20230512PAC to Staff 18 Attachment 3.pdf

JOINT PURCHASE AND SALE AGREEMENT
BETWEEN
IDAHO POWER COMPANY,
AND
PACIFICORP

DATED AS OF March 24, 2023

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Table of Contents
Page
ARTICLE I DEFINITIONS .......................................................................................................... 2
1.1 Definitions.............................................................................................................. 2
1.2 Other Definitional and Interpretive Matters ........................................................ 13
1.3 Joint Negotiation and Preparation of Agreement ................................................. 14
ARTICLE II PURCHASE AND SALE ...................................................................................... 14
2.1 Purchase and Sale. ............................................................................................... 14
2.2 Excluded Assets. .................................................................................................. 15
2.3 Assumed Obligations. .......................................................................................... 17
2.4 Excluded Liabilities. ............................................................................................ 17
2.5 Purchase Price; Net Book Value True-up; Audit Rights; Section 1031
Exchange. ............................................................................................................. 20
2.6 Tax Prorations. ..................................................................................................... 24
2.7 Time and Place of Closing ................................................................................... 25
2.8 Closing Deliverables. ........................................................................................... 25
2.9 Conditions Precedent to Closing. ......................................................................... 26
2.10 Release of Mortgage Liens or other Encumbrances. ........................................... 31
ARTICLE III REPRESENTATIONS AND WARRANTIES............................................. 31
3.1 Representations and Warranties of Idaho Power ................................................. 31
3.2 Representations and Warranties of PacifiCorp .................................................... 33
ARTICLE IV COVENANTS .............................................................................................. 36
4.1 Conditions and Commercially Reasonable Efforts .............................................. 36
4.2 Filings with Governmental Entities. .................................................................... 36
4.3 Compliance .......................................................................................................... 36
4.4 Risk of Loss. ........................................................................................................ 36
4.5 Maintenance of Assets. ........................................................................................ 37
4.6 Notice ................................................................................................................... 38
4.7 Disclosure ............................................................................................................ 38
4.8 Equipment Schedules ........................................................................................... 38
4.9 Amended and Restated Joint Ownership and Operating Agreement ................... 38
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ARTICLE V TERMINATION .................................................................................................... 38
5.1 Termination .......................................................................................................... 38
5.2 Effect of Early Termination ................................................................................. 40
5.3 Post-Termination Obligations .............................................................................. 40
ARTICLE VI INDEMNIFICATION................................................................................... 40
6.1 Survival of Representations, Warranties, Covenants and Agreements;
Notices of Claims ................................................................................................. 40
6.2 Indemnification. ................................................................................................... 41
6.3 Limitations on Indemnification. ........................................................................... 41
6.4 Exclusive Remedies. ............................................................................................ 43
6.5 Indemnification in Case of Strict Liability .......................................................... 43
6.6 Notice and Participation. ...................................................................................... 43
6.7 Net Amount. ......................................................................................................... 44
6.8 Set-Off.................................................................................................................. 44
6.9 No Release of Insurers. ........................................................................................ 44
6.10 Mitigation. ............................................................................................................ 44
6.11 Limitation of Liability.......................................................................................... 45
ARTICLE VII MISCELLANEOUS PROVISIONS ................................................................... 45
7.1 Amendment and Modification. ............................................................................ 45
7.2 Waiver of Compliance; Consents. ....................................................................... 45
7.3 Notices. ................................................................................................................ 45
7.4 Assignment. ......................................................................................................... 46
7.5 Governing Law; Exclusive Choice of Forum; Remedies. ................................... 46
7.6 Severability. ......................................................................................................... 46
7.7 Entire Agreement. ................................................................................................ 46
7.8 Expenses. ............................................................................................................. 47
7.9 Delivery................................................................................................................ 47
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EXHIBITS
Exhibit A Ownership Percentages to be Acquired by Parties
Exhibit B-1 Form of Idaho Power Bill of Sale
Exhibit B-2 Form of PacifiCorp Bill of Sale
Exhibit C Form of Amended and Restated Joint Ownership and Operating Agreement
Schedules
Schedule 1.1(a) Idaho Power Permitted Encumbrances
Schedule 1.1(b) Idaho Power’s Knowledge
Schedule 1.1(c) PacifiCorp Permitted Encumbrances
Schedule 1.1(d) PacifiCorp’s Knowledge
Schedule 1.1(e) Idaho Power Improvements
Schedule 1.1(f) PacifiCorp Improvements
Schedule 1.1(g) [Reserved]
Schedule 1.1(h) [Reserved]
Schedule 1.1(i) Idaho Power Required Regulatory Approvals
Schedule 1.1(j) PacifiCorp Required Regulatory Approvals
Schedule 3.1(f) PacifiCorp Acquired Assets – Liabilities
Schedule 3.1(g) PacifiCorp Acquired Assets – Title Exceptions
Schedule 3.1(h)(i) PacifiCorp Acquired Assets – Environmental Law and Environmental
Permit Exceptions
Schedule 3.1(h)(ii) PacifiCorp Acquired Assets – Violation of Environmental Laws
Schedule 3.1(h)(iii) PacifiCorp Acquired Assets – Releases
Schedule 3.1(h)(iv) PacifiCorp Acquired Assets – Storage Tanks, etc.
Schedule 3.1(h)(v) PacifiCorp Acquired Assets – Assumed Obligations Under Environmental
Laws
Schedule 3.1(j) PacifiCorp Acquired Assets – Intellectual Property
Schedule 3.2(f) Idaho Power Acquired Assets – Liabilities
Schedule 3.2(g) Idaho Power Acquired Assets – Title Exceptions
Schedule 3.2(h)(i) Idaho Power Acquired Assets – Environmental Law and Environmental
Permit Exceptions
Schedule 3.2(h)(ii) Idaho Power Acquired Assets – Violation of Environmental Laws
Schedule 3.2(h)(iii) Idaho Power Acquired Assets – Releases
Schedule 3.2(h)(iv) Idaho Power Acquired Assets – Storage Tanks, etc.
Schedule 3.2(h)(v) Idaho Power Acquired Assets – Assumed Obligations Under
Environmental Laws
Schedule 3.2(j) Idaho Power Acquired Assets – Intellectual Property

