and Wind Park South. PacifiCorp, Windland, Wind Park
North, and WindPark South may be referred to singly as a ooParty" and collectively as the
'oParties."
2. In consideration of the promises and covenants in this Agreement and subject to
the terms and conditions of this Agreement, the Parties agree as follows:
(a) PacifiCorp and Wind ParkNorth shall execute the Power County Wind Park
North power purchase agreement and attached Addendum L (copy attached as Exhibit A) ,
when they execute this Agreement;
(b) PacifiCorp and Wind Park South shall execute the Power County Wind Park
South power purchase agreement and attached Addendum L (copy attached as Exhibit B)
when they execute this Agreement;
(c) Upon execution of this Agreement the Parties shall suspend all discovery
deadlines, including without lirnitation suspending Windland's August 6,2010 deadline
for discovery responses by the Idaho Public Utilities Commission ("IPUC") staff, and
shall suspend all other litigation actions under the Parties' control in IPUC Case No.
PAC-E-10-05 until the IPUC has taken action on the application to be filed by PacifiCorp
pursuant to Section 2(f) of this Agreement;
(d) Within five (5) business days of execution of this Agreement, PacifiCorp shall
make a formal request to PacifiCorp Transmission for Network Transmission Service for
Power County Wind Park North and Power County Wind Park South as Network
Resources;
(e) Windland agrees that its complaint against PacifiCorp in IPUC Case No. PAC-
E-10-05 shall be dismissed with prejudice at the same time the IPUC approves the Power
County Wind Park NorJh power purchase agreement and the Power County Wind Park
South power purchase agreement, and Windland hereby authorizes PacifiCorp to apply to
the IPUC to approve the power purchase agreements and dismiss the pending complaint.
(fl Within five (5) business days of execution of this Agreement, PacifiCorp shall
apply to the IPUC using the application attached hereto as Exhibit C in order to (1) obtain
IPUC review and approval of both the executed Power County Wind Park North power
purchase agreement and the executed Power County Wind Park South power purchase
agreement and, subject to IPUC approval of both power purchase agreements, (2) dismiss
with prejudice Windland's pending complaint in IPUC Case No. PAC-E-10-05; and
i " .'.)
SETTLEMENT AGREEMENT AND' RELEASE 1 of7
(g) Within five (5) business days of execution of this Agreement, Windland shall
withdraw its pending Idaho Supreme Court appeal of IPUC Case No. GNR-E-10-01.
3. This Agreement shall operate as a firll and complete general release of PacifiCorp
("Released Party'') by Windland, Wind Park North, and Wind Park South (the "Releasing
Parties'), despite the discovery of any new, different, or additional facts than were
known to the Releasing Parties at the time they executed this Agreeinent from any and all
claims, demands, actions, suits, and causes of action arising out of, or in any way related
to the subject matter of Windland's complaint in IPUC Case No. PAC-E-10-05 filed on
or about April 6, 2010 with regard to the Power County Wind Park North project or the
Power County Wind Park South project. In addition, with regard to any qualifying
facility projects presently or hereafter owned, controlled or promoted by the Releasing
Parties or their affiliates, subsidiaries, successors or assigns, this Agreement shall operate
as a full and complete general release by the Releasing Parties of any and all claims,
demands, actions, suits, and causes of action against the Released Party arising out of, or
in any way related to the assertion that any Releasing Party's qualifying facility is
entitled to published avoided cost rates, including wind integration cost adjustments, in
effect in Idaho prior to the effective date of IPUC Order No. 31025. The terms in this
paragraph will continue in full force and effect even after the Parties have complied with
all other conditions in this Agreement.
4. This Agreement is binding upon and shall inure to the benefit of the Parties and
their respective heirs, administrators, executors, trustees, legal representatives, corporate
parents, corporate subsidiaries, corporate affiliates, successors, predecessors, assigns,
directors, officers, agents, employees, inswers and transferees.
5. For the purposes of this Agreement, "PacifiCorp" includes PacifiCorp and all of its
parent, subsidiary, affiliate, predecessor and successor organizations, corporations or
franchises as well as all of the current or former corporate officers, investors, directors,
employees, shareholders, insurers, independent consultants, agents or assigns, including
those connected with all organizations and corporations referred to in this paragraph,
6. This Agreement is made and entered into for the purpose of settling and
compromising disputed claims and is not, and shall not be construed as, an adrnission of
any sort by PacifiCorp. PacifiCorp expressly denies any wrongdoing and any liability.
7. Each Party has read this Agreement and understands its contents. The Parties
acknowledge that they were represented by independent counsel of their choice
throughout all negotiations that preceded the execution of this Agreement. The Parties
acknowledge and represent that each has had sufficient time to consider and understand all
of the terms of this Agreement. This Agreement shall not be construed against the
drafter.
SETTLEMENT AGREEMENT AND RELEASE 2of1
8. The rights and obligations of the Parties to this Agreement shall be construed and
enforced in accordance with, and govemed by, the laws of the State of Idaho.
9. This Agreement contains the entire agreement and understanding between the
Parties and supersedes and replaces all prior negotiations and proposed agreements,
written or oral. No amendments, modifications or supplements to this Agreement may be
made other than by a signed writing.
10. Each Party shall bear its own costs in IPUC Case No. PAC-E-I0-05.
11. This Agreement may be executed in counterparts, each of which is an original and
all of which taken together constitute one and the same instrument.
12. Each person siguing this Agreement on behalf of a Party represents and warrants
that he or she has full authority to bind such Party and that al1 action necessary for such
Parfy to enter into this Agreement has been taken.
13. If the IPUC has not approved the Power County Wind Park North power purchase
agreement and the Power County Wind Park South power purchase agreernent within one
hundred and twenty (120) calendar days of the execution of this Agreement, any Party
may terminate this Agreement upon written notice to the other Parties.
[Signature Page Follows]
SETTLEMENT AGREEMENT AND RELEASE 3 of 7
IT IS SO AGREED:
PacifiCorp
Title:Senior Vice President and
General Counsef Rocky Mountain
Power
Title: President
Date:* * 16.2010
Power County Wind Park North, LLC
Date:
(the "Effectiv
B
Title:
oate: ff-/6,zoto
Power County'lilind Park South, LLC
v:'t
itle:
B
T
o*r,. I '/6 .zoro
SETTLEMENT AGREEMENT AND RELEASE 4 of7
POWER PURCHASE AGREEMENT
BETWEEN
POWER COUNTY WIND PARK SOUTH, LLC
[a non-fueled, on-system, Intermittent Resource with Mechanical Availability Guarantee,
Idaho Qualifying Facility- 1 0aIvIWIvIonth or le s sl
AND
PACIFICORP
Section 1: Definitions............. ..................... 1
Section 2: Term, Commercial Operation Date......... .......................9
Section 3: Representations and Warranties .................. 11
Section 4: Delivery of Power; Availability Guaranty... ................. 13
Section 5: Purchase Prices ....... 16
Section 6: Operation and Control .............. 18
Section 7: Motive Force........ .....................22
Section 8: Generation Forecasting Costs .....................22
Section 9: Metering; Reports and Records........-...... .....................23
Section 10: Billings, Computations and Payments .....25
Section 11: Security .................26
Section 12: Defaults and Remedies........... ..................27
Section 13: Indemnification; Liability... ....29
Section 14: Insurance.............. ...................30
Section 15: Force Majeure.... ..................... 31
Section 16: Several Ob1igations..........,...., ...................32
Section 17: Choice of Law...... ..................32
Section 18: Partial lnvalidity ....................32
Section 19: Waiver ...................33
Section 20: Governmental Jurisdiction and Authorizations ........... ................33
Section 21: Successors and Assigns ......... 33
Section 22:Entne Agreement ...................33
Section 23: Notices............... ....................34
POWER PURCHASE AGREEMENT
.THIS POWER PURCHASE AGREEMENT ("Agreemenf'), entered into tti. l8e day of
tlUruxil_, 20h, is between Power County Wind Park South,LLC, Delaware limited liability
cbrqlany (the "Seller") and PacifiCorp, an Oregon corporation acting in its merchant function
capacity (o'PacifiCorp"). Seller and PacifiCorp are referred to collectively as the "Parties" and
individually as a "Part5/".
RECITALS
A. Seller intends to construct, own, operate and maintain a wind facility, for the
generation of electric power located in Power, County, Idaho with an expected Facility Capacity
Rating of 21,780 kilowatts (kSI) as further described in Exhibit A and Exhibit B ("Facility")
B. Seller has granted rights to deliver output from Power County Wind Park North,
LLC (a Qualiffing Facility) to PacifiCorp across interconnection facilities owned by Seller;
Seller and Power County Wind Park North,LLC have agreed to allocate comingled line losses
on those interconnection facilities as set forth in Addendum L.
C. Seller intends to operate the Facility as a Qualiffing Facility, as such term is
defined in Section 1.57 below, and to sell Net Output to PacifiCorp in Idaho.
D. Seller estimates that the average annual Net Output to be delivered by the Facility
to PacifiCorp is 60,523,733 kilowatt-hours (kWh) ("Average Annual Net Output") pursuant to
the monthly Energy Delivery Schedule in Exhibit I) hereto, which amount of energy PacifiCorp
will include in its resource planning.
E. Seller intends to sell and PacifiCorp intends to purchase all the Net Output from
the Facility in accordance with the terms and conditions of this Agteement.
F. PacifiCorp intends to designate Seller's Facility as a Network Resource for the
purposes of serving Network Load.
G. This Agreement is a "New QF Contract" under the PacifiCorp Inter-Jurisdictional
Cost Allocation Revised Protocol.
H. Seller E has I has not authorized Transmission Provider to release generation
data to PacifiCorp. If yes, the authorization is attached as Exhibit H.
L This Agreement is part of a compromise of a legal dispute between PacifiCorp
and Seller. As such, this Agreement shall not establish any precedent regarding PacifiCorp's
treatment of Qualiffing Facilities.
NOW, THEREFORE, the Parties mutually agree as follows:
SECTION 1: DEFINITIONS
When used in this Agreement, the following terms shall have the following meanings:
1.1 "As-built Supplemenf' shall be a supplement to Exhibit A, provided by
Seller following completion of constuction of the Facility, accurately describing the
completed Facility.
1.2 "Availabilit5r" means, for any Billing Period, the ratio, expressed as a
percentage, of (x) the aggregate sum of the turbine-minutes in which each of the Wind
Turbines at the Facility was available to generate at the Maximum Facility Delivery Rate
during the Billing Period over (y) the product of the number of Wind Turbines that comprise
the Facility Capacity Rating as of Commercial Operation multiplied by the number of
minutes in such Billing Period. A Wind Turbine shall be deemed not available to operate
during minutes in which it is (a) in an emergency, stop, service mode or pause state; (b) in
"run" status and faulted; or (c) otherwise not operational or capable of delivering at the
Maximum Facility Delivery Rate to the Point of Delivery; unless if unavailable due solely to
(i) a default by PacifiCotp; (ii) to the extent not caused by Seller's actions, a curtailment in
accordance with Section 6.3; (iii) insufficient or surplus wind (including the normal amount
of time required by the generating equipment to resume operations following a period when
wind speed is below the Cut-In Witd Speed or above the Cut-Out Wind Speed); (iv) a
Planned Outage or Maintenance Outage in accordance with Section 6.5.1 or 6.5.2
(respectively) up to a maximum of 36 hours per Wind Turbine per year; or (v) Force Majeure
events under Section 15.1.
1.3 "Billing Period" means the time period between PacifiCorp's reading of its
power purchase meter at the Facility and for this Agreement shall coincide with calendar
months.
t.4 "Business I)ay" means any calendar day, from 8 a.m. to 5 p.m. prevailing
Mountain Time on which banks in the State of Idaho are required to be open for business
except Saturday and Sunday.
1.5 "Commercial Operation" means that not less than the 90% of the expected
Facility Capacity Rating is fully operational and reliable and the Facility is fully
interconnected, fully integrated, and synchronized with the System, all of which shall be
Seller's responsibility to receive or obtain, and which occurs when all of the following events
(i) have occurred, and (ii) remain simultaneously true and accurate as of the date and moment
on which Seller gives PacifiCorp notice that Commercial Operation has occurred:
1.5.1 PacifiCorp has received a certificate addressed to PacifiCorp from a
Licensed Professional Engineer (a) stating the Facility Capacity Rating of the Facility at
the anticipated time of Commercial Operation and (b) stating that the Facility is able to
generate electric power reliably in amounts required by this Agreement and in accordance
with all other terms and conditions of this Agreement.
t.5.2
with Exhibit E.
1.s.3
Start-Up Testing of the Facility has been completed in accordance
PacifiCorp has received a certificate addressed to PacifiCorp from a
Licensed Professional Engineer, an attomey in good standing in Idaho, or a letter from
2
Transmission Provider, stating that, in accordance with the Generation Interconnection
Agreement all required interconnection facilities have been constructed, all required
interconnection tests have been completed and the Facility is physically interconnected
with the System in confomrance with the Generation Interconnection Agreement and able
to deliver energy consistent with the terms of this Agreement, and the Facility is fully
integrated and qmchronized with the System.
t.5.4 PacifiCorp has received a certificate addressed to PacifiCorp from a
Licensed Professional Engineer, or an attorney in good standing in Idatro, stating that
Seller has obtained all Required Facility Documents and, if requested by PacifiCorp in
writing, Seller shall have provided copies of any or all such requested Required Facility
Documents.
1.5.5
1.s.6
Seller has complied with the security requirements of Section 11.
Network Resource Designation and Transmission Service Request.
(a) Seller has provided all data required by the Transmission Provider
to enable the Facility to be designated as a Network Resource in
accordance with the Tariff.
(b) PacifiCorp has received confirmation from the Transmission
Provider that the Facility has been designated as a Network
Resource.
(c) Seller has provided all data required for PacifiCorp to submit a
transmission service request for the Facility pursuant to the Tariff.
(d) PacifiCorp has received confirmation from the Transmission
Provider that the transmission service request has been granted in
sufficient capacity to meet or exceed the Maximum Facility
Delivery Rate and the Seller has paid all costs associated with any
requirements of the transmission service request.
1.6 "Commercial Operation Date" means the date, as designated by PacifiCorp
pursuant to Section 2.4,the Facility first achieves Commercial Operation.
1.7 "Commission" means the Idaho Public Utilities Commission.
1.8 "Conforming Energy" means all Net Energy except Non-Conforming Energy.
1.9 "Conforming Energy Purchase Price" means the applicable price for
Conforming Energy and capacity, specified in Section 5.1.
1.10 "Contract Year" means a twelve (12) month period commencing at 00:00
hours Mountain Prevailing Time (MPT") on January 1 and ending on 24:00 hours MPT on
December 3l; provided, however, that the first Contract Year shall commence on the
Commercial Operation Date and end on the next succeeding December3l, and the last
Contract Year shall end on the Expiration Date, unless earlier tenninated as provided herein.
1.11 "Cut-in Wind Speed" means the predicted wind speed at which a stationary
wind nrbine begins producing Net Energy, as specified by the turbine manufacturer and set
forth in Exhibit A.
l.l2 "Cut-out Wind Speed" means the predicted wind speed at which an operating
Wind Turbine stops producing Net Energy due to excess wind speed, as specified by the
turbine manufacturer and set forth in Exhibit A.
1.13 "I)elay Liquidated I)amages", "Delay Daily Minimum", "I)elay Period",
"Delay Price" and "Delay Volume" shall have the meanings set forth in Section 2.5 of this
Agreement. "Delay Security" shall have the meaning set forth in Section 11.1.1 of this
Agreement.
l.l4 "Default Security" shall have the meaning set forlh in Section 11.2 of this
Agreement.
1.15 "Effective Date" shall have the meaning set forth in Section 2.1 of this
Agreement.
I . 16 "Energy Delivery Schedule" shall have the meaning set forth in Section 4.3 of
this Agreement.
l.l7 "Environmental Attributes" means any and all claims, credits, benefits,
emissions reductions, offsets, and allowances, howsoever entitled, resulting from the
avoidance of the emission of any gas, chemical, or other substance to the air, soil or water,
which are deemed of value by PacifiCorp. Environmental Attributes include but are not
limited to: (1) any avoided emissions of pollutants to the air, soil, or water such as (subject
to the foregoing) sulfur oxides (SOx), nitrogen oxides (NOx), carbon monoxide (CO), and
other pollutants; and (2) any avoided emissions of carbon dioxide (COz), methane (CH4),
and other greenhouse gases (GHGs) that have been determined by the United Nations
Intergovenrmental Panel on Climate Change to contribute to the actual or potential threat of
altering the Eaflfi's climate by trapping heat in the atmosphere. Environmental Atkibutes do
not include (i) Production Tax Credits or certain other tax incentives existing now or in the
future associated with the construction, ownership or operation of the Facility, (ii) matters
designated by PacifiCorp as sources of liability, or (iii) adverse wildlife or environmental
impacts.
1.18 "Environmental Contamination" means the infroduction or presence of
Hazardous Materials at such levels, quantities or location, or of such form or character, as to
constifute a violation of federal, state or local laws or regulations, and present a material risk
under federal, state or local laws and regulations that the Premises will not be available or
usable for the purposes contemplated by this Agreement.
1.19 "Expiration Date" shall have the meaning set forth in Section 2.1 of this
Agreement.
1.20 "Facilit5r" is defined in Recital A of this Agreement.
1,.21 "Facility Capacity Rating" means the sum of the Nameplate Capacity Ratings
for all generators comprising the Facility.
1.22 "Force Majeure" has the meaning set forth in Section 15.1.
1.23 "Forced Outage" means an outage that requires removal of one or more Wind
Turbines from service, another outage state or a reserve shutdown state before the end of the
next weekend. Maintenance Outages and Planned Outages are not Forced Outages.
1.24 "Generation Interconnection Agreement" means the generation
interconnection agreement entered into separately between Seller and Transmission Provider,
as applicable, speciffing the Point of Delivery and providing for the construction and
operation of the Interconnection Facilities.
1.25 "Governmental Authority" means any supranational, federal, state or other
political subdivision thereof, having jurisdiction over Seller, PacifiCorp or this Agreement,
including any municipality, township or county, and any entity or body exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining to govemment,
including any corporation or other entity owned or eonholled by any of the foregoing.
1.26 "Hazardous Materials" means any waste or other substance that is listed,
defined, designated or classified as or determined to be hazardous under or pursuant to any
environmental law or regulation.
L.27 "Inadvertent Energy" means: (1) energy delivered to the Point of Delivery in
excess of the Maximum Monthly Purchase Obligation; and (2) energy delivered to the Point
of Delivery at a rate exceeding the Maximum Facility Delivery Rate on an hour-averaged
basis. Inadvertent Energy is not included in Net Energy.
1.28 "Index Price", for each day, shall mean the weighted average of the average
Peak and Off-Peak firm energy market prices, as published in the Intercontinental Exchange
(ICE) Day Ahead Power Price Report for the Palo Verde Hub. For Sunday and NERC
holidays, the 24-Hour Index Price shall be used, unless ICE shall publish a Firm On-Peak
and Firm Off-Peak Price for such days for Palo Verde, in which event such indices shall be
utilized for such days. If the ICE index or any replacement of that index ceases to be
published during the term of this Agreement, PacifiCorp shall select as a replacement a
substantially equivalent index that, after any appropriate or necessary adjusfrnents, provides
the most reasonable substitute for the index in question. PacifiCorp's selection shall be
subject to Seller's consent, which Seller shall not unreasonably wittrhold, condition or delay.
1.29 "Initial Year Energy Delivery Schedule" shall have the meaning set forth in
Section 4.3.1.
1.30 o'Interconnection Facilities" means all the facilities and ancillary equipment
used to interconnect the Facility to the System, as defured in the Generation Interconnection
Agreement.
1.31 "Letter of Credif'means an irrevocable standby letter of credit in a form
reasonably acceptable to PacifiCorp, naming PacifiCorp as the parfy entitled to demand
payment and present draw requests thereunder. Such letter of credit shall be provided by an
institution that is a United States office of a commercial bank or trust company organized
under the laws of the United States of America or a political subdivision thereof, with a
credit rating on its long-term senior unsecured debt of at least "A" from Standard & Poor's
and".!t2" from Moody's Investor Services, and having assets of at least $10,000,000,000 (net
ofreserves).
1.32 "Licensed Professional Engineer" means a person acceptable to PacifiCorp in
its reasonable judgment who is licensed to practice engineering in the state of Idaho, who has
training and experience in the engineering discipline(s) relevant to the matters with respect to
which such person is called to provide a certification, evaluation and/or opinion, who has no
economic relationship, association, or nexus with the Seller, and who is not a representative
of a consulting engineer, contractor, designer or other individual involved in the development
of the Facility, or of a manufacturer or supplier of any equipment installed in the Facility.
Such Licensed Professional Engineer shall be licensed in an appropriate engineering
discipline for the required certification being made. The engagement and payment of a
Licensed Professional Engineer solely to provide the certifications, evaluations and opinions
required by this Agreement shall not constitute a prohibited economic relationship,
association or nexus with the Seller, so long as such engineer has no other economic
relationship, association or nexus with the Seller.