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JOINT PURCHASE AND SALE AGREEMENT
This Joint Purchase and Sale Agreement (this “Agreement”), dated as of March 24, 2023 (the
“Effective Date”), is made and entered into by and between Idaho Power Company, an Idaho corporation
(“Idaho Power”), and PacifiCorp, an Oregon corporation (“PacifiCorp”). Idaho Power and PacifiCorp are
also each referred to herein as a “Party” and, collectively, as the “Parties.”
RECITALS
WHEREAS, Idaho Power is a transmission provider which owns and operates certain equipment
for the transmission of electric power and energy located in Idaho, Nevada, Oregon, Washington, and
Wyoming, including one hundred percent (100%) ownership interests in the equipment comprising those
facilities listed in Exhibit A for which the “IPC” share under “Segment Ownership Pre-Closing” is 100%
(the “Idaho Power Equipment”);
WHEREAS, PacifiCorp is a transmission provider which owns and operates certain equipment for
the transmission of electric power and energy located in Idaho, Wyoming, Oregon, Utah, Colorado, New
Mexico, California, Arizona, Montana, and Washington, including one hundred percent (100%)
ownership interests in the equipment comprising those facilities listed in Exhibit A for which the “PAC”
share under “Segment Ownership Pre-Closing” is one hundred percent (100%) (the “PacifiCorp
Equipment”);
WHEREAS, the Parties currently and will at Closing jointly own certain equipment for the
transmission of electric power and energy located in Idaho, Oregon, Washington, Utah, Colorado, New
Mexico, and Wyoming, including the equipment comprising those facilities listed in Exhibit A other than
the Idaho Power Equipment and the PacifiCorp Equipment (the “Existing Joint Equipment”);
WHEREAS, the Borah/Midpoint West Assets (as defined in Section 1.1) are owned jointly by the
Parties as Existing Joint Equipment and individually by the Parties as Idaho Power Equipment or
PacifiCorp Equipment, as the case may be, in accordance with Exhibit A;
WHEREAS, the Four Corners/Populus Assets (as defined in Section 1.1) are owned jointly by the
Parties as Existing Joint Equipment and individually by the Parties as Idaho Power Equipment or
PacifiCorp Equipment, as the case may be, in accordance with Exhibit A;
WHEREAS, the Goshen Area Assets (as defined in Section 1.1) are owned jointly by the Parties
as Existing Joint Equipment and individually by the Parties as Idaho Power Equipment or PacifiCorp
Equipment, as the case may be, in accordance with Exhibit A;
WHEREAS, on or shortly after the Effective Date, the Parties will enter into: (a) the Midpoint
500/345 kV Transformer (T502) Project Construction Agreement (the “Midpoint Transformer
Construction Agreement”), pursuant to which Idaho Power will, in accordance with the Joint Ownership
and Operating Agreement (as defined in Section 1.1), make capital upgrades to the Midpoint 500 kV and
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345 kV transmission substations by installing a second 500/345 kV transformer bank and 345 kV tie line
(such capital upgrades as further described therein, the “Midpoint Transformer Assets”); and (b) the
Kinport – Midpoint 345 kV Series Capacitor Bank Project Construction Agreement (the “Kinport
Capacitor Bank Construction Agreement,” and together with the Midpoint Transformer Construction
Agreement, the “Construction Agreements”), pursuant to which Idaho Power will, in accordance with the
Joint Ownership and Operating Agreement (as defined in Section 1.1), make capital upgrades to the
Kinport to Midpoint 345 kV transmission line by installing the Kinport-Midpoint 345 kV Series Capacitor
Bank (such capital upgrades as further described therein, the “Kinport Capacitor Bank Assets”);
WHEREAS, when placed in service, the Midpoint Transformer Assets and the Kinport Capacitor
Bank Assets will be owned jointly by the Parties as Existing Joint Equipment in accordance with the Joint
Ownership and Operating Agreement;
WHEREAS, the Parties are jointly developing the Boardman to Hemingway 500 kV transmission
project (“B2H Project”), and the Closing (as defined in Section 1.1) will be subject to the B2H Project
being energized and placed in-service;
WHEREAS, the Parties desire to exchange undivided ownership interests in the Borah/Midpoint
West Assets, the Four Corners/Populus Assets, and the Goshen Area Assets to provide the Parties with
transmission capacity that better aligns with the current configuration of the Parties’ respective future
needs following the addition of the B2H Project, transmission systems and current load service
obligations;
WHEREAS, the Parties are party to that certain Joint Ownership and Operating Agreement, dated
as of October 24, 2014, as amended from time to time (the “Joint Ownership and Operating Agreement”)
which the Parties intend to amend and restate on the Closing Date as a condition precedent to Closing (the
“Amended and Restated Joint Ownership and Operating Agreement”);
WHEREAS, (a) Idaho Power wishes to convey and transfer to PacifiCorp, and PacifiCorp wishes
to acquire and accept from Idaho Power, undivided ownership interests in the Borah/Midpoint West
Assets; (b) PacifiCorp wishes to convey and transfer to Idaho Power, and Idaho Power wishes to acquire
and accept from PacifiCorp, undivided ownership interests in the Four Corners/Populus Assets and the
Goshen Area Assets; and (c) the Parties desire to enter into or deliver to one another certain Related
Documents (as defined in Section 1.1) in connection therewith, in each case, subject to the terms and
conditions set forth in this Agreement (collectively, the “Transaction”).
NOW THEREFORE, in consideration of the Parties’ respective representations, warranties, and
agreements hereinafter set forth and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. As used in this Agreement, the following capitalized terms have the meanings
specified in this Section 1.1:
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“Action” means any demand, action, claim, suit, countersuit, arbitration, inquiry, subpoena,
discovery request, proceeding or investigation by or before any court or grand jury, any Governmental
Entity or any arbitration or mediation tribunal.
“Affiliate” means, with respect to a Person, each other Person that, directly or indirectly, controls,
is controlled by or is under common control with, such designated Person; provided, however, that in the
case of PacifiCorp, the term “Affiliate” does not include Berkshire Hathaway Inc. or any of its affiliates
(other than PacifiCorp and any direct or indirect subsidiaries of PacifiCorp), and no provision of this
Agreement shall apply to, be binding on, create any Liability of or otherwise restrict the activities of
Berkshire Hathaway Inc. or any of its affiliates (other than PacifiCorp and any direct or indirect
subsidiaries of PacifiCorp). For the purposes of this definition, “control” (including with correlative
meanings, the terms “controlled by” and “under common control with”), as used with respect to any
Person, shall mean (a) the direct or indirect right to cast at least fifty percent (50%) of the votes exercisable
at an annual general meeting (or its equivalent) of such Person or, if there are no such rights, ownership
of at least fifty percent (50%) of the equity or other ownership interest in such Person, or (b) the right to
direct the policies or operations of such Person.
“Affiliated Group” means any affiliated group within the meaning of Code Section 1504(a) or any
similar group defined under a similar provision of law.
“Agreement” has the meaning given to such term in the preamble.
“Amended and Restated Joint Ownership and Operating Agreement” has the meaning given to
such term in the Recitals.
“Amended and Restated Midpoint-Meridian Agreement” means that certain Amended and
Restated Midpoint-Meridian Agreement to be executed by PacifiCorp and BPA on or before the Closing.
“Borah/Midpoint West Assets” means the Idaho Power Equipment and Existing Joint Equipment
specifically defined as “Borah/Midpoint West” in Column G of Exhibit A (the Asset Category column).
“BPA” means the Bonneville Power Administration.
“BPA-PacifiCorp Central Oregon PTP Service” means the point-to-point transmission service
provided by BPA to PacifiCorp pursuant to revisions to BPA Contract No. 04TX-11722 to be executed
on or before the Closing.
“Business Day” means any day other than Saturday, Sunday, and any day which is a legal holiday
or a day on which banking institutions in Boise, Idaho are authorized or obligated by Governmental
Requirements to close.
“B2H Project” has the meaning given to such term in the Recitals.
“Casualty Loss” means any damage, loss or destruction (whether by fire, theft, vandalism or other
casualty) with respect to an Idaho Power Acquired Asset or a PacifiCorp Acquired Asset, in whole or in
part.
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“Claims” means any administrative, regulatory, or judicial actions or causes of action, suits,
petitions, proceedings (including arbitration proceedings), investigations, hearings, demands, demand
letters, claims, complaints, allegations of liability or potential liability or notices of noncompliance or
violation delivered by any Governmental Entity or other Person.
“Closing” has the meaning given to such term in Section 2.7.
“Closing Date” has the meaning given to such term in Section 2.7.
“Code” means the Internal Revenue Code of 1986, as amended.
“Commercially Reasonable Efforts” means the level of effort that a reasonable electric utility
would take in light of the then known facts and circumstances to accomplish the required action at a then
commercially reasonable cost (taking into account the benefits to be gained thereby).
“Conditional Firm Service Letter Agreement” means the letter agreement executed by BPA and
PacifiCorp governing the conditions under which BPA will renew, submit redirect requests regarding, and
ultimately assign two agreements for 100 MW of conditional firm service provided by Idaho Power to
PacifiCorp such that the redirected service shall commence on or about the Closing Date with points of
receipt at Walla Walla, Washington and points of delivery being Borah, Idaho.
“Construction Agreements” has the meaning given to such term in the Recitals.
“Contract” means any agreement, lease, license, note, evidence of indebtedness, mortgage,
security agreement, understanding, instrument or other arrangement, in each case, whether written or oral.
“Disputed Costs Notice” has the meaning given to such term in Section 2.5(g)(iii).
“Effective Date” has the meaning given to such term in the preamble.
“Effective Time” has the meaning given to such term in Section 2.7.
“Encumbrances” means any mortgages, pledges, liens, Claims, charges, security interests,
conditional and installment sale agreements, activity and use limitations, easements, covenants,
encumbrances, obligations, limitations, title defects, deed restrictions, and any other restrictions of any
kind, including restrictions on use, transfer, receipt of income, or exercise of any other attribute of
ownership.
“Environment” means the indoor or outdoor environment, including any soil, land surface and
subsurface strata, surface waters (including navigable waters, streams, ponds, drainage basins, and
wetlands), groundwater, drinking water supply, sediments, ambient air (including the air within buildings
and the air within other natural or man-made structures above or below ground), plant and animal life, and
any other natural resource.
“Environmental Claims” means any and all Claims (including any such Claims involving toxic
torts or similar liabilities in tort, whether based on negligence or other fault, strict or absolute liability, or
any other basis) relating in any way to any Environmental Laws or Environmental Permits, or arising from
the presence, Release, or threatened Release (or alleged presence, Release, or threatened Release) into the
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Environment of any Hazardous Materials, or the result of the handling, transportation or treatment of
Hazardous Materials, including any and all Claims by any Governmental Entity or by any Person for
enforcement, cleanup, remediation, removal, response, remedial or other actions, or response costs,
damages, contribution, indemnification, cost recovery, compensation, fines or penalties or injunctive relief
arising out of or relating to any Environmental Law or Hazardous Materials or for any property damage,
natural resource damage or personal or bodily injury (including death) or threat of injury to health, safety,
natural resources, or the Environment.
“Environmental Laws” means all Governmental Requirements (including common law) relating
to pollution or the protection of human health, safety, the Environment, or damage to natural resources,
including Governmental Requirements relating to Releases and threatened Releases or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling of
Hazardous Materials. Environmental Laws include the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. § 9601, et seq.; the Federal Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. § 136, et seq.; the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42 U.S.C.
§ 6901, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. § 1801, et seq.; the Toxic
Substances Control Act, 15 U.S.C. § 2601, et seq.; the Clean Air Act, 42 U.S.C. § 7401, et seq.; the Federal
Water Pollution Control Act, 33 U.S.C. § 1251, et seq.; the Oil Pollution Act, 33 U.S.C. § 2701, et seq.;
the Endangered Species Act, 16 U.S.C. § 1531, et seq.; the National Environmental Policy Act, 42 U.S.C.
§ 4321, et seq.; the Occupational Safety and Health Act, 29 U.S.C. § 651, et seq.; the Safe Drinking Water
Act, 42 U.S.C. § 300f, et seq.; Emergency Planning and Community Right-to-Know Act, 42 U.S.C. §
11001, et seq.; Atomic Energy Act, 42 U.S.C. § 2014, et seq.; Nuclear Waste Policy Act, 42 U.S.C. §
10101, et seq.; and all similar or analogous foreign, state, regional or local statutes, secondary and
subordinate legislation, and directives, as in effect and legally binding, and the rules and regulations
promulgated thereunder, and any provisions of common law providing for any remedy or right of recovery
or right of injunctive relief with respect to Environmental Matters, as these laws, rules and regulations
were in the past or are currently in effect at the relevant time period.
“Environmental Matters” means: (a) the pollution or destruction of, or loss or injury to, or any
adverse effect upon, the Environment; (b) the protection, cleanup or restoration of, or removal,
remediation or mitigation of conditions affecting the Environment; (c) any Release or the generation,
handling, transportation, use, treatment or storage of any Hazardous Materials; (d) the regulation of the
manufacture, processing, distribution or use, for commercial purposes, of chemical substances or
radioactive materials, by-products or waste; or (e) any matter concerning or arising out of the Environment
or exposure to Hazardous Materials.
“Environmental Permits” means all permits, certifications, licenses, franchises, approvals,
consents, notifications, exemptions, waivers or other authorizations of any Governmental Entity under or
with respect to applicable Environmental Laws.
“Existing Joint Equipment” has the meaning given to such term in the Recitals.
“FERC” means the Federal Energy Regulatory Commission or any successor agency thereto.
“Four Corners/Populus Assets” means the PacifiCorp Equipment and Existing Joint Equipment
specifically defined as “Four Corners/Populus” in Column G of Exhibit A (the Asset Category column).
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“FPA 203 Approval” means a final order issued by FERC under Section 203 of the Federal Power
Act approving the Transaction.
“FPA 205 Approval” means a final order issued by FERC under Section 205 of the Federal Power
Act approving the Amended and Restated Joint Ownership and Operating Agreement.
“GAAP” means generally accepted accounting principles in the United States of America.
“Good Utility Practice” means any of the practices, methods and acts engaged in or approved by
a significant portion of the electric utility industry during the relevant time period, or any of the practices,
methods and acts which, in the exercise of reasonable judgment in light of the facts known at the time the
decision was made, would have been expected to accomplish the desired result at a reasonable cost
consistent with good business practices, reliability, safety and expedition. Good Utility Practice is not
intended to be limited to the optimum practice, method, or act to the exclusion of all others, but rather to
be acceptable practices, methods, or acts generally accepted in the region, including those practices
required by Federal Power Act Section 215(a)(4), 16 U.S.C. § 824o(a)(4)(2018).
“Goshen Area Assets” means the PacifiCorp Equipment and Existing Joint Equipment specifically
defined as “Goshen” in Column G of Exhibit A (the Asset Category column).
“Governmental Authorizations” means any license, permit, order, approval, filing, waiver,
exemption, variance, clearance, entitlement, allowance, franchise, or other authorization from or by a
Governmental Entity, including Environmental Permits.
“Governmental Entity” means any federal, state, local or municipal governmental body; any
governmental, quasi-governmental, regulatory or administrative agency, commission, body or other
authority exercising or entitled to exercise any administrative, executive, judicial, legislative, policy,
regulatory or taxing authority or power.
“Governmental Requirements” means all laws, statutes, ordinances, rules, regulations, codes and
similar acts or promulgations or other legally enforceable requirements of any Governmental Entity.
“Hazardous Materials” means (a) any chemicals, materials, substances, or wastes which are now
or hereafter defined as or included in the definition of “hazardous substance,” “hazardous material,”
“hazardous waste,” “solid waste,” “toxic substance,” “extremely hazardous substance,” “pollutant,”
“contaminant,” or words of similar import under any applicable Environmental Laws; (b) any petroleum,
petroleum products (including crude oil or any fraction thereof), natural gas, natural gas liquids, liquefied
natural gas or synthetic gas useable for fuel (or mixtures of natural gas and such synthetic gas), or oil and
gas exploration or production waste, polychlorinated biphenyls, asbestos-containing materials, mercury,
urea formaldehyde insulation, radioactivity and lead-based paints; and (c) any other chemical, material,
substances, waste, or mixture thereof which is prohibited, limited, or regulated pursuant to, or that could
reasonably be expected to give rise to liability under, Environmental Laws.
“Idaho Power” has the meaning given to such term in the preamble.
“Idaho Power Acquired Assets” means, collectively, the Idaho Power Acquired Four
Corners/Populus Assets and the Idaho Power Acquired Goshen Area Assets.
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“Idaho Power Acquired Four Corners/Populus Assets” has the meaning given to such term in
Section 2.1(a).
“Idaho Power Acquired Goshen Area Assets” has the meaning given to such term in Section 2.1(b).
“Idaho Power Assumed Obligations” has the meaning given to such term in Section 2.3(a).
“Idaho Power Bill of Sale” has the meaning given to such term in Section 2.8(a)(i).
“Idaho Power Cost Records” has the meaning given to such term in Section 2.5(g)(ii).
“Idaho Power Costs” has the meaning given to such term in Section 2.5(g)(ii).
“Idaho Power Equipment” has the meaning given to such term in the Recitals.
“Idaho Power Excluded Assets” has the meaning set forth in Section 2.2(a).
“Idaho Power Excluded Liabilities” has the meaning set forth in Section 2.4(a).
“Idaho Power Four Corners/Populus Assets Ownership Percentages” has the meaning given to
such term in Section 2.1(a).
“Idaho Power Four Corners/Populus Assets Purchase Price” has the meaning given to such term
in Section 2.5(a).
“Idaho Power Goshen Area Assets Ownership Percentages” has the meaning given to such term
in Section 2.1(b).
“Idaho Power Goshen Area Assets Purchase Price” has the meaning given to such term in Section
2.5(b).
“Idaho Power Improvements” means the upgrades and improvements to the PacifiCorp Acquired
Assets that the Parties agree that Idaho Power may commence or continue to make during the Interim
Period, including those upgrades and improvements described in Schedule 1.1(e). Idaho Power shall
deliver to PacifiCorp no later than each anniversary of the Effective Date an updated Schedule 1.1(e),
which updated Schedule 1.1(e) shall automatically replace the existing Schedule 1.1(e) effective as of the
date of delivery to PacifiCorp.
“Idaho Power Marks” means the rights of Idaho Power and its Affiliates to the names “Idaho
Power Company,” “IDACORP,” or any trade names, trademarks, service marks, corporate names or logos,
or any derivative or combination thereof, that are confusingly similar thereto.
“Idaho Power Mortgage” means the Mortgage and Deed of Trust, dated as of October 1, 1937, and
indentures supplemental thereto, granted by Idaho Power to Deutsche Bank Trust Company Americas,
formerly known as Bankers Trust Company, and Stanley Burg, as Trustees, together with any related
documents evidencing or securing the indebtedness secured by the Idaho Power Mortgage.
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“Idaho Power Net Book Value” means, with respect to an asset, the cost of such asset less
depreciation and amortization, as shown on Idaho Power’s books and records maintained for regulatory
purposes.
“Idaho Power Net Book Value True-up Notice” has the meaning given to such term in Section
2.5(g)(i).
“Idaho Power Ownership Percentages” means, collectively, the Idaho Power Four
Corners/Populus Assets Ownership Percentages and Idaho Power Goshen Area Assets Ownership
Percentages.
“Idaho Power Permitted Encumbrances” means (a) those Encumbrances set forth in Schedule
1.1(a); (b) Encumbrances securing or created by or in respect of any of the PacifiCorp Assumed
Obligations; (c) statutory liens for current Taxes or assessments not yet due or payable; (d) mechanics’,
carriers’, workers’, repairers’, landlords’, and other similar liens arising or incurred in the ordinary course
of business relating to obligations as to which there is no default on the part of Idaho Power, or pledges,
or deposits, or other liens securing the performance of statutory obligations; (e) any Encumbrances set
forth in any state, local, or municipal franchise or governing ordinance under which any portion of the
PacifiCorp Acquired Assets are being used or conducted; (f) transmission service requests and
interconnection service requests made pursuant to Idaho Power’s OATT with respect to the PacifiCorp
Acquired Assets; or (g) Encumbrances, including zoning, entitlement, restriction, and other land use
regulations by Governmental Entities, which, together with all other Encumbrances, do not materially
detract from the value of or materially interfere with the present use of the PacifiCorp Acquired Assets or
the conduct of the business thereon as it is currently being used and conducted or as contemplated under
any of the Related Documents.
“Idaho Power Purchase Price” means the sum of (a) the Idaho Power Four Corners/Populus Assets
Purchase Price and (b) the Idaho Power Goshen Area Assets Purchase Price.
“Idaho Power Required Regulatory Approvals” means the Governmental Authorizations described
on Schedule 1.1(i).
“Idaho Power’s Knowledge” means the actual, constructive or imputed knowledge that the
individuals listed in Schedule 1.1(b) have or could reasonably be expected to have after reasonable due
inquiry.
“Indemnified Party” has the meaning given to such term in Section 6.6(a).
“Indemnifying Party” has the meaning given to such term in Section 6.6(a).
“Independent Accounting Firm” means an independent accounting firm of national reputation
mutually appointed by the Parties.
“Intellectual Property” means trademarks, patents, copyrights, trade secrets, and other intellectual
property rights which are utilized in connection with ownership, use and operation of the PacifiCorp
Acquired Assets or the Idaho Power Acquired Assets (as such Assets are reasonably expected to be
operated in accordance with the provisions of the Joint Ownership and Operating Agreement on the
Closing Date), as the case may be.
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“Interim Period” means the period of time commencing on and including the Effective Date and
continuing through the earlier of the Closing Date or the termination of this Agreement in accordance with
its terms.
“Joint Ownership and Operating Agreement” has the meaning given to such term in the Recitals.
“Kinport Capacitor Bank Assets” has the meaning given to such term in the Recitals.
“Kinport Capacitor Bank Construction Agreement” has the meaning given to such term in the
Recitals.
“Liability” means any debt, liability, obligation or commitment of any kind, character or
description, whether known or unknown, absolute or contingent, accrued or unaccrued, disputed or
undisputed, liquidated or unliquidated, secured or unsecured, joint or several, due or to become due, vested
or unvested, executory, determined, determinable or otherwise.
“Longhorn Substation Agreements” has the meaning given to such term in Section 2.9(a)(xvii).
“Losses” mean any and all damages and losses, deficiencies, Liabilities, taxes, obligations,
penalties, judgments, settlements, claims, payments, fines, interest, costs and expenses, whether or not
resulting from third party claims, including the costs and expenses of any and all Actions and demands,
assessments, judgments, settlements and compromises relating thereto and the costs and expenses of
attorneys’, accountants’, consultants’ and other professionals’ fees and expenses incurred in the
investigation or defense thereof or the enforcement of rights hereunder and costs and expenses of
remediation (including, in the case of remediation, all expenses and costs associated with financial
assurance); provided, however, that in no event shall Losses include lost profits or damages and losses
excluded under Section 6.11.
“Material Adverse Effect” means, in respect of a Party, an event, circumstance, condition, or
occurrence of whatever nature that materially and adversely affects: (a) the business, assets, property,
results of operation, or financial condition of such Party or any of its Affiliates, including a material
adverse regulatory impact on such Party or any of its Affiliates; (b) such Party’s ability to perform its
obligations under this Agreement or any of the Related Documents to which it is a party; or (c) the validity
or enforceability of this Agreement or any of the Related Documents to which it is a party, including the
ability of such Party to enforce any of its rights or remedies hereunder or thereunder.
“Midpoint Transformer Assets” has the meaning given to such term in the Recitals.
“Midpoint Transformer Construction Agreement” has the meaning given to such term in the
Recitals.
“NEPA” has the meaning given to such term in Section 2.9(a)(xvi).
“NHPA” has the meaning given to such term in Section 2.9(a)(xvii).
“Net Book Value True-up Period” has the meaning given to such term in Section 2.5(g)(i).
JOINT PURCHASE AND SALE AGREEMENT Page | 10
“OATT” means, with respect to a Person, such Person’s Open Access Transmission Tariff on file
with FERC, as the same may be revised from time to time.
“Outside Closing Date” means the date on which the B2H Project is energized and placed into
service, or such later date as the Parties may agree to in writing, such agreement not unreasonably to be
withheld or delayed.
“Ownership Percentages” means, collectively, the Idaho Power Ownership Percentages and the
PacifiCorp Ownership Percentages.
“PacifiCorp” has the meaning given to such term in the preamble.
“PacifiCorp Acquired Assets” means, collectively, the PacifiCorp Acquired Borah/Midpoint West
Assets.
“PacifiCorp Acquired Borah/Midpoint West Assets” has the meaning given to such term in Section
2.1(c).
“PacifiCorp Assumed Obligations” has the meaning given to such term in Section 2.3(b).
“PacifiCorp Bill of Sale” has the meaning given to such term in Section 2.8(b)(i).
“PacifiCorp Borah/Midpoint West Assets Ownership Percentages” has the meaning given to such
term in Section 2.1(c).
“PacifiCorp Bora/Midpoint West Assets Purchase Price” has the meaning given to such term in
Section 2.5(c).
“PacifiCorp Cost Records” has the meaning given to such term in Section 2.5(g)(ii).
“PacifiCorp Costs” has the meaning given to such term in Section 2.5(g)(ii).
“PacifiCorp Equipment” has the meaning given to such term in the Recitals.
“PacifiCorp Excluded Assets” has the meaning given to such term in Section 2.2(b).
“PacifiCorp Excluded Liabilities” has the meaning given to such term in Section 2.4(b).
“PacifiCorp Improvements” means the upgrades and improvements to the Idaho Power Acquired
Assets that the Parties agree that PacifiCorp may commence or continue to make during the Interim Period,
including those upgrades and improvements described in Schedule 1.1(f). PacifiCorp shall deliver to
Idaho Power no later than each anniversary of the Effective Date an updated Schedule 1.1(f), which
updated Schedule 1.1(f) shall automatically replace the existing Schedule 1.1(f) effective as of the date of
delivery to Idaho Power.
“PacifiCorp Marks” means the rights of PacifiCorp and its Affiliates to the names “PacifiCorp,”
“Pacific Power,” “Rocky Mountain Power,” “PacifiCorp Energy,” or any trade names, trademarks, service
JOINT PURCHASE AND SALE AGREEMENT Page | 11
marks, corporate names or logos, or any derivative or combination thereof, that are confusingly similar
thereto.
“PacifiCorp Mortgage” means the Mortgage and Deed of Trust from PacifiCorp to Morgan
Guaranty Trust Company of New York (The Bank of New York Mellon Trust Company, N.A., successor),
dated as of January 9, 1989, as amended and supplemented by supplemental indentures, together with any
related documents evidencing or securing the indebtedness secured by the PacifiCorp Mortgage.
“PacifiCorp Net Book Value” means, with respect to an asset, the cost of such asset less
depreciation and amortization, as shown on PacifiCorp’s books and records maintained for regulatory
purposes.
“PacifiCorp Net Book Value True-up Notice” has the meaning given to such term in Section
2.5(g)(i).
“PacifiCorp Ownership Percentages” means the PacifiCorp Borah/Midpoint West Ownership
Percentages.
“PacifiCorp Permitted Encumbrances” means (a) those Encumbrances set forth in Schedule 1.1(c);
(b) Encumbrances securing or created by or in respect of any of the Idaho Power Assumed Obligations;
(c) statutory liens for current Taxes or assessments not yet due or payable; (d) mechanics’, carriers’,
workers’, repairers’, landlords’, and other similar liens arising or incurred in the ordinary course of
business relating to obligations as to which there is no default on the part of PacifiCorp, or pledges, or
deposits, or other liens securing the performance of statutory obligations; (e) any Encumbrances set forth
in any state, local, or municipal franchise or governing ordinance under which any portion of the Idaho
Power Acquired Assets are being used or conducted; (f) transmission service requests and interconnection
service requests made pursuant to PacifiCorp’s OATT with respect to the Idaho Power Acquired Assets;
or (g) Encumbrances, including zoning, entitlement, restriction, and other land use regulations by
Governmental Authorities, which, together with all other Encumbrances, do not materially detract from
the value of or materially interfere with the present use of the Idaho Power Acquired Assets or the conduct
of the business thereon as it is currently being used and conducted or as contemplated under any of the
Related Documents.
“PacifiCorp Purchase Price” means the PacifiCorp Borah/Midpoint West Assets Purchase Price.
“PacifiCorp Required Regulatory Approvals” means the Governmental Authorizations described
on Schedule 1.1(j).
“PacifiCorp’s Knowledge” means the actual, constructive or imputed knowledge that the
individuals listed in Schedule 1.1(d) have or could reasonably be expected to have after reasonable due
inquiry.
“Party” has the meaning given to such term in the preamble.
“Person” means any individual, partnership, limited liability company, joint venture, corporation,
trust, unincorporated organization, or Governmental Entity.
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“Purchase Price” means the Idaho Power Purchase Price or the PacifiCorp Purchase Price, as the
context requires.
“Purchase Price Calculation Date” has the meaning given to such term in Section 2.5(a).
“Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, or disposing of Hazardous Materials into the Environment.
“Related Documents” means the Idaho Power Bill of Sale, PacifiCorp Bill of Sale, Amended and
Restated Joint Ownership and Operating Agreement and each other document, certificate or instrument
delivered by each of the Parties on the Closing in accordance with Section 2.8.
“Removal and Replacement Reimbursement Agreement” has the meaning given to such term in
Section 2.9(a)(xv).
“Representatives” means, with respect to a Party, the directors, officers, shareholders, partners,
members, employees, agents, consultants, contractors or other representatives of such Party.
“Required Regulatory Approvals” means the Idaho Power Required Regulatory Approvals and the
PacifiCorp Required Regulatory Approvals.
“Restoration Cost” means, with respect to any Idaho Power Acquired Asset or PacifiCorp
Acquired Asset, the cost of restoring a damaged, lost or destroyed Idaho Power Acquired Asset or
PacifiCorp Acquired Asset to a condition reasonably comparable to its pre-Casualty Loss condition, as
estimated in good faith by the Party bearing the risk of loss of such Idaho Power Acquired Asset or
PacifiCorp Acquired Asset during the Interim Period.
“Subsidiary,” when used in reference to a Person, means any Person (a) of which outstanding
securities or other equity interests having ordinary voting power to elect a majority of the board of
directors or other Persons performing similar functions of such Person are owned directly or indirectly by
such first Person, (b) of which such Person or any subsidiary of such first Person is a general partner or
(c) such first Person directly or indirectly controls.
“Tax” and “Taxes” means all taxes, charges, customs, duties, fees, levies, penalties, or other
assessments imposed by any foreign or United States federal, state, or local taxing authority, including
profits, estimated gross receipts, income, excise, property, replacement tax, sales, transfer, franchise,
license, payroll, withholding, social security, or any other taxes (including any escheat or unclaimed
property obligations), including any interest, penalties, or additions attributable thereto.
“Tax Affiliate” of a Person means a member of that Person’s Affiliated Group and any other
Subsidiary of that Person which is a partnership or is disregarded as an entity separate from that Person
for Tax purposes.
“Tax Return” means any return, declaration, report, claim for refund, or information return or
statement relating to Taxes of any kind or nature, filed or required to be filed with any Governmental
Entity, including any schedule or attachment thereto, and including any amendment thereof.
“Transaction” has the meaning given to such term in the Recitals.
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“Transfer Taxes” means any real property transfer, sales, use, value added, stamp, documentary,
recording, registration, conveyance, stock transfer, intangible property transfer, personal property transfer,
gross receipts, registration, duty, securities transactions or similar fees or Taxes or governmental charges
(together with any interest or penalty, addition to Tax or additional amount imposed) as levied by any
Governmental Entity in connection with the transactions contemplated by this Agreement, including any
payments made in lieu of any such Taxes or governmental charges which become payable in connection
with the transactions contemplated by this Agreement.
1.2 Other Definitional and Interpretive Matters. Unless otherwise expressly provided in this
Agreement, for purposes of this Agreement, the following rules of interpretation apply:
(a) Calculation of Time Period. When calculating the period of time before which,
within which, or following which any act is to be done or step taken pursuant to this Agreement, the date
that is the reference date in calculating such period will be excluded. If the last day of such period is a
non-Business Day, the period in question will end on the next succeeding Business Day.
(b) Dollars. Any reference in this Agreement to “dollars” or “$” means U.S. dollars.
(c) Exhibits and Schedules. Unless otherwise expressly indicated, any reference in this
Agreement to an “Exhibit” or a “Schedule” refers to an Exhibit or Schedule to this Agreement. The
Exhibits and Schedules to this Agreement are hereby incorporated and made a part hereof as if set forth
in full herein and are an integral part of this Agreement. Any capitalized terms used in any Schedule or
Exhibit but not otherwise defined therein are defined as set forth in this Agreement.
(d) Gender and Number. Any reference in this Agreement to gender includes all
genders, and the meaning of defined terms applies to both the singular and the plural of those terms.
(e) Headings. The provision of a Table of Contents, the division of this Agreement
into Articles, Sections, and other subdivisions, and the insertion of headings are for convenience of
reference only and do not affect, and will not be utilized in construing or interpreting, this Agreement. All
references in this Agreement to any “Section” are to the corresponding Section of this Agreement unless
otherwise specified.
(f) “Herein.” The words such as “herein,” “hereinafter,” “hereof,” and “hereunder”
refer to this Agreement (including the Schedules and Exhibits to this Agreement) as a whole and not
merely to a subdivision in which such words appear unless the context otherwise requires.
(g) “Including.” The word “including” or any variation thereof means “including,
without limitation” and does not limit any general statement that it follows to the specific or similar items
or matters immediately following it.
(h) Agreements and Documents. Each reference in this Agreement to any agreement
or document or a portion or provision thereof shall be construed as a reference to the relevant agreement
or document as amended, supplemented or otherwise modified from time to time with the written approval
of both Parties.
(i) Governmental Requirements. Each reference in this Agreement to Governmental
Requirements and to terms defined in, and other provisions of, Governmental Requirements shall be
JOINT PURCHASE AND SALE AGREEMENT Page | 14
references to the same (or a successor to the same) as amended, supplemented or otherwise modified from
time to time.
(j) Days; Years. Each reference in this Agreement to: (A) “day” means a calendar
day; and (B) “year” means a calendar year, provided that when a period measured in years commences on
a day other than the first day of a year, the period shall run from the day on which it starts to the
corresponding day in the next year and, as appropriate, to succeeding years thereafter.
(k) Recitals. The above-stated recitals to this Agreement are incorporated in this
Agreement and made a part of it by this reference to the same extent as if these recitals were set forth in
full at this point.
1.3 Joint Negotiation and Preparation of Agreement. The Parties have participated jointly in
the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or
interpretation arises, this Agreement will be construed as jointly drafted by the Parties and no presumption
or burden of proof favoring or disfavoring any Party will exist or arise by virtue of the authorship of any
provision of this Agreement.
ARTICLE II
PURCHASE AND SALE
2.1 Purchase and Sale.
(a) Idaho Power Acquired Four Corners/Populus Assets. Subject to the terms and
conditions set forth in this Agreement, at the Closing, PacifiCorp shall sell, assign, convey, transfer and
deliver to Idaho Power, and Idaho Power shall purchase and accept from PacifiCorp, free and clear of all
Encumbrances (other than PacifiCorp Permitted Encumbrances and the lien of the PacifiCorp Mortgage
on the Idaho Power Acquired Assets, which lien will be released after Closing in accordance with Section
2.10(b)), undivided ownership interests, as tenant in common, in all of PacifiCorp’s right, title and interest
in, and to the assets constituting the Four Corners/Populus Assets, equal to the ownership percentages set
forth opposite such Equipment in Exhibit A in the column labeled “Quantity Transferred to Other Owner”
for PacifiCorp (collectively, the “Idaho Power Four Corners/Populus Assets Ownership Percentages”),
but excluding the PacifiCorp Excluded Assets (collectively, the “Idaho Power Acquired Four
Corners/Populus Assets”). For illustrative purposes, Exhibit A also sets forth the respective undivided
ownership percentages of the Parties in the PacifiCorp Equipment, the Idaho Power Equipment, and the
Existing Joint Equipment both (x) prior to the Closing, and (y) upon the consummation of the Closing.
(b) Idaho Power Acquired Goshen Area Assets. Subject to the terms and conditions set
forth in this Agreement, at the Closing, PacifiCorp shall sell, assign, convey, transfer and deliver to Idaho
Power, and Idaho Power shall purchase and accept from PacifiCorp, free and clear of all Encumbrances
(other than PacifiCorp Permitted Encumbrances and the lien of the PacifiCorp Mortgage on the Idaho
Power Acquired Assets, which lien will be released after Closing in accordance with Section 2.10(b)),
undivided ownership interests, as tenant in common, in all of PacifiCorp’s right, title and interest in, and
to the assets constituting the Goshen Area Assets, equal to the ownership percentages set forth opposite
such Equipment in Exhibit A in the column labeled “Quantity Transferred to Other Owner” for PacifiCorp
(collectively, the “Idaho Power Goshen Area Assets Ownership Percentages”), but excluding the
PacifiCorp Excluded Assets (collectively, the “Idaho Power Acquired Goshen Area Assets”). For
JOINT PURCHASE AND SALE AGREEMENT Page | 15
illustrative purposes, Exhibit A also sets forth the respective undivided ownership percentages of the
Parties in the PacifiCorp Equipment, the Idaho Power Equipment, and the Existing Joint Equipment, both
(x) prior to the Closing, and (y) upon the consummation of the Closing.
(c) PacifiCorp Acquired Borah/Midpoint West Assets. Subject to the terms and
conditions set forth in this Agreement, at the Closing, Idaho Power shall sell, assign, convey, transfer and
deliver to PacifiCorp, and PacifiCorp shall purchase and accept from Idaho Power, free and clear of all
Encumbrances (other than Idaho Power Permitted Encumbrances and the lien of the Idaho Power
Mortgage on the PacifiCorp Acquired Assets, which lien will be released after Closing in accordance with
Section 2.10(a)), undivided ownership interests, as tenant in common, in all of Idaho Power’s right, title
and interest in, and to the assets constituting the Borah/Midpoint West Assets, equal to the ownership
percentages set forth opposite such Equipment in Exhibit A in the column labeled “Quantity Transferred
to Other Owner” for Idaho Power (collectively, the “PacifiCorp Borah/Midpoint West Ownership
Percentages”), but excluding the Idaho Power Excluded Assets (collectively, the “PacifiCorp Acquired
Borah/Midpoint West Assets”). For illustrative purposes, Exhibit A also sets forth the respective
undivided ownership percentages of the Parties in the PacifiCorp Equipment, the Idaho Power Equipment
and the Existing Joint Equipment both (x) prior to the Closing, and (y) upon the consummation of the
Closing.
2.2 Excluded Assets.
(a) Idaho Power Excluded Assets. The PacifiCorp Acquired Assets do not include any
property or assets of Idaho Power not described in Sections 2.1(c) and, notwithstanding any provision to
the contrary in Sections 2.1(c) or elsewhere in this Agreement, the PacifiCorp Acquired Assets do not
include the following property or assets of Idaho Power (all assets excluded pursuant to this Section 2.2(a),
the “Idaho Power Excluded Assets”), and PacifiCorp shall have no Liability with respect thereto:
(i) the Idaho Power Marks;
(ii) all cash, cash equivalents, bank deposits, accounts receivable, and any
income, sales, payroll or other tax receivables;
(iii) subject to Section 2.6, any refund or credit (A) related to Taxes paid by or
on behalf of Idaho Power, whether such refund is received as a payment or as a credit against future Taxes
payable, or (B) relating to a period before the Closing Date;
(iv) all of the Claims of Idaho Power against any Person related to, arising from
or associated with the PacifiCorp Acquired Assets relating to a period before the Closing Date;
(v) all insurance policies, and rights thereunder, including any such policies and
rights in respect of the PacifiCorp Acquired Assets;
(vi) the rights of Idaho Power arising under or in connection with this
Agreement, any Related Document delivered in connection herewith, and any of the transactions
contemplated hereby and thereby;
(vii) all Contracts entered into by Idaho Power related to, arising from or
associated with the PacifiCorp Acquired Assets;
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(viii) all software, software licenses, information systems and management
systems owned or used by Idaho Power related to, arising from or associated with the PacifiCorp Acquired
Assets;
(ix) all communication towers, communication equipment and related assets of
Idaho Power related to, arising from or associated with the PacifiCorp Acquired Assets, except to the
extent any such assets are specifically identified by the Parties pursuant to the process described in Section
4.8;
(x) all real property upon which the PacifiCorp Acquired Assets are located,
and all interests in real property (including, without limitation, easements, rights-of-way, permits, licenses
and leases) related to the PacifiCorp Acquired Assets; and
(xi) all other assets and properties of Idaho Power other than the PacifiCorp
Acquired Assets.
(b) PacifiCorp Excluded Assets. The Idaho Power Acquired Assets do not include any
property or assets of PacifiCorp not described in Sections 2.1(a) or 2.1(b) and, notwithstanding any
provision to the contrary in Sections 2.1(a) or 2.1(b) or elsewhere in this Agreement, the Idaho Power
Acquired Assets do not include the following property or assets of PacifiCorp (all assets excluded pursuant
to this Section 2.2(b), the “PacifiCorp Excluded Assets”), and Idaho Power shall have no Liability with
respect thereto:
(i) the PacifiCorp Marks;
(ii) all cash, cash equivalents, bank deposits, accounts receivable, and any
income, sales, payroll or other tax receivables;
(iii) subject to Section 2.6, any refund or credit (A) related to Taxes paid by or
on behalf of PacifiCorp, whether such refund is received as a payment or as a credit against future Taxes
payable, or (B) relating to a period before the Closing Date;
(iv) all of the Claims of PacifiCorp against any Person related to, arising from
or associated with the Idaho Power Acquired Assets relating to a period before the Closing Date;
(v) all insurance policies, and rights thereunder, including any such policies and
rights in respect of the Idaho Power Acquired Assets;
(vi) the rights of PacifiCorp arising under or in connection with this Agreement,
any Related Document delivered in connection herewith, and any of the transactions contemplated hereby
and thereby;
(vii) all Contracts entered into by PacifiCorp related to, arising from or
associated with the Idaho Power Acquired Assets;
(viii) all software, software licenses, information systems and management
systems owned or used by PacifiCorp related to, arising from or associated with the Idaho Power Acquired
Assets;
JOINT PURCHASE AND SALE AGREEMENT Page | 17
(ix) all communication towers, communication equipment and related assets of
PacifiCorp related to, arising from or associated with the Idaho Power Acquired Assets, except to the
extent any such assets are specifically identified by the Parties pursuant to the process described in Section
4.8;
(x) all real property upon which the Idaho Power Acquired Assets are located,
and all interests in real property (including, without limitation, easements, rights-of-way, permits, licenses
and leases) related to the Idaho Power Acquired Assets; and
(xi) all other assets and properties of PacifiCorp other than the Idaho Power
Acquired Assets.
2.3 Assumed Obligations.
(a) Idaho Power Assumed Obligations. Effective as of the Effective Time, Idaho
Power shall assume all Liabilities (other than the PacifiCorp Excluded Liabilities), solely to the extent
applicable to any period after the Closing, related to, arising from, or associated with the Idaho Power
Acquired Assets, to the extent of the respective Idaho Power Ownership Percentages therein (collectively,
the “Idaho Power Assumed Obligations”).
(b) PacifiCorp Assumed Obligations. Effective as of the Effective Time, PacifiCorp
shall assume all Liabilities (other than Idaho Power Excluded Liabilities), solely to the extent applicable
to any period after the Closing, related to, arising from, or associated with the PacifiCorp Acquired Assets,
to the extent of the respective PacifiCorp Ownership Percentages therein (collectively, the “PacifiCorp
Assumed Obligations”).
2.4 Excluded Liabilities.
(a) Idaho Power Excluded Liabilities. Idaho Power shall retain and remain fully
responsible for, and PacifiCorp does not assume and shall have no responsibility or Liability for, and will
not be obligated to pay, perform, or otherwise discharge any of the following Liabilities of Idaho Power
or its Affiliates or any present or former owner or operator thereof (collectively, the “Idaho Power
Excluded Liabilities”):
(i) any Liabilities of Idaho Power to the extent related to any Idaho Power
Excluded Assets or other assets which are not PacifiCorp Acquired Assets and the ownership, operation
and conduct of any business in connection therewith or therefrom;
(ii) any Liabilities in respect of Taxes of Idaho Power or any Tax Affiliate of
Idaho Power, or any liability of Idaho Power for unpaid Taxes of any Person under Treasury Regulation
Section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by
contract or otherwise, including any Taxes relating to, pertaining to or arising from the PacifiCorp
Acquired Assets for periods (or portions thereof) ending on or prior to the Closing Date, except for Taxes
for which PacifiCorp is liable pursuant to Section 2.6;
(iii) any Liabilities in respect of any employees of Idaho Power or its Affiliates,
including any obligations of Idaho Power for benefits, bonuses, wages, employment Taxes, or severance
pay and any liability or obligations arising under any employee benefit plan;
JOINT PURCHASE AND SALE AGREEMENT Page | 18
(iv) any Liabilities relating to (A) the disposal, storage, transportation,
discharge, Release, recycling, or the arrangement for such activities, by Idaho Power, of Hazardous
Materials, and (B) Environmental Claims and requirements of Environmental Law with regard to
Environmental Matters existing in the PacifiCorp Acquired Assets, in each case, prior to the Closing Date;
(v) any Liabilities relating to any properties (other than PacifiCorp Acquired
Assets) formerly owned or operated by Idaho Power or its Affiliates or predecessors prior to the Closing
Date;
(vi) any Liabilities related to real property upon which the PacifiCorp Acquired
Assets are located, or to interests in real property (including, without limitation, easements, rights-of-way,
permits, licenses and leases) related to the PacifiCorp Acquired Assets, except for amounts payable with
respect to easements, rights-of-way, permits, licenses and leases related to the PacifiCorp Acquired Assets
that relate to periods after the Closing Date;
(vii) any Liabilities arising from any Claim (including any workers
compensation Claim) related to the PacifiCorp Acquired Assets which have arisen, been accrued or
incurred, or are otherwise based on events taking place, prior to the Closing Date;
(viii) any Liabilities of Idaho Power arising under or in connection with this
Agreement, any Related Document delivered in connection herewith, and any of the transactions
contemplated hereby and thereby;
(ix) any Liabilities, including fines, penalties or costs imposed by a
Governmental Entity, and the costs of any associated defense or response, with respect to any of the
PacifiCorp Acquired Assets resulting from an investigation, proceeding, request for information or
inspection before or by a Governmental Entity whether pending or commencing on, prior to or after the
Closing Date, to the extent based on events or conditions occurring or existing in connection with, or
arising out of, or otherwise relating to, the PacifiCorp Acquired Assets or the ownership, possession, use,
operation, sale or other disposition thereof on or prior to the Closing Date (or any other assets, properties,
rights or interests associated, at any time on or prior to the Closing Date, with the PacifiCorp Acquired
Assets), or actions taken or omissions to act made on or prior to the Closing Date;
(x) any Liabilities relating to the PacifiCorp Acquired Assets (or any other
assets, properties, rights or interests associated, at any time on or prior to the Closing Date, with the
PacifiCorp Acquired Assets), to the extent based on events or conditions occurring or existing on or prior
to the Closing Date and arising out of or relating to (A) any dispute arising out of or in connection with
capacity of or energy provided or services rendered from the PacifiCorp Acquired Assets, including claims
for refunds, personal injury or property damage, (B) claims relating to employee health and safety,
including claims for injury, sickness, disease or death of any Person, (C) any lien described in clause (d)
of the definition of Idaho Power Permitted Encumbrances or any unpaid sums for which any such liens
shall have arisen, (D) claims by any Person utilized or retained for services or work related to or in support
of the PacifiCorp Acquired Assets, or (E) compliance with any Governmental Requirements relating to
any of the foregoing;
(xi) any Liabilities relating to, based in whole or in part on events or conditions
occurring or existing in connection with, or arising out of, the PacifiCorp Acquired Assets as operated on
JOINT PURCHASE AND SALE AGREEMENT Page | 19
or prior to the Closing Date, or the design, construction, ownership, possession, use, or operation of the
PacifiCorp Acquired Assets, on or before the Closing Date;
(xii) any Liabilities representing indebtedness for money borrowed (and any
refinancing thereof); and
(xiii) all other pre-Closing Liabilities of Idaho Power, of whatever nature.
(b) PacifiCorp Excluded Liabilities. PacifiCorp shall retain and remain fully
responsible for, and Idaho Power does not assume and shall have no responsibility or Liability for, and
will not be obligated to pay, perform, or otherwise discharge any of the following Liabilities of PacifiCorp
or its Affiliates or any present or former owner or operator thereof (collectively, the “PacifiCorp Excluded
Liabilities”):
(i) any Liabilities of PacifiCorp to the extent related to any PacifiCorp
Excluded Assets or other assets which are not Idaho Power Acquired Assets and the ownership, operation
and conduct of any business in connection therewith or therefrom;
(ii) any Liabilities in respect of Taxes of PacifiCorp or any Tax Affiliate of
PacifiCorp, or any liability of PacifiCorp for unpaid Taxes of any Person under Treasury Regulation
Section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by
contract or otherwise, including any Taxes relating to, pertaining to or arising from the Idaho Power
Acquired Assets for periods (or portions thereof) ending on or prior to the Closing Date, except for Taxes
for which Idaho Power is liable pursuant to Section 2.6;
(iii) any Liabilities in respect of any employees of PacifiCorp or its Affiliates,
including any obligations of PacifiCorp for benefits, bonuses, wages, employment Taxes, or severance
pay and any liability or obligations arising under any employee benefit plan;
(iv) any Liabilities relating to (A) the disposal, storage, transportation,
discharge, Release, recycling, or the arrangement for such activities, by PacifiCorp, of Hazardous
Materials, and (B) Environmental Claims and requirements of Environmental Law with regard to
Environmental Matters existing in the Idaho Power Acquired Assets, in each case, prior to the Closing
Date;
(v) any Liabilities relating to any properties (other than Idaho Power Acquired
Assets) formerly owned or operated by PacifiCorp or its Affiliates or predecessors prior to the Closing
Date;
(vi) any Liabilities related to real property upon which the Idaho Power Assets
are located, or to interests in real property (including, without limitation, easements, rights-of-way,
permits, licenses and leases) related to the Idaho Power Acquired Assets, except for amounts payable with
respect to easements, rights-of-way, permits, licenses and leases related to the Idaho Power Acquired
Assets that relate to periods after the Closing Date;
(vii) any Liabilities arising from any Claim (including any workers
compensation Claim) related to the Idaho Power Acquired Assets which have arisen, been accrued or
incurred, or are otherwise based on events taking place, prior to the Closing Date;
JOINT PURCHASE AND SALE AGREEMENT Page | 20
(viii) any Liabilities of PacifiCorp arising under or in connection with this
Agreement, any Related Document delivered in connection herewith, and any of the transactions
contemplated hereby and thereby;
(ix) any Liabilities, including fines, penalties or costs imposed by a
Governmental Entity, and the costs of any associated defense or response, with respect to any of the Idaho
Power Acquired Assets resulting from an investigation, proceeding, request for information or inspection
before or by a Governmental Entity whether pending or commencing on, prior to or after the Closing Date,
to the extent based on events or conditions occurring or existing in connection with, or arising out of, or
otherwise relating to, the Idaho Power Acquired Assets or the ownership, possession, use, operation, sale
or other disposition thereof on or prior to the Closing Date (or any other assets, properties, rights or
interests associated, at any time on or prior to the Closing Date, with the Idaho Power Acquired Assets),
or actions taken or omissions to act made on or prior to the Closing Date;
(x) any Liabilities relating to the Idaho Power Acquired Assets (or any other
assets, properties, rights or interests associated, at any time on or prior to the Closing Date, with the Idaho
Power Acquired Assets), to the extent based on events or conditions occurring or existing on or prior to
the Closing Date and arising out of or relating to (A) any dispute arising out of or in connection with
capacity of or energy provided or services rendered from the Idaho Power Acquired Assets, including
claims for refunds, personal injury or property damage, (B) claims relating to employee health and safety,
including claims for injury, sickness, disease or death of any Person, (C) any lien described in clause (D)
of the definition of PacifiCorp Permitted Encumbrances or any unpaid sums for which any such liens shall
have arisen, (D) claims by any Person utilized or retained for services or work related to or in support of
the Idaho Power Acquired Assets, or (E) compliance with any Governmental Requirements relating to
any of the foregoing;
(xi) any Liabilities relating to, based in whole or in part on events or conditions
occurring or existing in connection with, or arising out of, the Idaho Power Acquired Assets as operated
on or prior to the Closing Date, or the design, construction, ownership, possession, use, or operation of
the Idaho Power Acquired Assets, on or before the Closing Date;
(xii) any Liabilities representing indebtedness for money borrowed (and any
refinancing thereof); and
(xiii) all other pre-Closing Liabilities of PacifiCorp, of whatever nature.
2.5 Purchase Price; Net Book Value True-up; Audit Rights; Section 1031 Exchange.
(a) Idaho Power Four Corners/Populus Assets Purchase Price. The purchase price,
associated with the Idaho Power Acquired Four Corners/Populus Assets, to be paid by Idaho Power to
PacifiCorp under this Agreement is an amount (the “Idaho Power Four Corners/Populus Assets Purchase
Price”) equal to the PacifiCorp Net Book Value of the Idaho Power Acquired Four Corners/Populus Assets
as of the day six (6) months prior to the expected Closing Date, which day the Parties shall mutually agree
upon (the “Purchase Price Calculation Date”). The Idaho Power Four Corners/Populus Assets Purchase
Price, subject to Sections 2.5(f) and 2.5(g), is the total consideration to be paid by Idaho Power to
PacifiCorp at Closing for the Idaho Power Acquired Four Corners/Populus Assets. Not less than ten (10)
Business Days before the Closing Date, or at such other time as may be mutually agreed upon by the
JOINT PURCHASE AND SALE AGREEMENT Page | 21
Parties in writing, PacifiCorp shall deliver to Idaho Power a written notice setting forth PacifiCorp’s good
faith estimate of the Idaho Power Four Corners/Populus Assets Purchase Price. The notice provided under
this Section 2.5(a) shall provide sufficient detail on the calculation of the Idaho Power Four
Corners/Populus Assets Purchase Price reasonably to permit an audit of such Idaho Power Four
Corners/Populus Assets Purchase Price subsequent to Closing in accordance with Section 2.5(g).
(b) Idaho Power Goshen Area Assets Purchase Price. The purchase price, associated
with the Idaho Power Acquired Goshen Area Assets, to be paid by Idaho Power to PacifiCorp under this
Agreement is an amount (the “Idaho Power Goshen Area Assets Purchase Price”) equal to the PacifiCorp
Net Book Value of the Idaho Power Acquired Goshen Area Assets as of Purchase Price Calculation Date.
The Idaho Power Goshen Area Assets Purchase Price, subject to Sections 2.5(f) and 2.5(g), is the total
consideration to be paid by Idaho Power to PacifiCorp at Closing for the Idaho Power Acquired Goshen
Area Assets. Not less than ten (10) Business Days before the Closing Date, or at such other time as may
be mutually agreed upon by the Parties in writing, PacifiCorp shall deliver to Idaho Power a written notice
setting forth PacifiCorp’s good faith estimate of the Idaho Power Goshen Area Assets Purchase Price.
The notice provided under this Section 2.5(a) shall provide sufficient detail on the calculation of the Idaho
Power Goshen Area Assets Purchase Price reasonably to permit an audit of such Idaho Power Goshen
Area Assets Purchase Price subsequent to Closing in accordance with Section 2.5(g).
(c) PacifiCorp Borah/Midpoint West Assets Purchase Price. The purchase price,
associated with the PacifiCorp Acquired Borah/Midpoint West Assets, to be paid by PacifiCorp to Idaho
Power under this Agreement is an amount (the “PacifiCorp Borah/Midpoint West Assets Purchase Price”)
equal to the Idaho Power Net Book Value of the PacifiCorp Acquired Borah/Midpoint West Assets as of
the Purchase Price Calculation Date. The PacifiCorp Borah/Midpoint West Assets Purchase Price, subject
to Sections 2.5(f) and 2.5(g), is the total consideration to be paid by PacifiCorp to Idaho Power at Closing
for the PacifiCorp Acquired Borah/Midpoint West Assets. Not less than ten (10) Business Days before
the Closing Date, or at such other time as may be mutually agreed upon by the Parties in writing, Idaho
Power shall deliver to PacifiCorp a written notice setting forth Idaho Power’s good faith estimate of the
PacifiCorp Borah/Midpoint West Assets Purchase Price. The notice provided under this Section 2.5(c)
shall provide sufficient detail on the calculation of the PacifiCorp Borah/Midpoint West Assets Purchase
Price reasonably to permit an audit of such PacifiCorp Borah/Midpoint West Assets Purchase Price
subsequent to Closing in accordance with Section 2.5(g).
(d) [Reserved]
(e) [Reserved]
(f) Purchase Price Netting. At Closing, due to the differing values in the Purchase
Price for each Party, the Idaho Power Purchase Price shall be netted against the PacifiCorp Purchase Price
and the Party whose Purchase Price is greater shall pay the difference between the two Purchase Prices
through the following methodology:
(i) If the Idaho Power Purchase Price is greater than the PacifiCorp Purchase
Price, then Idaho Power shall wire transfer an amount equal to the Idaho Power Purchase Price less the
PacifiCorp Purchase Price, in immediately available funds, in the lawful currency of the United States,
to an account or accounts designated by PacifiCorp.
JOINT PURCHASE AND SALE AGREEMENT Page | 22
(ii) If the PacifiCorp Purchase Price is greater than the Idaho Power Purchase
Price, then PacifiCorp shall wire transfer an amount equal to the PacifiCorp Purchase Price less the
Idaho Power Purchase Price, in immediately available funds, in the lawful currency of the United States,
to an account or accounts designated by Idaho Power.
(g) Net Book Value True-up; Audit Rights.
(i) Net Book Value True-up. Not later than one hundred eighty (180) days
after the Closing, (A) Idaho Power shall deliver to PacifiCorp a written notice (the “Idaho Power Net Book
Value True-up Notice”) setting forth (1) the Idaho Power Net Book Value, as of the Closing Date, of any
Idaho Power Improvements placed in service during the period from the Purchase Price Calculation Date
to the Closing Date (the “Net Book Value True-up Period”), (2) the Idaho Power Net Book Value, as of
the Closing Date, of any PacifiCorp Acquired Assets affected by Casualty Loss or removed from service
or retired by Idaho Power in the ordinary course of its utility operations during the Net Book Value True-
up Period, (3) any other change in the Idaho Power Net Book Value, as of the Closing Date, of any
PacifiCorp Acquired Assets not captured in clauses (1) and (2) immediately above, and (4) any resulting
adjustment to be made to the PacifiCorp Purchase Price in light of clauses (1), (2) and (3) immediately
above, and (B) PacifiCorp shall deliver to Idaho Power a written notice (the “PacifiCorp Net Book Value
True-up Notice”) setting forth the (1) PacifiCorp Net Book Value, as of the Closing Date, of any
PacifiCorp Improvements placed in service during the Net Book Value True-up Period, and (2) the
PacifiCorp Net Book Value, as of the Closing Date, of any Idaho Power Acquired Assets affected by
Casualty Loss or removed from service or retired by PacifiCorp in the ordinary course of its utility
operations during the Net Book Value True-up Period, (3) any other change in the PacifiCorp Net Book
Value, as of the Closing Date, of any Idaho Power Acquired Assets not captured in clauses (1) and (2)
immediately above, and (4) any resulting adjustment to be made to the Idaho Power Purchase Price in
light of clauses (1), (2) and (3) immediately above. Not more than five (5) Business Days after delivery
of the later of the Idaho Power Net Book Value True-up Notice or the PacifiCorp Net Book Value True-
up Notice, the Parties shall net the costs set forth in the respective Net Book Value True-up Notices and
the Party whose Net Book Value True-up Notice identifies the higher amount shall receive from the other
Party a payment of the difference by wire transfer in immediately available funds, in the lawful currency
of the United States, to an account or accounts designated by such Party.
(ii) Audit Rights. Not more than one hundred eighty (180) days after delivery
of the PacifiCorp Net Book Value True-Up Notice, Idaho Power may, at its own cost, at any time during
normal business hours and with reasonable notice of not less than thirty (30) days to PacifiCorp, audit the
books and records of PacifiCorp and any of its Affiliates related to the Idaho Power Acquired Assets (the
“PacifiCorp Cost Records”) to the extent reasonably related to the calculations of (A) the PacifiCorp Net
Book Value of the Idaho Power Acquired Assets or (B) the PacifiCorp Net Book Value of any PacifiCorp
Improvements or items affected by Casualty Loss or removed from service by PacifiCorp during the Net
Book Value True-Up Period in connection with the Idaho Power Acquired Assets (the “PacifiCorp
Costs”). Not more than one hundred eighty (180) days after delivery of the Idaho Power Net Book Value
True-Up Notice, PacifiCorp may, at its own cost, at any time during normal business hours and with
reasonable notice of not less than ten (10) Business Days to Idaho Power, audit the books and records of
Idaho Power and any of its Affiliates related to the PacifiCorp Acquired Assets (“Idaho Power Cost
Records”) to the extent reasonably related to the calculations of (A) the Idaho Power Net Book Value of
the PacifiCorp Acquired Assets or (B) the Idaho Power Net Book Value of any Idaho Power
Improvements or items affected by Casualty Loss or removed from service by Idaho Power during the
JOINT PURCHASE AND SALE AGREEMENT Page | 23
Net Book Value True-Up Period in connection with the PacifiCorp Acquired Assets (the “Idaho Power
Costs”).
(iii) If any audit conducted pursuant to Section 2.5(g)(ii) discloses that the actual
Idaho Power Costs differ from the Idaho Power Net Book Value used for determining the PacifiCorp
Purchase Price pursuant to this Section 2.5, or that the actual PacifiCorp Costs differ from the PacifiCorp
Net Book Value used for determining the Idaho Power Purchase Price pursuant to this Section 2.5, then
the Party conducting such audit shall notify the other Party in writing of such difference (the “Disputed
Costs Notice”). The Parties shall attempt, in good faith and for not less than thirty (30) days following
the Disputed Costs Notice (or such longer period as the Parties may mutually agree in writing), to reach
agreement on the actual Idaho Power Purchase Price and the PacifiCorp Purchase Price, as applicable, and
to adjust the applicable Purchase Price paid under this Section 2.5 to reflect such agreement.
(iv) If the Parties are unable to reach agreement under Section 2.5(g)(iii), then
the Parties shall retain an Independent Accounting Firm to audit the PacifiCorp Costs or the Idaho Power
Costs, as applicable, to determine the Idaho Power Purchase Price or the PacifiCorp Purchase Price, as
applicable. The decision of the Independent Accounting Firm shall be binding upon the Parties and final
and the consideration provided pursuant to this Section 2.5 shall be adjusted to reflect the results of the
Independent Accounting Firm’s determination. Each Party shall be liable for fifty percent (50%) of the
Independent Accounting Firm’s charges.
(v) Each Party shall, and shall cause any of its relevant Affiliates to, keep and
maintain all such Idaho Power Cost Records or PacifiCorp Cost Records, as applicable, to the extent
reasonably related to the determination of the Idaho Power Costs or the PacifiCorp Costs, as applicable,
and make such records available to the other Party and, if applicable, the Independent Accounting Firm,
in accordance with the terms of this Agreement. The Party requesting the audit shall reimburse one
hundred percent (100%) of all reasonable costs and expenses (including internal costs and expenses)
incurred by or on behalf of the other Party and any of its Affiliates in complying with the provisions of
this Section 2.5(g)(v), provided that each Party shall be liable for fifty percent (50%) of any such costs
incurred by either Party and its Affiliates in complying with a request by the Independent Accounting
Firm.
(vi) The allocation of costs incurred by a Party with respect to any PacifiCorp
Improvements, or any Idaho Power Improvements, in each case, that are placed in service after the Closing
Date shall be governed by the Amended and Restated Joint Ownership and Operating Agreement, and
there shall be no adjustment of either Purchase Price with respect to such costs.
(h) Section 1031 Exchange.
(i) The Parties desire and intend that the purchase and sale of the PacifiCorp
Acquired Assets and the Idaho Power Acquired Assets provided for under this Agreement will satisfy the
requirements of a like-kind exchange. Each of the transfers necessary to complete the exchange is part of
an integrated, interdependent, mutual and reciprocal plan intended to effectuate a tax-deferred exchange
by PacifiCorp and Idaho Power of like-kind properties pursuant to and in accordance with the provisions
of Code Section 1031, and the Treasury Regulations promulgated thereunder.
JOINT PURCHASE AND SALE AGREEMENT Page | 24
(ii) Prior to the Closing, the Parties shall allocate the Idaho Power Purchase
Price and the PacifiCorp Purchase Price among the Idaho Power Acquired Assets and the PacifiCorp
Acquired Assets under this Agreement in accordance with Exhibit A, which Exhibit identifies the various
Idaho Power Equipment, PacifiCorp Equipment and Existing Joint Equipment as either transmission or
substation property to determine like-kind characterization pursuant to Code Section 1031.
(iii) Notwithstanding the foregoing, if there are changes to the tax Governmental
Requirements that occur after the Effective Date and prior to Closing, both Parties agree to negotiate in
good faith the minimum changes to terms herein that will result in favorable tax treatment for both Parties
consistent with the intent of the Parties reflected in this Agreement.
2.6 Tax Prorations.
(a) Idaho Power Acquired Assets. All property Taxes and pre-paid expenses, in each
case, to the extent relating to the Idaho Power Acquired Assets, will be prorated as of the Effective Time,
with PacifiCorp liable to the extent such items relate to any period prior to the Effective Time, and
PacifiCorp and Idaho Power each liable to the extent such items relate to any period from and after the
Effective Time in accordance with their respective Ownership Percentages.
(b) PacifiCorp Acquired Assets. All property Taxes and pre-paid expenses, in each
case, to the extent relating to the PacifiCorp Acquired Assets, will be prorated as of the Effective Time,
with Idaho Power liable to the extent such items relate to any period prior to the Effective Time, and
PacifiCorp and Idaho Power each liable to the extent such items relate to any period from and after the
Effective Time in accordance with their respective Ownership Percentages.
(c) Property Tax Proration Calculations. The collective amount of property Taxes to
be prorated in Sections 2.6(a) and 2.6(b) will be calculated by (i) Idaho Power, with respect to the
PacifiCorp Acquired Assets, and (ii) PacifiCorp, with respect to the Idaho Power Acquired Assets, in each
case, on a state specific basis by multiplying the Idaho Power Net Book Value of the PacifiCorp Acquired
Assets or the PacifiCorp Net Book Value of the Idaho Power Acquired Assets, as applicable, by an
assessment ratio and then by a composite statewide property Tax rate. The applicable assessment ratio
will be calculated by dividing the applicable Net Book Value of all state assessed property by the assessed
value of such property prior to any adjustment for state specific exemptions. The applicable statewide
property Tax rate will be calculated by dividing the amount of property Taxes paid for state assessed
property for the most recent year by the corresponding assessed value of state assessed property.
(d) Transfer Taxes. The aggregate amount of all Transfer Taxes, if any, to the extent
relating to the PacifiCorp Acquired Assets and the Idaho Power Acquired Assets will be shared equally
by the Parties. Idaho Power will file, to the extent required by applicable Governmental Requirements,
all necessary Tax Returns and other documentation with respect to all such Transfer Taxes relating to the
PacifiCorp Acquired Assets, and if required by applicable Governmental Requirements, PacifiCorp will
join in the execution of any such Tax Returns or other documentation, provided that PacifiCorp shall first
have an opportunity to review and approve (such approval not to be unreasonably withheld) such Tax
Returns. PacifiCorp will file, to the extent required by applicable Governmental Requirements, all
necessary Tax Returns and other documentation with respect to all such Transfer Taxes relating to the
Idaho Power Acquired Assets, and if required by applicable Governmental Requirements, Idaho Power
will join in the execution of any such Tax Returns or other documentation, provided that Idaho Power
JOINT PURCHASE AND SALE AGREEMENT Page | 25
shall first have an opportunity to review and approve (such approval not to be unreasonably withheld)
such Tax Returns. Not later than sixty (60) days after the Closing, each Party shall provide the other Party
with copies of all such Tax Returns, other documentation and payments with respect to all such Transfer
Taxes. Each Party shall notify the other Party promptly after notice or commencement of an examination,
audit or other proceeding by a Governmental Entity with respect to such Transfer Taxes and shall provide
copies of all pertinent audit papers reasonably requested by such Party.
2.7 Time and Place of Closing. Unless this Agreement is terminated early in accordance with
Section 5.1, and upon the terms and subject to the satisfaction of the conditions contained in Section 2.9
(or waiver thereof as provided therein), the closing of purchase and sale of the PacifiCorp Acquired Assets
and the Idaho Power Acquired Assets and assumption by PacifiCorp of the PacifiCorp Assumed
Obligations and the assumption by Idaho Power of the Idaho Power Assumed Obligations (the “Closing”)
will take place electronically (by exchange of PDF signatures) or, at the election of the Parties, at the
offices of Troutman Pepper Hamilton Sanders LLP, 100 SW Main St, Suite 1000, Portland, Oregon 97204,
at 10:00 a.m., Pacific time, on the second (2nd) Business Day following the date on which the conditions
set forth in Section 2.9 (other than conditions to be satisfied by deliveries at the Closing) have been
satisfied or waived, or at such other place and time as the Parties may mutually agree in writing. The date
on which the Closing occurs is referred to herein as the “Closing Date.” The purchase and sale of the
PacifiCorp Acquired Assets and the Idaho Power Acquired Assets and the assumption by PacifiCorp of
the PacifiCorp Assumed Obligations and the assumption by Idaho Power of the Idaho Power Assumed
Obligations will be effective as of 12:00:01 a.m., Pacific time on the Closing Date (the “Effective Time”).
2.8 Closing Deliverables.
(a) Deliveries by Idaho Power. At or prior to the Closing, Idaho Power will deliver to
PacifiCorp, each of the following:
(i) a bill of sale for the PacifiCorp Acquired Assets in the form attached hereto
as Exhibit B-1 with the appropriate equipment lists developed pursuant to Section 4.8 inserted in schedule
1 thereto (the “Idaho Power Bill of Sale”), duly executed by Idaho Power;
(ii) the Amended and Restated Joint Ownership and Operating Agreement in
the form of Exhibit C, as the same may have been amended by mutual agreement by the Parties pursuant
to Section 4.9, duly executed by Idaho Power;
(iii) a certificate duly executed by an authorized officer or representative of
Idaho Power, dated as of the Closing Date, certifying that each of the conditions set forth in Section
2.9(b)(i) and Section 2.9(b)(ii) has been satisfied as of the Closing Date;
(iv) copies of all Idaho Power Required Regulatory Approvals and any other
consents, waivers or approvals obtained by Idaho Power from third parties in connection with this
Agreement and the Transaction;
(v) all such other instruments of assignment or conveyance properly executed
and acknowledged by Idaho Power in customary form as are reasonably requested by PacifiCorp in order
to transfer to and vest in PacifiCorp PacifiCorp’s Ownership Percentages in all of Idaho Power’s right,
title and interest in, to and under the PacifiCorp Acquired Assets in accordance with this Agreement;
JOINT PURCHASE AND SALE AGREEMENT Page | 26
(vi) evidence reasonably satisfactory to PacifiCorp of the costs incurred by
Idaho Power, as of the Closing Date, with respect to Idaho Power Improvements not placed in service as
of the Closing Date; and
(vii) any other documents or instruments reasonably required by PacifiCorp to
consummate the Transaction and reasonably requested of Idaho Power prior to the Closing Date.
(b) Deliveries by PacifiCorp. At or prior to the Closing, PacifiCorp will deliver to
Idaho Power, each of the following:
(i) a bill of sale for the Idaho Power Acquired Assets in the form attached
hereto as Exhibit B-2 with the appropriate equipment lists developed pursuant to Section 4.8 inserted in
schedule 1 thereto (the “PacifiCorp Bill of Sale”), duly executed by PacifiCorp;
(ii) the Amended and Restated Joint Ownership and Operating Agreement in
the form of Exhibit C, as the same may have been amended by mutual agreement by the Parties pursuant
to Section 4.9, duly executed by PacifiCorp;
(iii) a certificate duly executed by an authorized officer or representative of
PacifiCorp, dated as of the Closing Date, certifying that each of the conditions set forth in Section 2.9(a)(i)
and Section 2.9(a)(ii) has been satisfied as of the Closing Date;
(iv) copies of all PacifiCorp Required Regulatory Approvals and any other
consents, waivers or approvals obtained by PacifiCorp from third parties in connection with this
Agreement and the Transaction;
(v) all such other instruments of assignment or conveyance properly executed
and acknowledged by PacifiCorp in customary form as are reasonably requested by Idaho Power in order
to transfer to and vest in Idaho Power Idaho Power’s Ownership Percentages in all of PacifiCorp’s right,
title and interest in, to and under the Idaho Power Acquired Assets in accordance with this Agreement;
(vi) evidence reasonably satisfactory to Idaho Power of the costs incurred by
PacifiCorp, as of the Closing Date, with respect to PacifiCorp Improvements not placed in service as of
the Closing Date; and
(vii) any other documents or instruments reasonably required by Idaho Power to
consummate the Transaction and reasonably requested of PacifiCorp prior to the Closing Date.
2.9 Conditions Precedent to Closing.
(a) Idaho Power’s Conditions Precedent. Idaho Power’s obligation to sell and transfer
to PacifiCorp the PacifiCorp Acquired Assets, to purchase and accept from PacifiCorp the Idaho Power
Acquired Assets, and to take the other actions required to be taken by Idaho Power at the Closing are
subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which
may be waived, in whole or in part, by Idaho Power in writing):
(i) Accuracy of Representations. All representations and warranties made in
this Agreement by PacifiCorp that are qualified with respect to materiality (whether by reference to
JOINT PURCHASE AND SALE AGREEMENT Page | 27
Material Adverse Effect or otherwise) are true and correct, and all representations and warranties made in
this Agreement by PacifiCorp that are not so qualified are true and correct in all material respects, in each
case, as of the Closing Date by reference to the facts and circumstances then existing;
(ii) PacifiCorp’s Performance. PacifiCorp shall have complied in all material
respects with all covenants and agreements made by it in Article IV to be performed prior to Closing;
(iii) Delivery of Documents. Each document and other item required to be
delivered by PacifiCorp pursuant to Section 2.8(b) shall have been delivered to Idaho Power;
(iv) Required Regulatory Approvals. All Required Regulatory Approvals shall
have been obtained and be in full force and effect, and shall be in form and substance, including the terms
and conditions thereof, acceptable to Idaho Power in its sole discretion (provided that any condition in a
Required Regulatory Approval requiring that a Party file any Related Document in executed form with a
Governmental Entity shall be deemed acceptable to Idaho Power and shall not cause the condition in this
Section 2.9(a)(iv) to not be satisfied);
(v) No Prohibition. Neither the consummation nor the performance of the
Transaction shall, directly or indirectly (with or without notice or lapse of time), materially contravene, or
conflict with, or result in a material violation of, any Governmental Requirement or Governmental
Authorization applicable to the PacifiCorp Acquired Assets or Idaho Power or any of its Affiliates;
(vi) No Injunction. No litigation, protest, complaint, or injunction shall be
pending, threatened or reasonably likely to be commenced or issued (A) involving any challenge to, or
seeking damages or other relief in connection with the Transaction, (B) that may have the effect of
preventing, delaying, making illegal, or otherwise interfering with the Transaction, or (C) imposing or
seeking to impose material damages or sanctions directly arising out of the Transaction on Idaho Power
or any of its Affiliates;
(vii) No Casualty Loss. Since the Effective Date, no Casualty Loss shall have
occurred having a Restoration Cost in excess of Twenty Five Million Dollars ($25,000,000.00);
(viii) Release of Liens. PacifiCorp shall have received all releases of liens and
other Encumbrances, other than PacifiCorp Permitted Encumbrances and the lien of the PacifiCorp
Mortgage on the Idaho Power Acquired Assets, which lien will be released after Closing in accordance
with Section 2.10(b), from lenders or other parties applicable to the Idaho Power Acquired Assets in form
and substance reasonably satisfactory to Idaho Power;
(ix) No Material Adverse Effect. Since the Effective Date, no Material Adverse
Effect on Idaho Power or any of its Affiliates shall have occurred and be continuing;
(x) Transfer of BPA’s Permitting Interest. Idaho Power and BPA shall have
effectuated the transfer of BPA’s existing permitting interest in the B2H Project such that Idaho Power
receives BPA’s 24.24% of the permitting interest;
(xi) Kinport Capacitor Bank Assets and Midpoint Transformer Assets Placed
Into Service. The Kinport Capacitor Bank Assets and the Midpoint Transformer Assets shall have been
energized and placed into service;
JOINT PURCHASE AND SALE AGREEMENT Page | 28
(xii) Idaho Power Service from BPA. Idaho Power shall have acquired 500 MW
of PTP transmission service from Mid-C to Longhorn subject to BPA’s OATT for a duration of at least
five (5) years with rollover rights;
(xiii) B2H In-Service. The B2H Project shall have been energized and placed in-
service with real power flowing across the line between the Longhorn and Hemingway substations;
(xiv) PacifiCorp Termination of BPA Service Agreements. PacifiCorp shall have
terminated its Service Agreements No. 746 and No. 747 effective as of the date of Closing;
(xv) Removal and Replacement Activities. BPA shall have completed all
removal and replacement activities in connection with the Agreement to Reimburse BPA’s Removal and
Replacement Related Transaction Costs, dated March 18, 2020, among Idaho Power, PacifiCorp and BPA
(BPA Contract no. 20TX-16835) (the “Removal and Replacement Reimbursement Agreement”);
(xvi) No Challenge to BPA Action. There shall not be any outstanding legal
challenge to any decision by BPA to enter into, or to any BPA actions taken pursuant to, the following:
(A) the BPA-PacifiCorp Central Oregon PTP Service under revised Contract No. 04TX-11722; (B) the
Amended and Restated Midpoint-Meridian Agreement; (C) the Conditional Firm Service Letter
Agreement; (D) the Removal and Replacement Reimbursement Agreement, including any BPA
precondition related to the Removal and Replacement Reimbursement Agreement such as obtaining
service from Umatilla Electric service to serve Columbia Basin Electric load, completing BPA obligations
under the National Environmental Policy Act (“NEPA”), the National Historical Preservation Act
(“NHPA”) or any other environmental laws; and (E) the second amended and restated Boardman to
Hemingway Transmission Project joint permit funding agreement among Idaho Power, PacifiCorp, and
BPA; and
(xvii) Longhorn Substation Agreements. PacifiCorp, Idaho Power, and BPA shall
have entered into one or more agreements for the Longhorn substation (“Longhorn Substation
Agreements”), which shall include: (A) provisions for Idaho Power and PacifiCorp to pay a use of
facilities charge or other charge pursuant to BPA’s OATT and applicable rate schedules to transact across
the Longhorn bus in the future; (B) provisions for Idaho Power and PacifiCorp to own, operate and
maintain B2H Project equipment, including (1) a B2H Project-related series capacitor at the Longhorn
substation, (2) the B2H Project shunt line reactors at the Longhorn substation, and (3) any ancillary
equipment required to support the B2H Project series capacitor and shunt line reactors; and (C) provisions
clarifying that any Longhorn Substation Agreements shall be contingent upon BPA completing its
obligations and responsibilities under NEPA, NHPA, and other requisite environmental compliance laws
and making a decision regarding how to proceed.
(xviii) Release of Transmission Rights. PacifiCorp shall have released at Closing
its 200 MW of bidirectional transmission rights on the Four Corners/Populus Assets.
(xix) NITSA - Idaho Falls. BPA and Idaho Power shall have executed a Network
Integration Transmission Service Agreement that is accepted by FERC providing network transmission
service to the City of Idaho Falls effective upon the energization of B2H.
JOINT PURCHASE AND SALE AGREEMENT Page | 29
(xx) NITSA – Goshen Area Loads. BPA and Idaho Power shall have executed
a Network Integration Transmsision Service Agreements that is accepted by FERC providing network
transmission service to Fall River Rural Electric Coop, the City of Soda Springs, Lost River Elecric Coop,
Lower Valley Energy, and Salmon River Electric Coop. effective upon the energization of B2H.
(b) PacifiCorp’s Conditions Precedent. PacifiCorp’s obligations to sell and transfer to
Idaho Power the Idaho Power Acquired Assets, to purchase and accept from Idaho Power the PacifiCorp
Acquired Assets, and to take the other actions required to be taken by PacifiCorp at the Closing are subject
to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be
waived, in whole or in part, by PacifiCorp in writing):
(i) Accuracy of Representations. All representations and warranties made in
this Agreement by Idaho Power that are qualified with respect to materiality (whether by reference to
Material Adverse Effect or otherwise) are true and correct, and all representations and warranties made in
this Agreement by Idaho Power that are not so qualified are true and correct in all material respects, in
each case, as of the Closing Date by reference to the facts and circumstances then existing;
(ii) Idaho Power’s Performance. Idaho Power shall have complied in all
material respects with all covenants and agreements made by it in Article IV to be performed prior to
Closing;
(iii) Delivery of Documents. Each document and other item required to be
delivered by Idaho Power pursuant to Section 2.8(a) shall have been delivered to PacifiCorp;
(iv) Required Regulatory Approvals. All Required Regulatory Approvals shall
have been obtained and be in full force and effect, and shall be in form and substance, including the terms
and conditions thereof, acceptable to PacifiCorp in its sole discretion (provided that any condition in a
Required Regulatory Approval requiring that a Party file any Related Document in executed form with a
Governmental Entity shall be deemed acceptable to PacifiCorp and shall not cause the condition in this
Section 2.9(b)(iv) to not be satisfied);
(v) No Prohibition. Neither the consummation nor the performance of the
Transaction shall, directly or indirectly (with or without notice or lapse of time), materially contravene, or
conflict with, or result in a material violation of, any Governmental Requirement or Governmental
Authorization applicable to the Idaho Power Acquired Assets or PacifiCorp or any of its Affiliates;
(vi) No Injunction. No litigation, protest, complaint, or injunction shall be
pending, threatened or reasonably likely to be commenced or issued (A) involving any challenge to, or
seeking damages or other relief in connection with the Transaction, (B) that may have the effect of
preventing, delaying, making illegal, or otherwise interfering with the Transaction, or (C) imposing or
seeking to impose material damages or sanctions directly arising out of the Transaction on PacifiCorp or
any of its Affiliates;
(vii) No Casualty Loss. Since the Effective Date, no Casualty Loss shall have
occurred having a Restoration Cost in excess of Twenty Five Million Dollars ($25,000,000.00).
JOINT PURCHASE AND SALE AGREEMENT Page | 30
(viii) Release of Liens. Idaho Power shall have received all releases of liens and
other Encumbrances, other than Idaho Power Permitted Encumbrances and the lien of the Idaho Power
Mortgage on the PacifiCorp Acquired Assets, which lien will be released after Closing in accordance with
Section 2.10(a), from lenders or other parties applicable to the PacifiCorp Acquired Assets in form and
substance reasonably satisfactory to PacifiCorp;
(ix) No Material Adverse Effect. Since the Effective Date, no Material Adverse
Effect on PacifiCorp or any of its Affiliates shall have occurred and be continuing;
(x) Conditional Firm Service Letter Agreement. PacifiCorp and BPA shall have
executed the Conditional Firm Service Letter Agreement which shall remain in full force and effect;
(xi) Amended and Restated Midpoint-Meridian Agreement. PacifiCorp and
Bonneville Power Administration shall have entered into an Amended and Restated Midpoint-Meridian
Agreement, which shall have been filed and accepted or approved by FERC on a final and non-appealable
basis and effective as of the date of Closing;
(xii) Kinport Capacitor Bank Assets and Midpoint Transformer Assets Placed
Into Service. The Kinport Capacitor Bank Assets and the Midpoint Transformer Assets shall have been
energized and placed into service;
(xiii) B2H In-Service. The B2H Project shall have been energized and placed in-
service with real power flowing across the line between the Longhorn and Hemingway substations;
(xiv) BPA-PacifiCorp Central Oregon PTP Service. The BPA-PacifiCorp Central
Oregon PTP Service under revised Contract No. 04TX-11722 shall have commenced upon the Closing
Date;
(xv) Removal and Replacement Activities. BPA shall have completed all
removal and replacement activities in connection with the Removal and Replacement Reimbursement
Agreement;
(xvi) Assignment of PTP Transmission Service. Idaho Power shall have assigned
to PacifiCorp 300 MW of west-to-east firm, point-to-point transmission service with rollover rights
between Midpoint and Borah with a service start date commencing when the B2H Project is energized
and placed in service and such assignments, if required to be filed with FERC, shall have been accepted
or approved by FERC on a final and non-appealable basis;
(xvii) No Challenge to BPA Action. There shall not be any outstanding legal
challenge to any decision by BPA to enter into, or to any BPA actions taken pursuant to, the following:
(A) the BPA-PacifiCorp Central Oregon PTP Service under revised Contract No. 04TX-11722; (B) the
Amended and Restated Midpoint-Meridian Agreement; (C) the Conditional Firm Service Letter
Agreement; (D) the Removal and Replacement Reimbursement Agreement, including any BPA
precondition related to the Removal and Replacement Reimbursement Agreement such as obtaining
service from Umatilla Electric service to serve Columbia Basin Electric load, completing BPA obligations
under the NEPA, the NHPA or any other environmental laws; and (E) the second amended and restated
JOINT PURCHASE AND SALE AGREEMENT Page | 31
Boardman to Hemingway Transmission Project joint permit funding agreement among Idaho Power,
PacifiCorp, and BPA; and
(xviii) Longhorn Substation Agreements. PacifiCorp, Idaho Power, and BPA shall
have entered into the Longhorn Substation Agreements.
2.10 Release of Mortgage Liens or other Encumbrances.
(a) As soon as reasonably practicable following the Closing, but in any event, not later
than thirty (30) days after the Closing Date, Idaho Power will obtain a release of the lien of the Idaho
Power Mortgage on the PacifiCorp Acquired Assets. The release shall be in form and substance
reasonably acceptable to PacifiCorp and Idaho Power will promptly provide a copy of such release to
PacifiCorp.
(b) As soon as reasonably practicable following the Closing, but in any event, not later
than thirty (30) days after the Closing Date, PacifiCorp will obtain a release of the lien of the PacifiCorp
Mortgage on the Idaho Power Acquired Assets. The release shall be in form and substance reasonably
acceptable to Idaho Power and PacifiCorp will promptly provide a copy of such release to Idaho Power.
(c) The obligations under this Section 2.10 shall continue in full force and effect
notwithstanding the occurrence of the Closing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Idaho Power. Idaho Power represents and warrants to
PacifiCorp as follows:
(a) Idaho Power is a corporation duly formed, validly existing and in good standing
under the laws of the State of Idaho.
(b) Idaho Power has all necessary corporate power and authority to execute and deliver
this Agreement and each Related Document to which it will be a party and to perform its obligations under
this Agreement and each such Related Document, and the execution and delivery of this Agreement and
each Related Document to which it will be a party and the performance by it of this Agreement and each
such Related Document have been duly authorized by all necessary corporate action on its part.
(c) Subject to the receipt of the Idaho Power Required Regulatory Approvals, the
execution and delivery of this Agreement by Idaho Power and each Related Document to which it will be
party and the performance by it of this Agreement and each such Related Document, and the
consummation of the Transaction, do not and will not: (i) violate its organizational documents; (ii) violate
any Governmental Requirements applicable to it; or (iii) result in a breach of or constitute a default, or an
event which, with the passage of time or the giving of notice, or both, would become a default, under any
material Contract relating to the PacifiCorp Acquired Assets to which Idaho Power is a party or by which
the PacifiCorp Acquired Assets may be bound.