1.33 "Maintenance Outageo'means any outage of one or more Wind Turbines that
is not a Forced Outage or a Planned Outage. A Maintenance Outage is an outage that can be
deferred until after the end of the next weekend, but that requires that the Wind Turbine(s) be
removed from service before the next Planned Outage. A Maintenance Outage may occur
any time during the year and must have a flexible start date.
L.34 "Material Adverse Change" shall mean, with respect to the Seller, if the
Seller, in the reasonable opinion of PacifiCorp, has experienced a material adverse change in
ability to fulfill its obligations under this Agreement.
1.35 "Maximum Facility Delivery Rate" means the maximum instantaneous rate
(kW) at which the Facility is capable of delivering Net Output at the Point of Delivery, as
specified in Exhibit A, and in compliance with the Generation Interconnection Agreement.
1.36 "Maximum GIA Delivery Rate" means the maximum rate (kW) at which the
Generator Interconnection Agreement allows the Facility to deliver energy to the Point of
Delivery and is set forth in Exhibit A.
1.37 'oMaximum Monthly Purchase Obligation" means the maximum amount of
energy PacifiCorp is obligated to purchase under this Agreement in a calendar month. In
accordance with Commission Order No. 29632, the Maximum Monthly Purchase Obligation
for a given month, in kWh, shall equal 10,000 kW multiplied by the total number of hours in
that month and prorated for any partial month.
1.38 "Nameplate Capacity Rating" means the maximum instantaneous generating
capacity of any qualiffing small power or cogeneration generating unit supplying all or part
of the energy sold by the Facility, expressed in MW or kW, when operated consistent with
the manufacturer's recommended power factor and operating parameters, as set forth in a
notice from Seller to PacifiCorp delivered before the Commercial Operation Date and, if
applicable, updated in the As-built Supplement.
1.39 .'NERC" means the North American Electric Reliability Corporation.
1.40 "Net Energy" means the energy component, in kWh, of Net Output. Net
Energy does not include Inadvertent Energy.
l.4l "Net Output" means all energy and capacity produced by the Facility, less
station use and less transformation and transmission losses and other adjustments, if any. For
purposes of calculating payment under this Agreement, Net Output of energy shall be the
amount of energy flowing through the Point of Delivery, less any station use not provided by
the Facility. Net Output does not include Inadvertent Energy.
1.42 "Network Resource" shall have the meaning set forth in the Tariff.
1.43 "Network Service Provider" means PacifiCorp Transmission, as a provider of
network service to PacifiCorp under the Tariff.
1.44 "Non-Conforming Energy''means Net Output produced by the Facility prior
to the Commercial Operation Date.
1.45 "Non-Conforming Energy Purchase Price" means the applicable price for
Non-Conforming Energy and capacity, specified in Section 5.1.
1.46 "Off-Peak Hours" means all hours of the week that are not On-Peak Hours.
1.47 "On-Peak Hours" means hours from 7:00 a.m. to 11:00 p.m. Mountain
Prevailing Time, Monday through Saturday, excluding Western Electricity Coordinating
Council (WECC) and North American Electic Reliability Corporation (NERC) holidays.
1.48 "Output Shortfall" and "Output Shortfall Damages" shall have ttre
mganings set forth in Section 4.5 of this Agreement.
1.49 "PacifiCorp" is defined in the fust paragraph of this Agreement, and excludes
PacifiCorp Transmission.
1.50 "PacifiCorp Transmission" means PacifiCorp, an Oregon corporation, acting
in its interconnection and transmission function capacity.
1.51 "Planned Outage" means an outage of one or more Wind Turbines of
predetermined duration that is scheduled in Seller's Energy Delivery Schedule. Boiler
overhauls, turbine overhauls or inspections are typical planned outages. Maintenance
Outages and Forced Outages are not Planned Outages.
7
1.52 "Point of I)elivery" means the high side of the generation step-up
transfomer(s) located at the point of interconnection between the Facility and the System, as
specified in the Generation Interconnection Agreement and in Exhibit B.
1.53 "Premises" means the real properly on which the Facility is or will be located,
as more fully described on Exhibit A.
1.54 "Prime Rate" means the rate per annum equal to the publicly announced
prime rate or reference rate for commercial loans to large businesses in effect from time to
time quoted by JPMorgan Chase & Co. If a JPMorgan Chase & Co. prime rate is not
available, the applicable Prime Rate shall be the announced prime rate or reference rate for
commercial loans in effect from time to time quoted by a bank with $10 billion or more in
assets in New York City, N.Y., selected by the Party to whom interest based on the prime
rate is being paid.
1.55 "Production Tax Credits" means production tax credits under Section 45 of
the Internal Revenue Code as in effect from time to time during the term hereof or any
successor or other provision providing for a federal tax credit determined by reference to
renewable electric energy produced from wind resources and any correlative state tax credit
determined by reference to renewable electric energy produced from wind resources for
which the Facility is eligible. Production Tax Credits do not include any tax credit
determined by reference to investment.
1.56 "Prudent Electrical Practices" means any of the practices, methods and acts
engaged in or approved by a significant portion of the electrical utility industy or any of the
practices, methods or acts, which, in the exercise of reasonable judgment in the light of the
facts known at the time a decision is made, could have been expected to accomplish the
desired result at the lowest reasonable cost consistent with reliability, safety and expedition.
Prudent Electrical Practices is not intended to be limited to the optimum practice, method or
act to the exclusion of all others, but rather to be a spectrum of possible practices, methods or
acts.
1.57 "QF" means "Qualifying Facility", as that term is def,rned in the version of
FERC Regulations (codified at 18 CFR Part292) in effect on the date of this Agreement.
1.58 "Required Facility Documents" means all deeds, titles, leases (including
Wind Leases), licenses, permits, authorizations, and agreements demonstrating that seller
controls the necessary property rights and government authorizations to construct, operate,
and maintain the Facility, including without limitation those set forth in Exhibit C.
1.59 "Requirements of Law" mears any applicable and mandatory (but not merely
advisory) federal, state and local law, stafute, regulation, rule, code or ordinance enacted,
adopted, issued or promulgated by any federal, state, local or other Governmental Authority
or regulatory body (including those pertaining to electrical, building, zoning, environmental
and occupational safety and health requirements).
1.60 "Scheduled Commercial Operation Date" means the date by which Seller
promises to achieve Commercial Operation, as specified in Section2.2.6.
1.61 "Scheduled Monthly Energy Delivery" means the Net Energy scheduled to
be delivered during a given calendar month, as specified by Seller in the Energy Delivery
Schedule.
1.62 "Seller's Forecast-Cost Share" and "Seller's Capped Forecast-Cost Share"
shall have the meanings set forth in Sections 8.2 and 8.3 respectively.
1.63 "subsequent Energy Delivery Schedule" shall have the meaning set forth in
Section 4.3.3.
1.64 "System" means the electric transmission substation and fansmission or
distribution facilities owned, operated or maintained by Transmission Provider, which shall
include, after construction and installation of the Facility, the circuit reinforcements,
extensions, and associated terminal facility reinforcements or additions required to
interconnect the Facility, all as set forth in the Generation Interconnection Agreement.
1.65 "Tariff' means the PacifiCorp Transmission FERC Electric Tariff Seventh
Revised Volume No.ll Pro Forma Open Access Transmission Tariffor the Transmission
Provider's corresponding FERC tariff or both, as revised from time to time.
1.66 "Transmission Provider" means PacifiCorp Transmission or a successor,
including any regional transmission organization ('RTO").
1.67 "Wind Leases" means the memoranda of wind lease and redacted wind leases
recorded in the county in which the Facility is located in connection with the development of
the Facility, as the same may be supplemented, amended, extended, restated, or replaced
from time to time.
1.68 "Wind Turbine" means a Vestas V100, 1.8 megawatt wind turbine. At its full
Facility Capacity Rating, the Facility will consist of 12 Wind Turbines.
SECTION 2: TERM. COMMERCIAL OPERATION DATE
2.1 This Agreement shall become effective after execution by both Parties and
after approval by the Commission ("Effective Date"); provided, however, this Agreement
shall not become effective until the Commission has determined that the prices to be paid for
energy and capacity are just and reasonable, in the public interest, and that the costs incurred
by PacifiCorp for purchases of capacity and energy from Seller are legitimate expenses, all of
which the Commission will allow PacifiCorp to recover in rates in Idaho in the event other
jurisdictions deny recovery of their proportionate share of said expenses. PacifiCorp shall
seek such Commission approval promptly upon execution of this Agreement.
Unless earlier terminated as provided herein, the Agreement shall remain in effect until 24:00
MPT December 31,2031 ("Expiration Date').
2.2 Time is of the essence of this Agreement, and Seller's ability to meet certain
requirements prior to the Commercial Operation Date and to achieve Commercial Operation
by the Scheduled Commercial Operation Date is critically important. Therefore,
2.2.1 By June l, 2011, Seller shall obtain and provide to PacifiCorp
copies of all govenrmental permits and authorizations necessary for construction of the
Facility.
2.2.2 By the date 30 calendar days after the Effective Date, Seller shall
provide Delay Security required under Section 11.1.1, as applicable.
2.2.3 At least ten business days prior to delivery of any energy from the
Facility to PacifiCorp, Seller shall provide PacifiCorp with an executed Generation
Interconnection Agreement.
2.2.4 Prior to Commercial Operation Date, Seller shall provide Default
Security required under Section Lt.2, as applicable.
2.2.5 Prior to Commercial Operation Date, Seller shall provide PacifiCorp
with an As-built Supplement acceptable to PacifiCorp.
2.2.6 By 24t00 MPT December 31, 2011, Seller shall achieve
Commercial Operation ("Scheduled Commercial Operation Date").
2.3 Beginning on the first day of the first month following the Effective Date,
Seller shall provide PacifiCorp a one-page monthly update by e-mail on the progress of the
milestones in Section 2.2.
2.4 Establishing Commercial Operation. To achieve Commercial Operation,
Seller must provide, subject to PacifiCorp's written approval which will not be unreasonably
withheld, written notice to PacifiCorp stating when Seller believes that the Facility has
achieved Commercial Operation accompanied by the certificates described in Section 1.5.
PacifiCorp's approval, if given, shall desiguate the Commercial Operation Date. In no event
will delay in achieving the Scheduled Commercial Operation Date postpone the Expiration
Date specified in Section2.t.
2.5 Delay Damages. Seller shall cause the Facility to achieve Commercial
Operation on or before the Scheduled Commercial Operation Date. If Commercial Operation
occurs after the Scheduled Commercial Operation Date, Seller shall be liable to pay
PacifiCorp delay damages for the number of days ("Delay Period") the Commercial
Operation Date occurs after the Scheduled Commercial Operation Date, until the earlier of
occrrrence of the Commercial Operation Date or the termination of this Agreement ("Delay
Liquidated Damages"). Billings and payments for Delay Liquidated Damages shall be made
in accordance with Section 11.1.
10
2.5.1, Delay Liquidated Damages. Delay Liquidated Da:nages equals the sum
of: for each day in the Delay Period, the greater of (1) the Delay Daily Minimum or (2)
the Delay Price times the Delay Volume
Where:
"Delay Daily Minimum" equals (a) for the first 90 calendar days
following the Scheduled Commercial Operation Date: one-ninetieth
(1/90th) of twenty-five dollars ($25) multiplied by the Maximum Facility
Delivery Rate with the Maximum Facility Delivery Rate being measured
in kW; O) after the 90th calendar day following the Scheduled
Commercial Operation date: $0.
"Delay Price" equals the positive difference, if any, of the Index Price
minus the weighted average of the On-Peak and Off-Peak monthly
Conforming Energy Purchase Prices; and
"Delay Yolume" equals the applicable Scheduled Monthly Energy
Delivery divided by the number of days in that month.
2.5.2 Appropriateness of Damages. The Parties agree that the damages
PacifiCorp would incur due to delay in the Facility achieving Commercial Operation on
or before the Scheduled Commercial Operation Date would be difficult or impossible to
predict with certainty, and that the Delay Liquidated Damages axe an appropriate
approximation of such damages.
SECTION 3: REPRESENTATIONS AND WARRANTIES
3.1 PacifiCorp represents, covenants, and warrants to Seller that:
3.1.1 PacifiCorp is duly organized and validly existing under the laws of
the State of Oregon.
3.1.2 PacifiCorp has the requisite corporate power and authority to enter
into this Agreement and to perform according to the terms of this Agreement.
3.1.3 PacifiCorp has taken all corporate actions required to be taken by it
to authorize the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby.
3.1.4 Subject to Commission approval, the execution and delivery of this
Agreement does not contravene any provision of, or constifute a default under, any
indenture, mortgage, or other material agreement binding on PacifiCorp or any valid
order of any court, or any regulatory agency or other body having authority to which
PacifiCorp is subject.
3.1.5 Subject to Commission approval, this Agreement is a valid and
legally binding obligation of PacifiCorp, enforceable against PacifiCorp in accordance
with its tenns (except as the enforceability of this Agreement may be limited by
11
bankruptcy, insolvency, bank moratorium or similar laws affecting creditors' rights
generally and laws restricting the availability of equitable remedies and except as the
enforceability of this Agreement may be subject to general principles of equity, whether
or not such enforceability is considered in a proceeding at equity or in law).
3.2 Seller represents, covenants, and warrants to PacifiCorp that:
3.2.1 Seller is a limited liability company duly organized and validly
existing under the laws of Idaho.
3.2.2 Seller has the requisite power and authority to enter into this
Agreement and to perform according to the terms hereof, including all required
regulatory authority to make wholesale sales from the Facility.
3.2.3 Seller's shareholders, directors, and officers have taken all actions
required to authorize the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby.
3.2.4 The execution and delivery of this Agreement does not contravene
any provision of, or constitute a default under, any indenture, mortgage, or other material
agreement binding on Seller or any valid order of any court, or any regulatory agency or
other body having authority to which Seller is subject.
3.2.5 This Agreement is a valid and legally binding obligation of Seller,
enforceable against Seller in accordance with its temrs (except as the enforceabilrty of
this Agreement may be limited by bankruptcy, insolvency, bank moratorium or similar
laws affecting creditors' rights generally and laws restricting the availability of equitable
remedies and except as the enforceability of this Ageement may be subject to general
principles of equity, whether or not such enforceability is considered in a proceeding at
equity or in law).
3.2.6 The Facility is and shall for the term of this Agreement continue to
be a QF. Seller has provided the appropriate QF certification, which may include a
Federal Energy Regulatory Commission self-certification to PacifiCorp prior to
PacifiCorp's execution of this Agreement. At any time PacifiCorp has reason to believe
during the term of this Agreement that Seller's status as a QF is in question, PacifiCorp
may require Seller to provide PacifiCorp with a written legal opinion from an attorrey in
good standing in the state of Idaho and who has no economic relationship, association or
nexus with the Seller or the Facility, stating that the Facility is a QF and providing
sufficient proof (including copies of all documents and data as PacifiCorp may request)
demonstrating that Seller has maintained and will continue to maintain the Facility as a
QF.
3.2.7 Neither the Seller nor any of its principal equity owners is or has
within the past two (2) years been the debtor in any bankruptcy proceeding, is unable to
pay its bills in the ordinary course of its business, or is the subject of any legal or
l2
regulatory action, the result of which could reasonably be expected to impair Seller's
ability to own and operate the Facility in accordance wittr the terms of this Agreement.
3.2.8 Seller has not at any time defaulted in any of its payment obligations
for electicity purchased from PacifiCorp.
3.2.9 Seller is not in default under any of its other agreements and is
current on all of its financial obligations.
3.2.10 Seller owns, and will continue to own for the term of this
Agreement, all right, title and interest in and to the Facility, free and clear of all liens and
encumbrances other than liens and encumbrances related to third-party financing of the
Facility.
3.2.11 In entering into this Agreement and the undertaking by Seller of the
obligations set forth herein, Seller has investigated and determined that it is capable of
performing hereunder and, except for reliance upon PacifiCorp expertise in relation to
Generation Interconnection related issues, has not relied upon the advice, experience or
expertise of PacifiCorp in connection with the transactions contemplated by this
Agreement.
3.2.12 All professionals or experts including, but not limited to, engineers,
attorneys or accountants, that Seller may have consulted or relied on in undertaking the
transactions contemplated by this Agreement have been solely those of Seller.
3.2.13 A11 leases of real property required for the operation of the Facility
or the performance of any obligations of Seller hereunder are set forth and accurately
described in Exhibit C. Upon request by PacifiCorp, Seller shall provide copies of the
Wind Leases to PacifiCorp.
3.2.14 All information about the Facility set forth in Exhibit A, Exhibit B,
and Exhibit C has been verified by Seller and is accurate to the best of its knowledge.
3.3 Notice. If at any time during this Agreement any Party obtains actual
knowledge of any event or information which would have caused any of the representations
and war-ranties in this Section 3 to have been materially untrue or misleading when made,
such Party shall provide the other Parfy wittr written notice of the event or information, the
representations and warranties afflected, and the action, if any, which such Party intends to
take to make the representations and warranties true and correct. The notice required
pursuant to this Section shall be given as soon as practicable after the occurrence of each
such event.
SECTION 4: DELIVERY OI' POWER: AVAILABILITY GUARANTY
4.1 Delivery and Acceptance of Net Output. Unless otherwise provided herein,
PacifiColp will purchase and Seller will sell all Net Output from the Facility.
13
4.2 No Sales to Third Parties. During the term of this Agreement, Seller shall not
sell any Net Output from the Facility to any entity other than PacifiCorp.
4.3 Energy Delivery Schedule. Seller shall prepare and provide to PacifiCorp, on
an ongoing basis, a written schedule of Net Energy expected to be delivered by the Facility
("Energy Delivery Schedule"), in accordance with the following:
4.3.1 During the first twelve full calendar months following the
Commercial Operation Date, Seller predicts that the Facility will produce and deliver the
following monthly amounts ("Initial Year Energy Delivery Schedule"):
Month
January
February
March
April
May
June
July
August
September
October
November
December
EnereY Delivery (kWh)
6,221,422
5,743,522
6,215,694
5,326,692
4,710,890
4,539,524
3,445,526
3,321,630
4,113,799
4,744,697
5,620,495
6,519,963
Seller may revise the Initial Year Energy Delivery Schedule any
time prior to the Commercial Operation Date.
Beginning at the end of the ninth full calendar month of operation,
4.3.2
4.3.3
and at the end of every third month thereafter, Seller shall supplement the Energy
Delivery Schedule with three addifional months of forward estimates (which shall be
appended to this Agreement as Exhibit D) ("Subsequent Energy Delivery Schedule"),
such that the Enerry Delivery Schedule will provide at least three months of scheduled
energy estimates at all times. Seller shall provide Subsequent Energy Delivery Schedules
no later than 5:00 pm of the 5th day after the due date. If Seller does not provide a
Subsequent Energy Delivery Schedule by the above deadline, scheduled energy for the
omitted period shall equal the amounts scheduled by Seller for the same three-month
period during the previous year.
4.3.4 Upon and after the Commercial Operation Date, Seller may no
longer revise the Energy Delivery Schedule for the first six full calendar months of
t4
Commercial Operation. After 5:00 p.m. MPT of the fifttr business day following the end
of the third fuIl calendar month of Commercial Operation and the end of each third
calendar month thereafter, Seller may no longer revise the Energy Delivery Schedule for
the six calendar months immediately following such third month. Subject to the
foregoing restrictions in this Section 4.3.4, Seller may revise the Energy Delivery
Schedule for any urrestricted month by providing written notice to PacifiCorp. Failure to
provide timely written notice of changed amounts will be deemed to be an election of no
change.
4.4 Minimum Availabilitv Obligation. Seller shall cause the Facility to achieve the
following Availability during each month of the Agreement ("Guaranteed Availability"):
Number of calendar months elapsed after the
Commercial Operation Date (COD):
Guaranteed Availability
Up to 3 months after COD:s5%
More than 3 months up to 6 months after COD:70%
Greater than 6 months after COD:8s%
As used above, "calendar month" includes the first month, or partial month, after the
Commercial Operation Date, and each subsequent calendar month (e.g. June, July, etc.).
4.5 Liquidated Damages for Output Shortfall. If the Availability in any given
month falls below the Guaranteed Availability, the resulting shortfall shall be expressed in
kWh as the "Outtrlut Shortfall." The Output Shortfall shall be calculated in accordance with
the following formula:
Output Shortfall: (Guaranteed Availability - Availability) *
Scheduled Monthly Energy Delivery
Seller shall pay PacifiCorp for any Output Shortfall at the lower of (l) the positive
difference, if any, of the Index Price minus the weighted average of the On-Peak and Off-
Peak monthly Conforming Energy Purchase Prices; or (2) the weighted average of the On-
Peak and Off-Peak monthly Conforming Energy Purchase Prices ("Output Shortfall
I)amages").