(d) This Agreement has been, and each Related Document to which Idaho Power will
be a party will be, duly and validly executed and delivered by Idaho Power and, constitutes, or will
JOINT PURCHASE AND SALE AGREEMENT Page | 32
constitute upon execution, its legal, valid and binding obligation enforceable against it in accordance with
its terms, except as the same may be limited by bankruptcy, insolvency or other similar laws affecting
creditors’ rights generally and by principles of equity regardless of whether such principles are considered
in a proceeding at law or in equity.
(e) Except for the Idaho Power Required Regulatory Approvals, no material consent
or approval of, filing with or notice to, any Governmental Entity or other Person by Idaho Power is
required in connection with the due execution and delivery of, and performance by Idaho Power of its
obligations under, this Agreement and each Related Document to which it is a party, and the
consummation of the Transaction.
(f) Except as disclosed in Schedule 3.1(f), there are no material Liabilities related to
the PacifiCorp Acquired Assets, whether or not required by GAAP to be disclosed in a balance sheet,
other than the lien of the Idaho Power Mortgage on the PacifiCorp Acquired Assets, which lien will be
released after Closing in accordance with Section 2.10(a). Except as set forth on Schedule 3.1(f), Idaho
Power does not have any obligations (absolute or contingent) related to the PacifiCorp Acquired Assets
to provide funds on behalf of, or to guarantee any debt, liability or obligation of, any Person.
(g) Except as set forth on Schedule 3.1(g), Idaho Power has good and marketable title
to the PacifiCorp Acquired Assets and there exist no Encumbrances (other than Idaho Power Permitted
Encumbrances and the lien of the Idaho Power Mortgage on the PacifiCorp Acquired Assets, which lien
will be released after Closing in accordance with Section 2.10(a)) applicable to the PacifiCorp Acquired
Assets that would restrict the ownership, use or operation of the PacifiCorp Acquired Assets (as the
PacifiCorp Acquired Assets are reasonably expected to be operated in accordance with the provisions of
the Amended and Restated Joint Ownership and Operating Agreement on the Closing Date).
(h) Environmental.
(i) Except as set forth on Schedule 3.1(h)(i) and except as to matters that would
not reasonably be expected to have a Material Adverse Effect on PacifiCorp, with respect to the PacifiCorp
Acquired Assets, (A) to Idaho Power’s Knowledge, Idaho Power is in compliance with all applicable
Environmental Laws, (B) to Idaho Power’s Knowledge, Idaho Power possesses all Environmental Permits
required under Environmental Laws for the operation of the PacifiCorp Acquired Assets (as the PacifiCorp
Acquired Assets are reasonably expected to be operated in accordance with the provisions of the Amended
and Restated Joint Ownership and Operating Agreement on the Closing Date) and is in compliance with
such Environmental Permits; and (C) Idaho Power has received no written notice that any Environmental
Permit required under Environmental Laws for the operation of the PacifiCorp Acquired Assets is subject
to termination, modification or revocation.
(ii) Except as set forth on Schedule 3.1(h)(ii) and except as to matters that
would not reasonably be expected to have a Material Adverse Effect on PacifiCorp, to Idaho Power’s
Knowledge, neither Idaho Power nor any Affiliate of Idaho Power has received, within the five (5) years
preceding the Effective Date, any written notice, report, request for information or other information
regarding any actual or alleged violation of Environmental Laws or any Liabilities or potential Liabilities,
including any investigatory, remedial or corrective obligations relating to the operation of the PacifiCorp
Acquired Assets or the real property upon which the PacifiCorp Acquired Assets are located, arising under
or relating to Environmental Laws or regarding Hazardous Materials.
JOINT PURCHASE AND SALE AGREEMENT Page | 33
(iii) Except as set forth on Schedule 3.1(h)(iii) and except as to matters that
would not reasonably be expected to have a Material Adverse Effect on PacifiCorp, (A) to Idaho Power’s
Knowledge, Idaho Power has not caused any Release, and there is and has been no other Release from,
in, on, beneath, or affecting the PacifiCorp Acquired Assets or the real property upon which the PacifiCorp
Acquired Assets are located that could form a basis for an Environmental Claim, and (B) within the five
(5) years preceding the Effective Date, to Idaho Power’s Knowledge, Idaho Power has not received written
notice of any Environmental Claims relating to the PacifiCorp Acquired Assets or the real property upon
which the PacifiCorp Acquired Assets are located that have not been fully and finally resolved and, to
Idaho Power’s Knowledge, no such Environmental Claims are pending or threatened against Idaho Power.
(iv) Except as set forth on Schedule 3.1(h)(iv) and except as to matters that
would not reasonably be expected to have a Material Adverse Effect on PacifiCorp, to Idaho Power’s
Knowledge, there are and have been no underground storage tanks, and there are no asbestos-containing
building materials or poly-chlorinated biphenyls owned, leased, used, operated or maintained by Idaho
Power or, to Idaho Power’s Knowledge, otherwise located on the real property upon which the PacifiCorp
Acquired Assets are located.
(v) Except as set forth on Schedule 3.1(h)(v) and except as to matters that would
not reasonably be expected to have a Material Adverse Effect on PacifiCorp, to Idaho Power’s Knowledge,
within the five (5) years preceding the Effective Date, Idaho Power has not assumed or retained, by
contract or operation of law, any obligation under any Environmental Law or concerning any Hazardous
Materials relating to the PacifiCorp Acquired Assets or the real property upon which the PacifiCorp
Acquired Assets are located.
(i) No broker, finder, or other Person is entitled to any brokerage fees, commissions,
or finder’s fees for which PacifiCorp could become liable or obligated in connection with the Transaction
by reason of any action taken by Idaho Power or its Affiliates.
(j) Except as set forth in Schedule 3.1(j), Idaho Power does not own, or directly license
from a third party, any Intellectual Property used in or necessary for the ownership, use and operation of
the PacifiCorp Acquired Assets (as the PacifiCorp Acquired Assets are reasonably expected to be operated
in accordance with the provisions of the Amended and Restated Joint Ownership and Operating
Agreement on the Closing Date) in accordance with Good Utility Practice and Governmental
Requirements, that is not part of the PacifiCorp Acquired Assets.
3.2 Representations and Warranties of PacifiCorp. PacifiCorp represents and warrants to
Idaho Power as follows:
(a) PacifiCorp is a corporation duly formed and validly existing under the laws of the
State of Oregon.
(b) PacifiCorp has all necessary corporate power and authority to execute and deliver
this Agreement and each Related Document to which it will be a party and to perform its obligations under
this Agreement and each such Related Document, and the execution and delivery of this Agreement and
each Related Document to which it will be a party and the performance by it of this Agreement and each
such Related Document have been duly authorized by all necessary corporate action on its part.
JOINT PURCHASE AND SALE AGREEMENT Page | 34
(c) Subject to receipt of the PacifiCorp Required Regulatory Approvals, the execution
and delivery of this Agreement by PacifiCorp and each Related Document to which it will be party and
the performance by it of this Agreement and each such Related Document, and the consummation of the
Transaction, do not and will not: (i) violate its organizational documents; (ii) violate any Governmental
Requirements applicable to it; or (iii) result in a breach of or constitute a default, or an event which, with
the passage of time or the giving of notice, or both, would become a default, under any material Contract
relating to the Idaho Power Acquired Assets to which PacifiCorp is a party or by which the Idaho Power
Acquired Assets may be bound.
(d) This Agreement has been, and each Related Document to which PacifiCorp will be
a party will be, duly and validly executed and delivered by PacifiCorp and, constitutes, or will constitute
upon execution, its legal, valid and binding obligation enforceable against it in accordance with its terms,
except as the same may be limited by bankruptcy, insolvency or other similar laws affecting creditors’
rights generally and by principles of equity regardless of whether such principles are considered in a
proceeding at law or in equity.
(e) Except for the PacifiCorp Required Regulatory Approvals, no material consent or
approval of, filing with or notice to, any Governmental Entity or other Person by PacifiCorp is required
in connection with the due execution and delivery of, and, performance by PacifiCorp of its obligations
under, this Agreement and each Related Document to which it is a party, and the consummation of the
Transaction.
(f) Except as disclosed in Schedule 3.2(f), there are no material Liabilities related to
the Idaho Power Acquired Assets, whether or not required by GAAP to be disclosed in a balance sheet,
other than the lien of the PacifiCorp Mortgage on the Idaho Power Acquired Assets, which lien will be
released after Closing in accordance with Section 2.10(b). Except as set forth on Schedule 3.2(f),
PacifiCorp does not have any obligations (absolute or contingent) related to the Idaho Power Acquired
Assets to provide funds on behalf of, or to guarantee any debt, liability or obligation of, any Person.
(g) Except as set forth on Schedule 3.2(g), PacifiCorp has good and marketable title to
the Idaho Power Acquired Assets and there exist no Encumbrances (other than PacifiCorp Permitted
Encumbrances and the lien of the PacifiCorp Mortgage on the Idaho Power Acquired Assets, which lien
will be released after Closing in accordance with Section 2.10(b)) applicable to the Idaho Power Acquired
Assets that would restrict the ownership, use or operation of the Idaho Power Acquired Assets (as the
Idaho Power Acquired Assets are reasonably expected to be operated in accordance with the provisions
of the Amended and Restated Joint Ownership and Operating Agreement on the Closing Date).
(h) Environmental.
(i) Except as set forth on Schedule 3.2(h)(i) and except as to matters that would
not reasonably be expected to have a Material Adverse Effect on Idaho Power, with respect to the Idaho
Power Acquired Assets, (A) to PacifiCorp’s Knowledge, PacifiCorp is in compliance with all applicable
Environmental Laws, (B) to PacifiCorp’s Knowledge, PacifiCorp possesses all Environmental Permits
required under Environmental Laws for the operation of the Idaho Power Acquired Assets (as the Idaho
Power Acquired Assets are reasonably expected to be operated in accordance with the provisions of the
Amended and Restated Joint Ownership and Operating Agreement on the Closing Date) and is in
compliance with such Environmental Permits; and (C) PacifiCorp has received no written notice that any
JOINT PURCHASE AND SALE AGREEMENT Page | 35
Environmental Permit required under Environmental Laws for the operation of the Idaho Power Acquired
Assets is subject to termination, modification or revocation.
(ii) Except as set forth on Schedule 3.2(h)(ii) and except as to matters that
would not reasonably be expected to have a Material Adverse Effect on Idaho Power, to PacifiCorp’s
Knowledge, neither PacifiCorp nor any Affiliate of PacifiCorp has received, within the five (5) years
preceding the Effective Date, any written notice, report, request for information or other information
regarding any actual or alleged violation of Environmental Laws or any Liabilities or potential Liabilities,
including any investigatory, remedial, or corrective obligations, relating to the operation of the Idaho
Power Acquired Assets or the real property upon which the Idaho Power Acquired Assets are located,
arising under or relating to Environmental Laws or regarding Hazardous Materials.
(iii) Except as set forth on Schedule 3.2(h)(iii) and except as to matters that
would not reasonably be expected to have a Material Adverse Effect on Idaho Power, (A) to PacifiCorp’s
Knowledge, PacifiCorp has not caused any Release, and there is and has been no other Release from, in,
on, beneath, or affecting the Idaho Power Acquired Assets or the real property upon which the Idaho
Power Acquired Assets are located that could form a basis for an Environmental Claim, and (B) within
the five (5) years preceding the Effective Date, to PacifiCorp’s Knowledge, PacifiCorp has not received
written notice of any Environmental Claims relating to the Idaho Power Acquired Assets or the real
property upon which the Idaho Power Acquired Assets are located that have not been fully and finally
resolved and, to PacifiCorp’s Knowledge, no such Environmental Claims are pending or threatened
against PacifiCorp.
(iv) Except as set forth on Schedule 3.2(h)(iv) and except as to matters that
would not reasonably be expected to have a Material Adverse Effect on Idaho Power, to PacifiCorp’s
Knowledge, there are and have been no underground storage tanks, and there are no asbestos-containing
building materials or poly-chlorinated biphenyls owned, leased, used, operated or maintained by
PacifiCorp or, to PacifiCorp’s Knowledge, otherwise located on the real property upon which the Idaho
Power Acquired Assets are located.
(v) Except as set forth on Schedule 3.2(h)(v) and except as to matters that would
not reasonably be expected to have a Material Adverse Effect on Idaho Power, to PacifiCorp’s Knowledge,
within the five (5) years preceding the Effective Date, PacifiCorp has not assumed or retained, by contract
or operation of law, any obligation under any Environmental Law or concerning any Hazardous Materials
relating to the Idaho Power Acquired Assets or the real property upon which the Idaho Power Acquired
Assets are located.
(i) No broker, finder, or other Person is entitled to any brokerage fees, commissions,
or finder’s fees for which Idaho Power could become liable or obligated in connection with the Transaction
by reason of any action taken by PacifiCorp or its Affiliates.
(j) Except as set forth in Schedule 3.2(j), PacifiCorp does not own, or directly license
from a third party, any Intellectual Property used in or necessary for the ownership, use and operation of
the Idaho Power Acquired Assets (as the Idaho Power Acquired Assets are reasonably expected to be
operated in accordance with the provisions of the Amended and Restated Joint Ownership and Operating
Agreement on the Closing Date) in accordance with Good Utility Practice and Governmental
Requirements, that is not part of the Idaho Power Acquired Assets.
JOINT PURCHASE AND SALE AGREEMENT Page | 36
ARTICLE IV
COVENANTS
4.1 Conditions and Commercially Reasonable Efforts. Subject to the terms and conditions of
this Agreement, each Party, at its own cost, will use Commercially Reasonable Efforts to effectuate the
Transaction and to fulfill all of the conditions to its obligations under this Agreement and will do all such
acts and things as reasonably may be required to carry out its obligations hereunder and to consummate
the Transaction on or before the Outside Closing Date, including making or cooperating with the other
Party in the making of applications for, or resolving the form or substance of, including any proposed
terms or conditions for, the Required Regulatory Approvals.
4.2 Filings with Governmental Entities.
(a) In General. Except as expressly provided for in Schedule 1.1(i) and Schedule 1.1(j),
prior to the Closing, with respect to (i) the Idaho Power Required Regulatory Approvals and (ii) the
PacifiCorp Required Regulatory Approvals, (A) each Party will provide prior written notice to the other
Party before making any filing with, or initiating any discussion or proceeding with, any Governmental
Entity in the course of obtaining any such Required Regulatory Approvals from such Governmental
Entities, and (B) prior to filing applications, pre-filed testimony or responses to data requests to any such
Governmental Entity in the course of obtaining any such Required Regulatory Approvals from such
Governmental Entities after the Effective Date, each Party will provide such materials to the other Party
for its information and shall provide drafts of such materials to, and reasonably consider comments of, the
other Party.
(b) FERC and State Approvals. The Parties shall jointly (i) submit to the FERC
applications for the FPA 203 Approval by no later than six (6) months prior to Closing unless otherwise
mutually agreed and the FPA 205 Approval by no later than ninety (90) days prior to Closing unless
otherwise mutually agreed, and (ii) submit to the Idaho Public Utilities Commission and to the Oregon
Public Utility Commission applications for approval of the Transaction. Each of the Parties shall submit
to the applicable Governmental Entities all other necessary applications, filings or other documentation
for their respective Required Regulatory Approvals.
4.3 Compliance. Each Party shall comply with all Governmental Requirements and
Governmental Authorizations applicable to it in connection with the Transaction, except where non-
compliance will not have a Material Adverse Effect on the other Party or any of its Affiliates.
4.4 Risk of Loss.
(a) Idaho Power Equipment. Except as provided in the last sentence of this Section
4.4(a), during the Interim Period, Idaho Power will bear the risk of Casualty Loss to the Idaho Power
Equipment; provided, however, that, if the Closing occurs, unless otherwise agreed in writing by the
Parties, (i) insurance proceeds applicable to any reconstruction or repairs remaining to be performed after
the Closing shall be paid to the Party that will be the “Operator” of the affected Idaho Power Equipment
under the Amended and Restated Joint Ownership and Operating Agreement, and (ii) the provisions of
the Amended and Restated Joint Ownership and Operating Agreement shall govern the treatment of such
Casualty Loss following the Closing. Furthermore, Idaho Power shall consult with PacifiCorp prior to
making a decision on reconstruction or repairs or refraining from reconstruction or repairs. For the
JOINT PURCHASE AND SALE AGREEMENT Page | 37
avoidance of doubt, prior to the Closing, the Joint Ownership and Operating Agreement shall govern with
respect to any Idaho Power Equipment subject thereto.
(b) PacifiCorp Equipment. Except as provided in the last sentence of this Section
4.4(b), during the Interim Period, PacifiCorp will bear the risk of Casualty Loss to the PacifiCorp
Equipment; provided, however, that, if the Closing occurs, unless otherwise agreed in writing by the
Parties, (i) insurance proceeds applicable to any reconstruction or repairs remaining to be performed after
the Closing shall be paid to the Party that will be the “Operator” of the affected PacifiCorp Equipment
under the Amended and Restated Joint Ownership and Operating Agreement, and (ii) the provisions of
the Amended and Restated Joint Ownership and Operating Agreement shall govern the treatment of such
Casualty Loss following the Closing. Furthermore, PacifiCorp shall consult with Idaho Power prior to
making a decision on reconstruction or repairs or refraining from reconstruction or repairs. For the
avoidance of doubt, prior to the Closing, the Joint Ownership and Operating Agreement shall govern with
respect to any PacifiCorp Equipment subject thereto.
(c) Existing Joint Equipment. Except as provided in the last sentence of this Section
4.4(c), during the Interim Period, each Party will bear risk of Casualty Loss to the Existing Joint
Equipment in proportion to such Party’s undivided ownership interest in such Existing Joint Equipment,
unless otherwise provided in the Joint Ownership and Operating Agreement or other applicable Contract
between the Parties; provided, however, that, if the Closing occurs, unless otherwise agreed in writing by
the Parties, (i) any insurance proceeds applicable to any reconstruction or repairs remaining to be
performed after the Closing shall be paid to the Party that will be the “Operator” of the affected Existing
Joint Equipment under the Amended and Restated Joint Ownership and Operating Agreement, and (ii) the
provisions of the Amended and Restated Joint Ownership and Operating Agreement shall govern the
treatment of such Casualty Loss following the Closing.
4.5 Maintenance of Assets.
(a) Idaho Power Acquired Assets. During the Interim Period, PacifiCorp, at its sole
cost and expense, will operate and maintain the Idaho Power Acquired Assets, consistent with past
practices and in accordance with Good Utility Practice, Governmental Requirements and Governmental
Authorizations, and will not decommission any of the Idaho Power Acquired Assets, provided that the
foregoing shall not restrict PacifiCorp from removing from service or retiring equipment in the ordinary
course of its utility operations. From and after the Effective Time, the Idaho Power Acquired Assets shall
be operated and maintained in accordance with the Amended and Restated Joint Ownership and Operating
Agreement. For the avoidance of doubt, this Section 4.5(a) shall not apply to any Idaho Power Acquired
Assets that are subject to the Joint Ownership and Operating Agreement, which shall govern with respect
to any such Idaho Power Acquired Assets during the Interim Period.
(b) PacifiCorp Acquired Assets. During the Interim Period, Idaho Power, at its sole
cost and expense, will operate and maintain the PacifiCorp Acquired Assets, consistent with past practices
and in accordance with Good Utility Practice, Governmental Requirements and Governmental
Authorizations, and will not decommission any of the PacifiCorp Acquired Assets, provided that the
foregoing shall not restrict Idaho Power from removing from service or retiring equipment in the ordinary
course of its utility operations. From and after the Effective Time, the PacifiCorp Acquired Assets shall
be operated and maintained in accordance with the Amended and Restated Joint Ownership and Operating
Agreement. For the avoidance of doubt, this Section 4.5(b) shall not apply to any PacifiCorp Acquired
JOINT PURCHASE AND SALE AGREEMENT Page | 38
Assets that are subject to the Joint Ownership and Operating Agreement, which shall govern with respect
to any such Idaho Power Acquired Assets during the Interim Period.
4.6 Notice. Each Party shall notify the other Party in writing of any fact, circumstance, or
development known to it prior to Closing which at the time of notification causes any of its representations
or warranties in this Agreement to be materially inaccurate. Unless the other Party terminates this
Agreement pursuant to Section 5.1, the written notice pursuant to this Section 4.6 will be deemed to have
qualified the representations or warranties, to have amended any Schedule referenced in such Section, and
to have caused any breach of representation or warranty that otherwise might have existed hereunder by
reason of the fact, circumstance, or development to be cured for purposes of Section 2.9, but not for
purposes of Section 6.2. Upon request of the other Party, the Party providing notice of a material
inaccuracy of any of its representations and warranties shall, if possible, provide reasonable assurances to
the other Party, in writing, that it will be able to perform its obligations under this Agreement.
4.7 Disclosure. Disclosure by a Party of any fact or item in any Schedule or Exhibit hereto
shall be deemed to have been so disclosed in any other Schedule, Exhibit or representation or warranty
made by such Party herein, provided that disclosure of such fact or item on such Schedule or Exhibit
contains disclosure of facts that would otherwise be required to be disclosed in such other Schedule,
Exhibit or representation or warranty.
4.8 Equipment Schedules. Prior to the Effective Date, the Parties have mutually agreed on a
spreadsheet containing detailed lists of the equipment comprising the Idaho Power Equipment, the
PacifiCorp Equipment and the Existing Joint Equipment as known and in effect as of the Effective Date,
the most recent versions of which were sent by email from Jared Ellsworth on behalf of Idaho Power to
Brian Fritz on behalf of PacifiCorp on March 24, 2023. Prior to the Closing, the Parties shall cooperate
in developing and agreeing upon detailed equipment lists for each of the Idaho Power Equipment, the
PacifiCorp Equipment and the Existing Joint Equipment which shall be based on the spreadsheets
described in the prior sentence, and will attach the completed lists to the PacifiCorp Bill of Sale or the
Idaho Power Bill of Sale, as applicable, when such Bills of Sale are delivered at Closing.
4.9 Amended and Restated Joint Ownership and Operating Agreement. Prior to the Closing,
the Parties shall mutually agree on the changes, if any, to be made to the form of Amended and Restated
Joint Ownership and Operating Agreement, including with respect to updating Exhibits A, B, C and F
thereto to accurately reflect the addition thereto of the Idaho Power Acquired Assets and the PacifiCorp
Acquired Assets, completion of the B2H Project, and any other changed circumstances.
ARTICLE V
TERMINATION
5.1 Termination. Except as to those provisions that are expressly intended to survive
termination of this Agreement, this Agreement may be terminated at any time prior to the Closing:
(a) by the Parties, if the Parties mutually agree in writing to terminate this Agreement;
(b) by Idaho Power, if Idaho Power delivers a written notice to PacifiCorp that it is
terminating this Agreement (including the date of termination of this Agreement, which shall not be earlier
than any applicable cure period provided for below) because:
JOINT PURCHASE AND SALE AGREEMENT Page | 39
(i) one or more of the conditions set forth in Section 2.9(a) (to be specified in
detail in such notice) cannot be met on or before the Outside Closing Date, and such condition or
conditions have not been satisfied (or waived by Idaho Power) within thirty (30) days after the date such
notice is delivered by Idaho Power to PacifiCorp, provided that if such condition or conditions cannot
reasonably be satisfied within such thirty (30) day period, then such thirty (30) day period shall be
extended to allow the Parties additional time (such additional time not to extend past the Outside Closing
Date) to satisfy such condition or conditions; provided; however, that in no event shall Idaho Power be
entitled to terminate this Agreement pursuant to this Section 5.1(b)(i) if the failure of such condition or
conditions to be satisfied has occurred as a result of Idaho Power’s acts or omissions, including its default
hereunder; or
(ii) PacifiCorp has breached in a material respect one or more of its covenants
or agreements contained in Article IV or one or more of its representations and warranties contained in
Article III (to be specified in detail in such notice), and such breach has not been remedied (or waived by
Idaho Power) within thirty (30) days after the date such notice is delivered by Idaho Power to PacifiCorp,
provided that if such breach cannot reasonably be remedied within such thirty (30) day period, then such
thirty (30) day period shall be extended to allow PacifiCorp additional time (such additional time not to
extend past the Outside Closing Date) to remedy such breach, provided that PacifiCorp commences such
cure during such thirty (30) days period and thereafter diligently pursues such cure; provided; however,
that in no event shall Idaho Power be entitled to terminate this Agreement pursuant to this Section
5.1(b)(ii) if such breach has occurred as a result of Idaho Power’s acts or omissions, including its default
hereunder.
(c) by PacifiCorp, if PacifiCorp delivers a written notice to Idaho Power that it is
terminating this Agreement (including the date of termination of this Agreement, which shall not be earlier
than any applicable cure period provided for below) because:
(i) one or more of the conditions set forth in Section 2.9(b) (to be specified in
detail in such notice) cannot be met on or before the Outside Closing Date, and such condition or
conditions have not been satisfied (or waived by PacifiCorp) within thirty (30) days after the date such
notice is delivered by PacifiCorp to Idaho Power, provided that if such condition or conditions cannot
reasonably be satisfied within such thirty (30) day period, then such thirty (30) day period shall be
extended to allow the Parties additional time (such additional time not to extend past the Outside Closing
Date) to satisfy such condition or conditions; provided; however, that in no event shall PacifiCorp be
entitled to terminate this Agreement pursuant to this Section 5.1(c)(i) if the failure of such condition or
conditions to be satisfied has not occurred as a result of PacifiCorp’s acts or omissions, including its
default hereunder; or
(ii) Idaho Power has breached in a material respect one or more of its covenants
or agreements contained in Article IV or one or more of its representations and warranties contained in
Article III (to be specified in detail in such notice), and such breach has not been remedied (or waived by
PacifiCorp) within thirty (30) days after the date such notice is delivered by PacifiCorp to Idaho Power,
provided that if such breach cannot reasonably be remedied within such thirty (30) day period, then such
thirty (30) day period shall be extended to allow Idaho Power additional time (such additional time not to
extend past the Outside Closing Date) to remedy such breach, provided that Idaho Power commences such
cure during such thirty (30) days period and thereafter diligently pursues such cure; provided that such
breach has not occurred as a result of PacifiCorp’s default hereunder.
JOINT PURCHASE AND SALE AGREEMENT Page | 40
(d) by either Party, if such Party delivers a written notice to the other Party that it is
terminating this Agreement (including the date of termination of this Agreement, which shall not be earlier
than the date the condition below has been satisfied) because a court of competent jurisdiction in the
United States or any state has issued an order, judgment or decree (other than a temporary restraining
order) restraining, enjoining or otherwise prohibiting the Transaction and such order, judgment or decree
has become final and nonappealable; or
(e) by either Party, if such Party delivers a written notice to the other Party that it is
terminating this Agreement (including the date of termination of this Agreement, which shall not be earlier
than the Outside Closing Date) because the Closing has not occurred on or before the Outside Closing
Date, provided that the failure to consummate the Closing has not occurred as a result of the acts or
omissions of the Party terminating this Agreement, including its default hereunder.
5.2 Effect of Early Termination. In the event this Agreement is validly terminated by either or
both of the Parties prior to Closing pursuant to Section 5.1, this Agreement will terminate and become
wholly void and of no further force and effect, without further action by either Party, whereupon the
Liabilities of the Parties hereunder will terminate, and each Party and its Affiliates and Representatives
shall be fully released and discharged from any Liability or obligation under or resulting from this
Agreement, except as otherwise expressly provided in this Agreement. If a Party validly terminates this
Agreement prior to Closing pursuant to Section 5.1, such termination will be the sole remedy of such Party
with respect to breaches of any representation, warranty, covenant or agreement contained in this
Agreement prior to Closing, and neither Party shall have any other remedy or cause of action under or
relating to this Agreement.
5.3 Post-Termination Obligations. If this Agreement is terminated for any reason prior to
Closing, the Parties shall notify FERC of such termination and that the Amended and Restated Joint
Ownership and Operating Agreement will not become effective. In addition, if this Agreement is
terminated prior to Closing as a result of failure of the conditions set forth in Sections 2.9(a)(iv) or
2.9(b)(iv) to be satisfied, the Parties shall meet and confer regarding the Parties’ respective operations.
The obligations in this Section 5.3 shall survive for a period of two (2) years following the termination of
this Agreement.
ARTICLE VI
INDEMNIFICATION
6.1 Survival of Representations, Warranties, Covenants and Agreements; Notices of Claims.
The representations, warranties, covenants and agreements of the Parties contained in this Agreement will
survive for a period of one (1) year following the Closing, except that (i) the representations and warranties
in Sections 3.1(g), 3.1(h), 3.1(j), 3.2(g), 3.2(h) and 3.2(j) will survive the Closing for a period of two (2)
years following the Closing Date, (ii) the covenants and agreements in Sections 2.4(a) and 2.4(b) will
survive the Closing Date indefinitely, and (iii) any covenant or agreement that is stated elsewhere in this
Agreement to survive for longer than one (1) year shall survive for such longer period; provided that, any
representation or warranty (and the indemnification obligations of the Parties with respect thereto) that
would otherwise terminate in accordance with this Section 6.1 will continue to survive if notice for
indemnification shall have been timely given under this Article VI on or prior to such termination date,
until the related claim for indemnification has been satisfied or otherwise resolved as provided in this
Article VI.
JOINT PURCHASE AND SALE AGREEMENT Page | 41
6.2 Indemnification.
(a) Idaho Power. On the terms and subject to the conditions set forth in this Agreement,
from and after the Closing, Idaho Power hereby agrees to indemnify, defend, and hold harmless PacifiCorp
and its Affiliates and Representatives from and against, and shall reimburse PacifiCorp with respect to,
all Losses, whether or not involving a third-party Claim, resulting from or arising out of or in connection
with:
(i) the breach in any material respect of any representation or warranty made
by Idaho Power in this Agreement;
(ii) the breach in any material respect by Idaho Power of any covenant or
agreement contained in this Agreement to be performed by Idaho Power (other than with respect to the
Idaho Power Excluded Liabilities); or
(iii) the Idaho Power Excluded Liabilities.
(b) PacifiCorp. On the terms and subject to the conditions set forth in this Agreement,
from and after the Closing, PacifiCorp hereby agrees to indemnify, defend and hold harmless Idaho Power
and its Affiliates and Representatives from and against, and shall reimburse Idaho Power with respect to,
all Losses, whether or not involving a third-party Claim, resulting from or arising out of or in connection
with:
(i) the breach in any material respect of any representation or warranty made
by PacifiCorp in this Agreement;
(ii) the breach in any material respect by PacifiCorp of any covenant or
agreement contained in this Agreement to be performed by PacifiCorp (other than with respect to the
PacifiCorp Excluded Liabilities); or
(iii) the PacifiCorp Excluded Liabilities.
6.3 Limitations on Indemnification.
(a) A Party may assert a claim for indemnification pursuant to this Article VI only to
the extent the Indemnified Party gives a notice to the Indemnifying Party specifying the factual basis of
such claim in reasonable detail to the extent known to the notifying Party (i) for claims pursuant to Section
6.2(a)(i) or Section 6.2(b)(i), prior to the expiration of the applicable time period set forth in Section 6.1;
(ii) for claims pursuant to Section 6.2(a)(ii) or Section 6.2(b)(ii), within one (1) year of the Closing Date;
and (iii) for claims pursuant to Section 6.2(a)(iii) or Section 6.2(b)(iii), at any time following the Closing.
If any claim for indemnification is not made in accordance with Section 6.5 and the foregoing sentence
by a Party on or prior to the applicable date set forth in Section 6.1 or this Section 6.3(a), the other Party’s
indemnification obligations with respect thereto will be irrevocably and unconditionally released and
waived.
(b) Notwithstanding any provision to the contrary contained in this Agreement, neither
Party shall have Liability to the other Party pursuant to Section 6.2 unless and until the amount of such
JOINT PURCHASE AND SALE AGREEMENT Page | 42
Losses, individually or in the aggregate, exceed five hundred thousand dollars ($500,000) and then, only
for the Losses above that amount.
(c) Notwithstanding anything to the contrary contained in this Agreement, the
maximum amount of the indemnification obligation of Idaho Power under Section 6.2(a) to PacifiCorp
and its Affiliates and Representatives shall not exceed an amount equal to the PacifiCorp Purchase Price.
Notwithstanding anything to the contrary contained in this Agreement, the maximum amount of the
indemnification obligation of PacifiCorp under Section 6.2(b) to Idaho Power and its Affiliates and
Representatives shall not exceed an amount equal to the Idaho Power Purchase Price.
(d) Except as otherwise provided for in Section 4.6, the Parties acknowledge and agree
that if any Party has knowledge of a material failure of any condition set forth in Section 2.9 or of a
material breach by the other Party of any representation or warranty or covenant or agreement contained
in this Agreement, because any Party is otherwise aware (other than through disclosure by the other Party
pursuant to Section 4.6), to Idaho Power’s Knowledge or to PacifiCorp’s Knowledge, respectively, of any
such material failure or material breach by the other Party, and such Party proceeds with the Closing, such
Party shall be deemed to have waived such condition or breach (but then only to the extent of the disclosure
made or knowledge acquired prior to Closing) and such Party and its successors, assigns and Affiliates
and Representatives shall not be entitled to be indemnified pursuant to this Article VI, to sue for damages
or to assert any other right or remedy for any Losses reasonably relating to such condition or breach and
such disclosure made prior to execution of the Agreement, notwithstanding anything to the contrary
contained herein or in any Related Document.
(e) Notwithstanding anything contained in this Agreement to the contrary, except for
the representations and warranties contained in this Agreement, neither Party nor its Affiliates,
Representatives or any other Person is making any other express or implied representation or warranty
with respect to the PacifiCorp Acquired Assets, the Idaho Power Acquired Assets, the PacifiCorp
Assumed Obligations, the Idaho Power Assumed Obligations or the Transaction and each Party disclaims
and negates, and expressly waives, any other representations or warranties, express (whether made by the
other Party or its Affiliates or Representatives) or implied, at common law, by statute or otherwise relating
to the PacifiCorp Acquired Assets, the Idaho Power Acquired Assets, the PacifiCorp Assumed
Obligations, the Idaho Power Assumed Obligations or the Transaction, INCLUDING THE IMPLIED
WARRANTY OF MERCHANTABILITY AND ANY IMPLIED WARRANTY OF FITNESS. Any
claims a Party may have pursuant to Sections 6.2(a)(i) and 6.2(b)(i) for breach of representation or
warranty must be based solely on the representations and warranties of the other Party set forth in this
Agreement. In furtherance of the foregoing, except for the representations and warranties contained in
this Agreement, each Party acknowledges and agrees that neither the other Party nor any of its Affiliates
or Representatives will have or be subject to any liability to it or any of its Affiliates or Representatives
for, and each Party hereby disclaims all liability and responsibility for, any representation, warranty,
projection, forecast, statement, or information made, communicated, or furnished (orally or in writing) to
the other Party or any of the other Party’s Affiliates or Representatives. EACH PARTY HEREBY
ACKNOWLEDGES THAT, EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN
ARTICLE III, THE PACIFICORP ACQUIRED ASSETS AND IDAHO POWER ACQUIRED ASSETS
ARE BEING PURCHASED ON AN “AS IS, WHERE IS” BASIS.
(f) Notwithstanding anything in this Section 6.3 to the contrary, except as otherwise
may be ordered by a court of competent jurisdiction, the Indemnified Party shall bear its own costs,
JOINT PURCHASE AND SALE AGREEMENT Page | 43
including counsel fees and expenses, incurred in connection with Claims against the Indemnifying Party
hereunder that are not based upon Claims asserted by third parties.
6.4 Exclusive Remedies. Idaho Power and PacifiCorp acknowledge and agree that, from and
after the Closing, except in the case of fraud, the sole and exclusive remedy for any breach or inaccuracy,
or alleged breach or inaccuracy, of any representation or warranty in this Agreement or any covenant or
agreement to be performed hereunder on or prior to the Closing, will be indemnification in accordance
with this Article VI. In furtherance of the foregoing, except to the extent provided under this Article VI,
from and after the Closing, Idaho Power and PacifiCorp hereby waive, to the fullest extent permitted by
applicable Governmental Requirements, any and all other rights, claims, and causes of action (including
rights of contributions, if any) against the other Party that may be based upon, arise out of, or relate to this
Agreement, or the negotiation, execution, or performance of this Agreement (including any tort or breach
of contract claim or cause of action based upon, arising out of, or related to any representation or warranty
made in or in connection with this Agreement or as an inducement to enter into this Agreement), known
or unknown, foreseen or unforeseen, which exist or may arise in the future, that it may have against the
other arising under or based upon any Governmental Requirement, common law, or otherwise; provided,
however, that such waiver does not include a waiver of either Party’s rights with respect to the Idaho
Power Excluded Liabilities or the PacifiCorp Excluded Liabilities.
6.5 Indemnification in Case of Strict Liability. THE INDEMNIFICATION PROVISIONS IN
THIS ARTICLE VI SHALL BE ENFORCEABLE IN ACCORDANCE WITH THEIR EXPRESS
TERMS REGARDLESS OF WHETHER THE LIABILITY IS BASED ON PAST, PRESENT OR
FUTURE ACTS, CLAIMS OR LAWS (INCLUDING ANY PAST, PRESENT OR FUTURE
ENVIRONMENTAL LAW, FRAUDULENT TRANSFER ACT, OCCUPATIONAL SAFETY AND
HEALTH LAW OR PRODUCTS LIABILITY, SECURITIES OR OTHER LAW), AND REGARDLESS
OF WHETHER ANY PERSON (INCLUDING THE PERSON FROM WHOM INDEMNIFICATION IS
SOUGHT) ALLEGES OR PROVES THE SOLE, JOINT, OR CONCURRENT STRICT LIABILITY
IMPOSED ON THE PERSON SEEKING INDEMNIFICATION.
6.6 Notice and Participation.
(a) If a Party (an “Indemnified Party”) intends to seek indemnification under this
Article VI with respect to any Claims for Losses, it shall give the other Party (the “Indemnifying Party”)
prompt written notice of such Claims upon the receipt of actual knowledge or information by the
Indemnified Party of any possible Claims or of the commencement of such Claims. The Indemnifying
Party shall have no liability under this Article VI for any Claim for which such notice is not provided, but
only to the extent that the failure to give such notice materially impairs the ability of the Indemnifying
Party to respond to or to defend the Claim.
(b) The Indemnifying Party shall have the right to assume the defense of any Claim, at
its sole cost and expense, with counsel designated by the Indemnifying Party and reasonably satisfactory
to the Indemnified Party; provided, however, that if the defendants in any such proceeding include both
the Indemnifying Party and the Indemnified Party, and the Indemnified Party shall have reasonably
concluded that there may be legal defenses available to it which are in conflict with those available to the
Indemnifying Party and that such conflict materially prejudices the ability of the counsel selected by the
Indemnifying Party to represent both Parties, the Indemnified Party shall have the right to select separate
counsel reasonably satisfactory to the Indemnifying Party, at the Indemnifying Party’s expense, to assert
JOINT PURCHASE AND SALE AGREEMENT Page | 44
such legal defenses and to otherwise participate in the defense of such Claim on behalf of the Indemnified
Party, and the Indemnifying Party shall be responsible for the reasonable fees and expenses of such
separate counsel.
(c) Should the Indemnified Party be entitled to indemnification under this Article VI
as a result of a Claim by a third party, and should the Indemnifying Party fail to assume the defense of
such Claim within a reasonable period of time after the Indemnifying Party has provided the Indemnifying
Party written notice of such Claim, the Indemnified Party may, at the expense of the Indemnifying Party,
contest or (with or without the prior consent of the Indemnifying Party) settle such Claim.
(d) Except to the extent expressly provided herein, the Indemnified Party shall not
settle any Claim with respect to which it has sought or is entitled to seek indemnification pursuant to this
Article VI unless (i) it has obtained the prior written consent of the Indemnifying Party, or (ii) the
Indemnifying Party has failed to assume the defense of such Claim within a reasonable period of time
after the Indemnified Party has provided the Indemnifying Party written notice of such Claim.
(e) Except to the extent expressly provided otherwise herein, the Indemnifying Party
shall not settle any Claim with respect to which it may be liable to provide indemnification pursuant to
this Section 6.6 without the prior written consent of the Indemnified Party; provided, however, that if the
Indemnifying Party has reached a bona fide settlement agreement with the plaintiff(s) in any such
proceeding, which settlement includes a full release of the Indemnified Party for any and all liability with
respect to such Claim, and the Indemnified Party does not consent to such settlement agreement, then the
dollar amount specified in the settlement agreement, plus the Indemnified Party’s reasonable legal fees
and other costs related to the defense of the Claim paid or incurred prior to the date of such settlement
agreement, shall act as an absolute maximum limit on the indemnification obligation of the Indemnifying
Party with respect to the Claim, or portion thereof, that is the subject of such settlement agreement.
6.7 Net Amount. Subject to the limitations imposed by Section 6.6(e), if applicable, in the
event that one Party is obligated to indemnify and hold the other Party harmless under this Article VI, the
amount owing to the other Party shall be the amount of the other Party’s actual Claims, net of any
insurance or other recovery actually received by such Party.
6.8 Set-Off.
Each Party shall have the right to set-off any indemnification obligations that it may have under this
Article VI against any other obligations or amounts due to it by the other Party under any other provisions
of this Agreement or under any other Related Document.
6.9 No Release of Insurers. The provisions of this Article VI shall not be deemed or construed
to release any insurer from its obligation to pay any insurance proceeds in accordance with the terms and
conditions of any insurance policies.
6.10 Mitigation. Each Party shall take Commercially Reasonable Efforts to mitigate all Claims
after becoming aware of any event which could reasonably be expected to give rise to any Claims that are
indemnifiable or recoverable hereunder or in connection herewith.
JOINT PURCHASE AND SALE AGREEMENT Page | 45
6.11 Limitation of Liability. Neither Party shall be liable under this Agreement in any action at
law or in equity, whether based on contract, tort, strict liability, indemnity or otherwise, for any special,
incidental, indirect, exemplary, punitive or consequential damages or losses, including any loss of
revenue, income, claims of customers, profits or investment opportunities.
ARTICLE VII
MISCELLANEOUS PROVISIONS
7.1 Amendment and Modification. This Agreement may be amended, modified, or
supplemented only by written agreement executed by both Parties.
7.2 Waiver of Compliance; Consents. Except as otherwise provided in this Agreement, any
failure of either Party to comply with any obligation, covenant, agreement, or condition herein may be
waived by the Party entitled to the benefits thereof only by a written instrument signed by the Party
granting such waiver, but such waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement, or condition will not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure.
7.3 Notices.
(a) Any notice, demand, request or other communication required or permitted to be
given pursuant to this Agreement shall be in writing and signed by the Party giving such notice, demand,
request or other communication and shall be hand delivered or sent by certified mail, return receipt
requested, or nationally or internationally recognized overnight courier to the other Party at the address
set forth below:
If to Idaho Power: Idaho Power Company
1221 West Idaho Street
Boise, ID 83702
Attn: Director, Load Serving Operations
Telephone: [phone]

With a copy to: Idaho Power Company
1221 West Idaho Street
Boise, ID 83702
Attn: Legal Department
Telephone: [phone]

If to PacifiCorp: PacifiCorp
825 NE Multnomah Street, Suite 1600
Portland, OR 97232
Attn: Director, Transmission Service
Telephone: [phone]
With a copy to: PacifiCorp
825 NE Multnomah Street, Suite 2000
Portland, OR 97232
JOINT PURCHASE AND SALE AGREEMENT Page | 46
Attn: Legal Department
Telephone: [phone]

(b) Each Party shall have the right to change the place to which any notice,
demand, request or other communication shall be sent or delivered by similar notice sent in like manner
to the other Party. The effective date of any notice, demand, request or other communication issued
pursuant to this Agreement shall be when: (i) delivered to the address of the Party personally, by
messenger, by a nationally or internationally recognized overnight delivery service; or (ii) received or
rejected by the Party, if sent by certified mail, return receipt requested, in each case, addressed to the Party
at its address and marked to the attention of the person designated above (or to such other address or
person as a Party may designate by notice to the other Party effective as of the date of receipt by such
Party).
7.4 Assignment. This Agreement and all of the provisions hereof will be binding upon and
inure to the benefit of the Parties and their respective successors and permitted assigns, but neither this
Agreement nor any of the rights, interests, or obligations hereunder may be assigned by either Party,
without the prior written consent of the other Party. No provision of this Agreement, other than Section
6.2, creates any rights, claims or benefits inuring to any Person that is not a Party hereto.
7.5 Governing Law; Exclusive Choice of Forum; Remedies.
(a) This Agreement, the rights and obligations of the Parties under this Agreement, and
any claim or controversy arising out of this Agreement (whether based on contract, tort, or any other
theory), including all matters of construction, validity, effect, performance and remedies with respect to
this Agreement, shall be governed by and interpreted, construed, and determined in accordance with, the
laws of the State of Idaho (regardless of the laws that might otherwise govern under applicable principles
of conflicts of law). Each Party irrevocably consents to the exclusive jurisdiction and venue of any court
within the State of Idaho, in connection with any matter based upon or arising out of this Agreement or
the matters contemplated herein, agrees that process may be served upon them in any manner authorized
by the laws of the State of Idaho for such persons and waives and covenants not to assert or plead any
objection which they might otherwise have to such jurisdiction, venue or process.
(b) TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE PARTIES
HERETO WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT. EACH PARTY FURTHER WAIVES ANY RIGHT TO CONSOLIDATE
ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN
WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
7.6 Severability. Any term or provision of this Agreement that is invalid or unenforceable in
any situation in any jurisdiction will not affect the validity or enforceability of the remaining terms and
provisions hereof or the validity or enforceability of the offending term or provision in any other situation
or in any other jurisdiction.
7.7 Entire Agreement. This Agreement will be a valid and binding agreement of the Parties
only if and when it is fully executed and delivered by the Parties, and until such execution and delivery
no legal obligation will be created by virtue hereof. This Agreement, together with the Schedules and
JOINT PURCHASE AND SALE AGREEMENT Page | 47
Exhibits hereto and the Related Documents delivered under or in accordance herewith, embodies the entire
agreement and understanding of the Parties hereto in respect of the Transaction. This Agreement and the
Related Documents supersede all prior agreements and understandings between the Parties with respect
to such subject matter hereof.
7.8 Expenses. Except as otherwise set forth in this Agreement, each Party shall bear its own
expenses (including attorneys’ fees) incurred in connection with the preparation, negotiation, execution
and performance of this Agreement and each other Related Document and the consummation of the
Transaction.
7.9 Delivery. This Agreement, and any Related Documents delivered under or in accordance
herewith, may be executed in multiple counterparts (each of which will be deemed an original, but all of
which together will constitute one and the same instrument), and may be delivered by electronic
transmission, with originals to follow by overnight courier or certified mail (return receipt requested).

[Signature page follows.]
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.
4
%

3
5
.
6
%

1
9
.
3
%

0
.
0
%

4
5
.
1
%

5
4
.
9
%

B
o
r
a
h
/
M
i
d
p
o
i
n
t

W
e
s
t

Se
g
m
e
n
t

O
w
n
e
r
s
h
i
p

Pr
e
-
C
l
o
s
i
n
g

Qu
a
n
t
i
t
y

T
r
a
n
s
f
e
r
r
e
d

t
o

O
t
h
e
r

Ow
n
e
r

Se
g
m
e
n
t

O
w
n
e
r
s
h
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p

Po
s
t
-
C
l
o
s
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n
g

As
s
e
t

Ca
t
e
g
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r
y

Mi
d
p
o
i
n
t

W
e
s
t

T
r
a
n
s
m
i
s
s
i
o
n

I
P
C

%

P
A
C

%

I
P
C

%

P
A
C

%

I
P
C

%

P
A
C

%
Mi
d
p
o
i
n
t
-
H
e
m
i
n
g
w
a
y

5
0
0

k
V

3
7
.
0
%

6
3
.
0
%

7
.
1
%

0
.
0
%

2
9
.
9
%

7
0
.
1
%

B
o
r
a
h
/
M
i
d
p
o
i
n
t

W
e
s
t

JO
I
N
T

P
U
R
C
H
A
S
E

A
N
D

S
A
L
E

A
G
R
E
E
M
E
N
T

–

E
X
H
I
B
I
T

A

P
a
g
e

|

A
-
2

Co
l
u
m
n
A
B

C

D

E

F

G

Tr
a
n
s
m
i
s
s
i
o
n

L
i
n
e
s
Se
g
m
e
n
t

O
w
n
e
r
s
h
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p

Pr
e
-
C
l
o
s
i
n
g

Qu
a
n
t
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t
y

T
r
a
n
s
f
e
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d

t
o

Ot
h
e
r

O
w
n
e
r

Se
g
m
e
n
t

O
w
n
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r
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h
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p

Po
s
t
-
C
l
o
s
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n
g

As
s
e
t

Ca
t
e
g
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r
y

Go
s
h
e
n

T
r
a
n
s
m
i
s
s
i
o
n

I
P
C

%

P
A
C

%

I
P
C

%

P
A
C

%

I
P
C

%

P
A
C

%
Ri
g
b
y
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u
t
h

F
o
r
k

6
9
k
V

0.
0
%

1
0
0
.
0
%

0
.
0
%

3
.
6
%

3
.
6
%

9
6
.
4
%

G
o
s
h
e
n
Gr
a
c
e
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n
r
y

M
i
n
e

4
6

k
V

(
T
h
r
e
e
m
i
l
e

K
n
o
l
l
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d
a

S
p
r
i
n
g
s
)

0.
0
%

1
0
0
.
0
%

0
.
0
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1
3
.
6
%

1
3
.
6
%

8
6
.
4
%

G
o
s
h
e
n

Go
s
h
e
n
-

K
i
n
p
o
r
t

3
4
5

K
V

18
.
3
%

8
1
.
7
%

0
.
0
%

1
0
.
5
%

2
8
.
8
%

7
1
.
2
%

G
o
s
h
e
n

Go
s
h
e
n

- An
t
e
l
o
p
e

1
6
1

k
V

12
.
0
%

8
8
.
0
%

0
.
0
%

3
9
.
3
%

5
1
.
3
%

4
8
.
7
%

G
o
s
h
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n

An
t
e
l
o
p
e

- Lo
s
t

R
i
v
e
r

2
3
0

k
V

0.
0
%

1
0
0
.
0
%

0
.
0
%

2
5
.
0
%

2
5
.
0
%

7
5
.
0
%

G
o
s
h
e
n

Go
s
h
e
n

- Ea
g
l
e

R
o
c
k

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s
t
s
i
d
e

1
6
1

k
V

0.
0
%

1
0
0
.
0
%

0
.
0
%

2
5
.
0
%

2
5
.
0
%

7
5
.
0
%

G
o
s
h
e
n

Go
s
h
e
n

-

S
u
g
a
r

M
i
l
l

1
6
1

k
V

0.
0
%

1
0
0
.
0
%

0
.
0
%

2
5
.
0
%

2
5
.
0
%

7
5
.
0
%

G
o
s
h
e
n

Su
g
a
r

M
i
l
l

-Ri
g
b
y

1
6
1

k
V
0.
0
%

1
0
0
.
0
%

0
.
0
%

2
.
9
%

2
.
9
%

9
7
.
1
%

G
o
s
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n
Go
s
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n

- Ri
g
b
y

1
6
1

k
V

0.
0
%

1
0
0
.
0
%

0
.
0
%

2
.
8
%

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.
8
%

9
7
.
2
%

G
o
s
h
e
n

Ri
g
b
y

-

R
e
x
b
u
r
g
/
F
a
l
l

R
i
v
e
r

6
9

k
V

0.
0
%

1
0
0
.
0
%

0
.
0
%

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.
1
%

5
.
1
%

9
4
.
9
%

G
o
s
h
e
n

JO
I
N
T

P
U
R
C
H
A
S
E

A
N
D

S
A
L
E

A
G
R
E
E
M
E
N
T

–

E
X
H
I
B
I
T

A

P
a
g
e

|

A
-
3

Co
l
u
m
n
A
B

C

D

E

F

G

Tr
a
n
s
m
i
s
s
i
o
n

L
i
n
e
s
Se
g
m
e
n
t

O
w
n
e
r
s
h
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p

Pr
e
-
C
l
o
s
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n
g

Qu
a
n
t
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y

T
r
a
n
s
f
e
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e
d

t
o

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h
e
r

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w
n
e
r

Se
g
m
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n
t

O
w
n
e
r
s
h
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p

Po
s
t
-
C
l
o
s
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n
g

As
s
e
t

Ca
t
e
g
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y

4
C
o
r
n
e
r
s

T
r
a
n
s
m
i
s
s
i
o
n

I
P
C

%

P
A
C

%

I
P
C

%

P
A
C

%

I
P
C

%

P
A
C

%
Ca
m
p

W
i
l
l
i
a
m
s

- 4
C
o
r
n
e
r
s

0.
0
%

1
0
0
.
0
%

0
.
0
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8
.
0
%

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8
.
0
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7
2
.
0
%

F
o
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r

C
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r
n
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s
Ca
m
p

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l
l
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a
m
s

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n
a

0.
0
%

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0
0
.
0
%

0
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0
%

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5
.
0
%

1
5
.
0
%

8
5
.
0
%

F
o
u
r

C
o
r
n
e
r
s

90

S
o
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t
h

-

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a
m
p

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l
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a
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s

0.
0
%

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0
0
.
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%

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3
.
8
%

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3
.
8
%

8
6
.
2
%

F
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r

C
o
r
n
e
r
s

Te
r
m
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n
a
l

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m
p

W
i
l
l
i
a
m
s

0.
0
%

1
0
0
.
0
%

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0
%

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5
.
1
%

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5
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1
%

8
4
.
9
%

F
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C
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s

Be
n

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m
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- Te
r
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#
4

0.
0
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0
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.
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4
.
9
%

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4
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9
%

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5
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1
%

F
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r

C
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n
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s

Be
n

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m
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-

P
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p
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s

#
2

0.
0
%

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0
0
.
0
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.
0
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5
.
0
%

1
5
.
0
%

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5
.
0
%

F
o
u
r

C
o
r
n
e
r
s

JO
I
N
T

P
U
R
C
H
A
S
E

A
N
D

S
A
L
E

A
G
R
E
E
M
E
N
T

–

E
X
H
I
B
I
T

A

P
a
g
e

|

A
-
4

Co
l
u
m
n
A
B

C

D

E

F

G
Su
b
s
t
a
t
i
o
n
s

Se
g
m
e
n
t

O
w
n
e
r
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h
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p

Pr
e
-
C
l
o
s
i
n
g

Qu
a
n
t
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t
y

T
r
a
n
s
f
e
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d

t
o

O
t
h
e
r

Ow
n
e
r

Se
g
m
e
n
t

O
w
n
e
r
s
h
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p

Po
s
t
-
C
l
o
s
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n
g

As
s
e
t

Ca
t
e
g
o
r
y

Ki
n
p
o
r
t

3
4
5

k
V

S
u
b
s
t
a
t
i
o
n

I
P
C

%

P
A
C

%

I
P
C

%

P
A
C

%

I
P
C

%

P
A
C

%
Go
s
h
e
n

T
e
r
m
i
n
a
l

(
S
h
.

R
e
a
c
t
o
r
)

1
8
.
3
%

8
1
.
7
%

0
.
0
%

1
0
.
5
%

2
8
.
8
%

7
1
.
2
%

G
o
s
h
e
n
Po
p
u
l
u
s

T
e
r
m
i
n
a
l

(
S
e
r
i
e
s

C
a
p

&

S
h
.

R
e
a
c
t
o
r
)

2
9
.
0
%

7
1
.
0
%

0
.
0
%

0
.
0
%

2
9
.
0
%

7
1
.
0
%

Mi
d
p
o
i
n
t

T
e
r
m
i
n
a
l

(
S
e
r
i
e
s

C
a
p
)

7
3
.
2
%

2
6
.
8
%

1
4
.
6
%

0
.
0
%

5
8
.
6
%

4
1
.
4
%

B
o
r
a
h
/
M
i
d
p
o
i
n
t

W
e
s
t

Tr
a
n
s
f
o
r
m
e
r

T
e
r
m
i
n
a
l

(
3
4
5
/
2
3
0

k
V
)

1
0
0
.
0
%

0
.
0
%

0
.
0
%

0
.
0
%

1
0
0
.
0
%

0
.
0
%
34
5

k
V

B
u
s

A
s
s
e
t
s

(S
u
b
s
t
a
t
i
o
n

O
&
M

A
l
l
o
c
a
t
i
o
n
)

55
.
1
%

4
4
.
9
%

1
.
0
%

0
.
0
%

5
4
.
1
%

4
5
.
9
%

Se
g
m
e
n
t

O
w
n
e
r
s
h
i
p

Pr
e
-
C
l
o
s
i
n
g

Qu
a
n
t
i
t
y

T
r
a
n
s
f
e
r
r
e
d

t
o

O
t
h
e
r

Ow
n
e
r

Se
g
m
e
n
t

O
w
n
e
r
s
h
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p

Po
s
t
-
C
l
o
s
i
n
g

As
s
e
t

Ca
t
e
g
o
r
y

Bo
r
a
h

3
4
5

k
V

S
u
b
s
t
a
t
i
o
n

I
P
C

%

P
A
C

%

I
P
C

%

P
A
C

%

I
P
C

%

P
A
C

%

Po
p
u
l
u
s

#
1

T
e
r
m
i
n
a
l

(
S
e
r
i
e
s

C
a
p

&

S
h
.

R
e
a
c
t
o
r
)

2
9
.
0
%

7
1
.
0
%

0
.
0
%

0
.
0
%

2
9
.
0
%

7
1
.
0
%
Po
p
u
l
u
s

#
2

T
e
r
m
i
n
a
l

(
S
e
r
i
e
s

C
a
p

&

S
h
.

R
e
a
c
t
o
r
)

0
.
0
%

1
0
0
.
0
%

0
.
0
%

0
.
0
%

0
.
0
%

1
0
0
.
0
%
Mi
d
p
o
i
n
t

#
1

T
e
r
m
i
n
a
l

6
4
.
4
%

3
5
.
6
%

1
9
.
3
%

0
.
0
%

4
5
.
1
%

5
4
.
9
%

B
o
r
a
h
/
M
i
d
p
o
i
n
t

W
e
s
t
Mi
d
p
o
i
n
t

#
2

T
e
r
m
i
n
a
l

6
4
.
4
%

3
5
.
6
%

1
9
.
3
%

0
.
0
%

4
5
.
1
%

5
4
.
9
%

B
o
r
a
h
/
M
i
d
p
o
i
n
t

W
e
s
t
Tr
a
n
s
f
o
r
m
e
r

T
e
r
m
i
n
a
l

(
3
4
5
/
2
3
0

k
V
)

1
0
0
.
0
%

0
.
0
%

0
.
0
%

0
.
0
%

1
0
0
.
0
%

0
.
0
%
34
5

k
V

B
u
s

A
s
s
e
t
s

(S
u
b
s
t
a
t
i
o
n

O
&
M

A
l
l
o
c
a
t
i
o
n
)

51
.
6
%

4
8
.
4
%

7
.
7
%

0
.
0
%

4
3
.
9
%

5
6
.
1
%

JO
I
N
T

P
U
R
C
H
A
S
E

A
N
D

S
A
L
E

A
G
R
E
E
M
E
N
T

–

E
X
H
I
B
I
T

A

P
a
g
e

|

A
-
5

Co
l
u
m
n
A
B

C

D

E

F

G

Su
b
s
t
a
t
i
o
n
s

Se
g
m
e
n
t

O
w
n
e
r
s
h
i
p

Pr
e
-
C
l
o
s
i
n
g

Qu
a
n
t
i
t
y

T
r
a
n
s
f
e
r
r
e
d

t
o

O
t
h
e
r

Ow
n
e
r

Se
g
m
e
n
t

O
w
n
e
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Po
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l
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As
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Ca
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Ad
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e

3
4
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k
V

S
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b
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t
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t
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n

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P
C

%

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A
C

%

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P
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A
C

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P
C

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C

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Bo
r
a
h
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M
i
d
p
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t

#
1

T
e
r
m
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n
a
l

6
4
.
4
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5
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6
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9
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0
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5
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%

5
4
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9
%

B
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r
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h
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M
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W
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t
Bo
r
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h

#
2

T
e
r
m
i
n
a
l

6
4
.
4
%

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5
.
6
%

1
9
.
3
%

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.
0
%

4
5
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1
%

5
4
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9
%

B
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r
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h
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M
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p
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n
t

W
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t

Mi
d
p
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n
t

#
2

T
e
r
m
i
n
a
l

6
4
.
4
%

3
5
.
6
%

1
9
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3
%

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.
0
%

4
5
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1
%

5
4
.
9
%

B
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M
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p
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t

W
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t

Tr
a
n
s
f
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r

T
e
r
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n
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#
1

(
3
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3
8

k
V
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1
0
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Tr
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#
2

(
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k
V
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1
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5

k
V

B
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s

A
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s

(
S
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b
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t
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t
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o
n

O
&
M

A
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l
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c
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t
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o
n
)

78
.
7
%

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1
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1
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7
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2
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Se
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O
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p

Pr
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l
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T
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Ca
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Mi
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V

S
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P
C

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A
C

%

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P
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C

%

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C

%

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C

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p
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T
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r
m
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n
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(
S
h
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R
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c
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r
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6
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B
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M
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W
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Bo
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1

T
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R
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B
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W
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T
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R
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r
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4
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9
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0
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5
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B
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T
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R
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V

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e

T
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B
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1

(
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V
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Tr
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(
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e

T
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B
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M
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W
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t
34
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k
V

B
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t
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t
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n
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80
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JO
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P
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X
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|

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6

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Pr
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B
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#
2

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B
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t

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63
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0
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3
%

5
6
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7
%

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O
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p

Pr
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A
C

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P
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P
A
C

Mi
d
p
o
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t

T
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n
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l

3
7
.
0
%

6
3
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7
.
1
%

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.
0
%

2
9
.
9
%

7
0
.
1
%

B
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r
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h
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M
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d
p
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n
t

W
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Su
m
m
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k
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T
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r
m
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l

(
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R
e
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c
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r
)

2
2
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7
8
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0
%

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2
.
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7
8
.
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Tr
a
n
s
f
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r
m
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T
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1
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50
0

k
V

B
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s

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&
M

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t
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53
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7
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%

5
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6
%

4
9
.
4
%

JO
I
N
T

P
U
R
C
H
A
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A
N
D

S
A
L
E

A
G
R
E
E
M
E
N
T

–

E
X
H
I
B
I
T

A

P
a
g
e

|

A
-
7

Co
l
u
m
n
A
B

C

D

E

F

G

Su
b
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t
a
t
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n
s

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t

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p

Pr
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Qu
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t
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Ot
h
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r

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Ca
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y

Th
r
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K
n
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3
4
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S
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b
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t
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n

IP
C

%

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C

%

I
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C

%

P
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C

%

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P
C

%

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A
C

%

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m

B
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T
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h
.