Output Shortfall I)amages = Output Shortfall * Output Shortfall Price
Where:
(Index Price - Weighted Average CEPP), except
that if Output Shortfall Price < 0, then Output
15
Output Shortfall Price :
Shortfall Price = 0, and except that if Output
Shortfall Price > Weighted Average CEPP, then
Output Shortfall Price: Weighted Average CEPP
Weighted Average CEPP: the weighted average On-Peak and Off-Peak
Conforming Energy Purchase Prices for the month
of Output Shorlfall
If an Output Shortfall occurs in any given month, Seller may owe PacifiCorp liquidated
damages. Each Party agrees and acknowledges that (a) the damages that PacifiCorp would
incur due to the Facility's failure to achieve the Guaranteed Availability would be diffrcult or
impossible to predict with certainty, and (b) the liquidated damages contemplated in this
Section 4.5 are a fair and reasonable calculation of such damages.
4.6 Audit Rights. In addition to data provided under Sections 9.3 and 9.4,
PacifiCorp shall have the right, but not the obligation, to audit the Facility's compliance with
its Guaranteed Availability using any reasonable methods. Seller agrees to retain all
performance related data for the Facility for a minimum of three years, and to cooperate with
PacifiCorp in the event PacifiCorp decides to audit such data.
SECTION 5: PURCHASE PRICES
5.1 Enerry Purchase Price. Except as provided in Section 5.3, PacifiCorp will pay
Seller Conforming Energy or Non-Conforrring Energy Purchase Prices for Net Output
adjusted for the month and On-Peak Hours or Off-Peak Hours and the wind integration cost
using the following formulae, in accordance with Commission Order Nos. 30423, 31025, and
31021:
Conforming Energy Purchase Price = (AR." * MPM) - WIC
Non-Conforming Energy Purchase Price = (ARn"" * MPM) - WIC
Where:
A&"
ARr."
Conforming Energy annual rate from Table 1, below, for the year
of the Net Output.
the lower of,
85% of the Conforming Energy annual rate from Table 1
below, for the year of Net Output
or
85% of average of the daily Index Price for each day of the
month, orportion of month, of Net Output.
monthly On-Peak or Off-Peak multiplier from Table 2, below, that
corresponds to the month of the Net Output and whether the Net
Output occurred during On-Peak Hours or Off-Peak Hours.
MPM
t6
: $6.504/twh, the wind integration cost prescribed in Commission
OrderNo.31021.
Exarnple calculations are provided in Exhibit G.
Table 1: Conforming Energy Annual Rates (from Commission Order No. 31025).
Year
Conforming Energy
Annual Rate (AR"")
$/NIWh
20tl 60.24
2012 63.97
20t3 67.sL
2014 71.32
2015 75.44
2016 77.76
2017 80.07
2018 82.s8
2019 85.05
2020 87.61
2021 90.63
2022 93.78
2023 97.0s
2024 100.44
2025 103.98
2026 106.98
2027 I10.07
2028 t13.26
2029 116.s6
2030 l19.95
2031 r24.51
Table 2: Monthly On-Peak/Off-Peak Multipliers (from Commission Order No. 30423)
Month On-Peak
Hours
Off-Peak
IIours
January t03%94%
Februarv t05%97o/o
March 9s%80%
Aoril 95%76%
Mav 92o/o 63%
June 94%65%
July t2t%92%
August t2I%106%
September r09%99%
* If Seller has elected levelized pricing for Net Output, additional security requirements in
Section 11.2 apply.
t7
October tt5%105%
November tt0%96%
December 129%r20%
5.2 Pa)nnent. For each Billing Period in each Contract Year, PacifiCorp shall pay
Seller as follows:
For delivery of Confonning Energy:
Payment :(CEnergysn-peak * CEPPriceon-peak / 1000) +
(CEnergy6ff-peak * CEPPriceorr-peak / 1000)
For delivery of Non-Conforming Energy:
Payment : (NCEnergyon-peak * NCEPPriceon-peak / 1000) +
(NCEnerryeff-peak * NCEPPriceoff-peak / 1 000)
Where:
CEnergy :
CEPPrice :
NCEnergy :
NCEPPrice =
On-Peak :
Off-Peak :
Conforming Energy in kWh
Conforming Energy Purchase Price in $AdWh
Non-Conforming Energy in kWh
Non-Conforming Energy Purchase Price in $/I\4Wh
the corresponding value for On-Peak Hours
the corresponding value for Off-Peak Hours
5.3 Inadvertent Energy. PacifiCorp may accept Inadvertent Energy at its sole
discretion, but will not purchase or pay for Inadvertent Energy.
SECTION 6: OPERATION AND CONTROL
6.1 As-Built Suoplement. Upon completion of any construction affecting the
Facility, Seller shall provide PacifiCo{p an As-built Supplement bearing the stamp of a
Licensed Professional Engineer that accurately depicts the Facility as built. The As-built
Supplement must be reviewed and approved by PacifiCorp, which approval shall not
unreasonably be withheld, conditioned or delayed.
6.2 Seller shall operate and maintain the Facility in a safe manner in accordance
with the Generation Interconnection Agreement, Prudent Electrical Practices and in
accordance with the requirements of all applicable federal, state and local laws and the
National Electric Safety Code as such laws and code may be amended from time to time.
PacifiCorp shall have no obligation to purchase Net Output from the Facility to the extent the
interconnection between the Facility and PacifiCorp's elecfric system is disconnected,
suspended or intemrpted, in whole or in part, pursuant to the Generation Interconnection
Agreement, or to the extent generation curtailment is required as a result of Seller's non-
compliance with the Generation Interconnection Agreement. PacifiCorp shall have the right
to inspect the Facility to confirm that Seller is operating the Facility in accordance with the
18
provisions of this Section 6 upon reasonable notice to Seller. Seller is solely responsible for
the operation and maintenance of the Facility. PacifiCorp shall not, by reason of its decision
to inspect or not to inspect the Facility, or by any action or inaction taken with respect to any
such inspection, assume or be held responsible for any liability or occrurence arising from
the operation and maintenance by Seller of the Facility.
6.3 Curtailment. PacifiCorp shall not be obligated to pwchase, receive, pay for, or
pay any damages associated with, Net Output (or associated Production Tax Credits or
Environmental Auributes) if such Net Output (or associated Production Ta;r Credits or
Environmental Attributes) is not delivered to the System or Point of Delivery due to any of
the following: (a) the interconnection between the Facility and the System is disconnected,
suspended or intemrpted, in whole or in part, consistent with the terms of the Generation
Interconnection Agreement, (b) the Transmission Provider or Network Service Provider
directs a general curtailment, reduction, or redispatch of generation in the area (which would
include the Net Output) for any reason, even if such curtailment or redispatch directive is
carried out by PacifiCorp, which may fulfiIl such directive by acting in its sole discretiou; or
if PacifiCorp curtails or otherwise reduces the Net Output in order to meet its obligations to
the Transmission Provider or Network Service Provider to operate within System limitations,
(c) the Facility's Ouput is not received because the Facility is not fully integrated or
synchronized with the System, or (d) an event of Force Majeure prevents either Party from
delivering or receiving Net Output. Seller shall reasonably deterrnine the MWh amount of
Net Output curtailed pursuant to this Section 6.3 after the fact based on the amount of energy
that could have been generated at the Facility and delivered to PacifiCorp as Net Output but
that was not generated and delivered because of the curtailment. Seller shall determine the
quantity of such curtailed energy based on (x) the time and duration of the curtailment period
and (y) wind conditions recorded at the Facility during the period of curtailment and the
power curye specified by the manufacturer for the Wind Turbines as shown in Exhibit A.
Seller shall promptly provide PacifiCorp with access to such information and data as
PacifiCorp may reasonably require to confirm to its reasonable satisfaction the amount of
energy that was not generated or delivered because of a curtailment described in this Section
6.3.
6.4 PacifiCorp as Merchant. Seller acknowledges that PacifiCorp, acting in its
merchant capacity function as purchaser under this Agreement, has no responsibility for or
control over PacifiCorp Transmission or any successor Transmission Provider.
6.5 Outages.
6.5.1 Planned Outages. Except as otherwise provided herein, Seller shall
not schedule Planned Outage during any portion of the months of November, December,
January, February, June, July, and August, except to the extent a Planned Outage is
reasonably required to enable a vendor to satisff a guarantee requirement in a sifuation in
which the vendor is not otherwise able to perfomr the guarantee work at a time other than
during one of the months specified above. Seller shall, in Exhibit D, provide PacifiCorp
with an annual forecast of total Facility curtailment (MlV) due to Planned Outages for
each hour of each scheduling week (Monday-Sunda, of the Confiact Year at least one
(l) month, but no more that three (3) months, before the first day of that Contract Year,
19
and shall promptly update such schedule, or otherwise change it, only to the extent that
Seller is reasonably required to change it in order to comply with Prudent Electical
Practices. Seller shall notiff PacifiCorp of any deviation to the annual Planned Outage
schedule, above, on the Monday preceding the scheduling week in which the sooner of
the following will occur: (a) the outage as predicted in the Planned Outage schedule; or
(b) the outage per Seller's revised plans. Such notice shall consist of a Monday-Sunday,
hourly spreadsheet showing the revised total Facility curtailment (MW) for that
scheduling week. Seller shall not schedule any maintenance of Interconnection Facilities
during such months, without the prior written approval of PacifiCorp, which approval
may be withheld by PacifiCorp in its sole discretion.
6.s.2 Maintenance Outages. If Seller reasonably determines that it is
necessary to schedule a Maintenance Outage, Seller shall notifu PacifiCorp of the
proposed Maintenance Outage as soon as practicable but in any event at least five (5)
days before the outage begins (or such shorter period to which PacifiCorp may
reasonably consent in light of then existing wind conditions). Upon such notice, the
Parties shall plan the Maintenance Outage to mutually accommodate the reasonable
requirements of Seller and the service obligations of PacifiCorp. Seller shall take all
reasonable measures and use best efforts consistent with Prudent Electrical Practices to
not schedule any Maintenance Outage during the following periods: [June 15 through
June 30, July, August, and Septernber I through September 15]. Seller shall include in
such notice of a proposed Maintenance Outage the expected start date and time of the
outage, the amount of generation capacity of the Facility that will not be available, and
the expected completion date and time of the outage. Seller may provide notices under
this Section 6.5.2 oralLy. Seller shall confirm any such oral notification in writing as soon
as practicable. PacifiCorp shall promptly respond to such notice and may request
reasonable modifications in the schedule for the outage. Seller shall use all reasonable
efforts to comply with PacifiCorp's request to modiff the schedule for a Maintenance
Outage if such modification has no substantial impact on Seller. Seller shall notifu
PacifiCorp of any subsequent changes in generation capacity of the Facility during such
Maintenance Outage and any changes in the Maintenance Outage completion date and
time. Seller shall take all reasonable measures and exercise its best efforts consistent with
Prudent Electrical Practices to minimize the frequency and duration of Maintenance
Outages.
6.s.3 Forced Outages. Seller shall promptly provide to PacifiCorp an oral
report, via telephone to a number specified by PacifiCorp, of any Forced Outage of the
Facility. Such report shall include the amount of generation capacity of the Facility that
will not be available because of the Forced Outage and the expected retum date and time
of such generation capacity. Seller shall promptly update the report as necessary to
advise PacifiCorp of changed circumstances. If the Forced Outage resulted in more than
15% of the Facility Capacrty Rating of the Facility being unavailable, Seller shall confrm
the oral report in writing as soon as practicable. Seller shall take all reasonable measures
and exercise its best efforts consistent with Prudent Electrical Practices to avoid Forced
Outages and to minimize their duration.
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6.5.4 Notice of Deratings and Outages. Without limiting other notice
requirements, Seller shall notiff PacifiCorp, via telephone to a number specified by
PacifiCorp, of any limitation, restriction, derating or outage known to Seller that affects
the generation capacity of the Facility in an amount greater than five percent (5%) of the
Facility Capacity Rating for the following day. Seller shall promptly update such notice
to reflect any material changes to the information in such notice.
6.s.5 Effect of Outages on Estimated Output. Seller shall factor Planned
Outages and Maintenance Outages that Seller reasonably expects to encounter in the
ordinary course of operating the Facility into the Scheduled Monthly Energy Delivery
amounts in the Energy Delivery Schedule set forth in Exhibit D.
6.6 Scheduling.
6.6.1 Daily Scheduling. [not applicable]
6.6.2 Cooperation and Standards. With respect to any and all scheduling
requirements in this Agreement, (a) Seller shall cooperate with PacifiCorp with respect to
scheduling Net Output, and (b) each Party shall designate authorized representatives to
communicate with regard to scheduling and related matters arising hereunder.
Schedule Coordination. Ii as a result of this Agreement, PacifiCorp6.6.3
is deemed by an RTO to be financially responsible for Seller's performance under the
Generation Interconnection Agreement due to Seller's lack of standing as a "scheduling
coordinator" or other RTO recognized desiguation, qualification or otherwise, then (a)
Seller shall acquire such RTO recognized standing (or shall conffact with a third party
who has such RTO recognized standing) such that PacifiCorp is no longer responsible for
Seller's performance under the Generation Interconnection Agreement, and (b) Seller
shall defend, indemniS and hold PacifiCorp harmless against any liability arising due to
Seller's performance or failure to perform under the Generation Interconnection
Agreement or RTO requirement.
6.7 Delivery Exceeding the Maximum GIA Delivery Rate. Seller shall not deliver
energy from the Facility to the Point of Delivery at a rate that exceeds the Maximum GIA
Delivery Rate. Seller's failure to limit such deliveries to the Maximum GIA Delivery Rate
shall be a breach of a material obligation subject to Section 12.1.8.
6.8 Access Rights. Upon reasonable prior notice and subject to the prudent safety
requirements of Seller, and Requirements of Law relating to workplace health and safety,
Seller shall provide PacifiCorp and its authorized agents, employees and inspectors
("PacifiCorp Representatives") with reasonable access to the Facility: (a) for the purpose of
reading or testing metering equipment, (b) as necessary to witress any acceptance tests, (c)
for purposes of implementing Section 4.6, and (d) for other reasonable purposes at the
reasonable request of PacifiCorp. PacifiCorp shall release Seller against and from any and
all any and all loss, frnes, penalties, claims, actions or suits, including costs and attorrey's
fees, both at trial and on appeal resulting from actions or omissions by any of the PacifiCorp
2l
Representatives in connection with their access to the Facility, except to the extent that such
damages are caused or by the intentional or grossly negligent act or omission of Seller.
SECTION 7: MOTIVE FORCE
Prior to the execution of this Agreement, Seller provided to PacifiCorp Wind Leases and a
motive force plan including an hourly wind profile acceptable to PacifiCorp in its reasonable
discretion and attached hereto as Exhibit F-1, together with a certification from a Licensed
Professional Engineer to PacifiCorp attached hereto as Exhibit F-2, certiffing that the
implementation of the fuel or motive force plan can reasonably be expected to provide fuelor
motive force to the Facility for the duration of this Agreement adequate to generate power
and energy in quantities necessary to deliver the Average Annual Net Output.
SECTION 8: GENERATION FORECASTING COSTS
8.1 Forecast Service Election. PacifiCorp froy, in its discretion, add forecasting
services for Seller's Facility to PacifiCorp's existing contract with a qualified wind-energy-
production forecasting vendor, which contract and vendor may change during the term of this
Agreement.
8.2 Seller's Forecast-Cost Share. Pursuant to Commission Order No. 30497,
Seller shall be responsible for 50% of PacifiCorp's cost of adding such forecasting services
("Sellerts Forecast-Cost Share") up to Seller's Capped Forecast-Cost Share.
8.3 Cap on Seller's Forecast-Cost Share. Seller's Forecast-Cost Share for a given
Contract Year is capped at O.lYo of total payments made by PacifrCorp to Seller for Net
Output during the previous Contract Year ("Seller's Capped Forecast-Cost Share"). If the
last Contract Year of this Agreement is shorter than a full calendar year, the cap will be
prorated for that shortened year. For the year(s) prior to the second Contract Year of this
agreement that equals a full calendar year, Seller's Forecast-Cost Share is capped at 0.lo/o of
estimated payments for Net Output based on the Energy Delivery Schedule.
8.4 Payment. Seller shall pay to PacifiCorp Seller's Forecast-Cost Share uncapped
by Section 8.3 for each Contract Year in equal payments for each month of such year except
the last month of such year. (For example, in a Contract Year equaling a fulI calendar year,
Seller would pay llllth of Seller's Forecast-Cost Share during each of the first 11 months.)
In the last month of each Contract Year, PacifiCorp shall refund to Seller the amount paid by
Seller under this Section in excess, if any, of Seller's Capped Forecast-Cost Share. For a
Contract Year encompassed by just one calendar month, Seller's payment to PacifiCorp and
PacifiCorp's refund to Seller shall be calculated and paid simultaneously. To the extent
practicable, payments and refunds under this Section shall be included in monthly payments
and invoices under Section 10.
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SECTION 9: METERINGI REPORTS AND RECORDS
9.1 Metering Adjustment. Metering will be performed at the location and in the
manner specified in Exhibit B and the Generator Interconnection Agreement. All quantities
of energy purchased hereunder shall be adjusted to account for electrical losses, if any,
between the point of metering and the Point of Delivery, so that the purchased amount
reflects the net amount of power flowing into the System at the Point of Delivery.r The loss
adjustment shall be a reduction of 2Yo of the kWh energy production recorded on the Facility
output meter until actually measured and calibrated at the meter by PacifrCorp Transmission
and documented in a signed letter to Seller from PacifiCorp's QF Contracts Administrator.
9.2 Meterin&Errors. If any inspections or tests made pursuant to the Generator
Interconnection Agreement discloses an eror exceeding two percent (2%), either fast or
slow, proper correction, based upon the inaccuracy found, shall be made of previous readings
for the actual period during which the metering equipment rendered inaccurate measurements
if that period can be ascertained. If the actual period cannot be ascertained, the proper
correction shall be made to the measurements taken during the time the metering equipment
was in service since last tested, but not exceeding three Billing Periods, in the amount the
metering equipment shall have been shown to be in error by such test. Any correction in
billings or payments resulting from a correction in the meter records shall be made in the
next monthly billing or payment rendered.
9.3 Telemetering. In accordance with the Generation Interconnection Agreement,
Seller shall provide telemetering equipment and facilities capable of transmitting to
Transmission Provider (who will share it wittr PacifiCorp as authorized by Exhibit H, "seller
Authorization to Release Generation Data to PacifiCorp") the following information
conceming the Facility on a real-time basis, and will operate such equipment when requested
by PacifiCorp to indicate:
(a) instantaneous MW output at the Point of Delivery;
(b) Net Output;
(c) the Facility's total instantaneous generation capacity; and
(d) wind velocity at turbine hub height.
Seller shall also transmit to PacifiCorp any other data from the Facility that Seller receives on
a real-time basis, including meteorological data, wind speed data, wind direction data and
gross output data. Seller shall provide such real-time data to PacifiCorp in the same detail
that Seller receives the data (e.g., if Seller receives the data in four second intervals,
PacifiCorp shall also receive the data in four second intervals). PacifiCorp shall have the
right from time to time to require Seller to provide additional telemetering equipment and
facilities to the extent necessary and reasonable.
I If station service is supplied via separate facilities, PacifiCorp will deduct station service from
the metered facility output to calculate Net Ou@ut.
9.4 Monthly Reports and Logs and Other Information.
Reports. Within thirty (30) calendar days after the end of each9.4.1
Billing Period, Seller shall provide to PacifiCorp a report in electronic format, which
report shall include (a) summaries of the Facility's wind and output data for the Billing
Period in intervals not to exceed one hour (or such shorter period as is reasonably
possible with commercially available technology), including information from the
Facility's computer monitoring system; (b) summaries of any other significant events
related to the construction or operation of the Facility for the Billing Period; (c) details of
Availability of the Facility for the Billing Period sufficient to calculate Availability and
including hourly average wind velocity measured at turbine hub height and ambient air
temperature; and (d) any supporting information that PacifiCorp may from time to time
reasonably request (including historical wind data for the Facility).
9.4.2 Electronic Fault Log. Seller shall maintain an electronic fault log of
operations of the Facility during each hour of the term of this Agreement commencing on
the Commercial Operation Date. Seller shall provide PacifiCorp with a copy of the
electronic fault log within thirty (30) calendar days after the end of the Billing Period to
which the fault log applies.
9.4.3 Upon the request of PacifiCorp, Seller shall provide PacifrCorp the
manufacturers' guidelines and recommendations for maintenance of the Facility
equipment.
9.4.4 By each January 10 following the Commercial Operation Date,
Seller shall provide to PacifiCorp written certification that Seller has completed all the
manufacturers' guidelines and recommendations for maintenance of the Facility
equipment applicable to the previous calendar year.
9.4.s At any time from the Effective Date, one (1) year's advance notice
of the termination or expiration of any agreement, including Wind Leases, pursuant to
which the Facility or any equipment relating thereto is upon the Facility site; provided
that the foregoing does not authorize any early termination of any land lease.