R
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r

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29
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8
%

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.
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.
0
%

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9
.
2
%

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0
.
8
%

Go
s
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n

T
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m
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n
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l

29
.
2
%

7
0
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8
%

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2
%

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8
%
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f
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T
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l

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0
%

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0
%

G
o
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h
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n

34
5

k
V

B
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s

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t
s

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b
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t
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t
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n

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c
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t
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)
19
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6
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%

2
6
.
1
%

7
3
.
9
%

JO
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P
U
R
C
H
A
S
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A
N
D

S
A
L
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A
G
R
E
E
M
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N
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–

E
X
H
I
B
I
T

A

P
a
g
e

|

A
-
8

Co
l
u
m
n
A
B

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D

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F

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b
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t
a
t
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O
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Pr
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t
o

Ot
h
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r

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w
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r

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g
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t

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Po
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t
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As
s
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t

Ca
t
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y

Th
r
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M
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K
n
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l
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1
3
8

k
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S
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b
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t
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t
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n

I
P
C

%

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C

%

I
P
C

%

P
A
C

%

I
P
C

%

P
A
C

%
Ag
r
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m T
e
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m
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l

0.
0
%

1
0
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0
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.
0
%

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.
0
%

1
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Mo
n
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#
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Mo
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#
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Tr
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Ca
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Go
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Th
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K
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T
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#
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#
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(
3
4
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(
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(
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|

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1

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Br
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T
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(
2
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(
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&
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)

40
.
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6
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%

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7
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–

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A

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g
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|

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1
2

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T
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16
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C

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Go
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T
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T
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.
8
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.
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G
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T
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(
P
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)

T
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(
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k
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)

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(
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4
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V
)
#
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(
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4
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V
)
#
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2
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G
o
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h
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n

16
1

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4
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0
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.
0
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6
6
.
0
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JO
I
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T

P
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R
C
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A
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A
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S
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M
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–

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B
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A

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|

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1
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Co
l
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m
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A
B

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Pr
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#
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0
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G
o
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h
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n

46

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b
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)

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.
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.
0
%

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G
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Ro
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Gr
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4

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34
5
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5

k
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JO
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P
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A
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A
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S
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–

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A

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|

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JO
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2

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JOINT PURCHASE AND SALE AGREEMENT – EXHIBIT B-1 Page | B-1-1

Exhibit B-1
Idaho Power Bill of Sale
THIS IDAHO POWER BILL OF SALE is made and entered into as of [__________] (this “Bill
of Sale”), by Idaho Power Company, an Idaho corporation (“Idaho Power”), for the benefit of PacifiCorp,
an Oregon corporation (“PacifiCorp”). Capitalized terms used but not defined in this Bill of Sale shall
have the meanings assigned to such terms in the Agreement (as defined below).
RECITALS
WHEREAS, pursuant to that certain Joint Purchase and Sale Agreement, dated as of [__________]
(the “Agreement”), between Idaho Power and PacifiCorp, Idaho Power has agreed, subject to the terms
and conditions of the Agreement, to sell, assign, convey, transfer and deliver to PacifiCorp, free and clear
of all Encumbrances (except for Idaho Power Permitted Encumbrances and the lien of the Idaho Power
Mortgage on the PacifiCorp Acquired Assets, which lien will be released after Closing in accordance with
Section 2.10(a) of the Agreement), undivided ownership interests, as tenant in common, equal to the
PacifiCorp Ownership Percentages, in all of Idaho Power’s right, title and interest in, to and under the
Purchased Assets (as more fully described below); and
WHEREAS, pursuant to the Agreement, Idaho Power has agreed to enter into this Bill of Sale
pursuant to which the PacifiCorp Ownership Percentages in the Purchased Assets will be sold, transferred,
assigned, conveyed, set over and delivered to PacifiCorp (as more fully described below).
NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, Idaho Power hereby agrees
as follows:
1. Sale. Subject to the terms and conditions of the Agreement, including delivery of the
consideration specified therein, Idaho Power does hereby sell, assign, convey, transfer and deliver to
PacifiCorp, free and clear of all Encumbrances (except for Idaho Power Permitted Encumbrances and the
lien of the Idaho Power Mortgage on the PacifiCorp Acquired Assets, which lien will be released after
Closing in accordance with Section 2.10(a) of the Agreement), undivided ownership interests, as tenant
in common, equal to the PacifiCorp Ownership Percentages, in all of Idaho Power’s right, title and interest
in and to the PacifiCorp Acquired Assets (the “Purchased Assets”).
2. Excluded Assets Not Assigned. Notwithstanding anything expressed herein to the
contrary, the Idaho Power Excluded Assets are specifically excluded from the Purchased Assets as
provided in the Agreement and shall be retained by Idaho Power at and following the Closing.
3. Further Assurances. Idaho Power shall, from time to time after the delivery of this Bill of
Sale, at PacifiCorp’s request and expense, prepare, execute and deliver to PacifiCorp such other
instruments of conveyance and transfer and take such other action as PacifiCorp may reasonably request
in order to sell, transfer, convey, assign and deliver and vest in PacifiCorp, its successors and assigns, title
to and possession of the PacifiCorp Ownership Percentages in the PacifiCorp Acquired Assets free and
clear of all Encumbrances (except for Idaho Power Permitted Encumbrances and the lien of the Idaho
Power Mortgage on the PacifiCorp Acquired Assets, which lien will be released after Closing in
JOINT PURCHASE AND SALE AGREEMENT – EXHIBIT B-1 Page | B-1-2

accordance with Section 2.10(a) of the Agreement) as provided in the Agreement and to further effect the
purposes of this Bill of Sale.
4. Relationship to Agreement; Construction. This Bill of Sale is delivered pursuant to the
Agreement. This Bill of Sale and the provisions hereof are subject, in all respects, to the terms and
conditions of the Agreement, including all of the covenants, representations and warranties contained
therein, all of which shall survive the execution and delivery of this Bill of Sale to the extent indicated in
the Agreement. In the event of any conflict between the terms of the Agreement and the terms of this Bill
of Sale, the terms of the Agreement shall prevail.
5. No Waiver. It is understood and agreed that nothing in this Bill of Sale shall constitute a
waiver or release of any claims arising out of the contractual relationships between Idaho Power and
PacifiCorp.
6. No Third Party Beneficiary. Nothing in this Bill of Sale, express or implied, is intended or
shall be construed to confer upon, or give to, any person other than PacifiCorp, Idaho Power and their
successors and permitted assigns any remedy or claim under or by reason of this Bill of Sale or any
agreements, terms, covenants or conditions hereof and all the agreements, terms, covenants and conditions
contained in this Bill of Sale shall be for the sole and exclusive benefit of PacifiCorp, Idaho Power and
their successors and permitted assigns.
7. Binding Effect. This Bill of Sale and all of the provisions hereof shall be binding upon and
shall inure to the benefit of Idaho Power, PacifiCorp and their respective successors and permitted assigns.
8. Governing Law. This Bill of Sale shall be governed by and construed in accordance with
the laws of the State of Idaho (regardless of the laws that might otherwise govern under applicable
principles of conflicts of law) as to all matters, including matters of validity, construction, effect,
performance and remedies.
9. Severability. Any term or provision of this Bill of Sale that is invalid or unenforceable in
any situation will not affect the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other situation or in any other
jurisdiction.
10. Counterparts. This Bill of Sale may be executed in one or more counterparts, each of which
will be deemed to be an original copy of this Bill of Sale and all of which, when taken together, will be
deemed to constitute one and the same agreement.
11. Notices. All notice, requests, demands and other communications under this Bill of Sale
shall be given in accordance with Section 7.3 of the Agreement and at the addresses set forth therein.
[Signature page follows.]
JOINT PURCHASE AND SALE AGREEMENT – EXHIBIT B-1 Page | B-1-3
IN WITNESS WHEREOF, Idaho Power has caused its duly authorized representative to
execute this Bill of Sale as of the date first above written.
IDAHO POWER COMPANY
By: ________________________
Name:
Title:

JOINT PURCHASE AND SALE AGREEMENT – EXHIBIT B-1 Page | B-1-4
Schedule 1 to Idaho Power Bill of Sale
[Schedule to be attached at Closing to contain detailed information for each item of equipment
based upon the email exchanged between the Parties pursuant to Section 4.8]
JOINT PURCHASE AND SALE AGREEMENT – EXHIBIT B-2 Page | B-2-1

Exhibit B-2
PacifiCorp Bill of Sale
THIS PACIFICORP BILL OF SALE is made and entered into as of [__________] (this “Bill of
Sale”), by PacifiCorp, an Oregon corporation (“PacifiCorp”), for the benefit of Idaho Power Company,
an Idaho corporation (“Idaho Power”). Capitalized terms used but not defined in this Bill of Sale shall
have the meanings assigned to such terms in the Agreement (as defined below).
RECITALS
WHEREAS, pursuant to that certain Joint Purchase and Sale Agreement, dated as of [_________]
(the “Agreement”), between PacifiCorp and Idaho Power, PacifiCorp has agreed, subject to the terms and
conditions of the Agreement, to sell, assign, convey, transfer and deliver to Idaho Power, free and clear of
all Encumbrances (except for PacifiCorp Permitted Encumbrances and the lien of the PacifiCorp Mortgage
on the Idaho Power Acquired Assets, which lien will be released after Closing in accordance with Section
2.10(b) of the Agreement), undivided ownership interests, as tenant in common, equal to the Idaho Power
Ownership Percentages, in all of PacifiCorp’s right, title and interest in, to and under the Purchased Assets
(as more fully described below); and
WHEREAS, pursuant to the Agreement, PacifiCorp has agreed to enter into this Bill of Sale
pursuant to which the Idaho Power Ownership Percentages in the Purchased Assets will be sold,
transferred, assigned, conveyed, set over and delivered to Idaho Power (as more fully described below).
NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, PacifiCorp hereby agrees as
follows:
1. Sale. Subject to the terms and conditions of the Agreement, including delivery of the
consideration specified therein, PacifiCorp does hereby sell, assign, convey, transfer and deliver to Idaho
Power, free and clear of all Encumbrances (except for PacifiCorp Permitted Encumbrances and the lien
of the PacifiCorp Mortgage on the Idaho Power Acquired Assets, which lien will be released after Closing
in accordance with Section 2.10(b) of the Agreement), undivided ownership interests, as tenant in
common, equal to the Idaho Power Ownership Percentages, in all of PacifiCorp’s right, title and interest
in and to the Idaho Power Acquired Assets (the “Purchased Assets”).
2. Excluded Assets Not Assigned. Notwithstanding anything expressed herein to the
contrary, the PacifiCorp Excluded Assets are specifically excluded from the Purchased Assets as provided
in the Agreement and shall be retained by PacifiCorp at and following the Closing.
3. Further Assurances. PacifiCorp shall, from time to time after the date hereof, at Idaho
Power’s request and expense, prepare, execute and deliver to Idaho Power such other instruments of
conveyance and transfer and take such other action as Idaho Power may reasonably request in order to
sell, transfer, convey, assign and deliver and vest in Idaho Power, its successors and assigns, title to and
possession of the Idaho Power Ownership Percentages in the Idaho Power Acquired Assets free and clear
of all Encumbrances (except for PacifiCorp Permitted Encumbrances the lien of the PacifiCorp Mortgage
on the Idaho Power Acquired Assets, which lien will be released after Closing in accordance with Section
JOINT PURCHASE AND SALE AGREEMENT – EXHIBIT B-2 Page | B-2-2

2.10(b) of the Agreement) as provided in the Agreement and to further effect the purposes of this Bill of
Sale.
4. Relationship to Agreement; Construction. This Bill of Sale is delivered pursuant to the
Agreement. This Bill of Sale and the provisions hereof are subject, in all respects, to the terms and
conditions of the Agreement, including all of the covenants, representations and warranties contained
therein, all of which shall survive the execution and delivery of this Bill of Sale to the extent indicated in
the Agreement. In the event of any conflict between the terms of the Agreement and the terms of this Bill
of Sale, the terms of the Agreement shall prevail.
5. No Waiver. It is understood and agreed that nothing in this Bill of Sale shall constitute a
waiver or release of any claims arising out of the contractual relationships between PacifiCorp and Idaho
Power.
6. No Third Party Beneficiary. Nothing in this Bill of Sale, express or implied, is intended or
shall be construed to confer upon, or give to, any person other than Idaho Power, PacifiCorp and their
successors and permitted assigns any remedy or claim under or by reason of this Bill of Sale or any
agreements, terms, covenants or conditions hereof and all the agreements, terms, covenants and conditions
contained in this Bill of Sale shall be for the sole and exclusive benefit of Idaho Power, PacifiCorp and
their successors and permitted assigns.
7. Binding Effect. This Bill of Sale and all of the provisions hereof shall be binding upon and
shall inure to the benefit of PacifiCorp, Idaho Power and their respective successors and permitted assigns.
8. Governing Law. This Bill of Sale shall be governed by and construed in accordance with
the laws of the State of Idaho (regardless of the laws that might otherwise govern under applicable
principles of conflicts of law) as to all matters, including matters of validity, construction, effect,
performance and remedies.
9. Severability. Any term or provision of this Bill of Sale that is invalid or unenforceable in
any situation will not affect the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other situation or in any other
jurisdiction.
10. Counterparts. This Bill of Sale may be executed in one or more counterparts, each of which
will be deemed to be an original copy of this Bill of Sale and all of which, when taken together, will be
deemed to constitute one and the same agreement.
11. Notices. All notice, requests, demands and other communications under this Bill of Sale
shall be given in accordance with Section 7.3 of the Agreement and at the addresses set forth therein.
[Signature page follows.]
JOINT PURCHASE AND SALE AGREEMENT – EXHIBIT B-2 Page | B-2-3
IN WITNESS WHEREOF, PacifiCorp has caused its duly authorized representative to
execute this Bill of Sale as of the date first above written.
PACIFICORP
By: ________________________
Name:
Title:

JOINT PURCHASE AND SALE AGREEMENT – EXHIBIT B-2 Page | B-2-4
Schedule 1 to PacifiCorp Power Bill of Sale
[Schedule to be attached at Closing to contain detailed information for each item of equipment
based upon the email exchanged between the Parties pursuant to Section 4.8]
Exhibit C
Form of Amended and Restated Joint Ownership and Operating Agreement
JOINT OWNERSHIP AND OPERATING AGREEMENT
BETWEEN
IDAHO POWER COMPANY
AND
PACIFICORP
DATED
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS; RULES OF INTERPRETATION .................................................. 3
1.1 Definitions.............................................................................................................. 3
1.2 Rules of Construction. ......................................................................................... 12
ARTICLE II TERM..................................................................................................................... 13
2.1 Effectiveness of this Agreement.......................................................................... 13
2.2 Term..................................................................................................................... 13
2.3 Termination.......................................................................................................... 13
2.4 Effect of Termination........................................................................................... 14
ARTICLE III TRANSMISSION FACILITIES OWNERSHIP INTERESTS ............................ 14
3.1 Ownership Interests. ............................................................................................ 14
3.2 Capacity Allocations............................................................................................ 15
3.3 Adjustment of Capacity Allocations and Ownership Interests. ........................... 16
3.4 Qualified Owner................................................................................................... 18
3.5 No Right to Use. .................................................................................................. 18
3.6 Payments.............................................................................................................. 18
3.7 Waiver of Partition Rights................................................................................... 18
3.8 Nonexclusive License to Enter and Use Real Property. ...................................... 18
ARTICLE IV OPERATOR OF TRANSMISSION FACILITIES .............................................. 2
4.1 Appointment of Operator. .................................................................................... 2
4.2 Authority of Operator. ......................................................................................... 21
4.3 Delegation of Responsibilities. ............................................................................ 22
4.4 Governmental Authorizations. ............................................................................. 22
4.5 Audit. ................................................................................................................... 23
4.6 Insurance.............................................................................................................. 24
4.7 Invoices. ............................................................................................................... 24
4.8 Disputed Amounts. .............................................................................................. 25
4.9 Assistance. ........................................................................................................... 26
4.10 Remedies.............................................................................................................. 26
ARTICLE V OPERATION AND MAINTENANCE OF TRANSMISSION FACILITIES ...... 26
TABLE OF CONTENTS
(continued)
Page
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5.1 Compliance; Standard of Work. .......................................................................... 26
5.2 Operation and Maintenance; Outages and Outage Coordination; Capital
Upgrades and Improvements. .............................................................................. 27
5.3 Requests for Generation or Transmission Interconnection Service. .................... 29
5.4 Requests for Third-Party Joint-Use of Transmission Facilities. .......................... 29
5.5 Shared Capacity Transmission Facility. ..............................................................
ARTICLE VI TRANSMISSION FACILITIES CAPITAL UPGRADES PROPOSED BY
AN OWNER.................................................................................................. 31
6.1 Capital Upgrades.................................................................................................. 31
6.2 McNary Transmission Project. ............................................................................ 34
ARTICLE VII PHYSICAL DAMAGE TO TRANSMISSION FACILITIES;
CONDEMNATION....................................................................................... 34
7.1 Rebuilding Damaged Facilities............................................................................ 34
7.2 Decision not to Rebuild. ...................................................................................... 35
7.3 Purchase of Ownership Interest. .......................................................................... 36
7.4 Cooperation. ......................................................................................................... 36
7.5 Condemnation. ..................................................................................................... 36
ARTICLE VIII RETIREMENT AND DECOMMISSIONING OF TRANSMISSION
FACILITIES .................................................................................................. 37
8.1 Decision to Retire Transmission Facilities.......................................................... 37
8.2 Costs of Decommissioning. ................................................................................. 38
8.3 Decommissioning Notice; Purchase of Ownership Interest. ............................... 38
8.4 Cooperation. ......................................................................................................... 38
ARTICLE IX TRANSMISSION SYSTEM BOUNDARIES ..................................................... 39
9.1 Points of Interconnection; Points of Balancing Authority Area Adjacency. ....... 39
9.2 E-Tags.................................................................................................................. 39
9.3 Dynamic Transfer Capability Rights................................................................... 39
9.4 RESERVED. ........................................................................................................ 39
9.5 Electric Losses. .................................................................................................... 39
TABLE OF CONTENTS
(continued)
Page
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9.6 Jim Bridger Project Generation RAS................................................................... 40
ARTICLE X TRANSMISSION SYSTEMS OPERATION AND MAINTENANCE ............... 40
10.1 Service Conditions. .............................................................................................. 40
10.2 Survival. ............................................................................................................... 41
ARTICLE XI FORCE MAJEURE.............................................................................................. 41
11.1 Force Majeure Defined. ....................................................................................... 41
11.2 Effect of Force Majeure....................................................................................... 4
ARTICLE XII EVENTS OF DEFAULT .................................................................................... 4
12.1 Event of Default. .................................................................................................. 4
12.2 Cure by Non-Defaulting Party............................................................................. 43
12.3 Remedies.............................................................................................................. 43
ARTICLE XIII REPRESENTATIONS AND WARRANTIES.................................................. 44
13.1 Representations and Warranties of Idaho Power................................................. 44
13.2 Representations and Warranties of PacifiCorp.................................................... 44
ARTICLE XIV INDEMNIFICATION........................................................................................ 45
14.1 Indemnities........................................................................................................... 45
14.2 Notice and Participation....................................................................................... 46
14.3 Net Amount. ......................................................................................................... 47
14.4 No Release of Insurers......................................................................................... 47
14.5 Mitigation............................................................................................................. 48
14.6 Assertion of Claims.............................................................................................. 48
14.7 Survival of Obligation.......................................................................................... 48
14.8 Limitation on Liability......................................................................................... 48
ARTICLE XV PROPRIETARY INFORMATION..................................................................... 49
15.1 Disclosure of Proprietary Information Prohibited. .............................................. 49
15.2 Disclosure by Representatives. ............................................................................ 49
15.3 Permitted Disclosures. ......................................................................................... 49
15.4 Injunctive Relief................................................................................................... 50
TABLE OF CONTENTS
(continued)
Page
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15.5 Publicity............................................................................................................... 50
15.6 Proprietary Information Defined.......................................................................... 50
15.7 Survival. ............................................................................................................... 51
ARTICLE XVI TAXES............................................................................................................... 51
16.1 No Partnership. .................................................................................................... 51
16.2 761 Election. ........................................................................................................ 51
16.3 Responsibility for Taxes. ..................................................................................... 51
16.4 Indemnification.................................................................................................... 52
16.5 Determination of Depreciation and Other Matters. ............................................. 52
ARTICLE XVII DISPUTES........................................................................................................ 52
17.1 Exclusive Procedure............................................................................................. 52
17.2 Dispute Notices.................................................................................................... 52
17.3 Informal Dispute Resolution. ............................................................................... 53
17.4 Submission of Dispute to FERC or Approved Courts. ........................................ 53
17.5 Continued Performance. ...................................................................................... 53
ARTICLE XVIII ASSIGNMENT............................................................................................... 54
18.1 Prohibited Transfers and Assignments. ............................................................... 54
18.2 Permitted Assignments and Transfers. ................................................................ 54
18.3 FERC Approval. .................................................................................................. 55
ARTICLE XIX MISCELLANEOUS .......................................................................................... 55
19.1 Notices. ................................................................................................................ 55
19.2 Parties Bound. ...................................................................................................... 57
19.3 Amendments. ....................................................................................................... 57
19.4 Waivers. ............................................................................................................... 57
19.5 Choice of Law...................................................................................................... 58
19.6 Headings. ............................................................................................................. 58
19.7 Relationship of Parties......................................................................................... 58
19.8 Severability.......................................................................................................... 58
TABLE OF CONTENTS
(continued)
Page
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19.9 No Third Party Beneficiaries............................................................................... 59
19.10 Further Assurances............................................................................................... 59
19.11 Conflict of Interest. .............................................................................................. 59
19.12 Exhibits and Schedules. ....................................................................................... 59
19.13 Counterparts. ........................................................................................................ 60
19.14 Entire Agreement................................................................................................. 60
EXHIBITS
Exhibit A [Reserved]
Exhibit B [Reserved]
Exhibit C Ownership Interests; Directional Capacity Allocations; Directional Capacity
Allocation Percentages
Exhibit D Monthly Transmission Facilities O&M Charge; Monthly Substation O&M
Charge; Monthly Common Equipment Charge
Exhibit E [Reserved]
Exhibit F Acquisition Costs
Exhibit G Joint Ownership Transmission Loss Calculation and Allocation
Methodology
SCHEDULES
Schedule 13.1(f) Idaho Power Governmental Authorizations
Schedule 13.2(f) PacifiCorp Governmental Authorizations
JOINT OWNERSHIP AND OPERATING AGREEMENT
This Joint Ownership and Operating Agreement, dated as of October 24, 2014, as
amended and restated on October 30, 2015, as further amended and restated on April 27, 2016,
as further amended and restated on August 22, 2019 and as further amended on XXX 2023, is
between PacifiCorp, an Oregon corporation, (“PacifiCorp”), and Idaho Power, an Idaho
corporation (“Idaho Power”). Each of PacifiCorp and Idaho Power are sometimes hereinafter
referred to individually as “Party” and collectively as “Parties”.
RECITALS:
WHEREAS, Idaho Power is a transmission provider which owns, controls and operates,
or in certain cases only operates, equipment for the transmission of electric power and energy
located in Idaho, Oregon, Washington and Wyoming (the “Idaho Power Transmission System”);
WHEREAS, Idaho Power uses the Idaho Power Transmission System, its distribution
system and its generation resources to provide retail and wholesale electric services, and is the
NERC recognized Balancing Authority Operator of one Balancing Authority Area;
WHEREAS, PacifiCorp is a transmission provider which owns, control and operates, or
in certain cases only operates, equipment for the transmission of electric power and energy
located in Idaho, Oregon, Washington and Wyoming (the “PacifiCorp Transmission System”);
WHEREAS, PacifiCorp uses the PacifiCorp Transmission System, its distribution system
and its generation resources to provide retail and wholesale electric services, and is the NERC
recognized Balancing Authority Operator of two Balancing Authority Areas (PACW and
PACE);
WHEREAS, the Idaho Power Transmission System and the PacifiCorp Transmission
System interconnect at the Points of Interconnection and the Idaho Power and PacifiCorp
Balancing Authority Areas are considered Adjacent Balancing Authority Areas at the Points of
Balancing Authority Area Adjacency;
WHEREAS, the Idaho Power Transmission System and the PacifiCorp Transmission
System include certain equipment for the transmission of electric power and energy located in
Idaho and Wyoming that are jointly owned and were operated pursuant to certain legacy
agreements between the Parties;
WHEREAS, the Parties previously desired to exchange with one another certain jointly-
owned and wholly-owned equipment to provide each Party with transmission capacity that better
aligns with the current configuration of its Transmission System and current load service
obligations, each of which had changed since the jointly-owned and wholly-owned equipment
were originally constructed;
WHEREAS, in order to facilitate such an exchange, the Parties previously entered into a
Joint Purchase and Sale Agreement (the “JPSA”), dated as of October 24, 2014 (the “Execution
Date”), pursuant to which at the closing of the transaction contemplated by the JPSA: (i) the
2
ownership of certain jointly-owned equipment was reallocated and the ownership of certain
additional equipment was exchanged between the Parties; and (ii) certain legacy agreements
between the Parties were terminated and the transmission service contained therein converted to
OATT service;
WHEREAS, PacifiCorp individually owns additional equipment that serve and are a part
of the PacifiCorp Transmission System and will not be part of the Transmission Facilities, but
that PacifiCorp will make available to support the operation of the Transmission Facilities (as
further defined in Section 1.1, the “PacifiCorp Common Equipment”);
WHEREAS, Idaho Power individually owns additional equipment that serve and are a
part of the Idaho Power Transmission System and will not be part of the Transmission Facilities,
but that Idaho Power will make available to support the operation of the Transmission Facilities
(as further defined in Section 1.1, the “Idaho Power Common Equipment” and, together with the
PacifiCorp Common Equipment, the “Common Equipment”); and
WHEREAS, in connection with the JPSA, the Parties previously entered into a Joint
Ownership and Operating Agreement, dated as of the Execution Date (the “2014 Agreement”),
in order to: (1) acknowledge each Party’s ownership interest in the jointly-owned Transmission
Facilities; (2) allocate the transmission capacity of the jointly-owned Transmission Facilities; (3)
allocate operational responsibility for the Transmission Facilities as between the Parties; (4)
define the responsibility of the Operators with respect to the operation and maintenance of the
Transmission Facilities and Common Equipment; and (5) define the responsibilities of the
Owners with respect to the operation of their Transmission Systems in relation to the other.
WHEREAS, pursuant to 9.5 of the 2014 Agreement, the Parties agreed to, on or before
the Effective Date of the 2014 Agreement, develop an OATT-based losses methodology (the
“Losses Methodology”);
WHEREAS, the Parties developed the Losses Methodology and on October 31, 2015
amended and restated the 2014 Agreement in its entirety to, among other things, incorporate the
Losses Methodology as Exhibit G thereto and make certain conforming revisions to Section 9.5
thereof (the “2015 Agreement”);
WHEREAS, the Parties amended and restated the 2015 Agreement on April 27, 2016 to
include certain additional Transmission Facilities and Common Equipment and to clarify the
application of certain provisions of the 2015 Agreement with respect to Common Equipment and
certain wholly-owned Transmission Facilities, subject to and on the terms and conditions
provided for herein (the “2016 Agreement”); and
WHEREAS, the Parties amended and restated the 2016 Agreement to: (i) remove the lists
of Common Equipment for both Parties; (ii) revise certain provisions and Exhibits in relation to
equipment that was formerly owned by the U.S. Department of Energy but is now jointly-owned
by the Parties under this Agreement; (iii) revise each Party’s Ownership Interest and Directional
Capacity Allocation and Directional Capacity Allocation Percentage in the Goshen-Jefferson 161
3
kV line pursuant to Article III; (iv) revise the jointly-owned mileage of the American Falls-
Wheelon 138 kV line; (v) establish a process whereby an Operator may approve requests for
certain third-party joint-use of the Owners’ Transmission Facilities; and (vi) update Exhibit G to
reflect current information in Table 1 (the “2019 Agreement”);
WHEREAS, the Parties amended and restated the 2019 agreement to: (i) revise each
Party’s Ownership Interest and Directional Capacity Allocation and Directional Capacity
Allocation Percentage in the Jim Bridger substation pursuant to Article III; (ii) revise each
Party’s Ownership Interest and Directional Capacity Allocation and Directional Capacity
Allocation Percentage in the Goshen substation pursuant to Article III, (iii) modify the role of the
Owner and the Operator related to requests for generation or transmission interconnection
service to the jointly-owned Transmission Facilities in Section 5.3, (iv) to remove references to
Jim Bridger generating plant as a pseudo tied resource to the PacifiCorp West Balancing Area
Authority, (v) update Section 6.1 regarding capital upgrades to clarify the scope of issues to
which the Proposing Owner and Non-Proposing Owner must agree; and (vi) revise each Party’s
Ownership Interest and Directional Capacity Allocation for Bridger West and West of Populus
Transmission in the west-to-east direction to match the accepted WECC path rating (the “2023
Agreement”); and
WHEREAS, the Parties now seek to amend and restate the 2023 Agreement to: (i)
incorporate the Total Directional Capacity, each Party’s Ownership Interest and Directional
Capacity Allocation, and Directional Capacity Allocation Percentage in the assets exchanged in
the Joint Purchase and Sale Agreement executed by the Parties on March 24, 2023; and (ii) add
the Shared Capacity Transmission Facility definition and its associated operational provision in
Section 5.5.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Idaho Power and PacifiCorp agree as follows:
ARTICLE I
DEFINITIONS; RULES OF INTERPRETATION
1.1 Definitions.
Unless the context otherwise requires, the following capitalized terms have the meanings given
to them below:
“Adjacent Balancing Authority Area” has the meaning set forth in the Reliability
Standards.
“Affected Party” has the meaning given to such term in Section 11.1.
“Affiliate” means, with respect to a Person, each other Person that, directly or indirectly,
controls, is controlled by or is under common control with, such designated Person; provided,
however, that in the case of PacifiCorp, the term “Affiliate” does not include Berkshire
4
Hathaway Inc. or any of its affiliates (other than PacifiCorp and any direct or indirect
subsidiaries of PacifiCorp), and no provision of this Agreement shall apply to, be binding on,
create any liability of, or otherwise restrict the activities of, Berkshire Hathaway Inc. or any of its
affiliates (other than PacifiCorp and any direct or indirect subsidiaries of PacifiCorp). For the
purposes of this definition, “control” (including with correlative meanings, the terms “controlled
by” and “under common control with”), as used with respect to any Person, shall mean (a) the
direct or indirect right to cast at least fifty percent (50%) of the votes exercisable at an annual
general meeting (or its equivalent) of such Person or, if there are no such rights, ownership of at
least fifty percent (50%) of the equity or other ownership interest in such Person, or (b) the right
to direct the policies or operations of such Person.
“AFUDC” means allowance for funds used during construction and has the meaning set
forth in 18 CFR § 101, Electric Plant Instructions § 17 (2014), as amended from time-to-time.
“Agreement” means this Joint Ownership and Operating Agreement (including all
Exhibits and Schedules attached hereto), as the same may be amended and supplemented from
time to time in accordance with the terms hereof.
“Amendment” has the meaning given to such term in Section 6.1(a)(i).
“Approved Courts” has the meaning given to such term in Section 17.4.
“Automatic Generation Control” has the meaning set forth in the Reliability Standards.
“Balancing Authority Area” means the collection of generation, transmission and loads
within the metered boundaries of each Owner determined in accordance with the Reliability
Standards.
“Bankrupt” means, with respect to any Person, that such Person: (a) files a petition or
otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause
of action under any bankruptcy, insolvency, reorganization or similar law, or has any such
petition filed or commenced against it; (b) makes an assignment or any general arrangement for
the benefit of creditors; (c) otherwise becomes insolvent (however evidenced); (d) has a
liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect
to it or any substantial portion of its property or assets; or (e) is generally unable to pay its debts
as they fall due.
“Business Days” means any day except a Saturday, Sunday and any day which is a legal
holiday or a day on which banking institutions in New York, New York are authorized or
obligated by Governmental Requirements to close.
“Capital Upgrade Notice” has the meaning given to such term in Section 6.1(a).
“Claims” has the meaning given to such term in Section 14.1(a).
“Closing Date” has the meaning given to such term in the JPSA.
5
“Code” has the meaning given to such term in Section 16.2.
“Commercially Reasonable Efforts” means the level of effort that a reasonable electric
utility would take in light of the then known facts and circumstances to accomplish the required
action at a then commercially reasonable cost (taking into account the benefits to be gained
thereby).
“Common Equipment” has the meaning given to such term in the recitals and includes all
ancillary equipment necessary to support the operation of the Substations, including land, site
preparation, improvements (control building and other permanent buildings), communications
equipment, control equipment, SCADA, relays, batteries, battery chargers, cable trench, cabling,
local service, security equipment, fencing, yard gravel, and grounding. Each Party shall maintain
an accurate and complete list, or otherwise designate in a reasonable manner in its records,
Common Equipment that such Party owns and that is subject to this Agreement.
“Continuing Owner” has the meaning given to such term in Section 7.3.
“Costs” means, with respect to the construction, reconstruction or upgrade of the
Transmission Facilities or Common Equipment by or on behalf of the Operator responsible for
such Transmission Facilities or Common Equipment pursuant to this Agreement, including
capital upgrades and improvements thereto, such Operator’s actual cost of: (a) preliminary
surveys and investigations and property acquisitions in connection therewith; and (b) the
development, design, engineering, procurement, construction, reconstruction and upgrade of
such Transmission Facilities and Common Equipment, including an allowance for AFUDC and
applicable overheads determined in accordance with such Operator’s customary practices, as
calculated in accordance with FERC’s Uniform System of Accounts; provided, however,
AFUDC shall be recovered by Operators, if at all, in accordance with Section 4.7(b).
“Damage Notice” has the meaning given to such term in Section 7.1(a).
“Damaged Facilities” has the meaning given to such term in Section 7.1(a).
“Decommissioning Notice” has the meaning given to such term in Section 8.3.
“Defaulting Party” has the meaning given to such term in Section 12.1.
“Delegate” has the meaning given to such term in Section 4.3.
“Directional Capacity Allocation” has the meaning given to such term in Section 3.2(a).
“Directional Capacity Allocation Percentage” has the meaning given to such term in
Section 3.2(a).
“Dispute” has the meaning given to such term in Section 17.1.
“Dispute Notice” has the meaning given to such term in Section 17.2.
6
“Dynamic Transfer Capability” means the intra-hour deviation from scheduled flow.
“Effective Date” has the meaning given to such term in Section 2.1.
“Energy Emergency” has the meaning set forth in the applicable version of NERC
Reliability Standard EOP-002, which pertains to capacity and energy emergencies.
“Event of Default” has the meaning given to such term in Section 12.1.
“Execution Date” has the meaning given to such term in the preamble.
“Executive(s)” has the meaning given to such term in Section 17.3(a).
“Excluded Transmission Facilities Sites” has the meaning given to such term in
Section 3.8(h).
“FERC” means the Federal Energy Regulatory Commission.
“FERC Methodology” has the meaning given to such term in Section 4.7(b).
“FERC Uniform System of Accounts” means the Uniform System of Accounts
Prescribed for Public Utilities and Licensees Subject to the Jurisdiction of the Federal Power Act
prescribed by FERC, and codified as of the Execution Date at 18 C.F.R. Part 101, as the same
may be amended from time to time.
“Facilities Proposed for Retirement” means the Transmission Facilities or Common
Equipment that are the subject of a Decommissioning Notice.
“Force Majeure” has the meaning given to such term in Section 11.1.
“Good Utility Practice” means any of the practices, methods and acts engaged in or
approved by a significant portion of the electric utility industry during the relevant time period,
or any of the practices, methods and acts which, in the exercise of reasonable judgment in light
of the facts known at the time the decision was made, would have been expected to accomplish
the desired result at a reasonable cost consistent with good business practices, reliability, safety
and expedition. Good Utility Practice is not intended to be limited to the optimum practice,
method, or act to the exclusion of all others, but rather to be acceptable practices, methods, or
acts generally accepted in the region, including those practices required by Federal Power Act
section 215(a)(4), 16 U.S.C. § 824o(a)(4)(2014).
“Governmental Authority” means any federal, state, local or municipal governmental
body; any governmental, quasi-governmental, regulatory or administrative agency, commission,
body or other authority exercising or entitled to exercise any administrative, executive, judicial,
legislative, policy, regulatory or taxing authority or power, including FERC, NAESB, NERC or
any regional reliability council; or any court or governmental tribunal, in each case, having
jurisdiction over the Person or matter in question, including either Owner (including in its
7
capacity as Operator) or any of its Affiliates or the ownership, use, operation and maintenance,
repair and reconstruction, or retirement and decommissioning of all or a portion of the
Transmission Facilities or the Common Equipment.
“Governmental Authorizations” means any license, permit, order, approval, filing,
waiver, exemption, variance, clearance, entitlement, allowance, franchise, or other authorization
from or by a Governmental Authority that is applicable to the Person or matter in question.
“Governmental Requirements” means all laws, statutes, ordinances, rules, regulations,
codes, and similar acts or promulgations or other legally enforceable requirements of any
Governmental Authority that are applicable to the Person or matter in question.
“Idaho Falls Power” is a municipal electric utility serving the corporate city limits of
Idaho Falls, Idaho.
“Idaho Power” has the meaning given to such term in the preamble.
“Idaho Power Common Equipment” means Idaho Power-owned Common Equipment.
“Idaho Power License” has the meaning given to such term in Section 3.8(a)(i).
“Idaho Power Real Property Rights” has the meaning given to such term in Section
3.8(a)(ii).
“Idaho Power Sites” has the meaning given to such term in Section 3.8(a)(ii).
“Idaho Power Transmission System” has the meaning given to such term in the recitals.
“Impacted Party” means a Party whose Directional Capacity Allocation Percentage(s) or
Directional Capacity Allocation(s) is reasonably expected to have a material adverse effect by
the decision to be made.
“Indemnified Party” has the meaning given to such term in Section 14.1(a).
“Indemnifying Party” has the meaning given to such term in Section 14.1(a).
“Insufficient Shared Capacity Transmission Facility” has the meaning given to such term
in Section 5.5(b).
“Interconnection Owner” has the meaning given to such term in Section 5.3.
“Interrupting Owner” has the meaning given to such term in Section 10.1(c).
“Jim Bridger Project” means the four-unit Jim Bridger coal fired electric power plant and
related facilities, of which Idaho Power’s ownership share is 1/3, and PacifiCorp’s ownership
share is 2/3 and which is metered at the bus bar located at the Jim Bridger Project.
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“Jim Bridger Project Net Generation” means the gross generation output of the four Jim
Bridger Project generators metered on the low side of the generator step up transformers, minus
the calculated losses on the four step up transformers, minus the tertiary loads on the 345/230 kV
transformers #1 and #2, minus the 230/34 kV transformer #5 load, as calculated below:
Jim Bridger total generation – ((Jim Bridger Unit1)2 + (Jim Bridger Unit2)2
+ (Jim Bridger Unit3)2 + (Jim Bridger Unit4)2) x (4.4 x 10-6) - 1.2 –
XFMR1tertiary – XFMR2tertiary – XFMR5.
“Jim Bridger Transmission Losses” means the calculated line losses on the Jim Bridger-
Goshen, Jim Bridger-Populus #1 and #2, Populus-Kinport, and Populus-Borah #1 and #2 345 kV
lines, and the transformer losses on the Jim Bridger 345/230 kV transformers #1, 2 and 3.
“JPSA” has the meaning given to such term in the recitals.
“Losses” mean any and all damages and losses, deficiencies, liabilities, taxes, obligations,
penalties, judgments, settlements, claims, payments, fines, interest, costs and expenses, whether
or not resulting from third party claims, including the costs and expenses of any and all actions
and demands, assessments, judgments, settlements and compromises relating thereto and the
costs and expenses of attorneys’, accountants’, consultants’ and other professionals’ fees and
expenses incurred in the investigation or defense thereof or the enforcement of rights hereunder
and costs and expenses of remediation (including, in the case of remediation, all expenses and
costs associated with financial assurance); provided, however, that in no event shall Losses
include lost profits or damages and losses excluded under Section 14.8(a).
“Manager” has the meaning given to such term in Section 17.3(a).
“McNary Transmission Project” has the meaning given to such term in Section 6.2.
“McNary Transmission Project Agreements” has the meaning given to such term in
Section 6.2.
“Monthly Common Equipment Charge” has the meaning given to such term in Exhibit D.
“Monthly Transmission Facilities O&M Charge” has the meaning given to such term in
Exhibit D.
“NAESB” means the North American Energy Standards Board.
“Negotiation End Date” has the meaning given to such term in Section 6.2.
“NERC” means the North American Electric Reliability Corporation.
“Non-Defaulting Party” means an Owner that is not a Defaulting Party.
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“Non-Operating Owner” means, in a given circumstance or context with respect to
certain Transmission Facilities or Common Equipment, the Owner which is not also serving as
the Operator in such circumstance or context with respect to such Transmission Facilities or
Common Equipment.
“Non-Proposing Owner” means the Party that receives a Capital Upgrade Notice from the
Proposing Owner as such term is used in Section 6.1, or the Party that receives a
Decommissioning Notice from the Proposing Owner as such term is used in Article VIII.
“OATT” means, with respect to each Owner, the Owner’s Open Access Transmission
Tariff on file with FERC.
“Operating Owner” means, in a given circumstance or context with respect to certain
Transmission Facilities or Common Equipment, the Owner which is also serving as the Operator
in such circumstance or context with respect to such Transmission Facilities or Common
Equipment.
“Operator” means PacifiCorp or Idaho Power, in its capacity as Operator under this
Agreement.
“Other Costs” has the meaning given to such term in Section 4.7(a).
“Other Costs Records” has the meaning given to such term in Section 4.5.
“Owner” means PacifiCorp or Idaho Power, in its capacity as an owner of Transmission
Facilities or Common Equipment under this Agreement.
“Ownership Interest” means: (a) in respect of an Owner and a Segment, the ownership
interest (expressed as a percentage) of such Owner in such Segment as described in Section
3.1(a) and set forth on Exhibit C, as the same may be adjusted from time to time pursuant to
Section 3.3(b); and (b) in respect of an Owner and Common Equipment, the one hundred percent
(100%) ownership interest of such Owner in such Common Equipment.
“PacifiCorp” has the meaning given to such term in the preamble.
“PacifiCorp Common Equipment” means PacifiCorp-owned Common Equipment.
“PacifiCorp License” has the meaning given to such term in Section 3.8(a)(ii).
“PacifiCorp Real Property Rights” has the meaning given to such term in Section
3.8(a)(i).
“PacifiCorp Sites” has the meaning given to such term in Section 3.8(a)(i).
“PacifiCorp Transmission System” has the meaning given to such term in the recitals.
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“Party” and “Parties” have the meanings given to such terms in the preamble.
“Paths” means the specific rated electric transmission paths within the Western
Interconnection that are identified in the WECC path rating catalogue and that are identified in
Exhibit C, which rated paths the Parties acknowledge may be comprised of transmission line or
substation equipment that are in addition to those identified on Exhibit C.
“Person” means an individual, partnership, corporation, limited liability company, joint
venture, association, trust, unincorporated organization, Governmental Authority, or other form
of entity.
“Points of Balancing Authority Area Adjacency” means the points at which Idaho
Power’s Balancing Authority Area is an Adjacent Balancing Authority Area with each of
PacifiCorp’s PACE and PACW Balancing Authority Areas.
“Points of Interconnection” means the points of interconnection between Idaho Power’s
Transmission System and PacifiCorp’s Transmission System.
“Prior Projects” has the meaning given to such term in Section 5.2(e).
“Pro Rata Share” or “Pro Rata Basis” means a proportionate allocation of a quantity
between the Owners that is calculated by multiplying the quantity being allocated by each
Owner’s Ownership Interest or Directional Capacity Allocation Percentage or other metric, as
the context provides.
“Proposing Owner” means the Party that desires to make a capital upgrade or
improvement to Transmission Facilities or to Common Equipment as such term is used in
Section 6.1, or the Party that desires to retire and decommission Transmission Facilities or
Common Equipment as such term is used in Article VIII.
“Proprietary Information” has the meaning given to such term in Section 15.6.
“Qualified Owner” means an Owner that has an OATT on file with FERC under which it
is authorized to provide transmission service on its transmission system.
“Real Property Licenses” has the meaning given to such term in Section 3.8(a)(ii).
“Real Property Rights” has the meaning given to such term in Section 3.8(a)(ii).
“Regulations” has the meaning given to such term in Section 16.2.
“Reliability Standards” means the electric reliability standards approved by FERC
pursuant to Federal Power Act Section 215, 16 U.S.C. §824o(d) (2014).
“Remaining Owner” has the meaning given to such term in Section 8.3.
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“Representatives” means, in respect of an Owner or Operator, the directors, officers,
shareholders, partners, members, employees, agents, consultants, contractors or other
representatives of such Owner or Operator.
“Segment” means a Substation Segment or a Transmission Segment.
“Shared Capacity Transmission Facility” has the meaning given to such term in Section
5.5.
“Substations” means the substations that are identified on Exhibit C.
“Substation Segment” means the Transmission Facilities that are identified on a specific
row of Exhibit C as a Substation.
“Transmission Segment” means the Transmission Facilities that are identified on a
specific row of Exhibit C as a transmission line.
“Tax Indemnifying Party” has the meaning given to such term in Section 16.4.
“Tax Indemnitee Party” has the meaning given to such term in Section 16.4.
“Taxes” has the meaning given to such term in Section 16.3.
“Term” has the meaning given to such term in Section 2.2.
“Terminated Transmission Facilities” has the meaning given to such term in Section
2.3(a).
“Third-Party Facilities” has the meaning given to such term in Section 5.4.
“Third-Party Requestor” has the meaning given to such term in Section 5.4.
“Third-Party Use” has the meaning given to such term in Section 5.4.
“Total Directional Capacity” has the meaning given to such term in Section 3.2(a).
“Transfer” has the meaning given to such term in Section 18.1.
“Transferee” has the meaning given to such term in Section 15.1.
“Transferor” has the meaning given to such term in Section 15.1.
“Transmission Facilities” means all items identified on Exhibit C.
“Transmission Facilities Contracts” means, in respect of each Operator, each agreement,
instrument or other contract relating to or in connection with the Transmission Facilities or
Common Equipment it is responsible for, that such Operator enters into pursuant to this
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Agreement and, in respect of the Prior Projects, that the Operating Owner entered into prior to
the Effective Date; but does not include transmission service agreements.
“Transmission Facilities Sites” has the meaning given to such term in Section 3.8(a)(ii).
“Transmission System” means, in the case of PacifiCorp, the PacifiCorp Transmission
System, and, in the case of Idaho Power, the Idaho Power Transmission System.
“WECC” means the Western Electricity Coordinating Council.
“WIS Agreement” has the meaning given to such term in Section 14.8(b).
1.2 Rules of Construction.
The following rules of interpretation shall apply in this Agreement:
(a) The masculine shall include the feminine and neuter.
(b) References to “Articles,” “Sections,” “Exhibits” and “Schedule” shall be to
articles, sections, exhibits and schedules of this Agreement.
(c) The Exhibits and Schedules attached hereto are incorporated in and are
intended to be a part of this Agreement.
(d) This Agreement was negotiated and prepared by both Parties with the
advice and participation of counsel. The Parties have agreed to the wording of this Agreement and
none of the provisions hereof shall be construed against one Party on the ground that such Party is
the author of this Agreement or any part hereof.
(e) Each reference in this Agreement to any agreement or document or a portion
or provision thereof shall be construed as a reference to the relevant agreement or document as
amended, supplemented or otherwise modified from time to time with the written approval of both
the Parties.
(f) Each reference in this Agreement to Governmental Requirements and to
terms defined in, and other provisions of, Governmental Requirements shall be references to the
same (or a successor to the same) as amended, supplemented or otherwise modified from time to
time.
(g) The term “day” shall mean a calendar day, the term “month” shall mean a
calendar month, and the term “year” shall mean a calendar year. Whenever an event is to be
performed, a period commences or ends, or a payment is to be made on or by a particular date and
the date in question falls on a day which is not a Business Day, the event shall be performed, or
the payment shall be made, on the next succeeding Business Day; provided, however, that all
calculations shall be made regardless of whether any given day is a Business Day and whether or
not any given period ends on a Business Day.
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(h) Each reference in this Agreement to a Person includes its successors and
permitted assigns; and each reference to a Governmental Authority includes any Governmental
Authority succeeding to its functions and capacities.
(i) In this Agreement, the words “include,” “includes” and “including” are to
be construed as being at all times followed by the words “without limitation.”
(j) The words “hereof,” “herein” and “hereunder” and words of similar import
when used in this Agreement shall, unless otherwise specified, refer to this Agreement as a whole
and not to any particular provision of this Agreement.
ARTICLE II
TERM
2.1 Effectiveness of this Agreement.
This Agreement, including the Parties’ rights and obligations hereunder, shall become
effective, if at all, on the Closing Date (the “Effective Date”). For the avoidance of doubt, no
aspect of this Agreement, other than this Section 2.1, shall have any effect unless and until the
Effective Date occurs. If the Effective Date does not occur and the JPSA is terminated, this
Agreement, including this Section 2.1, shall become void ab initio.
2.2 Term.
The term of this Agreement (“Term”) shall commence upon the Effective Date and shall
continue in full force and effect until terminated in accordance with the provisions hereof.
2.3 Termination.
(a) Subject to Section 2.4(a) and Section 2.4(b), this Agreement shall terminate
solely with respect to certain Transmission Facilities and Common Equipment (each, “Terminated
Transmission Facilities”), and not otherwise with respect to any other Transmission Facilities or
Common Equipment or other obligations hereunder, if one or more of the following events occur:
(i) The Terminated Transmission Facilities are damaged and destroyed
and the Owners decide not to repair or rebuild (or cannot reach agreement to repair or rebuild)
them in accordance with Article VII; or
(ii) The Terminated Transmission Facilities are retired and
decommissioned in accordance with Article VIII.
(b) Subject to Section 2.4(c), this entire Agreement shall terminate if one or
more of the following events occur:
(i) Mutual agreement of the Parties to terminate this Agreement; or
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(ii) This Agreement is terminated by exercise of remedies pursuant to
Section 12.3.
2.4 Effect of Termination.
(a) If this Agreement is terminated pursuant to Section 2.3(a) with respect to
any Terminated Transmission Facilities, then, except as for those provisions that are expressly
intended to survive termination and, subject to Section 2.4(b) and receipt of any necessary
Governmental Authorizations required by Governmental Requirements, this Agreement shall