9.4.6 As soon as it is known to Seller, Seller shall disclose to PacifiCorp,
the extent of any material violation of any environmental laws or regulations arising out
of the construction or operation of the Facility, or the presence of Environmental
Contamination at the Facility or on the Premises, alleged to exist by any Govenrmental
Authority having jurisdiction over the Premises, or the present existence of, or the
ocflrrence during Seller's occupancy of the Premises of, any enforcement, legal, or
regulatory action or proceeding relating to such alleged violation or alleged presence of
Environmental Contamination presently occurring or having occured during the period
of time that Seller has occupied the Premises.
9.5 Maintenance of Metering Equipment. To the extent not otherwise provided in
the Generator Interconnection Agreement, PacifiCorp shall inspect, test, repair and replace
the metering equipment periodically, or at the request of Seller if Seller has reason to believe
metering may be off and requests an inspection in writing. To the extent not otherwise
provided in the Generator Interconnection Agreement, all PacifiCorp's costs relating to
designing, installing, maintaining, and repairing metering equipment installed to
accommodate Seller's Facility shall be borne by Seller.
SECTION 10: BILLINGS. COMPUTATIONS AND PAYMENTS
10.1 Payment for Net Output. On or before the thirtieth (30th) day following the
end of each Billing Period, PacifiCorp shall send to Seller payment for Seller's deliveries of
Net Output to PacifiCorp, together with computations supporting such payment. PacifiCorp
may offset any such payment to reflect amounts owing from Seller to PacifiCorp pursuant to
this Agreement, the Generation Interconnection Agreement, or any other agreement between
the parties related to this Agreement, the Generation Interconnection Agreement, or the
Facility. Any such offsets shall be separately itemized on the statement accompanying each
payment to Seller.
L0.2 Corrections. PacifiCorp shall have up to thirty-six (36) months to adjust any
payment made pursuant to Section 10.1. In the event PacifiCorp determines it has overpaid
Seller (for Inadvertent Energy, calibration error, or otherwise), PacifiCorp may adjust
Seller's future payment accordingly in order to correct the error in a reasonable time.
10.3 Annual Invoicing for Output Shortfall. Thirty calendar days after the end of
each Contract Year, PacifiCorp shall deliver to Seller an invoice showing PacifiCorp's
computation of Output Shorffall, if any, for all Billing Periods in the prior Contract Year and
Output Shortfall Damages, if any. In preparing such invoices, PacifiCorp shall utilize the
meter data provided to PacifiCorp for the Contact Year in question, but may also rely on
historical averages and such other information as may be available to PacifiCorp at the time
of invoice preparation if the meter data for such Contract Year is then incomplete or
otherwise not available. To the extent required, PacifiCorp shall prepare any such invoice as
promptly as practicable following its receipt of actual results for the relevant Contract Year.
Seller shall pay to PacifiCorp, by wire fransfer of immediately available funds to an account
specified in writing by PacifiCorp or by any other means agreed to by the Parties in writing
from time to time, the amount set forth as due in such invoice, and shall within 120 days after
receiving the invoice raise any objections regarding any disputed portion of the invoice.
Objections not made by Seller within the 120-day period shall be deemed waived.
10.4 Interest on Overdue Amounts. Any amounts owing after the due date thereof
shall bear interest at the Prime Rate plus two percent (2%) from the date due until paid;
provided, however, that the interest rate shall at no time exceed the maximum rate allowed by
applicable law.
10.5 Disputed Amounts. If either Party, in good faith, disputes any amount due
pursuant to an invoice rendered hereunder, such Parly shall notiff the other Party of the
specific basis for the dispute and, if the invoice shows an amount due, shall pay that portion
of the statement that is undisputed, on or before the due date. Except with respect to invoices
provided under Section 10.2, any such notice shall be provided within two (2) years of the
date of the invoice in which the error first occurred. If any amount disputed by such Party is
25
determined to be due to the other Purty, or if the Parties resolve the payment dispute, the
amount due shall be paid within five (5) days after such determination or resolution, along
with interest in accordance with Section 10.4.
SECTION 11: SECURITY
11.1 Delay Securitv:
11.1.1 Duty to Post Security. By the date provided in Section 2.2.2, Seller
shall post a Letter of Credit, cash or a parental guaranty, each in a form acceptable to
PacifiCorp, in the amount of $544,500, as calculated pursuant to Section Ll.l.2 ("Delay
Security'). To the extent PacifiCorp receives payment from the Delay Security, Seller
shall, within fifteen (15) calendar days, restore the Default Security as if no such
deduction had occurred.
ll.l.2 Calculation of Delay Security. The dollar value of Delay Security
specified in Section 11.1.1 shall equal twenty-five dollars ($ZS; multiplied by the
Ma>rimum Facility Delivery Rate with the Maximum Facility Delivery Rate being
measured in kW. .
11.1.3 Right to Draw on Security. PacifiCorp shall have the right to draw
on the Delay Security to collect Delay Liquidated Damages. Commencing on or about
first of each month, PacifiCorp will invoice Seller for Delay Liquidated Damages
incurred, if any, during the preceding month. If insufficient Delay Security is available,
Seller shall pay PacifiCorp for invoiced Delay Liquidated Damages no later than five
business days after receiving such invoice. The Parties will make billings and payments
for Delay Liquidated Damages in accordance with Section 10.
11.1.4 Partial Release of Delay Securitv. Provided that Seller has
maintained Delay Security in accordance with Section 11.1.1, PacifiCorp shall release
one-fourth of the original amount of Delay Security stated in Section 11.1.1 each time
Seller accomplishes a milestone (a), (b), or (c), below:
(a) Seller has executed the Generation Interconnection Agreement
with Transmission Provider;
(b) Seller has poured the concrete foundation at each of its planned
individual wind turbine locations;
(c) Seller has received written approval from the Transmission
Provider to interconnect the Facility at the Maximum Facility
Delivery Rate.
PacifiCorp shall make the partial refund of Delay Security required above within ten
business days of the date Seller provides PacifiCorp written notice (along with
satisfactory documentation thereof) that it has accomplished milestone (a), O), or (c).
26
11.1.5 Full Release of Delay Security. Unless PacifiCorp disputes whether
Seller has paid all Delay Liquidated Damages, PacifiCorp shall release all remaining
Delay Security upon the earlier of the 30th calendar day following commencement of
Commercial Operation or the 60th calendar day following PacifiCorp's termination of
this Agreement.
11.1.6 Default. Seller's failure to post and maintain Delay Security in
accordance with Section 1l.l will constitute an event of default, unless cured in
accordance with Section 12.1.1 of this Agreement.
ll.2 Default Security (Levelized Pricing Only).. If Seller has adopted levelized
pricing for Net Outpu! Seller will provide security to PacifiCorp pursuant to Commission
Order Nos. 21690, 21800, 29482,29587 and related orders ("Default Security") as set forth
in Addendum _[this sub-Section I1.2 not applicable].
SECTION 12: DEFAULTS AND REMEDIES
12.1 The following events shall constitute defaults under this Agreement:
lz.L.l Non-Payment. A Party's failure to make a payment when due under
this Agreement or post and maintain security in conformance with the requirements of
Section 11 or maintain insurance in conformance with the requirements of Section 14 of
this Agreement, if the failure is not cured within ten (10) business days after the non-
defaulting Party gives the defaulting Party a notice of the default.
12.1.2 Breach of Representation. Breach by a Party of a representation or
warranty set forth in this Agreement, if such failure or breach is not cured within ttrirty
(30) days following written notice.
12.1.3 Default on Other Ageements. Seller's failure to cure any default
under the Generation Interconnection Agteement or any other agreement between the
parties related to this Agreement, the Generation Interconnection Agreement, or the
Facility within the time allowed for a cure under such agreement or instrument.
12.L.4 Insolvency. A Party (a) makes an assignment for the benefit of its
creditors; (b) files a petition or other"wise commences, authorizes or acquiesces in the
commencement of a proceeding or cause of action under any bankruptcy or similar law
for the protection of creditors, or has such a petition filed against it and such petition is
not withdrawn or dismissed within sixty (60) days after such filing; (c) becomes
insolvent; or (d) is unable to pay its debts when due.
12.1,5 Material Adverse Change. A Material Adverse Change has occurred
with respect to Seller and Seller fails to provide such performance assurances as are
reasonably requested by PacifiCorp, within fifteen (15) days from the date of such
request.
27
12.1.6 Sale to Third-Party. Seller's sale of Net Output to an entity other
than PacifiCorp, as prohibited by Section 4.2.
12.1.7 Non-Delivery. Unless excused by an event of Force Majeure,
Seller's failure to deliver any Net Energy for three consecutive calendar months.
12.1.8 A Party otherwise fails to perfomr any material obligation (including
but not limited to failure by Seller to meet any deadline set forth in Section 2.2) imposed
upon that Parlry by this Agreement if the failure is not cured within thirty (30) days after
the non-defaulting Party gives the defaulting Parly notice of the default; provided,
however, that, upon written notice from the defaulting Party, this thirfy (30) day period
sha1l be extended by an additional ninety (90) days if (a) the failure cannot reasonably be
cured within the thirty (30) day period despite diligent efforts, (b) the default is capable
of being cured within the additional ninety (90) day period, and (c) the defaulting Party
commences the cure within the original thirty (30) day period and is at all times thereafter
diligently and continuously proceeding to cure the failure.
12.2 In the event of any default hereunder, the non-defaulting Party must notiff the
defaulting Parly in writing of the circumstances indicating the default and outlining the
requirements to cure the default. If the default has not been cured within the prescribed time,
above, the non-defaulting Party may terminate this Agreement at its sole discretion by
delivering written notice to the other Party and may pursue any and all legal or equitable
remedies provided by law or pursuant to this Agreement. The rights provided in this Section
12 arc cumulative such that the exercise of one or more rights shall not constitute a waiver of
any other rights.
12.3 In the event this Agreement is terminated because of Seller's default and Seller
wishes to again sell Net Output from the facility using the same motive force to PacifiCorp
following such termination, PacifiCorp in its sole discretion may require that Seller do so
subject to the terms of this Agreement, including but not limited to the purchase prices as set
forttr in (Section 5), until the Expiration Date (as set forth in Section 2.1). At such time
Seller and PacifiCorp agree to execute a written document ratiffing the terms of this
Agreement.
12.4 If this Agreement is terminated as a result of Seller's default, in addition to and
not in limitation of any other right or remedy under this Agreement or applicable law
(including any right to set-off, counterclaim, or otherwise withhold payment), Seller shall
pay PacifiCorp Output Shortfall Damages for a period of twelve (12) months from the date of
termination plus the estimated administrative cost to acquire the replacement power. The
Parties agree that the damages PacifiCorp would incur due to termination resulting from
Seller's default would be difficult or impossible to predict with certainty, and that the
damages in this Section l2-4 are an appropriate approximation of such damages.
12.5 Recoupment of Damages.
(a) Default Security Available. If Seller has posted Default Security,
PacifiCorp may draw upon that security to satis$i any damages, above.
28
(b) Default Securitv Unavailable. If Seller has not posted Default Security, or
if PacifiCorp has exhausted the Default Security, PacifiCorp may collect
any remaining amount owing by partially withholding future payments to
Seller over a reasonable period of time. PacifiCorp and Seller shall work
together in good faith to establish the period, and monthly amounts, of
such withholding so as to avoid Seller's default on its commercial or
financing agreements necessary for its continued operation of the Facility.
L2.6 Upon an event of default or termination event resulting from default under this
Agreement, in addition to and not in limitation of any other right or remedy under this
Agreement or applicable law (including any right to set-off, counterclaim, or otherwise
withhold payment), the non-defaulting Parly may at its option set-ofi against any amounts
owed to the defaulting Party, any amounts owed by the defaulting Party under any contract(s)
or agreement(s) between the Parties. The obligations of the Parties shall be deemed satisfied
and discharged to the extent of any such set-off. The non-defaulting Party shall give the
defaulting Party written notice of any set'off, but failure to give such notice shall not affect
the validity of the set-off.
12.7 Amounts owed by Seller pursuant to this Section 12 shall be due within five
(5) business days after any invoice from PacifiCorp for the same.
SECTION 13: INDEMNIFICATION: LIABILITY
13.1 Indemnities.
13.1.1 Indemnity by Seller. Seller shall release, indemnifu and hold
harmless PacifiCorp, its directors, officers, agents, and representatives against and from
any and all loss, fines, penalties, claims, actions or suits, including costs and attorney's
fees, both at trial and on appeal, resulting from, or arising out of or in any way connected
with (a) the energy delivered by Seller under this Agreement to and at the Point of
Delivery, @) any facilities on Seller's side of the Point of Delivery, (c) Seller's operation
and/or maintenance of the Facility, or (d) arising from this Agreement, including without
limitation any loss, claim, action or suit, for or on account of injury, bodily or otherwise,
to, or death of, persons, or for damage to, or destruction or economic loss of properly
belonging to PacifiCorp, Seller or others, excepting only such loss, claim, action or suit
as may be caused solely by the fault or gross negligence of PacifiCorp, its directors,
offrc ers, employees, agents or repres entatives.
13.1.2 Indemnilv by PacifiCorp. PacifiCorp shall release, indemniff and
hold harmless Seller, its directors, ofTicers, agents, lenders and representatives against
and from any and all loss, fines, penalties, claims, actions or suits, including costs and
attomey's fees, both at trial and on appeal, resulting from, or arising out of or in any way
connected with the energy delivered by Seller under this Agreement after the Point of
Delivery, including without limitation any loss, claim, action or suit, for or on account of
injury, bodily or otherwise, to, or death of, persons, or for damage to, or destruction or
economic loss of property, excepting only such loss, claim, action or suit as may be
29
caused solely by the fault or gross negligence of Seller, its directors, officers, employees,
agents, lenders or representatives.
13.2 No Dedication. Nothing in this Agreement shall be construed to create any
duty to, any standard of care with reference to, or any liability to any person not a Party to
this Agreement. No undertaking by one Parly to the other under any provision of this
Agreement shall constitute the dedication of that Party's system or any portion thereof to the
other Party or to the public, nor affect the status of PacifiCorp as an independent public
utility corporation or Seller as an independent individual or entity.
13.3 No Waranty. Any review, acceptance or failure to review Seller's design,
specifications, equipment or facilities shall not be an endorsement or a confirmation by
PacifiCorp and PacifiCorp makes no warranties, expressed or implied, regarding any aspect
of Seller's design, specifications, equipment or facilities, including, but not limited to, safety,
durability, reliability, strength, capacity, adequacy or economic feasibility.
13.4 CONSEOUENTIAL DAMAGES. EXCEPT TO THE EXTENT SUCH
DAMAGES ARE INCLUDED IN THE LIQIJIDATED DAMAGES, DELAY DAMAGES,
OR OTHER SPECIFIED MEASURE OF DAMAGES EXPRESSLY PROVIDED FOR IN
THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY
FOR SPECIAL, PUNITIVE, INDIRECT, EXEMPLARY OR CONSEQUENTIAL
DAMAGES, WHETHER SUCH DAMAGES ARE ALLOWED OR PROVIDED BY
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTE OR
OT}IERWISE.
SECTION 14: INSURANCE
l4.l Certificates. Prior to connection of the Facility to the System, Seller shall
secure and continuously carry insurance in compliance with the requirements of this Section.
Seller shall provide PacifiCorp insurance certificate(s) (of "ACORD Form" or the
equivalent) certiffing Seller's compliance with the insurance requirements hereunder.
Commercial General Liability coverage written on a "claims-made" basis, if any, sha1l be
specifically identified on the certificate. If requested by PacifiCorp, a copy of each insurance
policy, certified as a true copy by an authorized representative of the issuing insurance
company, shall be furnished to PacifiCorp.
14.2 Required Policies and Coverages. Without limiting any liabilities or any other
obligations of Seller under this Agreement, Seller shall secure and continuously carry with an
insurance company or companies rated not lower than "A-:VII" by the A.M. Insurance
Reports the insurance coverage specified below:
14.2.1. Commercial General Liability insuratrce, to include confiactual
liability, with a minimum single limit of $1,000,000 per occrurence to protect against and
from all loss by reason of injury to persons or damage to properly based upon and arising
out of the activity under this Agreement.
30
14.2.2 All Risk Properly insurance providing coverage in an amount at least
equal to 80% of the replacement value of the Facility against "allrisks" of physical loss
or damage, including coverage for earth movement, flood, and boiler and machinery.
The Properfy policy may contain separate sub-limits and deductibles subject to insurance
company underwriting guidelines. The Risk Policy will be maintained in accordance
with terms available in the insurance market for similar facilities.
14.3 The Commercial General Liability policy required herein shall include (i)
provisions or endorsements naming PacifiCorp, its Board of Directors, Officers and
employees as additional insureds, ffid (ii) cross liability coverage so that the insurance
applies separately to each insured against whom claim is made or suit is brought, even in
instances where one insured claims against or sues another insured.
14.4 All liability policies required by this Agreement shall include provisions that
such insurance is primary insurance with respect to the interests of PacifiCorp and that any
other insurance maintained by PacifiCorp is excess and not contributory insurance with the
insurance required hereunder, and provisions that such policies shall not be canceled or their
limits of liability reduced without (i) ten (10) business days prior written notice to PacifiCorp
if canceled for nonpayment of premium, or (ii) thirty (30) business days prior written notice
to PacifiCorp if canceled for any other reason.
14.5 Commercial General Liability insurance coverage provided on a "claims-
made" basis shall be maintained by Seller for a minimum period of five (5) years after the
completion of this Agreement and for such other length of time necessary to cover liabilities
arising out of the activities under this Agreement.
SECTION 15: I'ORCE MAJEURE
15.1 As used in this Agreement, "Force Majeure" or "an event of Force
Majeure" means any cause beyond the reasonable conhol of the Seller or of PacifiCorp
which, despite the exercise of due diligence, such Party is unable to prevent or overcome. By
way of example, Force Majeure may include but is not limited to acts of God, flood, storms,
wars, hostilities, civil strife, strikes, and other labor disturbances, earthquakes, fires,
lightring, epidemics, sabotage, restraint by court order or other delay or failure in the
performance as a result of any action or inaction on behalf of a public authority or other
Govemmental Authority which is in each case (i) beyond the reasonable control of such
Pa{y, (ii) bV the exercise of reasonable foresight such Party could not reasonably have been
expected to avoid and (iii) by the exercise of due diligence, such Party shall be unable to
prevent or overcome. Force Majeure, however, specifically excludes the cost or availability
of fuel or motive force to operate the Facility or changes in market conditions that affect the
price of energy or transmission. If either Party is rendered wholly or in part unable to
perform its obligation under this Agreement because of an event of Force Majeure, both
Parties shall be excused from whatever performance is affected by the event of Force
Maj eure, provided that:
15.1.1 the non-performing Party, shall, within two (2) weeks after the
occurrence of the Force Majeure, give the other Party written notice describing the
31
particulars of the occrurence, including the start date of the Force Majeure, the cause of
Force Majeure, whether the Facility remains partially operational and the expected end
date of the Force Majeure;
15.1.2 the suspension of performance shall be of no greater scope and of no
longer duration than is required by the Force Majeure;
15.1.3 the non-performing Party uses its best efforts to remedy its inability
to perform; and
15.1.4 the non-performing Party shall provide prompt written notice to the
other Parfy at the end of the Force Majeure event detailing the end date, cause there of,
damage caused there by and any repairs that were required as a result of the Force
Majeure event, and the end date of the Force Majeure.
15.2 No obligations of either Party which arose before the Force Majeure causing
the suspension of perforrnance shall be excused as a result of the Force Majeure.
15.3 Neither Parly shall be required to settle any strike, walkout, lockout or other
labor dispute on terms which, in the sole judgment of the Party involved in the dispute, are
contrary to the Party's best interests.
SECTION 16: SEVERAL OBLIGATIONS
Nothing contained in this Agreement shall ever be construed to create an association, trust,
partrership or joint venture or to impose a trust or partnership duty, obligation or liability
between the Parties. If Seller includes two or more parties, each such party shall be jointly
and severally liable for Seller's obligations under this Agreement.
SECTION 17: CHOICE OF LAW
This Agreement shall be interpreted and enforced in accordance with the laws of the state of
Idaho, excluding any choice of law rules which may direct the application of the laws of
another jurisdiction.
SECTION 18: PARTIAL INVALIDITY
It is not the intention of the Parties to violate any laws goveming the subject matter of this
Agreement. If any of the tenns of the Agreement are finally held or determined to be invalid,
illegal or void as being confrary to any applicable law or public policy, all other terms of the
Agreement shall remain in effect. If any terms are finally held or determined to be invalid,
illegal or void, the Parties shall enter into negotiations conceming the terms affected by such
decision for the purpose of achieving conformity with requirements of any applicable law
and the intent of the Parties to this Agreement.
32
SECTION 19: WAIVER
Any waiver at any time by either Party of its rights with respect to a default under this
Agreement or with respect to any other matters arising in connection with this Agreement
must be in writing, and such waiver shall not be deemed a waiver with respect to any
subsequent default or other matter.
SECTION 20: GOVERNMENTAL JURISDICTION ANI)
AUTHORIZATIONS
PacifiCorp's compliance with the terms of this Agreement is conditioned on Seller's
submission to PacifiCorp prior to the Commercial Operation Date and Seller's maintenance
thereafter of copies of all local, state and federal licenses, permits and other approvals as then
may be required by law for the construction, operation and maintenance of the Facility.
SECTION 21: SUCCESSORS AND ASSIGNS
This Agreement and all of the terms and provisions hereof shall be binding upon and inwe to
the benefit of the respective successors and assigns of the Parties hereto, except that no
assignment hereof by either Party shall become effective without the written consent of both
Parties being first obtained. Such consent shall not be unreasonably withheld, conditioned,
or delayed. Notwithstanding the foregoing, either Party may assign this Agreement without
the other Party's consent to a lender as part of a financing transaction. Furttrer
notwithstanding the foregoing, any entity with which PacifiCorp may consolidate, or into
which it may merge, or to which it may convey or transfer substantially all of its electic
utility assets, shall automatically, without further act, and without need of consent or
approval by the Seller, succeed to all of PacifiCorp's rights, obligations, and interests under
this Agreement. This article shall not prevent a financing entity with recorded or secured
rights from exercising all rights and remedies available to it under law or conffact.
PacifiCorp shall have the right to be notified by the financing entity that it is exercising such
rights or remedies.
SECTION 22: ENTIRE AGREEMENT
22.1 This Agreement supersedes all prior agreements, proposals, representations,
negotiations, discussions or letters, whether oral or in writing, regarding PacifiCorp's
purchase of Net Output from the Facility. No modification of this Agreement shall be
effective unless it is in writing and signed by both Parties.
22.2 By executing this Agreement, each Party releases the other from any
claims, known or unknown, that may have arisen prior to the execution date of this
Agreement with respect to the Facility and any predecessor facility proposed to have been
constructed on the site of the Facility.
SECTION 23: NOTICES
All notices except as otherwise provided in this Agreement shall be in writing, shall be
directed as follows and shall be considered delivered if delivered in person or when deposited
in the U.S. Mail, postage prepaid by certified or registered mail and return receipt requested.
Notices PacifiCorp Seller
All Notices PacifiCorp
825 NE Multnomah Street Portland,
oP.97232
Attn : Contract Administration,
Suite 600
Phone: (503) 813 - 5380
Facsimile: (503) 813 - 6291
Duns: 00-790-9013
Federal Tax ID Number: 93-0246090
Power County Wind Park South
Athr: Roald Doskeland
Windland Inc.
T669W.RiversideDrive
Suite 102
Boise,Idaho 83714
Phone: [phone]
Fax: [phone]
All Invoices:Attn: Back Office, Suite 700
Phone: (503) 813 - 5578
Facsimile: (503) 813 - 5580
Same as above
Scheduling:Athr: Resource Planning, Suite 600
Phone: (503) 813 - 6090
Facsimile: (503) 813 - 6265
Same as above
Payments:Attn: Back Office, Suite 700
Phone: (503) 813 - 5578
Facsimile: (503) 813 - 5580
Same as above
Wire Transfer:Bank One N.A.
To be provided in separate letter from
PacifiCorp to Seller
To be provide in a separate letter
Credit and
Collections:
Attn: Credit Manager, Suite 700
Phone: (503) 813 - 5684
Facsimile: [phone]
Same as above
With Additional
Notices of an
Event of Default
or Potential
Event of Default
to:
Attn: PacifiCorp General Counsel
Phone: [phone]
Facsimile: [phone]
Same as above
34
The Parties may change the person to whom such notices are addressed, or tleir addresses,
by providing written notices thereof in accordance with this Section.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed in
their respective names as of the date first above written.
Title: Director, Short Term Origination
and QF Contracts Manager, Power County Wind Park
South, LLC
By:By:
35
EXHIBIT A
DESCRIPTION OF SELLER'S FACILITY
Seller's Facility consists of twelve (12) wind turbine generator(s) manufactured by Vestas. More
specifically, each generator at the Facility is described as:
Type (synchronous or inductive): Inductive
Model: Vestas V100, 1.8 MW
Number of Phases: 3
Rated Output (kW): 1,815
Rated Output (kVA): 2000@0.9 inductive
Rated Voltage (line to line):
Rated Current (A): Stator: _ A; Rotor: _ A
Maximum kW Output: 1,815 kW Maximum kVA Output: kVA
Minimum kW Output: 0 kW
Manufacturer's Guaranteed Cut-in Wind Speed: 3 m/s
Manufacturer's Guaranteed Cut-out rilind Speed: 20 rn/s
Facility Capacity Rating: 21,780 kW
Maximum Facility Delivery Rate: 21,780 kW at
Maximum GIA Delivery Rate: tbd kW [specifr whether rate is instantaneous or hour-averaged]
Describe (1) any differences between the ma:rimum output of the generator(s) and their
Nameplate Capacity Rating(s) and (2) any differeuces between the Facility Capacity Rating, the
Maximum Facility Delivery Rate, and the Murimum GIA Delivery Rate:
Station service requirements, and other loads served by the Facility, if any, are described
as follows: Station Service is estimated to be 220kW, line losses and transformer losses are
estimated to be 1,100 kW.
Location of the Facility: The Facility is located in Power County,Idaho. The location is more
particularly described as follows:
South: T8S, R3lE, Sections 19,20,29 &30
Power factor requirements: tbd in GIA
Attach documentation of the power curve for the generator (see below)
A- 1
f--irii'
L.225i0.9si 0.97sr 1 I 1.0251 1.05i 1.075 Ti
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lgla
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ile-1zoI _.....-', 2L
A-2
t.
EXI{IBIT B
POINT OF DELTVERY / PARTIES' INTERCONNECTION FACILITIES
The Point of Delivery will be the high-side of Seller's 34.5/230kV transformer
interconnecting between structures 53 and 55 on the Brady-Treasureton 230kV
transmission line. Point of Metering for PCWP South is above the disconnect switch for
Collector circuit feeder #2.
Single line drawing of Facility is attached. There are no transmission facilities on Seller's
side of the Point of Delivery.
2.
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EXHIBIT C
REQUIRED FACILITY DOCUMENTS
Qualifuing Facility Number from FERC: South- QF 10-350-000
The following Documents are required to complete this project:
Generation Interconnection Agreement
Turbine commissioning certifications from the turbine manufacturer
Easements:
1. Memorandum of Lease, Kopp et al, instnrment# 195132
2. Memorandum of Lease, Deeg et al, insffument#185679
3. Memorandum of Lease Amendment, Deeg et al, instnrment # 195134
4. Memorandum of Lease,Isaak et al, instrument # 185678
5. Memorandum of Lease Amendment,Isaak et al, instrument # 195136
6. Memorandum of Lease, Meadows et al, instrument # 194226
7. Memorandum of Lease Amendment, Meadows et al, instrument # 195131
Pennits (if required by the following agencies):
. Special Use Permit from Power County Planning and Zoning
. Power County Highway Distict Access Permit
. Southeast District Health Department Septic Permit
.Idaho Division of Building Safety Electrical Permit
. Idaho Transportation Deparhnent, Division of Aeronautics, FAA Fonn 7460
. Idaho Transportation Department, Overlegal load Permit
.Idaho Department of Environmental Quality, Dredge and Fill Permit
o f'fu{ Form 7460-1 ard7460-2 for each turbine
. US Army Corp of Engineers, Section 404 Clean Water Act
. US Environmental Protection Agency, Construction General PermitA.Iotice of Intent
Agreement between Power County Wind Park North and Power County Wind Park South
granting Power County Wind Park North rights to use interconnection facilities owned by Power
County Wind Park South to deliverNet Output
c-r
EXHIBIT D
ENERGY DELTVERY SCHEDULE
Wind ParkSouth, LLC
D-l
EXHIBIT E
START-UP TESTING
Required factory testing includes such checks and tests necessary to determine that the
equipment systems and subsystems have been properly manufactured and installed, function
properly, and are in a condition to permit safe and efficient start-up of the Facility, which may
include but are not limited to:
l. Test of mechanical and elechical equipment;
2. Calibration of all monitoring instruments;
3. Operating tests of all valves, operators, motor starters and motor;
4. Alarms, signals, and fail-safe or system shutdown control tests;
5. Point-to-pointcontinuitytests;
6. Bench tests of protective devices; and
7. Tests required by manufacturer(s) and designer(s) of equipment.
Required start-up tests are those checks and tests necessary to determine that all features
and equipment, systems, and subsystems have been properly installed and adjusted, function
properly, and are capable of operating simultaneously in such condition that the Facility is
capable of continuous delivery into PacifiCorp's electrical system, which may include but are
not limited to:
Turbine/generator mechanical runs and functionality;
System operation tests;
Brake tests;
Energization of transformers;
Synchronizing tests (manual and auto);
Excitation and voltage regulation operation tests;
Auto stop/start sequence;
Completion of any state and federal environmental testing requirements; and
Tests required by manufacturer(s) and designer(s) of equipment.
For wind projects only, the following Wind Turbine Generator Installation Checklists are
required documents to be signed off by Manufacturer or Subcontract Category Commissioning
Personnel as part of the Commissioning and startup testing:
Turbine Installation
Foundation Inspection
Controller Assembly
Power Cables
CablelnstallationChecklistsincluding: Controller
Top Deck / Yaw Deck
Tower Top Section / Saddle
Mid Section Cables or buss bars
Base Section
Tower Base Section
Tower Lights and Outlets
Tower Mid Section
Tower Top Section
Nacelle
Rotor
E- I
EXHIBIT F.l
MOTryE FORCE PLAN
WIND SPEED DATA SUMMARIES & HOURLY WIND PROFILE
Windland has collected wind data at the sites of Power County Wind Park North and South since
2002. Data have been collected on multiple met masts and site analyses have been perforrned by
Garrad Hassan, Windlogics, 3 Tier, Ron Nierenburg and V-bar LLC. The attached 12x24 table
was based on an analysis of wind data collected on site between January 2005 and December
2009. The basic analytical method employed was Measure-Correlate-Predict (MCP). The site
observations were correlated with data collected at the Pocatello airport to provide long tenn
wind speed adjustments. Monthly averages, diumal variations and long term averages were used
to produce site frequency distributions including the 12x24 array attached.
l___t-.-_i
1nnsr1 i Jan
-i--i I- --" - 1feb i Mar
I
l,l4l production (kwhl for | . l _
Power County Wind ParkSouth i--*i-
MJ i r;; i"rrr i;r. i s* i i;;
rl-- - i'-------l,l
Nov i oec i
0 4426 9331 8481 7742 6634 6781 5303 5155 6745 775t 8481 9313
_1^
2
8740 86rt8 8703 7835 6375 6855 4915 4767 6689 6301 a37t 92s8
8925 8703 8759 763t 6560 64t2 4593 5026 6356 6504 8112 8722
3 9073 8408 tsbbb 7336 6523 6190 4453 4497 5950 6560 7410 8204
4 8555 824L 8537 7354 6042 5005 419s 423t 5784 6449 7077 8260
5 8888 9036 8888 7059 6098 6079 3474 3973 5691 6209 7206 8223
_.q.
8
9
a7N a796 4574 6689 56t7 5s62 3936 375L 5470 64L2 7299 8703
8796 8796 8149 64L2 5063 5118 3363 3696 4638 5821 6966 8685
8648 8999 7890 6264 4860 5045 27L6 3104 419s 5710 6855 8555
8537 8925 7576 6079 5266 5118 3049 2975 4158 5285 7L70 8722
10 8297 8500 8278 6948 5765 324A 3474 297s 39L7 5045 7L33 8906
11 824L 8tt2 9036 7299 6L72 5839 3418 3400 401.0 52LL 7225 8334
72 7724 8093 9091 7558 6393 6024 3862 4361 4509 5470 7354 8167
l3 76L3 7853 8814 7798 64et 6430 4379 4268 5285 6246 731,7 7613
L4 7336 776t 8537 7502 6726 6874 4934 5229 5580 6301 7354 8093
ts 7424 7299 8648 7539 7077 7391 5617 5377 5895 6430 7t70 7890
16 7705 7299 8463 7280 7003 7724 5303 5673 5724 6837 739L 8555
_3_
18
4204 76t3 7909 763t 6560 704o 5525 5063 5433 67AL 8149 9331
8075 8334 7964 7798 6320 6652 5562 4749 6356 7262 8592 9368
,!)8056 8592 7A72 '1798 667L 5987 5580 5155 6689 7539 8906 922t
20 8297 9054 7798 7927 7LL4 6.726 6098 5691 7LL4 7243 8814 9424
2t 8518 9609 7816 7853 7354 6781.600s 6190 7022 7206 9073 970L
22 8962 9s16 8L49 824L 6874 6818 56s6 5691 6745 6634 9128 9313
23 8906 9609 7909 7943 6430 6615 5654 5322 7L70 6449 8796 9756
--'I
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tl
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t-
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EXIIIBIT F-2
ENGINEER' S CERTIFICATION
(1) THAT THE WIND DATA SUMMARIES IN EXHIBIT F.l ARE ACCURATE;
[Licensed Professional Engineer's certification]
(2) THAT THE AVERAGE ANNUAL NET OUTPUT ESTIIvIATE IS 60,523,733 KWH
PER YEAR IN EACH FULL CALENDAR YEAR OF THIS AGREEMENT BASED ON
THE MOTIVE FORCE PLA}I IN EXHIBIT F.1;
[Licensed Professional Engineer's certification]
(3) THAT THE FACILITY, UNDER AVERAGE DESIGN CONDITIONS, LIKELY WILL
GENERATENO MORE THAN 10 AMW IN ANY CALENDARMONTH.
[Licensed Professional Engineer's certification]
F2-1
EXHIBIT F-2
ENGINEER'S CERTIFICATION - SOUTH ARRAY
(I) THAT THE WIND DATA SUMMARIES IN EXHIBIT F-I ARE ACCURATE;
s/ruf1o
(2) THAT THE AVERAGE ANNUAL NET OUTPUT
PER YEAR IN EACH FULL CALENDAR YEAR OF
THE MOTIVE FORCE PLAN IN EXHIBIT F.I;
ESTIMATE IS 60,523,733 KWH
THIS AGREEMENT BASED ON
(3) THAT THE FACILITY, UNDER AVERAGE DESIGN CONDITIONS, LIKELY WILL
GENERATE NO MORE THAN 10 aMW IN ANY CALENDAR MONTH.
E'Q
F2-1
EXIIIBIT G
SAMPLE ENERGY PURCHASE PRICE CALCULATIONS
The following are samples of calculations of energy purchase prices using the formula and tables
in Section 5.1.
The calculation for the non-levelized purchase price during an On-Peak Hour in May of 2011
equals $60.2444Wh (the 2011 annual rate for Conforming Energy) multiplied by 92% (0.92)
(the May On-Peak Hour multiplier) minus $6.504{Wh (the wind integration cost), which equals
$48.924{Wh.
Table 1: Sample calculations for non-levelized On-Peak Conforming Energy in 2011: Purchase
Price : (annual rate * monthly On-Peak multiplier) - wind integration cost.
Month
Conforming
Energy
Annual Rate
for 2011
(per MWh)
On-Peak
Hour
Multiplier
Wind
lntegration
Cost
Calculated Purchase
Price for 2011 On-
Peak Conforming
Energy (per MWh)
January $60.24 103%$6.s0 $5s.s5
February $60.24 t05o/o $6.s0 $56.7s
March $60.24 9s%$6.50 $s0.73
April $60.24 95o/o $6.50 $50.73
May $60.24 92%$6.s0 $48.92
June s60.24 94%$6.s0 $50.13
July $60.24 tzt%$6.s0 $66.3e
August $60.24 t2t%$6.50 $66.39
September $60.24 109%$6.s0 $s9.16
October $60.24 rts%$6.s0 $62.78
November $60.24 tt0%$6.s0 $59.76
December $60.24 129%$6.s0 $7t.21
Table 2: Sample calculations for non-levelized Off-Peak Conforming Energy in 2011: Purchase
Price = (annual rate * monthly Off-Peak multiplier) - wind integration cost.
Month
Conforming
Energy
Annual Rate
for 2011
(per MWh)
Off-Peak
Hour
Multiplier
Wind
Integration
Cost
Calculated Purchase
Price for 2011 Off-
Peak Conforming
Energy (per MWh)
January $60.24 94o/o $6.50 $s0.13
February $60.24 97%$6.s0 $s 1.93
March $60.24 80%$6.s0 $41.69
G- I
Month
Conforming
Energy
Annual Rate
for 2011
(per MWh)
Off-Peak
Hour
Multiplier
Wind
Integration
Cost
Calculated Purchase
Price for 2011 Off-
Peak Conforming
Energy (per MWh)
April $60.24 76%$6.s0 $39.28
May $60.24 63%$6.s0 $31.4s
June $60.24 65%$6.s0 $32.66
July $60.24 92%$6.s0 $48.92
Auzust $60.24 t06%$6.s0 $s7.3s
September $60.24 99%$6.s0 $s3.14
October $60.24 l05o/o $6.s0 $56.7s
November $60.24 96%$6.50 $s1.33
December $60.24 120%$6.s0 $6s.79
EXHIBIT H
Seller Authorization to Release Generation Data to PacifiCorp
[Interconnection Cus tomer LetterheadJ
Transmission Services
Attr: Director, Transmission Services
825 NE Mulfiromah, Suite 1600
Portland, OR97232
RE: Power County VYind Park South LLC lnterconnection Request
Dear Sir:
Power County Wind Park South LLC hereby voluntarily authorizes PacifiCorp's Transmission
business unit to share Power County Wind Park South LLC's generator interconnection
information and generator meter data relating to Power County Wind Park South LLC
Qualiffing Facility located in the town of American Falls, Power County, Idaho with Marketing
Affrliate employees of PacifiCorp Energy, including, but not limited to those in the Commercial
and Trading group. Power County Wind Park South LLC acknowledges that PacifiCorp did not
provide it any preferences, either operational or rate-related, in exchange for this voluntary
consent.
Name
Title
Date
H-t
clean energy f rom wind
Transmission Services
Attn: Director, Transmission Services
825 NE Multnomah, Suite 1600
Portland, OR97232
RE: Power County Wind Park South LLC Interconnection Request
Dear Sir:
Power County Wind Park South LLC hereby voluntarily authorizes PacifiCorp's Transmission
business unit to share Power County Wind Park South LLC's generator interconnection
information and generator meter data relating to Power County Wind Park South LLC
Qualifting Facility located near the town of American Falls, Power County, Idaho with
Marketing Affrliate employees of PacifiCorp Energy, including, but not limited to those in the
Commercial and Trading group. Power County Wind Park South LLC acknowledges that
PacifiCorp did not provide it any preferences, either operational or rate-related, in exchange for
this voluntary
Roald Doskeland
President, Windland Inc, Manager, Power County Wind Park South, LLC
ft- ra - ?o
Date
WINDLAND INCORPOHATEO 20A477.7777 7669 W. RIVERSIDE DR SUITE 102 BOISE. IDAHO 83714 FAX 208-375'2894
ADDENDUM L
STATION LOAD, LOSSES, and NET OUTPUT
ALLOCATION ALGORITHM FOR THE
powER couNTY wrND PARr( SOUTH, LLC PROJECT
This Addendum L is hereby made a part of, and clarifies certain terms in, the Power
Purchase Agreement between Pow-er. County Wind Payk South, LLC and PacifiCorp
("Agreemenf') entered into tfre Jflauy of A"tqUg\ 2010. Capitalized terms not
defrned herein shall have the meffi-g s.ifortt iiE e}eement. Power County Wind
Park South,LLC ("Seller") and PacifiCorp are at times referred to herein individually as
a "Parq/" or collectively as the "Parties".
Power County Wind Park North, LLC and Power County Wind Park South, LLC,
together, form a complex of separate,Idaho small wind Qualifuing Facilities ("Windland
Power County Projects") that share collector wires, a 34.51230 kV substation, and
related equipment, which connect the Quali$ing Facilities to the Point of Delivery
("Shared Interconnection F acilities").
PacifiCorp has agreed to buy (and Seller has agreed to sell), at the Point of Delivery,
Seller's total energy output net of: (1) Seller's station service; (2) energy provided by
Seller to another Windland Power County Project for station service; (3) Seller's share of
the transformation losses; and (4) Seller's share of the line losses between Seller's
Facility and the Point of Delivery (together Seller's 'oStation Auxiliary Load and
Losses"). However, Seller and PacifiCorp agree that it is impossible to measure Seller's
Station Auxiliary Load and Losses separate and apart from the Station Auxiliary Load
and Losses of the other Windland Power County Projects. Therefore, in order to
implement an objective, practicable, and equitable process by which PacifiCorp may
quantiff energy delivered by Seller to the Point of Delivery (net of its Station Auxiliary
Load and Losses), the Parties do agree as follows:
A. Billing Formulae. PacifiCorp shall determine Seller's Net Output in kWh for
purposes of the Agreement using the method specified below.
1. Definitions
NRt : the nameplate rating of Windland Power County Project i.
NRr = the sum of all the nameplate ratings of Windland Power County Projects (i:
I to2).
PALLr : the accumulated purchased energy from Utility Supplier(s), as determined at
the Point of Delivery, to supply the net total station auxiliary load and losses
for the Shared Interconnection Facilities for Windland Power County
Projects i = I to 2 whenever such total load and losses exceeds total
generation output.
L-t
OPr
NOr
PALLi =the allocated share of PALL1 for Project i as determined by multiplying
PALLr by NR1 and dividing by NR1.
for a given integration interval, the metered output energy of Windland
Power County Project i, as determined by PacifiCorp's meter at the point
where Windland Power County Project i connects to the Shared
Interconnection Facilities. For any integration interval during which any
energy is delivered to a Project from the Shared Interconnection Facilities,
such delivered energy is accumulated in a separate meter register and does
not decrement the register used to measure accumulated OPi. Therefore OP1
is by definition always greater than or equal to zero, and in the event the
meter records OPs less thanzero, OPi shall be deemed to equal zero.
the sum of all OPi (i: 1 to 2).
for a given integration interval, the total energy delivered to the Point of
Delivery (230 KV Brady Treasureton transmission line). NOr shall be as
measured at PacifiCorp's meter near the Point of Delivery (kWh, in 10-
minute intervals), adjusted for any transformation losses between the meter
and the Point of Delivery. For any integration interval during which any
energy is delivered to the Point of Delivery from PacifiCorp's system, such
delivered energy is accumulated in a separate meter register of the
PacifiCorp meter and does not decrement the register used to measure
accumulated Net Output energy. Therefore NGr is by definition always
greater than or equal to zero and in the event the meter records NO1 less
than zero, NOr shall be deemed to equal zero.
OPi
NOi : the net energy sold to PacifiCorp by Windland Power County Project i
during the integration interval.
SALLI : the total of all station auxiliary load and losses for the Shared
Interconnection Facilities for Windland Power County Projects (i : I to 2)
when NOr is positive.
SALLi : the allocated share for Windland Power County Project i of SALL1.
Capitalized terms not defined in this Addendum shall have the meaning set forth in the
Agteement.
2. Calculations
Calculations shall be reconciled and settled monthly. Calculations shall be based upon
raw data gathered from specified meters using a metering integration interval of 5, 10, or
15 minutes at PacifiCorp's election to match the metering installation PacifiCorp
specified ("integration interval'). Calculations shall be rounded to the nearest
kilowatthour in the final step.
(at. When Total Generafion Outout + Station Auxiliarv Load and Losses
When, for any integration interval, the total of all OPl Project output amounts of energy
among all Windland Power County Projects (OPr) s less than or equal to the total station
auxiliary load and losses for the Shared Interconnection Facilities, the meters at the Point
of Delivery will accumulate the Utility Supplier's delivery of purchased energy, PALLT,
L-2
to supply such net total load and losses in a meter register that is separate from that which
accumulates NOr and NOr shall equal zero or if negative, be deemed to equal zero. The
"Utility Supplier" shall be the utility providing retail electric service at the Facility
(Rocky Mountain Power). PacifiCorp shall have no obligation to serve any of the
Windland Power County Projects' retail electric needs absent a separate written
agreement with PacifiCorp and then only with the permission of Seller's Utility Supplier.
None of the costs associated with provision of retail electric service to Seller shall be
borne by PacifiCorp.
(bl. ll/hen Total Generation Outout > Stafion Auxiliarv Load and Losses
When, for any integration interval, the total generation of energy among all Windland
Power County Projects is greater than the total station auxiliary load and losses for the
Shared Interconnection Facilities, the meters at the Point of Delivery will accumulate in a
separate register PacifiCorp's receipt of the total combined energy from all the Projects
(NOr). The difference between OPr and NO1 for that interval (SALLT) is allocated to
each Windland Power County Project in proportion to its generation output (OP;) in the
same integration interval to determine NOi by the fornulae:
Let SALL1 : I OPr -NOr ] and
SALLi : I SALL1] * [ OPi /OPr]
The Net Output energy sold by each Project i is then determined as:
Noi = [ OPi - SALLi ] and substituting for SALLi ;
: Nq * [OPi/OPr]NOi
B. Limitation of PacffiCorp Purchase Liability. PacifiCorp's total purchase
obligation to the Windland Power County Projects shall at no time exceed total energy
delivered by the Windland Power County Projects to the Point of Delivery. Therefore, in
the event the sum of the Net Ou@ut energy (calculated according to the preceding
formulae) for all the Windland Power County Projects is greater than NO1, then
PacifiCorp shall reduce calculated Net Output energy from each Windland Power County
Project pro rata each Windland Power County Project's share of the OP1, such that the
total energy purchased from all the Windland Power County Projects at the Point of
Delivery by PacifiCorp equals NO1.
C. PacifiCorp Right to Offset. In the event PacifiCorp determines it has underpaid one
or more Windland Power County Projects (due to metering effor or otherwise) and as a
result of underpaying one or more Windland Power County Projects, has overpaid Seller,
L-3
PacifiCorp may adjust Seller's futue payment(s) accordingly in order to recapture any
overpayment received by Seller in a reasonable time.
D. Condition Subsequent. This Addendum L was negotiated jointly among the
Windland Power County Projects and PacifiCorp and is intended by all of the Windland
Power County Projects and PacifiCorp to be one of two identical bilateral agreements,
each between PacifiCorp and an Windland Power County Project, but each related to the
other. Therefore, in the event one or more Windland Power County Projects does not
agree to be bound by the terrrs and conditions set forth in this Addendum L, PacifiCorp
may, upon thirly days written notice, cancel all Addendum L agreements. In the event
PacifiCorp cancels this Addendum L in accordance with this Section D, PacifiCorp may
satisfu its obligation to pay Seller by depositing when due, with an escrow agent chosen
by the Windland Power County Projects, the total payment due to all Windland Power
County Projects under their respective Power Purchase Agreements, less offsets (if any)
calculated based upon NOl and the Contract Price.
AGREED TO BY:
, Short Term Origination : President, V/indland Inc.
Manager, Power County
Wind Park South, LLC
Office of the Secretary
Service Date
October 6, 2010
BEFORE TIIE IDAIIO PUBLIC UTILITIES COMMISSION
WINDLAI\D,INC.
COMPLAINANT,
CASE NO. PAC-E-10.05
v.
PACIFICORP DBA ROCI(Y MOUNTAIN
POWE&
DEFENDANT.
IN THE MATTER Of,'THE APPLICATION
OF PACIF'ICORP DBA ROCI(Y MOUNTAIN
POWER FOR APPROVAL OF POWER
PURCTIASE AGREEMENTS BETWEEN
PACIFICORP AI{D POWER COUNTY WIND
NORTII LLC AI\D POWER COTINTY WIND
SOUTH LLC
oRDER NO. 32084
Complaint
On April 6,20t0, Windland, Inc. (Windland) Iiled a complaint with the Idaho Public
Utilities Commission (Commission) against PacifiCorp dba Rocky Mountain Power. Windland
claimed entitlement to and requested that PacifiCorp be required to execute two standard
PURPA Power Purchase Agreements for Windland's Power County Wind Park North and Power
County Wind Park South small power generation projects at the published PURPA avoided cost
rates in effect prior to March 12,2009, i.e., the higher grandfathered rates of Order No.30744.
On April 28,2010, a Summons was issued by the Commission directing PacifiCorp
to file an answer within 21 days. On April 29, 2010, PacifiCorp filed an answer with the
Commission requesting a Commission determination that Windland's Power County wind
projects are not entitled to grandfathered rates.
POWER PURCTIASE AGREEMENTS
(and Contingent Motion to Dismiss Cornplain! Application ,1[3)
On August 20,2010, PacifiCorp filed an Application with the Commission requesting
approval of fwo Power Purchase Agreements (PPAs; Agreements) entered into between
PacifiCorp dba Rocky Mountain Power and Power County Wind Park North LLC and Power
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oRDER NO. 32084
County Wind Park South LLC dated August 18, 2010 (the LLCs). The locations of the two wind
facilities are described as follows:
North: T8S, R318, Section 13 and T8S, R32E, Sections 6,7,8,17, 18, Power
County,Idaho
South: T8S, R32E, Sections 19,20,29 and 30, Power County, Idaho
Agreements, Exh. A.
The total nameplate capacity for each of the two small power wind generation
facilities (QFs) is 21,780 MW. Agreements, Recital A. Average monthly output for each
facility will be below l0 MW. Agreements, Exh. D. The estimated average annual net output of
each facility is 67,311,441 kWh (North) and 60,523,733 kwh (South). Agreements, Recital D.
The QFs have elected December 3l,20ll as the scheduled commercial operation date for their
facilities.
Windland and the LLCs have waived their claims to grandfathered rights to the
avoided cost rates contained in Order No. 30744. Application, !f 7. The Power Purchase
Agreements contain the current non-levelized published avoided cost rates established in Order
No. 31025. The $6,50/IvIWh wind integration charge approved by the Commission (Order No.
31021) and all other applicable interconnection charges and monthly O&M charges under the
generation interconnection agreement with PacifiCorp transmission will be assessed to the LLCs.
Agreements, Section 5.1.
Section 1l.l of the PPAs provides for Delay Secwity of $25 multiplied by the
Maximum Facilities' Delivery Rate measured in kilowatts. This results in delay security of
$544,500 under each PPA. Pursuant to Section I 1 . 1 .4 one-quarter of the Delay Security amount
is to be refunded to the QFs as each of four milestones are achieved. The approach to delay
security has been agreed to by the parties in compromise of Windland's pending cornplaint in
Case No. PAC-E-10-05 and is not intended to establish any precedent.
As reflected in Section 2.1 of the Agreements, the Agreements will not become
effective until the Commission has approved all the Agreements' terms and conditions and
declares that all payments that PacifiCorp makes to the wind projects for purchases of energy
will be allowed as prudently incurred expenses for ratemaking purposes.
oRDERNO. 32084
On September 2,2010,the Commission issued Notices of Complaint (and Contingent
Motion to Dismiss), Application, and Modified Procedure in Case No. PAC-E-10-05. The
deadline for filing written cornments was September 30, 2010. Commission Staff was the only
parfy to file comments.
Staf!Comments
Staff recommends that the Commission approvo all of the Agreements' terms and
conditions. Staff notes that Windland and the LLCs pursuant to negotiation have waived their
claims to grandfathered rights to the higher avoided cost rates contained in Order No. 30744
(Applieation t[ 7). The filed Power Purchase Agreements contain the cunent, lower non-
levelized published avoided cost rates established in Order No. 31025. As noted by Staff, and
represented by the Company, the approach to Delay Secwity set forth in the Agreements is part
of a negotiated settlement and compromise of Windland's pending complaint in Case No. PAC-
E-10-05 and is not intended to establish any precedent. Application tf 8.
COMMISSION F'INDINGS
The Commission has reviewed the filings of record in Case No. PAC-E-10-05,
including the complaint, the two Power Purchase Agreements and the Contingent Motion to
Dismiss. We have also reviewed the comments and recommendations of Commission Staff. We
continue to find it reasonable to process the Company's Application under Modified Procedure,
IDAPA 31.01.01.204.
PacifiCorp has presented two Firm Energy Sales Agreements for wind facilities in
Power County, Idaho. As represented and purzuant to agreement, under normal andl/or average
conditions the individual projects will not exceed 10 aMW on a monthly basis. We thus find the
projects are qualified to receive the published avoided cost rates approved by the Commission.
The Commission finds that the Agreements submiued in this case contain acceptable
contact provisions and include the current non-levelized published rates approved by the
Commission in Order No. 31025. We find it reasonable that ttre submitted Agreements be
approved without further notice or procedure. We further find it reasonable to allow payments
made under the Agreements as prudently incuned expenses for ratemaking purposes.
Inasmuch as we have found it reasonable in this case to approve the two Power
Purchase Agreements, we further frnd it reasonable to grant the request of the parties to dismiss
the underlying complaint of Windland with prejudice.
oRDERNO. 32084
CONCLUSIONS OF LAW
The Idaho Public Utilities Commission has jurisdiction over PacifiCorp dba Rocky
Mountain Power, an electric utility, pursuant to the authority and power granted it under Title 6l
of the Idaho Code and the Public Utility Regulatory Policies Act of l97S (PURPA).
The Commission has authority under PURPA and the implementing regulations of
the Federal Energy Regulatory Commission (FERC) to set avoided costs, to order electric
utilities to enter into fixed+errn obligations for the purchase of energy from qualified facilities
(QFs) and to implement FERC rules.
ORDER
In consideration of the foregoing and as more particularly described above, IT IS
HEREBY ORDERED and the Commission does hereby approve the August 18, 2010, Power
Purchase Agreements entered into between PacifiCorp dba Rocky Mountain Power and Power
County Wind Park North LLC and Power County Wind Park South LLC,
IT IS FURTHER ORDERED and pursuant to agreement of the parties (Application !f
3) that the underlying complaint of Windland Inc. against PacifiCorp dba Rocky Mountain
Power is dismissed with prejudice.
THIS IS A FINAL ORDER. Any person interested in this Order may petition for
reconsideration within twenty-one (21) days of the service date of this Order. Within seven (7)
days after any person has petitioned for reconsideration, any other person may cross-petition for
reconsideration. See ldaho Code S 6l-626.
4ORDER NO. 32084
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this 4rf
day of October 2010.
[h"i/^, I Ev-'D*
MARSHA H. SMITH, COMMISSIONER
\"-SIr
MACK A. REDFORD, COMMISSIONER
ATTEST:
bls/O:PAC-E-10-05 sw2
ORDERNO. 32084
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To 0-n a L U)a
J
a
lJ.lI
(o
IoU)
(oIOa (f)
C\I
(r)N
" *rrhcttt4sNT L q
r--. :{. -'.* .{:1..
tD PAC-EA-14-0'l
Monsanto 1.9
Decll - Novl2|DAHO ECAM - Monsanto
Amortization Split
Account f187810
Attachment Monsanto 1.9
4r;
Apr-13
May-13
Jun-1 3
Jul-13
Aug-13
Sep-13
Oct-13
Nov-13
Dec-13
Jan-14
Feb-14
197,608.25
214,098,78
216,696.90
204,568.32
200,999.98
191,855.89
207,121.80
203,499.19
158,610.90
211,583.08
209,488.74
189,861.18
192,165.18
181,409.64
178,245.26
170,136.35
183,674.04
180,461.54
140,654.94
187,630.28
185,773.04
197,608.25
403,959.96
408,862.08
385,977.96
379,245.24
361,992.24
390,795.84
383,960.73
299,265.84
399,213.36
395,261.78
Amortization
187983 i,-:I_{.r.stoi;
2011 2012 Total
53%47Yo 100%
1 of23
lD PAC-EA-14-01
Monsanto 1.9
MONSANTO COMPANY
Attention: Accounts Payable
P.O. Box816
Soda Springs, lD 83276
ROCKY MOUNTAIN
nmF*-,
Attachment Monsanto 1.9
February 8,2014
Pageld.2
Account No: 61 87639G001-004
Purchase Order No:4509583869
REMIT WIRE TRANSFER TO:
PACIFICORP
JPM/CHASE
ABA # 021000021
Account # 553'1896
Bctwm Roclry MounhiD Powcr snd Monsanto Compmy
EIfcctirc lanuary 10, 2012
Calculation of Billing
For The Month of Janrnry,2014
AMOUNT
$1,s86.00
$3,036,391.68
$3,963,447.91
$5,840.64
$395,261.78
$7,402,528.01
($1,666,980.00)
$5,735,548.01
($846,804.17)
__$0.00_
$4,888,743.84
Charges:
Firm Energy;
Firm Energy (17 hours):
lnterruptible Energy:
lnterruptible Energy ('17 hours):
Replacement Energy:
Total Energy Charges
Factor Charge:
Average kVars
Less Alloared kVars 33o/o x 190,848
Excess kVars
E nergy Cost Adjustment:
Billing Period: 31-Dec-13 Through 31-Jan-14
Hours in Period: 744
Customer Gharge:
Demand Gharge:
Firm Demand:
lnterruptible Demand:
Total Demand Charges
Rate change ett. 01 l01l14
kW Rrtc ADount28,848 15.91 458,971.68
162,000 15.91 2,577,420.00_l!9J19_
kwh RtlG Amount
5,529,758 0.031303 173,098.01
65,624 0.030870 2,025.81
116,464,618 0.031303 3,645,691.94
2,723,382 0.030870 84,070.80
1,340,000 0.043700 58,561.35
___-126,L23,382
kvr RrtG Am@trt
69,0&r
62,980
_______qpg1- 0.e6oo0
121,994,376 0.003240
kW Rsae
162,000 (10.29)
01t31t14
$6,010,2s1.49
$5,163,2147.32
$0.00
$0 1o/o =
otal Power And Energy Gharges For The Month of January,2014
nterruptible Credit
Net Total Amount Due For The Month of January,2014
rs
Qrevious Balance
Adjustments from prior months
Payment Received
Payment Received
Account Balance
On Arrears
Due Rocky Mountain Power
2o123
tD PAC-EA-14-01
Monsanto 1.9
12 Billing Month
MONSANTO COMPANY
Attention: Accounts Payable
P.O. Box 816
Soda Springs, lD 83276
ROCKY MOUNTAIN
nP,mn".,
Attachment Monsanto 1.9
January 9,2014
Page 1 ot 2
Account No: 6'1 876396-001-004
Purchase Order No:451 0486764
REMITWRE TRANSFER TO:
PACIFICORP
JPM/CHASE
ABA # 021000021
Account # 5531896
As Prcvidcd Undcr lnterim El€ctdc Seryice Agr@ment
'"** **t#t;lii:""H ir#;;*"' ""**'
Calculation of Billing
For The Month of December, 2013
Billing Period: 30-Nov-13 Through 31-Dec-13
Hours in Period: 744
Gustomer Charge:
Demand Charge:
Firm Demand:
lntenuptible Demand:
Total Demand Charges
Energy Charges:
Firm Energy:
lnterruptible Energy:
Replacement Energy:
kW Rste Amount
33,776 15.91 537,376.16
162,000 15.91 2,577,42A.OO
__-__l_9EZZq_
kwh Rstc Anoun(
8,972,000 0.030870 276,965.64
114,242,0AA 0.030870 3,520,650.54
12-26-13
$4,831,803.el
$4,83'1,803.64
$0.00
$1,586.00
$0.00
$0.00
$3,114,796.16
6,286,000 0.055890 351,340.11
Total Energy charges __129,!99pq9_ $4,154,956.29
Power Factor Charge: kvar Rrrc Amoun.
Average kVars 71,564
Less Allowed kVars 33% x 195,776 64,606
Excess kVars ___9,9!g_ 0.96000 $6,679.68
Energy Cost Adjustment 123,2i4,000 0.003240 $399,213.36
Total Power And Energy Charges For The Month of December, 2013 $7 '677,231'4e
lnterruptible Credit %r,ooo iro rr, ($1,666,e80.00)
Net Total Amount Due For The Month of December, 2013 $6,010,251.49
Previous Balance
Adjustments from prior months
'Payment Received
Payment Received
Account Balance
On Arrears
$0 1Yo =
$6,010,251.49Due Rocky Mountain Power
3 ot23
tD PAC-EA-14-01'' ' "''' M6nsanto 't .911 Billing lf,onth
MONSANTO COMPANY
Attention: Accounts Payable
P.O. Box 816
Soda Springs, lD 83276
ROCKY MOUNTAIN
POWER
A DIVISION OF PACIFICORP
' Attachment Monsanto 1.9
December 6, 2013
Page 1 of2
Account No: 61 876396-001 -004
Purchase Order No:451 0486764
REMIT WRE TRANSFERTO:
PACIFICORP
JPM/CHASE
ABA# 021000021
Account # 5531896
DESCR!PTION AMOUNT
As
Baween Rwky Momtain Power and Monsanto Comparry
Effective Jmury 10,2012
Galculation of Billing
For The Month of November, 2013
Billing Period: 31-Oct-13 Through 30-Nov-13
Hours in Period: 721
Customer Charge: $1,586'00
Dgmand Charge: kw Rare Amounr
Firm Demand: 33,776 15.91 537,376.16
lntenuptible Demand: 162,000 15.91 2,577,420.A0
Total Demand Charges _l!!JZq_ $3,114,796.16
Energy Charges: kwh n ." Am*nt
Firm Energy: 0 0.030870 0.00
lntenuptible Energy:
Replacement Energy:
Total Energy Charges
Power Factor Charge:
Average kVtrs
Less Allowed kVars 33o/o x 195,776
Excess kVars
Energy Cost Adjustme nt:s
92,366,000 0.030870 2,851,338.42
6,834,000 0.033920 231,797.22
$3,083,135.04
92,366,000 0.003240
Total Power And Energy Charges For The Month of November, 2013 $6,498,783.64
($1,666,980.00)
$4,831,803.64
lnterruptible Credit
Net Total Amount Due For The Month of November, 2013
Arrears
Previous Balance
Adjustments from prior months
$5,738,166.85
$17,834.81
$5,756,001.66
$0.00
12-02-13
$0.00
$0.00
__99-2!9p99_
kVer Rrte Amounl
59,584
64,606
0 0.96000
LW Rate
162,000 (10.29)
$0 1o/o =
$0.00
$299,265.84
Payment Received
Payment Received
Account Balance
lnterest On Arrears
Balance Due Rocky Mountain Power $4,831,803.64
/t.t
lx,+
tD PAC-EA-14-01
Monsanto 1.9 . i:fy,_3 ir -fftachment Monsanto 1 .9
From:
Sent:
To:
Cc:
Subject:
Attachments:
MONTH
February
March
April
May
€**ar..,l *o:?**A-l,i".,oFrr"^l^- 4a'lr+:\,Orig lnv
$6,953,977.04
$6,899,729.61
87,4A2,072.80
$7,524,634.19
Rvsd lnv
$6,954,895.95
$6,900,026.42
$7,415,364.00
$7,527,962.08
TOTAL
Stephens, Scoft
Thursday, November 07 ,2013 1:42 PM
Barker, Brent; PottraE, Roxann
Alder, Kevin, Ho, Ben; Zhang, James; Tang, Teresa; Hastings, Matthew; Rasmussen,
Vaughn; Cromwell, Christine; Boyle, Cary; Bankhead, Lyle
Monsanto Company - October 2013
Monsanto lnvoice October 2013.pdf
Attached is a copy of the invoice to Monsanto Company, for deliveries in October 2013.
Brent - Please review and reply by email if you agree or not that the billing is reasonable, based on your
knowledge of the customer and account history.
Roxann - An interruptible Credit has been entered on the customer's retail account in the amount of
$1,666,980.00 .
Based on the revised replacement energy information provided by Roxann for February, March, April and
May of 2013, the billing calculations for those bills have been revised. l've listed the differences below.
Diff
-t,tL
@'( f,lrr,rr)
,g''( to,lra,ro)
L )1i1!:l
{tl,tt c,a1 '
$ 918.91 it.a a.ag-t+d.5,.'a ilil nv,q'm'a{
$ 296.S1 lt"t l4trt"ot.t'f, tt'rr l9-t,ttc'.t.z$
$1 3,291 .20 n,ia '/ot,151,1to rttt gqg,4t t '7 o
$ 3,327.89 tt,tL4ot1lrz.aY )'.tl'to't rt9::9
$17,834.81 l:Lt,l.,a ta, aq ri I g-lraa't.'i.a
ScaU Steeficta
Lead/Sr. Billing Analyst
Rocky Mountain Power/Pacific Power
825 NE Multnomah, Suite 600
Portland, OR9723?
503-81 3-7376; 503-81 3-7424 FAX
Scott. Stephens@PacifiCorp. com
+lo
'!'+ 4o t.it.t. tz
1)t-/, ?*,t i*fcal' )t"\?ffL'IUAf:
"l ,.,'.*
ll"1*
+++ I ,(
Al a t 7 t ut,,.t i"- j:n -::"
C)c)
aac)o
c)
ao
(J
ao
()
ac)
tDO to,ro oaacu o|(omco l.f)
@ t'.-oc)$<t
+lc)+l()
1
5 of23
+lo
otr) oC)CUOoaOCf,c) cv{f, <f
<f@OCrI(\r r
Ir,l.r) o tOQ.C\iCUo cncooaaaa@CD O)roc) rog)r.o'.I) ot{fGtf*- I'- lf) rOor o) o crlFr $l'O
lr)to@Nlof\r$rf-aaaoc(tl CO CU i- (fFF.-OCU(.o'(,r {f, lO t- Cn
GG-6*nP-53<t t'')t
10 Billing MorOtpAc-EA-14-01q'w,R$CHYoMOUNT"**
'e. PCWER,n n otvtstow oF PACIFTcoFP
76\/rlilb
UIONSANTO COMPANY
rttention: Accounts Payable).O. Box 816
)oda Springs, lD 83276
3iliing Feriod: 30-Sep-13
'lours in Feriod:
]ustomer Charge:
)emand Charge:
Firm Demand:
lnterruptible Demand:
Total Demand Charges
inergy Gharges:
Firm Energy:
lnterruptible Energy:
Replacement Energy:
Total Energy Charges
)ower Factor Charge:
Average kVars
Less Allowed l<Vars 33% x
Excess kVars
inergy Cost Adjustment:
195,776
Bilting As Pmvided Under lnEmn Elechc seryrce Aglecnrenl
Benreen Rocky Mounrain Pows'and Morsanto Cornpany
Eft'ective January 10. 20'12
Calculation of Billing
For The Month of October, 2013
Through 31-Oct-13
744
kW Rrte
33,776 15.91
162,000 15.91
___125,400,000_
kVrr
71,825
64,606
7,215 0.96000
123,988,000 0.003240
195.776
kwb Rste Amount
4,872,000 0.030870 150,398.64
119,116,000 0.030870 3,677,110.92
1.412,000 0.037250 52,603.77
November 7 ,2013
Page 1 of2
Account No: 61 876396-001 -004
Purchase Order No:451 0486764
REMIT WRE TRANSFER TO:
PACIFICORP
JPM/CHASE
ABA # 021000021
Account # 5531896
AMOUNT
$1,586.00
Amoutrt
537,376.16
2,577,420.A4
$3.114,796.16
$3,880,113.33
10t29t13
$s,732,844.06
$5,732,844.06
$0.00
$22,112,493.64
$22J3A328.45
$17,834.81
$6,930.24
$4A1,721.12
$7,40s,146.85
($1,666,980
$5,738,166.85
$0.00
Iotal Power And Energy Charges For The Month of October, 2013
kw
nterruptible Credit 162,000
{et Total Amount Due For The Month of October,2013
\rrears
Previous Balance
Payment Received
Payment Received
Account Balance
Original lnvoice Totals February-May 2013
Adjusted lnvoice Totals February-illay 2013
Additional Balance Due
nterest On Arrears
Ilrle
(10.2e)
$0
3alance Due Flocky Mountain Power 6 of23
40/lto
$5.756.001.66 /l ,'+
tD PAC-EA-14-01
Monsanto 'l .9
-,ROCKY
MOUNTAIN-4pow=*,
\ n orvrstor., or PAcrFlcoRP
MONSANTO COMPANY
Attention: Accounts Payable
P.O. Box 816
Soda Springs, lD 83276
Attachment Monsanto 1.9
March 5, 2013
Page 1 ofZ
Account No: 6187639&001-004
Purchase Order No:451 0486764
REMIT WIRE TRANSFER TO:
PACIFICORP
JPM/CHASE
ABA # 021000021
Account # 5531896
Bdwen Rockvrvl0un:i::"fr il:#il"oto companv
Calculation of Billing
ForThe Month of February,2013
Billing Period: 31-Jan-13 Through 28-Feb-13
Hours in Period: 672
Customer Charge: $1,586.00
Dgmand Charge: k'vv Rrte A,ounr
Firm Demand: 35,120 15.91 558,759.20162,000 15.91 2,577,420.00
_1W.12O_
kwh Rstr AmtrBt
7,936,000 0.030870 244,984.32
108,864,000 0.030870 3,360,631.680 0.000000 0.00
$3,136,179.20
__il_a.,gg!&q_
lVar Rote Amount
71,504
65,050
____gdg3_ 0.e6000
116,800,000 0.oo'1750
$3,605,616.00
lnterruptible Demand:
Total Demand Charges
Energy Charges:
Firm Energy:
lnterruptible Energy:
Replacement Energy:
Total Energy Charges
Power Factor Charge:
Average kVars
Less Allowed kVars 33% x 197,120
Excess kVars
Energy Cost Adjustment:
Total Power And Energy Charges For The Month of February, 2013
lnterruptible Credit
Total Amount Due For The Month of February,2013
Arrears
Previous Balance
Payment Received
Payment Received
Account Balance
lnterest On Arrears
LW Rotc
162,000 (10.29)
02128t13
$5,585,758.12
$5,585,758,12
$0.00
$6,195.84
$204,400.00
$6,953,977.04
($1,666,e80.00)
$5,28C,997.04
$0.00
$0.00$0 1o/o =
Due Rocky Mountain Power $5,286,937.04
7 ol23 i[,tr
2 Billing Mor6hRc-eR-r+-or 7,g uito&,b
kw
35,120
162,000
197,120
kwh
7,936,000
105,447,000
3,417,000
116,800,000
kVrr
71,504
65,050
6.454
1 13,383,000 0.001750
Month of February,2013
kW Rrte
162,000 (10.29)
of February,2013
02t28113
ru w1RccKvnMOt-"tNTd \l
q:', PC}WER.
. A DIVISION OF PACIFICORP
UIONSA,NTO COMPANY
\ttention: Accounts Payable).O. Box B'16
)oda Springs, lD 83276
3illing Period:
{ours in Period:
Sustomer Charge:
)emand Charge:
Firm Demand:
lnterruptible Demand:
Total Demand Charges
inergy Charges:
Firm Energy:
lntenuptible Energy:
Replacement Energy:
Total Energy Charges
Dou/er Factor Charge:
Average kVars
Less Allowed kVars 33% x 197,120
Excess kVars
inergy Cost Adjustment:
[otal Power And Energy Charges For The
rnterruptible Credit
Net Total Amount Due For The Month
Arrears
Previous Balance
Payment Received
Payment Received
Account Balance
Adjusted Balance
Net increase in billing
Additional Balance Due
rnterest On Arrears
DESCRIPTION
Bewecn Rocky Mounain Power and Monsarto Company
Effcclive January 10. 20 t2
Calculation of Billing
For The Month of February, 2013
31-Jan-13 Through 2B-Feb-13
ott
Aftachment Monsanto 1.9
November 7,2013
Page 1 of2
Account No: 61 876396-001 -004
Purchase Order No:451 0486764
REMIT WIRE TRANSFER TO:
PACIFICORP
JPM/CHASE
ABA # 021000021
Account # 5531896
AMCUNT
$1,586.00
Amount
558,759.20
2,577,420.00
s3,136,179.20
Amount
244,984.32
3,255,148.89
112,381.45
$3,612,514.66
$6,195.84
$198,420.25
R, te
'15.91
15.91
Rrte
o.030870
0.030870
0.032890
Rlte
0.96000
/i,*"
$0
$5,585,758.12
$5,585,758.12
$0.00
$6,954,895.95
($1,666,e80.00)
$5,287,915.95
$o.oo
$0.00
$s,586,677.03
$918.91
$918.91
Balance Due Rocky Mountain Fo\ rer I ot23
40/tto
$5.287,915.95 I t ,"1
tD PAC-EA-14-01
Monsanto 1.9
IROCKY MOUhITAIN
POWEFT
Attachment Monsanto 1.9
April 2, 2013
Page 1 of2
Account No: 61 87639&001-004
Purchase Order No:451 0486764
REMIT WIRE TRANSFER TO:
PACIFICORP
JPM/CHASE
ABA # 021000021
Account # 5531 896
i A DIVISIOA: OF PACIFICORP
MONSANTO COMPANY
Attention: Accounts Payable
P.O. Box 816
Soda Springs, lD 83276
DESCRIPTION
As Provid.d Utrdcr lntsnm Eicotric Scrvrce
Bctwen Rocror Mo;I'l;."# il:#ilsnb comps,v
Calculation of Billing
For The Month of March, 2013
Billing Period: 28-Feb-13 Through 3't-Mar-13
Hours in Feriod: 743
Customer Charge:
Demand Charge:
Firm Demand:
lntenuptible Demand:
Total Demand Charges
NT
$1,586.00
$3.114.796.16
$3,583,027.20
$2,712.00
$197,608.25
$6,899,729.61
($1,666,980.00)
$5,232,749.61
$0.00
$0.00
$5,232,749.61
nergy charges:
Firm Energy:
lnterruptible Energy:
Replacement Energy:
Total Energy Charges
Factor Charge:
Average kVars
Less Allowed kVars 33% x 195,776
Excess kVars
Energy Cost Adjustment:
kW Rrte Abount
33,776 15.9'1 537,376.16
162,000 15.91 ?.577,420.A0
195.776
kwh R.tc A@B(0 0.030870 0.00
112,919,000 0.030870 3,485,809.53
2,881,000 0.033740 97 ,217.67
____1_1-1999,99q_
kVsr l{rtr Am!tr{
67,431
64,606
2.825 0.96000
1 12,91 9,000 0.001 750
o3t29t13
$5,286,997.04
$5,286,997.04
$0.00
$0 1o/o =
otal Power And Energy Charges For The Month of March, 2013
lnterruptible Credit
kW Rltc
162,000 (10.29)
Net Total Amount Due For The Month of March, 2013
rrears
Previous Balance
Payment Received
Payment Received
Account Balance
lnterest 0n Arrears
Balance Due Rocky Mountain Power
ll'-:
9 of23
/1"ff'
3 Billing MonopAc-EA-14-olq fir.- RdfrKY'nncuNT, hE ?etrla6.h
POWER
A DIVISION OF PACIFICOFP
,IONSANTO COMPANY
,ttention: Accounts Payable
'.O. Box 816
;oda Springs, lD 83276
Billing As Prcvided Linder lnrerLn Electnc Ssfrrce Alreement
Berwcen Rocky Moumain Powcr and Monsanto Company
Effedve January 10. 201?
Calculation of Billing
For The Month of March, 2013
Through 31-Mar-13
743
3illing Feriod: 2B-Feb-13
tours in Peniod:
]ustomer Gharge:
)emand Charge:
Firm Demand:
lnterruptible Demand:
TotalDemand Charges
Snergy Charges:
Firm Energy;
lnterruptible Energy:
Replacement Energy:
Total Energy Charges
lower Factor Charge:
Average kVars
Less Allowed kVars 33olo x
Excess kVars
inengy Cost Adjustment:
195,776
195,776
kwh ltrte Amount
0 0.030870 0.00
1 12,919,000 0.030870 3,485,809.53
2,881,000 0.033850 97 ,514.48
1 15.800.000
Attachment Monsanto 'l .9
November 7 ,2013
Page 1 of2
Account No: 61 876396-001 -004
Purchase Order No:451 04867 64
REMIT W|RE TRANSFER TO:
PAClFICORP
JPM/CHASE
ABA # 021000021
Account # 5531896
$1,586.00
Amount
537,376.16
2,577.420.00
$3,114,796,16
$3,583,324.01
$2,712.00
ti197.608.25
$6,900,026.42
($1,666,980.
$5,233,046.42
$5,286,997.04
$5,286,997.04
$0.00
$0.00
$5,233,343.23
$296.81
$2e6.81
s0.00
..=;
kW ltrte
33,776 15.91
162,000 15.91
kVrr
67,431
64,606
2.825
1 12,919,000
Itatc
0.96000
0.00'i750
Iotal FowerAnd Energy Charges For The Month of March, 2013
kw
interruptible Credit 162,000
Net Total Amount Due For The Month of March, 2013
Arrears
Previous Balance
Payment Received
Payment Received
Acoount Balance
Adjusted Balance
Net increase in billing
AdditionalBalance Due
lnterest 0n Arrears
03t29t13
Ilrte
(10.2e)
$o
Balanse Due Rocky Mountain Fower 10 ol 23
1o/o
$5,233,046.42
/ r ,'?
lD PAC-EA-14-01
Monsanto 1.9
S,ROCKY MOUNTAINY(Pgg1c-q-
\ a uvrsroN oF PAoFrcoRP
MONSANTO COMPANY
Attention: Accounts Payable
P,O Box 816
Soda Springs, lD 83276
Attachment Monsanto 1.9
May 3, 2013
Page 1 of2
Account No: 61 876396-001-004
Purchase Order No:451 0486764
REMIT WRE TRANSFER TO:
PACIFICORP
JPM/CHASE
ABA# 021000021
Account # 5531896
DESCRIPTlON AtT4OUNT
tsrlhng As l'rovldcd Under lnt{rm Bl@mc SeMce ABrccreil
Bmcn Rockv Moun::]l"ffi il:Xil-nrc co.panv
Calculation of Billing
For The Month of April, 2013
Billing Period: 31-Mar-13 Through 30-Apr-13
Hours in Period: 72o
$1,586.00Customer Charge:
Dgrnand Charge: kw Rs(c Amounr
Firm Demand: 33,776 15.91 537,376.16
lnteruptible Demand:
Total Demand Charges
Energy Charges:
Firm Energy:
lntenuptible Energy:
Replacement Energy:
Total Energy Charges
Power Factor Gharge:
Average kVars
Less Allowed kVars 33% x 195,776
Excess kVars
Energy Cost Adjustment:
162,000 15.91 2,577,420.00
$3,114,796.16
$3,873,463.16
Total Power And Energy Charges For The Month of April, 2013
lnterruptible Credit
Net Total Amount Due For The Month of April, 2013
Arrears
Previous Balance
Payment Received
Payment Received
Account Balance
lnterest 0n Arrears
195.776
kwh Rrte Am@nt
8,660,000 0.030870 267,334.20
116,019,000 0.030870 3,581,506.53
62'1,000 0.039650 24,622.43
125,300.000
kVer Rrte Amoun(
73,218
64,606
8.612 0.96000
124,679,000 0.003240
kW Rme
162,000 (10.29)
04t26t13
$5,232,749.61
$5,232,749.61
$0.00
$0 1o/o =
$8,267.52
$403,959.96
$7,402,072.80
($1,666,980.00)
$5,735,092.80
$0.00
$0.00
Balance Due Rocky Mountain Power $5,735,092.80
1'l ot 23 I!,t{
q&'{,mrlRdeffiVk/lOUnffi N
PEWER
A DIVISION OF PACIFICORF
4 Billing Mo4gp4s-EA-1a-.,1
dIONSANTO COMPANY
rttention: Accounts Payable
'.O. Box 816
ioda Springs, lD 83276
Silling Period: 31-Mar-13
{ours in Feriod:
]ustomer Charge:
)emand Charge:
Firm Demand:
lnterruptible Demand:
TotalDemand Charges
Snergy Charges:
Firm Energy:
lnterruptible Energy:
Replacement Energy:
Total Energy Charges
Power Factor Charge:
Average kVars
Less Allowed kVars 33o/o x 195,776
Excess kVars
inergy Cost Acijustment:
[otal Fower And Energy Charges
Tavrs*b
DESCRIPTION
5erurcc AgEmcnl
Uetwen Rocky Mountain Power and Momanto Companv
Effective January 10. 2012
Calculation of Billing
For The Month of April, 2013
Through 30-Apr-13
724
kW R8te
33,776 15.91
162,000 1 5.91
195.776
, Attachment Monsanto 1.9
November 7 ,2013
Page 1 of 2
Account No: 61 876396-001 -004
Purchase Order No:45 1 04867 64
REMIT' WIRE TRANSFER TO:
PACIFICORP
JPM/CHASE
ABA # 021000021
Account # 5531896
$1,586.00
Amount
537,376.16
2,577,420.OO
$3,114,796.16
Amount
267,334.20
3,481,672.95
148,225.37
$3,897,232.52
$8,267.52
$393,481.80
$7,415,364.00
($1,666,980.00
$5,748,384.00
$5,232,749.61
s5,232,749.61
s0.00
$5,761 ,675.20
$13,291.20
$13,29'1.20
$0.00
interruptible Cnedit
Net Total Amount Due
Arrears
Previous Balance
Payment Received
Payment Received
Account Balance
Adjusted Balance
Net increase in billing
AdditionalBalance Due
interest On Arrears
kwh
8,660,000
112,785,000
3,855,000
____g!.39q,000_
kVar
73,218
64,606
8,612
121,445,000
For The Month
162,000
For The Month of April, 2013
04t26t13
It!te
0.030870
0.030870
0.038450
0.9600ct
0.003240
2013
Rrte
(10.2e)
$o
Salance Due Rocky Mountain Fower 12 of 23 $5,748,384.00
tD PAC-EA-14-01
Monsanto 1.9
MO}ISANTO COMPANY
Attention; Accounts Payable
P.O. Box 8'16
Soda Springs, lD 83276
ROCKY MOUhXTAIN!
POWER
Attachment Monsanto 1.9
June 6,2013
Page 1 of2
Account No: 61 87639&001-004
Purchase Order No:451 M86764
REMITWIRE TRANSFERTO:
PACIFICORP
JPM/CHASE
ABA # 021000021
Account # 5531836
As Proudcd Urdcr trtcnm bl@tnc Scryrcc AgrEtMt*'*" *"*s::ffJ l:;:# n: #ilsanto
compuv
Galculation of Billing
For The Month of May, 2013
Billing Period: 30-Apr-13 Through 31-May-13
Hours in Period: 744
Customer Charge:
Demand Charge:
Firm Demand:
lnterruptible Demand:
Total Demand Gharges
Energy Charges:
Firm Energy:
lnterruptible Energy:
Replacement Energy:
Total Energy Charges
Power Factor Charge:
Average kVars
Less Allowed kVars 33% x 197,120
Excess kVars
Energy Cost Adjustment:
162,000 15.91 2,577,420,00
_191J20
otal Power And Energy Charges For The Month of May, 2013
lnterruptible Credit
Net Total Amount Due For The Month of May, 2013
kW Rrtc Antount
35,120 15.91 558,759.20
kwh thtr Amuli
7,272,000 0.030870 224,486.U
1 1 8,920,000 0.030870 3,671 ,060.40
1,608,000 0.046520 74,804.83
_l-&ssapgg_
LVar Rrte Amou[t
73,024
65,050
_l_.974_ 0.96000
126,192,000 0.003240
kW Rrlc
162,000 (10.29)
o5129t13
$5,857,654,19
$5,735,092.80
$0.00
$122,561 1o/o =
$1,586.00
$3,136,179.20
$3,970,351.87
$7,655.04
$408,862.08
$7,524,634.19
($1,666,980.00)
$5;857,654.1e
$ 122,561.39
$1,225.61
Previous Balance
Payment Received
Payment Received
Account Balance
lnterest On Arrears
$5,981,441.19Balance Due Rocky Mountain Power
13 of23 ll't u
5 Billing Moffia6-Eq-1a-e1
q F.-,RdERV'trvIOUruE' TG
F}C}WEFE
IIIONSA,NTO COMPANY
\tiention: Accounts Payable).O. Box 816
ioda Springs,lD 83276
DESCRIPTION
Silling Feriod: 30-Apr-13
{ours in Period:
)ustomer Charge:
)emand Charge:
Firm Demand:
lnterruptible Demand:
Total Demand Charges
inergy Charges:
Firm Energy:
lnterruptibte Energy:
Replacement Energy:
Total Energy Charges
]ower Factor Charge:
Average kVars
Less Allowed kVars 33% x
Excess kVars
insrgy Cost Adjr.lstmenr:
197,120
Previous Balance
Payment Received
Payment Received
Account Balance
Adjusted Balance
Net increase in billing
Additional Balance Due
nterest 0n Arrears
Itrng As l'mv,ded Under lntenrn Etectric Sen,ce r'\gEernent
tseveen ll.ocky Mountain Power and Monsanto Oornpany
Effcctive.lanuary 10. 20 t2
Oalculation of Billing
For The Month of May, 20f3
Through 3i-May-13
Attachment Monsanto 'l .9
i
November 7 ,2013
Page 1 of2
Account No: 61 876396-001 -004
Purchase Order No:451 0486764
REMIT WIRE TRANSFER TO:
PACIFICORP
JPM/CHASE
ABA # 02'1000021
Account# 5531896
$1,586.00
Amouni
558,759.20
2.577,420.00
$3,136,179.20
s3,974,982.24
Esvrseb
kw
35,1 20
162,000
Rrte
15.91
15.91
197,120
kW[ lhte Amount
7,272,000 0.030870 224,486.64
118,518,000 0.030870 3,658,650.66
2,010,000 0.045690 91,844.94
127.800,000
kVrr
73,424
65,050
7,974 0.96000
12s,790,000 0.003240
Rrte
(10.29)
05t29113
$5,735,092.80
$5,735,092.80
$0.00
$7,655.04
$407,559.60
$7,527,962.08
($1,666,980.00
$5,860,982.08
$0.00
$0.00
ti,?
lotal Power And Energy Charges For The Month of May, 2013
l(!\'
nterruptible Gredit 162,000
{et Total Amount Due For The Month of May, 2013
\rrears
$0
$5,864,309.97
$3,327.89
$3,327.89
3alance Due Rock)'Mountair{ Power 14 ol 23
40/tto
$5,860,982.08 lf,{3
tD PAC-EA-14-01
Monsanto '1.9
I Bllling Month
:ROCKY MOUNTAINPOWER
MONSANTO COMPANY
Attention: Accounts Payable
P.O. Box 816
Soda Springs, lD 83276
Attachment Monsanto 1.9
October 4, 2013
Page 1 of 2
Account No: 61 876396-001-004
Purchase Order No:45 1 0 4867 64
REMITWIRE TRANSFER TO:
PACIFICORP
JPM/CHASE
ABA # 021000021
Account # 553'1896
Billing A! Providcd Undq lri.rim Elctric Sepi@ Agrecmmt
Berwern Rooky MMraili"J,"J i;ojril*". "..0_,
Calculation of Billing
For The Month of September, 2013
Billing Period: 31-Aug-13 Through 30-Sep-13
in Period: t2o
tomer Charge: $1,586-00
Demand Gharge: lw R.re Amurr
Firm Demand: 34,224 15.91 Y4,503.84
lnterruptible Demand: 162,000 15.91 2,577,420.00
Total Demand Gharges
Factor Gharge:
Average kVars
Less Allowed kVars 33% x 196,224 64,754
Excess kVars 6,090 0.96000
120,616,000 0.003240Cost Adjustment:
Total Power And Energy Charges For The Month of September, 2013
lnterruptible Credit
kW RttG
162,000 (10.29)
Net Total Amount Due For The Month of September,2013
Charges:
Firm Energy:
lnterruptible Energy:
Replacement Energy:
Total Energy Charges
Previous Balance
' Payment Received
Payment Received
Account Balance
lnterest On Arrears
_199gl._
kwh RitG Amorrt
7,460,000 0.030870 230,290.20
113,156,000 0.030870 3,493,125.72
3,484,000 0.044850 156,256.06
__-rz{gqpgg_
' kvrr R.tG ANut
70,844
10102113
$5,465,906.46
$5,465,S06.46
$0.00
$01%=
$3,121,923.84
$3,879,671.98
$5,846.40
$390,795.84
$7,399,824.06
($1,666,980.00)
$5,732,844.06
$0.00
$0.00
Balance Due Rocky Mountain Power $5,732,844.06
15 ot 23
8 Billing Month
YH,ffiH:OUNTAIN
lD PAC-EA-14-01
Monsanto 1.9
MONSANTO COMPANY
Attention: Accounts Payable
P.O. Box 816
Soda Springs, lD 83276
Attachment Monsanto 1.9
September6,2013
Page 1 of 2
Account No: 61 876396-001-0&l
Purchase Order No:451 04867&l
REMIT WRE TRANSFER TO:
PACIFICORP
JPM/CHASE
ABA # 021000021
Account# 5531896
Billiog As Provided Under ht€rim Electric Servi@ Agremilt
Betwen Reky Mountain Powcr ud MoMto CoElpany
Effcctive Janury 10,2Ol2
,.,,::til:Hlii iJ',lli,o,,
Billing Period: 31-Jul-13 Through 31-Aug-13
Hourc in Period: 744
Customer Charge:
Demand Charge:
Firm Demand:
lntenuptible Demand:
Total Demand Gharges
Energy Charges:
Firm Energy:
lnterruptible Energy:
Replacement Energy:
Total Energy Charges
$1,586.00
$0.00
$0.00
$3,114,796,16
$3,653,700.86
Factor Charge:
Average kVars
Less Allowed kVars 33% x 195,776 64,606
Excess kVars u5 0.96000 $811.20
Energy Gost Adjustment 111,726,0@ 0.003240 $361,992.24
otalPowerAnd Energy charges ForThe Month of August,2013 $7'132'886'46
kW Ratc
lnterruptible Credit 162,000 (10.29) ($1,666,
Net Total Amount Due For The Month of August, 2013 $5,465,906.46
Previous Balance
' Payment Received
Payment Received
Account Balance
lnterest On Arrears
LW Rit. Amunt
33,776 15.91 537,376.16162,000 15.91 2,577,420.00
_1ggJzq_
kwh nslc Aruunt
0 0.030870 0.00
111,726,A00 0.030870 3,448,981.62
3,974,000 0.051510 204,719.24
___llE7@ooo_
kvrr Rrle A@ut
65,451
09to4t13
$6,051,023.93
$6,051,023.93
$0.00
$0 1o/o =
$5,465,906.46Balance Due Rocky Mountain Power
16 ol 23
lD PAC-EA-14-01
Monsanto 1.9
MONSANTO COMPANY
Attention : Accounts Payable
P.O. Box 816
Soda Springs, lD 83276
ROCKY MOUNTAIN
POWER
(-on<4a"-;o' { e n5 , olgbchment Monsanto 1.9
August 12,2013
Page 1 of2
Account No: 61 876396-001-004
Purchase Order No:451 04867M
REMIT WIRE TRANSFER TO:
PACIFICORP
JPM/CHASE
ABA # 021000021
Account # 5531896
Agremal
Between Rmky Momtaio Power ud Moosmto Compmy
Effectivc Jmusry 10, 2012
Calculation of Billing
For The Month of July, 2013
Billing Period: 30-Jun-13 Through 31-Jul-13
Hours in Period:744
Charge:
Demand Gharge:
Firm Demand:
lnterruptible Demand:
Total Demand Charges
Energy Charges:
Firm Energy:
lntem:ptible Energy:
Replacement Energy:
Total Energy Charges
Power Factor Charge:
Average kVars
Excess kVars
Energy Cost Adjustment:
Previous Balance
Payment Received
Payment Received
Account Balance
lnterest On Arrears
Less Allowed kVars 33% x 195,776 04,606
kW Rrte Amount33,776 15.91 537,376.16162,000 15.91 2,577,420.00
195.776
kwh Rrte Amouna
6,172,000 0.030870 190,529.64
110,879,000 0.030870 3,422,834.73
9,649,000 0.062420 602,276.80
126.700.000
kVer Rrte Amount
71,622
__191L 0.e6000
117,051,000 0.003240
kW Rrac
162,000 (10.2e)
07t31113
$5,907,745.95
$5,907,745.9s
$0.00
$0 1o/o =
Total Power And Energy Charges For The Month of July, 2013
$1,586.00
$3,114,796.16
$4,215,641.17
$6,735.36
$379,245.24
$7,718,003.93
($t
$6,051,023.93
$0.00
$0.00
lnterruptible Credit
Net Total Amount Due For The Month of July, 2013
Balance Due Rocky Mountain Power $6,051,023.93
17 of23
lD PAC-EA-14-01
Monsanto 1.9
MONSANTO COMPANY
Attention: Accounts Payable
P.O. Box 816
Soda Springs, lD 83276
6 Bllling MonthJT ROCKY MOUNTAIN-(pauee
! A DIVTSTON OF PACIFICORP
Attachment Monsanto 1.9
July 5, 2013
Page 1 of2
Account No: 61 87639G00 1 -Oel
Purchase Order No:451 0486764
REMITWRE TMNSFERTO:
PACIFICORP
JPM/CHASE
ABA # 021000021
Account # 5531896
rlhng As ltovlded Under lntdlm Elactnc iierylce Agreeme
Bctwen Rocky Mountain Pow and Momto Compoy
",iffil"ll';Lrii",For The Month of June, 2013
Billing Period: 31-May-13 Through 30-Jun-13
Hours in Period: 72o
Customer Charge:
Demand Charge:
Firm Demand:
lnterruptible Demand:
Total Demand Charges
Energy Charges:
Firm Energy:
lnterruptible Energy:
Replacement Energy:
Total Energy Charges
Factor Charge:
Average kVars
Less Allowed kVars 33% x 196,224
Excess kVars
Energy Gost Adjustment:
LW Rrt Amil
u,224 15.91 544,503.84162,000 15.91 2,577,420.N_1e6,&_
kwh Rrtc A0ount
10,060,000 0.030870 310,552.20
109,069,000 0.030870 3,366,960.03
7,571,000 0.050060 378,984.16
___-ugJ99p99_
LVrr Rrte Aoout
73,860
u,7u
______9J9q_ 0.e6ooo
119,129,000 O.OO324o
kW Ratc
162,000 (10.29)
a7to2l13
$5,857,654.19
$s,857,654.19
$0.00
$0 1o/o =
$1,586.00
$3,121,923.84
$4,056,496.39
$8,741.76
$385,977.96
$7.574,725.95
($1,666,
$5,907,74s.9s
$0.00
otal Power And Energy Gharges For The Month of June, 2013
lnterruptible Credit
Net Total Amount Due For The Month of June, 20{3
Arrears
, Previous Balance
Payment Received
Payment Received
Account Balance
lnterest On Arrears
00
$5,907,745.95Balance Due Rocky Mountain Power
18 ot 23
tD PAC-EA-14-01
Monsanto 'l .9 Attachment Monsanto 1.9
June 6, 2013
Page 1 of2
Account No: 61 87639&001-004
Purchase Order No:45 1 0486764
REMIT WRE TRANSFER TO:
PACIFICORP
JPM/CHASE
ABA # 021000021
Account # 5531896
Y{H-MHIVIOUNTAIN
MONSANTO COMPANY
Attention: Accounts Payable
P.O. Box 816
Soda Springs, lD 83276
As Provided Undq lnt6m Eletnc Safricc Agr€mnt
B ct*en Rockyrv{eHi*H if #if anto cornpany
Calculation of Bllling
For The Month of May, 2013
Billing Period: 30-Apr-13 Through 31-May-13
Hours in Period: 744
Gustomer Charge:
Demand Charge:
Firm Demand:
lnterruptible Demand:
Total Demand Charges
Energy Charges:
Fifm Energy:
lntemlptible Energy:
Replacement Energy:
Total Energy Gharges
Power Factor Gharge:
Average kVars
Less Allowed kVars 33% x 197,120
Excess kVars
Energy Cost Adjustment:
1,608,000 0.046520 74,804.83
Total Power And Energy Gharges For The Month of May, 20{3
kW Rrtc ADunt35,120 1s.91 558,759.20162,000 15.91 2,577,420.00_19Z@_
kWL Retc Aooont
7,272,000 0.030870 224,486.U
1 18,920,000 0.030870 3,671 ,060.40
_l4gq9p9g_
' kVer Rrtc ADont
73,024
65,050
_1,974_ 0.96000
126,192,000 0.003240
LW Rlte
162,000 (10.29)
o5t29t13
$5,857,654.19
$5,735,092.80
$0.00
$1,586.00
$3,136,179.20
$3,970,351.87
$7,655.M
$408,862.08
$7,524,634.19
($1,666,980.00)
$5,857,65/1.19
$122,561.39
1.225.61
lnterruptible Credit
Net Total Amount Due For The Month of May, 20{3
Arrears
Previous BalanceIPayment Received
Payment Received
Account Balance
lnterest On Arrears
$122,561 1% =
$5,981,441.19Balance Due Rocky Mountain Power
19 ol 23
Monsanto 1.9
Y{HffiE,^H"IVIOUNTAIN
MONSANTO COMPANY
Attention: Accounts Payable
P.O. Box 816
Soda Springs, lD 83276
Attachment Monsanto 1.9
May 3, 2013
Page 1 of2
Account No: 61 876396-001-004
Purchase Order No:4510486764
REMIT WRE TRANSFER TO:
PACIFICORP
JPN[/CHASE
ABA # 021000021
Account # 5531896
Bmn RmkyJvlontailff# il:Xil"-to compary
Calculation of Bi!!ing
For The llonth of April, 2013
Billing Period: 31-Mar-13 Through 30-Apr-13
Hours in Period: 7zo
Customer Charge:$1,586.00
Charge:LW RrlG Amrtr{
33,776 15.91 537,376.16Finn Demand:
lntenuptible Demand:
Total Demand Gharges
162,000 15.91 2,577,420.00__leug-
kWh Rrtc Amotrtrt
8,660,000 0.030870 267,334.20
116,019,000 0.030870 3,581,506.53
$3,114,796.16
y Gharges:
621,000 0.039650 24,622.43
Total Energy Charges 125,300,000 $3,873,463.16
uer FaGtor Charge: , kvrr R.tc Amror
Average kVars 73,218
Less Allowed kVars 33% x 195,776 64,606
Excess kVars _!J9l3_ 0.96000 $8,267.52
Energy Cost Adjustment 124,679,000 o.oo324o $403,959.96
otal Power And Energy Gharges For The Month of April, 2013 $7 '402'072'80
kW Rate
lnterruptible Credit 162,000 (10.2s) ($t,
Net Total Amount Due For The Month of Apri!, 2013 $5,735,092.80
Firm Energy:
lnterruptible Energy:
Replacement Energy:
Previous Balance
' Payment Received
Payment Received
Account Balance
lnterest On Arrears
$0 1o/o =
o4t26113
$5,232,749.61
$5,232,749.61
$0.00
$0.00
$0.00
Balance Due Rocky Mountain Power $5,735,092.80
20 ot 23
tD PAC-EA-14-01
Monsanto '1.9
MONSANTO COMPANY
Attention: Accounts Payable
P.O. Box 816
Soda Springs, lD 83276
ROCKY MOUNTAIN
POWER
Attachment Monsanto 1.9
Aprit2, 2013
Page 1 of2
Aerount No: 61 876396-001 -004
Purchase Order No:4510486764
REMIT WRE TRANSFER TO:
PACIFICORP
JPM/CHASE
ABA # 021000021
Account # 5531 896
Under lrtsim Elcckic Seryie
Betumn Rrcky Muntaiij;,H ff #"-to compmy
Calculation of Billing
For The Month of March, 2013
Billing Period: 28-Feb-13 Through 31-Mar-13
Hours in Period: 743
Gustomer Gharge: $1'586.00
Charge: kw Rrrc Amrnt
Firm Demand: 33,776 15.91 537,376.16
lntenuptible Demand: 162,000 15.91 2,577,420.00
Less Allowed kVars 33% x 195,776 621,606
Excess kVars
Energy Cost Adjustment:
ota! Power And Energy Charges For The Month of March, 2013
lnterruptible Credit
kW Rrtc
162,000 (10.29)
Net Total Amount Due For The Month of March, 2013
Total Demand Gharges
Energy Gharges:
Firm Energy:
lnterruptible Energy:
Replacement Energy:
Total Energy Charges
Power Factor Gharge:
Average kVars
Previous Balance' Payment Received
Payment Received
Account Balance
lnterest On Arrears
_1!g,zz9_
kwh Rric Amount0 0.030870 0.00
1 12,91 9,000 0.030870 3,485,809.53
2,881,000 0.033740 97 ,217.67
1 15 800 000
' kVrr Rat. Amut
67,431
_2M_ 0.e6000
1 1 2,91 9,000 0.001750
03t29113
$5,286,997.04
$5,286,997.04
$0.00
$3,114,796.16
$3,583,027.20
$2,712.00
$197,608.25
$6,899,729.61
($1,666,980.00)
$5,232,749.61
$0.00
$0.00
$01%=
Balance Due Rocky Mountain Power $5,232,749.61
2'l ot23
Attachment Monsanto 1.9
lD PAC-EA-'|4-01
Monsanto 1.9
m
6mEcu
oo
F-rt
c.ios(o
C{
c.io$,Fort
(o
o-q
@@
c.iNc\l(o
o)oq
N@
ro
(f)o(o
lf)
(o(o
(f)
oil.r,@
rI)
o)\o)c\to)
1r)o
@"
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Bankhead, Lyle
Attachment Monsanto 1.9
From:
Sent:
To:
Subject:
Zhang, James
Thuriday, May 02, 2013 3:07 PM
Bankhead, Lyle
Steward, Joelle; Weston, Ted;Tafor, Dave
RE: UT EBA recovery
Lyle:
You don't need to get the recovery amounts for both ldaho ECAM and Utah EBA from Pricing. You may ratio each
month's recovery based on the followings: .o - ll,luo To book and track the ECAM recovery amount for Monsanto and Rgriyrrfo r 2O!1, NPC deferrals and 2012 NPC
deferrals, you may use the foliowing percentages: Monsanto: $%6 201-L and 47% for2012 beginning April 1,
20L3, Agrium:51% for201L and49o/o for20LZ beginning April1,2013.
. To book and track the EBA recovery amount in Utah, you may use the following percentages: L6%tor the S7.8m
EBA balancing account (EBA 2), and 84% for the $60m EBA balance account (EBA 1) beginning March L,
20L3, When EBA 3 ($8.7m) becomes effective on November 1", 20L3, I will tell you how to break out the
monthly EBA recovery amount among EBA 1, EBA 2 and EBA 3 based on the commission's final order.
Please let me know if you have any questions.
James.
'From: Bankhead, Lyle
'Sent: Thursday, May 02, 2013 1:12 PM
To: Steward,loelle; Zhang, James
Subject: UT EBA recovery
:?..
Can either of you give me the amount of recovery I should be amortizing against the S7.8m EBA balancing account? I
estimated % month of the 24 month amoicization period. I need to know how much to amortize for April. Can you
help?
,lfteW
825 NE Muitnomah, Suite 1900
Portland, OR97232
(s03) 813-62s0 ,(s03) 813-s690 FAX
E-mail lyle.bankiread(@pacifi corp.com
1
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