terminate and become void and of no further force and effect, without further action by either Party
solely with respect to such Terminated Transmission Facilities, provided that neither Party shall
be relieved from any of its obligations or liabilities hereunder accruing prior thereto.
(b) In the event that this Agreement is terminated pursuant to Section 2.3(a)
with respect to any Terminated Transmission Facilities and the Non-Operating Owner continues
to own all or a portion of the Ownership Interest(s) in such Terminated Transmission Facilities,
then: (i) the Operator shall, upon written notice from the Non-Operating Owner delivered to the
Operator no later than fifteen (15) Business Days after termination of this Agreement solely with
respect to such Terminated Transmission Facilities pursuant to Section 2.3(a), continue to perform
such of its obligations and covenants in Articles VI, VII, and VIII as are set forth in the notice; (ii)
such obligations and covenants, together with Articles XI, XIV, XV, XVI, XVII, and XIX (to the
extent applicable to the surviving covenants and obligations), shall continue in full force and effect
notwithstanding the termination of this Agreement solely with respect to such Terminated
Transmission Facilities pursuant to Section 2.3(a); and (iii) the Parties shall amend this Agreement
to reflect such changes to this Agreement as shall be necessary and mutually acceptable to the
Parties to conform this Agreement solely as it relates to such Terminated Transmission Facilities
to the surviving provisions of this Agreement in accordance with this Section 2.4(b).
(c) If this Agreement is terminated pursuant to Section 2.3(b), then, except as
for those provisions that are expressly intended to survive termination of this Agreement and,
subject to receipt of any necessary Governmental Authorizations required by Governmental
Requirements, including FERC approval, this Agreement shall terminate and become void and of
no further force and effect, without further action by either Party, provided that neither Party shall
be relieved from any of its obligations or liabilities hereunder accruing prior thereto.
ARTICLE III
TRANSMISSION FACILITIES OWNERSHIP INTERESTS
3.1 Ownership Interests.
(a) Pursuant to the JPSA, as of the Closing Date: (i) the percentage of
ownership in a Segment that is owned by Idaho Power is set forth in column A of Exhibit C, and
the percentage of ownership in a Segment that is owned by PacifiCorp is set forth in column B of
Exhibit C; and (ii) when the Owners each own a percentage of a Segment, each of the Owners own
an undivided ownership interest in such Segment as tenants-in-common.
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(b) The Owners agree that they shall enter into such additional documentation
as shall reasonably be required to document the Owners’ Ownership Interests in the Transmission
Facilities and any change in the Owners’ Ownership Interests in the Transmission Facilities as a
result of the application of Section 3.3(b), provided that in no event shall an Owner be responsible
for paying any amount to the other Owner as a result of any change in any Ownership Interest in
the Transmission Facilities, except as expressly provided for in this Agreement or as otherwise
agreed to in writing by the Parties.
3.2 Capacity Allocations.
(a) Directional Capacity Allocation. Except as provided in Section 5.5 with
regard to Shared Capacity Transmission Facilities, the Parties agree that the total directional
transmission capacity in megawatts of each Segment and Path is set forth in columns E and H of
Exhibit C (the “Total Directional Capacity”), and is allocated to: (i) Idaho Power (A) as expressed
in megawatts as set forth in columns C and F of Exhibit C and (B) as expressed as a percentage of
the total directional transmission capacity of each Segment and Path as set forth in columns I and
K of Exhibit C; and (ii) PacifiCorp (A) as expressed in megawatts as set forth in columns D and
G of Exhibit C and (B) as expressed as a percentage of the total directional transmission capacity
of each Segment and Path as set forth in columns J and L of Exhibit C. Each of the allocations of
directional transmission capacity of each of the Segments and Paths to each of the Owners
expressed in megawatts in Sections 3.2(a)(i)(A) and 3.2(a)(ii)(A) is herein referred to as the
“Directional Capacity Allocation” and each of the allocations of directional transmission capacity
of each of the Segments and Paths to each of the Owners in percentages in Sections 3.2(a)(i)(B)
and 3.2(a)(ii)(B) is herein referred to as the “Directional Capacity Allocation Percentage.”
(b) Scheduling Over Segments which are Not Part of a Path. Each Owner shall
have the right to post and sell its Directional Capacity Allocation over each Segment (which is not
part of a Path) in accordance with its OATT, and each Owner shall schedule energy or make
available for scheduling each Segment (which is not part of a Path) in each direction consistent
with its applicable Directional Capacity Allocation Percentage of the Total Directional Capacity
of the Segment in each direction and pursuant to Governmental Requirements and Governmental
Authorizations; provided, however, that at no time shall an Owner be entitled to post, sell, schedule
or make available for scheduling more than its applicable Directional Capacity Allocation
Percentage of the Total Directional Capacity of any Segment (which is not part of a Path) in any
direction, unless otherwise mutually agreed to in writing by the Owners. For Transmission
Facilities identified as a Shared Capacity Transmission Facility in Section 5.5, the Owners agree
that each Owner may schedule energy or make available for scheduling consistent with Section
5.5(c).
(c) Scheduling Over Segments which are Part of a Path. Each Owner shall have
the right to post and sell its Directional Capacity Allocation over a Path in accordance with its
OATT, and each Owner shall schedule energy or make available for scheduling a Path in each
direction consistent with its applicable Directional Capacity Allocation Percentage of the Total
Directional Capacity of the Path in each direction and pursuant to Governmental Requirements
and Governmental Authorizations; provided, however, that at no time shall an Owner be entitled
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to post, sell, schedule or make available for scheduling more than its applicable Directional
Capacity Allocation Percentage of the Total Directional Capacity of any Path over one or more of
the Segments which are part of the Path in any direction, unless otherwise mutually agreed to in
writing by the Owners.
3.3 Adjustment of Capacity Allocations and Ownership Interests.
(a) Adjustment of Directional Capacity Allocations and Directional Capacity
Allocation Percentages.
(i) Each of the Owners shall be allocated their Pro Rata Share (based
on their applicable Directional Capacity Allocation Percentages) of all temporary changes in the
Total Directional Capacity of a Segment or Path, provided that a Shared Capacity Transmission
Facility shall have alternative provisions detailed in Section 5.5(c).
(ii) Permanent changes in the Total Directional Capacity of a Segment
or Path occur when the first of the following occurs: (A) when the quantity and, if applicable,
direction of change in Total Directional Capacity is agreed to by the Owners; or (B) when WECC
or the applicable WECC committee recognizes the quantity and, if applicable, direction of change
in Total Directional Capacity.
(iii) Each of the Owners shall be allocated their Pro Rata Share (based
on their applicable Directional Capacity Allocation Percentages) of any permanent decrease or
permanent increase (which is not the result of a capital upgrade or which is the result of a capital
upgrade that both Owners participated in on a Pro Rata Basis (in accordance with their Ownership
Interests)) in the Total Directional Capacity of a Segment or Path calculated pursuant to Section
3.3(a)(ii). In the event of a permanent increase in the Total Directional Capacity of a Segment or
Path calculated pursuant to Section 3.3(a)(ii), then the increase in Total Directional Capacity shall
be allocated to the Owners based on their participation in the capital upgrade established pursuant
to Section 6.1.
(iv) In the event there is a permanent increase or decrease in the Total
Directional Capacity of a Segment or Path calculated pursuant to Section 3.3(a)(ii), the Owners
shall promptly amend the Agreement to update Exhibit C to reflect revisions in the Total
Directional Capacity of the Segment or Path as well as the Directional Capacity Allocations and
Directional Capacity Allocation Percentages of the Owners in the Segment or Path calculated
pursuant to Sections 3.3(a)(ii) and 3.3(a)(iii).
(b) Adjustment of Ownership Interests in Segments.
(i) Only permanent changes in the Total Directional Capacity of a
Segment pursuant to Section 3.3(a)(ii) have the ability to affect the Owners’ Ownership Interests
in a Segment. In the event that there is a permanent increase or decrease in the Total Directional
Capacity of a Segment in accordance with Section 3.3(a)(ii), then the Ownership Interest for each
Owner shall be calculated on the following basis:
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(A) Add both of the Owner’s Directional Capacity Allocations
in the Segment (taking into account the Owner’s Pro Rata Share of the increase or decrease
determined in accordance with Section 3.3(a));
(B) Add both of the Segment’s Total Directional Capacities
(taking into account the increase or decrease of the Segment’s Total Directional Capacities
determined in accordance with Section 3.3(a)); and
(C) Divide the sum of clause A above by the sum of clause B
above to produce the Owner’s revised Ownership Interest in the Segment.
(ii) In the event that there is a permanent increase or decrease in the
Total Directional Capacity of a Segment in accordance with Section 3.3(a)(ii), the Owners shall
promptly amend the Agreement to update Exhibit C to reflect any revisions in the Ownership
Interests of the Owners in any Segment calculated in accordance with this Section 3.3(b)(i). In
addition, the Owners shall promptly amend the Agreement to update Exhibit C to reflect revisions
in any Substation O&M Allocation as a result of changes in the Ownership Interests of the Owners
in any Substation Segment calculated in accordance with Section 3.3(b)(i).
(c) Reviews.
(i) Subject to Section 3.3(c)(iii), the Owners shall meet periodically,
but not less than every five (5) years beginning in the year 2020, to review:
(A) The Directional Capacity Allocations, the Directional
Capacity Allocation Percentages and the Substation O&M Allocations set forth in Exhibit C;
(B) The formulas for adjusting Directional Capacity Allocation
Percentages and Ownership Interests set forth in this Section 3.3;
(C) The definition of Pro Rata Share;
(D) The treatment of electric losses set forth in Section 9.5;
(E) The formulas describing the charges set forth in Exhibit D;
and
(F) Any other provisions of this Agreement as either Party may
elect.
(ii) Subject to Section 3.3(c)(iii), the Owners shall meet promptly and
attempt to reach a mutually agreeable solution in the event that a Governmental Requirement or
Governmental Authorization adversely affects: (A) the ability of an Owner to perform its
obligations or exercise its rights under this Agreement; or (B) the treatment of assets of an Owner
that are subject to or affected by this Agreement.
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(iii) In no event shall this Agreement be amended, supplemented or
otherwise modified pursuant to Sections 3.3(c)(i) or 3.3(c)(ii), unless the Parties agree in writing
to such amendment, supplement or modification.
3.4 Qualified Owner.
Each Owner shall take all actions required to continue to be a Qualified Owner during the
Term. If at any time during the Term an Owner ceases to be a Qualified Owner, then such
Owner shall immediately provide notice thereof to the other Owner and take all actions required
to resume being a Qualified Owner.
3.5 No Right to Use.
For the avoidance of doubt, except as specified in Section 5.5, the provisions of this
Agreement shall not confer upon either Owner the right to use or transmit energy over any
transmission facilities owned by the other Owner (other than with respect to the Transmission
Facilities and Paths as provided for herein).
3.6 Payments.
All payments required to be made by or on behalf of the Owners under the terms of this
Agreement, including payments to the Operators of the Monthly Transmission Facilities O&M
Charge, the Monthly Substation O&M Charge, the Monthly Common Equipment Charge and
Other Costs, shall be made to the account or accounts designated by the Owner or Operator to
which the payment is owed, by wire transfer in immediately available funds in the lawful
currency of the United States.
3.7 Waiver of Partition Rights.
The Owners acknowledge that any exercise of the remedy of partition (whether at law or
in equity) of the jointly-owned Transmission Facilities or any portion thereof would be
impracticable in view of the purposes and requirements of this Agreement, would violate the
spirit and intent of this Agreement, and would defeat the Owners’ intentions and reasonable
expectations as well as the consideration upon which each Owner entered into this Agreement.
Accordingly, each Owner agrees that during the Term it: (a) will not, directly or indirectly,
commence, maintain, support or join in any action or proceedings of any kind to partition the
jointly-owned Transmission Facilities or any portion thereof; and (b) waives, after consultation
with its qualified legal counsel, any and all rights that it may have under this Agreement or
Governmental Requirements (whether at law or in equity) or otherwise to commence, maintain,
support or join in any such action or proceeding. Each Owner acknowledges that the other
Owner has entered into and will perform the terms of this Agreement in reliance upon the other
Owner’s agreement and adherence to the terms of this Section 3.7, and would not have entered
into this Agreement but for such reliance; and that it would be unjust and inequitable for any
Owner to violate or to seek relief from any provision of this Section 3.7.
3.8 Nonexclusive License to Enter and Use Real Property.
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(a) Subject to the terms and conditions of this Agreement, including this
Section 3.8:
(i) PacifiCorp hereby irrevocably grants to Idaho Power a nonexclusive
license (the “Idaho Power License”) to use and access the real property to which Idaho Power’s
Ownership Interests in the Transmission Facilities are affixed (the “PacifiCorp Sites”), but only
to the extent of, and subject in all respects to, PacifiCorp’s real property interests (including fee,
rights-of-way, easements and other real property interests) and other real property rights therein
(collectively, the “PacifiCorp Real Property Rights”) and only to the extent such Idaho Power
License is permitted by the PacifiCorp Real Property Rights and Governmental Requirements; and
(ii) Idaho Power hereby irrevocably grants to PacifiCorp a nonexclusive
license (the “PacifiCorp License” and, together with the Idaho Power License, the “Real Property
Licenses”) to use and access the real property to which PacifiCorp’s Ownership Interests in the
Transmission Facilities are affixed (the “Idaho Power Sites” and, together with the PacifiCorp
Sites, the “Transmission Facilities Sites”), but only to the extent of, and subject in all respects to,
Idaho Power’s real property interests (including fee, rights-of-way, easements and other real
property interests) and other real property rights therein (collectively, the “Idaho Power Real
Property Rights” and, together with the PacifiCorp Real Property Rights, the “Real Property
Rights”) and only to the extent such PacifiCorp License is permitted by the Idaho Power Real
Property Rights and Governmental Requirements.
(b) Each Real Property License will be utilized by the grantee Owner and its
Representatives for the use of, and rights of ingress, egress and access to, the applicable
Transmission Facilities Sites to permit the Owner and its Representatives to exercise the Owner’s
rights and obligations as to its Ownership Interests in the Transmission Facilities.
(c) The rights of the grantee Owner and its Representatives for use of, ingress,
egress and access to the applicable Transmission Facilities Sites shall be governed by this
Section 3.8 during the period the Real Property License is in effect, including during any period
after this Agreement has been terminated but the surviving provisions identified in Section 10.2
(including Section 3.8) remain in effect.
(d) Upon the termination or expiration of this Agreement, each Real Property
License may be utilized by the grantee Owner and its Representatives for the right of ingress,
egress and access to the Transmission Facilities Sites, for the sole purpose of inspection and as
provided for in Section 3.8(f).
(e) In the exercise of its rights under the Real Property License: (i) the grantee
Owner and its Representatives shall not interfere with the construction, commissioning, operation
and maintenance, capital upgrades and improvements to, repair and reconstruction of, and
retirement and decommissioning of the Transmission Facilities (or any other equipment or
facilities owned, controlled or operated by the grantor Owner on the Transmission Facilities Site)
or any portion thereof by the Operator or pose a safety hazard; (ii) the grantee Owner and its
Representatives shall comply with any requirements of the Real Property Rights applicable to the
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Transmission Facilities Sites as of the Effective Date and any other Real Property Rights arising
after the Effective Date with respect to which it receives written notice; (iii) the grantee Owner
shall provide reasonable prior written notice to the grantor Owner of its intent to exercise any right
or privilege granted by the Real Property License; and (iv) the grantee Owner and its
Representatives exercising any right or privilege under the Real Property License shall comply
with the grantor Owner’s or any other contractor’s safety and operational procedures and security
rules, provided that such procedures and rules are in writing and are delivered to the grantee Owner
in advance. For the avoidance of doubt, the Owners acknowledge that no representations or
warranties are made with respect to the Transmission Facilities Sites and that the Real Property
Licenses are expressly subject in all respects to all Real Property Rights applicable to the
Transmission Facilities Sites.
(f) Each Real Property License includes a nonexclusive right of the grantee
Owner for the location of equipment in which such Owner has an Ownership Interest, together
with any replacements, capital upgrades or improvements thereto, on the Transmission Facilities
Sites, to be utilized by such Owner to locate such equipment on such premises, together with the
right to access such equipment over and across the Transmission Facilities Sites, provided that any
replacements, capital upgrades or improvements to such equipment shall be made in accordance
with the provisions of this Agreement prior to its expiration or termination.
(g) Each Real Property License shall terminate, in whole or in part, if and to the
extent the grantee Owner no longer requires the Real Property License for the uses described in
this Section 3.8, including if and to the extent such Owner no longer has an Ownership Interest in
the Transmission Facilities affixed to the respective Transmission Facilities Sites, written notice
of which the grantee Owner shall promptly provide to the grantor Owner.
(h) If and to the extent the Real Property Licenses are not permitted by any of
the Real Property Rights with respect to all or any portion of the Transmission Facilities Sites (the
“Excluded Transmission Facilities Sites”), then the Parties shall cooperate in good faith to identify
and use Commercially Reasonable Efforts to implement an alternative to the Real Property
Licenses with respect to the Excluded Transmission Facilities Sites in order to attempt to provide
each of the Parties with the rights that they would have been provided under the Real Property
Licenses with respect to the Transmission Facilities Sites; provided, however, in no event shall an
Owner be required to amend, revise or modify in any respect any of its Real Property Rights
pursuant to this Section 3.8(h).
ARTICLE IV
OPERATOR OF TRANSMISSION FACILITIES
4.1 Appointment of Operator.
(a) The Owners hereby appoint the Party set forth in column M of Exhibit C as
the Operator of each of the Transmission Facilities associated with the Party’s name on Exhibit C,
and the Party hereby accepts appointment, to serve as the Operator and to perform the other
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covenants and obligations of the Operator expressly set forth in this Agreement, in accordance
with the terms and conditions of this Agreement.
(b) Each of the Owners hereby authorizes the Operators to utilize its Common
Equipment and wholly-owned Transmission Facilities to support the operation of the Transmission
Facilities in accordance with the terms of this Agreement.
(c) Notwithstanding anything to the contrary contained in this Agreement or
Governmental Requirements, the Owners agree that the Operators shall have no obligations,
responsibilities or duties to the Owners other than as are expressly provided for in this Agreement.
(d) A sole Owner of Transmission Facilities that are operated by the other Party
to this Agreement may unilaterally elect to supervise and perform, or cause to be supervised or
performed, the physical operation and maintenance, interconnection, design of capital upgrades
and improvements, repair and reconstruction, security, outage restoration, and retirement and
decommissioning of the solely-owned Transmission Facilities. Should the sole Owner choose to
resume operation or perform any of the above-listed items, the sole Owner will provide the
Operator with sixty (60) days prior written notice describing the specific work the sole Owner is
electing. The Operator will be relieved of this specific work, but will continue to perform all other
covenants and obligations of the Operator as expressly set forth in this Agreement.
4.2 Authority of Operator.
(a) Subject to the limitations set forth in Articles IV-VIII, each Operator shall
be responsible in all respects for the Transmission Facilities and Common Equipment for which it
is the Operator in accordance with the terms and conditions of this Agreement. Without limiting
the foregoing, each Operator shall supervise and perform, or cause to be supervised and performed,
the physical operation and maintenance of, interconnection to, design of, capital upgrades and
improvements to, repair and reconstruction of, security of, outage restoration of, and retirement
and decommissioning of, the Transmission Facilities and Common Equipment it is responsible for
in accordance with this Article IV and Articles V-VIII. In the performance of its obligations under
this Agreement, each Operator shall have authority, subject to the other terms of this Article IV
and Articles V-IX, to take any or all of the actions it reasonably determines are necessary to
perform its obligations under this Agreement.
(b) The Owners and the Operators agree that title to all capital upgrades and
improvements to the Segments and Common Equipment constructed by or on behalf of the
Operators pursuant to Articles V and VI shall vest with the Owner or Owners of such Segments or
Common Equipment in accordance with their respective Ownership Interests in such Segments or
Common Equipment, and, in the case of jointly-owned Segments, shall be jointly owned by the
Owners as tenants-in-common in accordance with their respective Ownership Interests in the
jointly-owned Segments.
(c) Each Operator will exercise or enforce all of the benefits, rights and
remedies under the Transmission Facilities Contracts for the benefit of the Owners without adverse
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distinction between the Owners. In furtherance and not in limitation of the immediately preceding
sentence, and except as otherwise provided in Section 9.5 with respect to electric losses, each
Operator agrees to transfer, assign, distribute, pay over or otherwise make available to the Non-
Operating Owner, the Non-Operating Owner’s Pro Rata Share (based on its respective Ownership
Interest(s), if any) of any payments or proceeds obtained pursuant to any Transmission Facilities
Contract. Notwithstanding anything to the contrary contained in this Agreement, the Owners agree
that only the Operators shall be entitled to exercise or enforce the benefits, rights and remedies
under the Transmission Facilities Contracts.
4.3 Delegation of Responsibilities.
An Operator may, in its sole and absolute discretion, utilize its employees and
supervisory personnel, and any independent technical advisors, consultants, contractors and
agents which it may select, as may be required to perform its obligations (each, a “Delegate”).
Notwithstanding any such delegation, the Operator shall remain responsible and liable for all of
its delegated obligations in accordance with the terms of this Agreement. If a non-operating
Owner is amenable to such delegation, such non-operating Owner may be delegated certain
responsibilities under this section.
4.4 Governmental Authorizations.
(a) Each Operator is authorized to prepare and submit to all appropriate
Governmental Authorities the necessary reports, applications, plans, specifications and other
documents to procure all Governmental Authorizations required to perform its obligations under
this Agreement with respect to the Transmission Facilities and Common Equipment it is
responsible for or to comply with Governmental Requirements, provided that the Operator shall
consult with the Non-Operating Owner prior to the submission of any such reports, application,
plans, specification and other documents to the extent to which they relate to any jointly-owned
Transmission Facilities. To the extent permitted by Governmental Requirements, each Operator
shall use Commercially Reasonable Efforts to obtain and structure all Government Authorizations
for which it applies after the Effective Date in such a way as to recognize each Owner’s applicable
Ownership Interest(s) (and associated Directional Capacity Allocation Percentage(s) and
Directional Capacity Allocation(s)), if any, as contemplated by this Agreement. Notwithstanding
anything to the contrary in this Agreement, except as set forth in Section 5.1(b), nothing in this
Section 4.4 shall obligate an Operator to prepare and submit to appropriate Governmental
Authorities any reports, applications, plans, specifications and other documents to procure any
Governmental Authorizations required by the Owners in connection with their ownership of an
Ownership Interest in the Transmission Facilities or the Common Equipment or the recovery of
any costs and expenses in connection therewith.
(b) To the extent that an Operator cannot obtain a Governmental Authorization
pursuant to Section 4.4(a) on behalf of one or both of the Owners, each such Owner shall: (i) be
responsible for preparing and submitting to the appropriate Governmental Authority the necessary
reports, applications, plans, specifications and other documents to procure such Governmental
Authorization; and (ii) exercise all Commercially Reasonable Efforts to obtain such Governmental
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Authorization. Unless and until the Owner or Owners are able to obtain such Governmental
Authorizations, the Operator shall not perform or continue to perform any of the obligations
requiring such Governmental Authorizations if to do so would result in the Owner or Owners or
the Operator being in violation of Governmental Requirements or Governmental Authorizations.
(c) Each Owner shall, at its own cost: (i) reasonably cooperate and support the
Operators in obtaining any Governmental Authorizations required pursuant to Section 4.4(a); and
(ii) reasonably respond to inquiries or requests issued to it by any Governmental Authorities in
respect of such Governmental Authorizations; provided, however, that an Owner shall not be
obligated pursuant to this Section 4.4(c) to disclose Proprietary Information except to the extent
that it is otherwise required to disclose such Proprietary Information: (A) by Governmental
Requirements; (B) by any Governmental Authority; or (C) pursuant to the express terms of this
Agreement.
4.5 Audit.
Each Non-Operating Owner may, at its cost, at any time during normal business hours
and with reasonable prior notice of not less than thirty (30) Business Days, but not more often
than once in any twelve (12) month period, inspect and audit the books and records of the
Operator and any of its Affiliates and Delegates (and the Operator shall secure such rights for the
Non-Operating Owner from its Affiliates and Delegates) involved in the provision of services
pursuant to this Agreement (“Other Costs Records”), to the extent reasonably relating to the
determination of Monthly Transmission Facilities O&M Charges, Monthly Substation O&M
Charges, Monthly Common Equipment Charges, and Other Costs for which the Non-Operating
Owner is liable under this Agreement as shown on an invoice provided to the Non-Operating
Owner pursuant to Section 4.7 within eighteen (18) months prior to the date of the audit notice.
Each Operator shall, and shall cause any of its relevant Affiliates and Delegates, to keep and
maintain all such Other Costs Records to the extent reasonably relating to the determination of
Monthly Transmission Facilities O&M Charges, Monthly Substation O&M Charges, Monthly
Common Equipment Charges, and Other Costs for which the Non-Operating Owner is liable
under this Agreement and make such Other Costs Records available to the Non-Operating
Owner in accordance with the terms of this Agreement. If any audit discloses that, during such
eighteen (18) month period, an overpayment or underpayment of Monthly Transmission
Facilities O&M Charges, Monthly Substation O&M Charges, Monthly Common Equipment
Charges or Other Costs has been made by the Non-Operating Owner or the amount of any
Monthly Transmission Facilities O&M Charges, Monthly Substation O&M Charges, Monthly
Common Equipment Charges, or Other Costs allocated to the Non-Operating Owner in an
invoice is incorrect, then such overpayment, underpayment or incorrect amount shall be resolved
pursuant to Section 4.8. The Non-Operating Owner requesting the audit shall reimburse one
hundred percent (100%) of all reasonable costs and expenses (including internal costs and
expenses) incurred by or on behalf of the Operator and any of its Affiliates and Delegates in
complying with the provisions of this Section 4.5, provided that the Non-Operating Owner shall
not be required to reimburse any such costs if the audit determines that the Non-Operating
Owner has made more than Twenty-Five Thousand Dollars ($25,000) in overpayments of
Monthly Transmission Facilities O&M Charges, Monthly Substation O&M Charges, Monthly
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Common Equipment Charges, or Other Costs or more than Twenty-Five Thousand Dollars
($25,000) in Monthly Transmission Facilities O&M Charges, Monthly Substation O&M
Charges, Monthly Common Equipment Charges, or Other Costs have been incorrectly allocated
to the Owner.
4.6 Insurance.
(a) Owner Insurance. Each Owner shall be responsible for obtaining and
maintaining during the Term insurance covering its respective legal liabilities related to its
Ownership Interests in the Transmission Facilities and Common Equipment. Insurance required
by this Section 4.6(a) will be placed with appropriate carriers and in amounts in accordance with
Good Utility Practice and Governmental Requirements.
(b) Property Insurance. Each Operator, on behalf of the Owners and any other
named insureds or loss payees, will, with respect to Substations and equipment therein that is
included as part of the jointly-owned Transmission Facilities it is responsible for: (i) determine the
appropriate property insurance coverages, minimum amounts, self-insured amounts, deductibles
and other insurance policy terms which shall be reasonable and customary for similarly situated
utilities; (ii) obtain and maintain such property insurance during the Term; and (iii) be solely
responsible for pursuing claims and/or negotiating settlements in respect of claims under such
insurance coverages. The Operators shall be compensated for the costs of obtaining and
maintaining such insurance (including any premiums, taxes and fees, but excluding deductibles,
self-insurance or non-insured costs) through the Monthly Substation O&M Charge. Subject to
Article VII, each Owner shall be responsible for its Pro Rata Share (based on its applicable
Ownership Interest(s)) of any deductibles, self-insurance and non-insured costs, all of which shall
be Other Costs. The Operators shall not be obligated to obtain or maintain any other insurance by
or on behalf of the Owners with respect to the Transmission Facilities or Common Equipment for
which they are responsible.
4.7 Invoices.
(a) Each Non-Operating Owner shall pay the respective Operator the Monthly
Transmission Facilities O&M Charge, the Monthly Substation O&M Charge, and the Monthly
Common Equipment Charge calculated in accordance with Exhibit D as compensation for the
Operator’s services under this Agreement. In addition, each Owner shall be responsible for its Pro
Rata Share (based on its applicable Ownership Interest(s)) of costs incurred by or on behalf of the
Operators pursuant to the terms of this Agreement, including Sections 4.2(a), 4.4(a), 4.6, 5.2, 6.1,
7.1, 7.5, 8.2 and 16.3 (collectively, the “Other Costs”). In the event that an Operator incurs, or
reasonably expects to incur, significant Other Costs in excess of One Hundred Thousand Dollars
($100,000), the Operator shall immediately notify the Owners in writing of such Other Costs.
(b) Within thirty (30) days after the end of the first full calendar month during
the Term, and within thirty (30) days after the end of each month thereafter during the Term, each
Operator will deliver to the Non-Operating Owner an invoice which will show the total amount
and each Owner’s Pro Rata Share (based on its Ownership Interests) of the Monthly Transmission
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Facilities O&M Charge, the Monthly Substation O&M Charge and the Monthly Common
Equipment Charge determined in accordance with the terms and conditions of this Agreement.
For purposes of clarity, the first such invoices will include amounts owed for the first full month
and any partial month that precedes it during the Term. Within thirty (30) days after the end of
the first calendar quarter first occurring during the Term (i.e., within 30 days of the first March
31st, June 30th, September 30th, or December 31st during the Term), and within thirty (30) days
after the end of each calendar quarter thereafter during the Term, each Operator will deliver to the
Non-Operating Owner an invoice which will show the total amount and each Owner’s Pro Rata
Share (based on its Ownership Interests) of Other Costs determined in accordance with the terms
and conditions of this Agreement; provided, however, that Other Costs associated with capital
upgrades and improvements to, or repair and reconstruction of, Transmission Facilities: (a) shall
not include AFUDC, provided, that the first Other Costs invoice may include accrued AFUDC on
Prior Projects up to the Effective Date; and (b) that are a Substation Segment shall be invoiced
using estimated Other Costs, provided that each Operator shall provide a final invoice showing a
true-up of estimated Other Costs compared to actual Other Costs after the upgrade, improvement,
repair or reconstruction is placed into service;. The Non-Operating Owner shall pay its Pro Rata
Share (based on its Ownership Interests) of the Monthly Transmission Facilities O&M Charge, the
Monthly Substation O&M Charge, the Monthly Common Equipment Charge and the Other Costs
shown on the invoice no later than thirty (30) days after the date of the invoice. Any payment past
due will accrue interest, per annum, calculated in accordance with the methodology specified for
interest in the FERC regulations at 18 C.F.R. § 35.19a(a)(2)(iii) (the “FERC Methodology”). The
failure by an Operator to timely deliver an invoice shall not relieve the Non-Operating Owner of
its payment obligation in respect of its share of the Monthly Transmission Facilities O&M Charge,
the Monthly Substation O&M Charge, the Monthly Common Equipment Charge and Other Costs
as shown on such invoice, or release the Operating Owner of its responsibility for such invoice.
4.8 Disputed Amounts.
If any Non-Operating Owner disputes any portion of any amount specified in an invoice
delivered by an Operator pursuant to Section 4.7, the Non-Operating Owner shall pay its total
amount of the invoice when due, and, if actually known at the time by the Non-Operating
Owner, identify the disputed amount and state that the disputed amount is being paid under
protest. Any disputed amount shall be resolved pursuant to the provisions of Article XVII. If it
is determined pursuant to Article XVII that an overpayment or underpayment has been made by
the Non-Operating Owner or the amount of any Monthly Transmission Facilities O&M Charge,
Monthly Substation O&M Charge, Monthly Common Equipment Charge, or Other Costs
allocated to the Non-Operating Owner on an invoice is incorrect, then: (i) in the case of any
overpayment by the Non-Operating Owner, the Operator shall promptly return the amount of the
overpayment (or credit the amount of the overpayment on the next invoice) to the Non-Operating
Owner; (ii) in the case of an underpayment by the Non-Operating Owner, the Non-Operating
Owner shall promptly pay the amount of the underpayment to the Operator (for the benefit of the
Operating Owner), otherwise, the Operator shall charge the Non-Operating Owner for the
underpayment on the next invoice; and (iii) in the case of an incorrect allocation of Other Costs
to an Owner, the allocations of Other Costs on the next invoice shall be adjusted to correct for
such incorrect allocation, in each case, together with interest for the period from the date of
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overpayment, underpayment or incorrect allocation until such amount has been paid or credited
against a future invoice calculated in the manner prescribed for calculating interest on refunds
under the FERC Methodology.
4.9 Assistance.
Each Non-Operating Owner shall cooperate with the Operator promptly, as and when
reasonably requested by the Operator, to assist the Operator in the performance of its duties,
responsibilities and obligations under this Agreement, including executing and delivering from
time to time such additional documents, certificates or instruments, and taking such additional
actions, as may be reasonably requested by the Operator. Each Non-Operating Owner shall bear
its own costs for providing such cooperation and assistance as requested by the Operator unless
the Owners agree otherwise in writing.
4.10 Remedies.
(a) Notwithstanding any provision to the contrary contained in this Agreement,
the Operators shall have no liability to the respective Non-Operating Owners in connection with
the performance of their covenants and obligations under this Agreement, except as provided in
this Section 4.10 and Section 14.1(c). The Non-Operating Owners agree that they have a duty to
mitigate any damages and shall use Commercially Reasonable Efforts to minimize any damages
they may incur as a result of an Operator’s failure to perform or breach of any of its covenants or
obligations under this Agreement.
(b) The Owners and Operators acknowledge that the obligations and covenants
performed by the Operators hereunder are unique and that the Non-Operating Owners will be
irreparably injured should such obligations and covenants not be performed in accordance with the
terms and conditions of this Agreement. Consequently, the Non-Operating Owners will not have
an adequate remedy at law if the Operators shall fail to perform their obligations and covenants
hereunder. The Non-Operating Owners shall have the right, in addition to any other remedy
available under this Agreement, to specific performance of the Operators’ obligations and
covenants hereunder, and the Owners and Operators agree not to take a position in any proceeding
arising out of this Agreement to the effect that the Non-Operating Owners have an adequate
remedy at law.
ARTICLE V
OPERATION AND MAINTENANCE OF TRANSMISSION FACILITIES
5.1 Compliance; Standard of Work.
(a) The Operator shall perform its obligations set forth in this Agreement: (i)
without adverse distinction between the Owners; and (ii) in accordance with Good Utility Practice,
Governmental Requirements, Governmental Authorizations and Reliability Standards.
(b) Without limiting the generality of Section 5.1(a), each Operator shall
comply with Governmental Requirements and Reliability Standards applicable to an owner and an
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operator of the Transmission Facilities and Common Equipment for which it is responsible,
regardless of whether any such Transmission Facilities and Common Equipment are solely owned
by the Operating Owner, the Non-Operating Owner, or jointly owned by the Parties.
5.2 Operation and Maintenance; Outages and Outage Coordination; Capital Upgrades
and Improvements.
(a) Each Operator shall operate and maintain the Transmission Facilities and
Common Equipment for which it is responsible in accordance with Good Utility Practice,
Governmental Requirements, Governmental Authorizations and Reliability Standards.
(b) Each Operator shall provide written notice of planned outages associated
with the Transmission Facilities, Common Equipment and Paths for which it is responsible to the
Non-Operating Owner’s outage coordinator as soon as outage schedules are known, but no later
than the later of the period specified in the Operating Owner’s OATT or the Northwest Power Pool
Processes document dated May 2014, as it is amended from time-to-time, regarding outage
coordination and shall, subject to Good Utility Practice, Governmental Requirements,
Governmental Authorizations and Reliability Standards, accommodate reasonable requests of the
Non-Operating Owner to change the date or period of the planned outage. Each Operator shall
promptly notify the Non-Operating Owner’s outage coordinator of any event or circumstance that
results in a partial or total reduction of the transmission capacity of a Segment or Path set forth in
Exhibit C, and shall use Commercially Reasonable Efforts to diligently: (i) coordinate operations
during such event or circumstance; (ii) coordinate the restoration of the transmission capacity of
such Segment from such event or circumstance with the Non-Operating Owner; and (iii) perform
the actions necessary to restore the transmission capacity of such Segment or Path and otherwise
recover from the event or circumstance. Notwithstanding any provision to the contrary contained
in this Agreement, the Owners shall be allocated their share of a temporary reduction in the
transmission capacity of the Transmission Facilities and the Paths pursuant to Section 3.3(a)(i),
and shall be allocated their share of a permanent reduction in transmission capacity of the
Transmission Facilities and the Paths pursuant to Sections 3.3(a)(ii) and 3.3(a)(iii). The Operator’s
outage coordinator shall accommodate reasonable requests of the Non-Operating Owner’s outage
coordinator, and Non-Operating Owner’s outage coordinator shall accommodate reasonable
requests of the Operator’s outage coordinator, in the event of an actual or potential Energy
Emergency to take extraordinary steps to protect reliability.
(c) Each Operator shall make maintenance renewals and replacements to the
Transmission Facilities and Common Equipment it is responsible for: (i) the costs of which are
recordable as an operation and maintenance expense under the FERC Uniform System of
Accounts; and (ii) that are necessary for the operation of the Transmission Facilities and Common
Equipment in accordance with Good Utility Practice, Governmental Requirements, Governmental
Authorizations and Reliability Standards. Such maintenance renewals and replacements to the
Transmission Facilities are included in the services for which the Operator is compensated by the
Monthly Transmission Facilities O&M Charge. The Operator shall not separately invoice the
Owners for the costs of such maintenance renewals and replacements to the Transmission Facilities
and Common Equipment. Notwithstanding anything to the contrary contained in this Agreement,
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any maintenance renewals and replacements made pursuant to this Section 5.2(c) to Transmission
Facilities shall be Transmission Facilities for purposes of this Agreement, and any maintenance
renewals and replacements made pursuant to this Section 6.15.2(c) to Common Equipment shall
be Common Equipment for purposes of this Agreement.
(d) Each Operator shall make capital upgrades and improvements to the
Transmission Facilities and Common Equipment it is responsible for: (i) the costs of which are
recordable as capital expenditures under the FERC Uniform System of Accounts; and (ii) which
are necessary for the operation of the Transmission Facilities and Common Equipment in
accordance with Good Utility Practice, Governmental Requirements, Governmental
Authorizations and Reliability Standards. The Operator shall consult with the Non-Operating
Owner and receive prior approval, such approval not to be unreasonably withheld, delayed or
conditioned, with respect to any capital upgrade or improvement for which the Non-Operating
Owner shall have financial responsibility under this Agreement and which Operator reasonably
expects to incur total project costs that exceed Five Hundred Thousand Dollars ($500,000). The
Owners shall be responsible for their Pro Rata Share (based on their respective Ownership
Interests, if any, in the Transmission Facilities and Common Equipment being upgraded or
improved) of any Costs incurred by or on behalf of the Operator in making such capital upgrades
or improvements. Such capital upgrades and improvements to the Transmission Facilities and
Common Equipment are included in the services for which the Operator is compensated by the
Other Costs charge. Notwithstanding anything to the contrary contained in this Agreement, any
capital upgrades and improvements made pursuant to this Section 5.2(d) to the Transmission
Facilities shall be considered Transmission Facilities for purposes of this Agreement, and any
capital upgrades and improvements made pursuant to this Section 5.2(d) to Common Equipment
shall be considered Common Equipment for purposes of this Agreement.
(e) Each Operator shall assume responsibility for completion of “Idaho Power
Extraordinary Items,” “PacifiCorp Extraordinary Items,” “Idaho Power Planned Improvements,”
“PacifiCorp Planned Improvements” and completion of a “Casualty Loss” as each is defined in
the JPSA (collectively, the “Prior Projects”), underway on the Effective Date on Segments for
which it is responsible in accordance with the terms and conditions of this Agreement, and such
capital upgrades, improvements, repairs or reconstruction shall not be subject to approval of the
Non-Operating Owner. Such Prior Projects are included in the services for which the Operator is
compensated by the Other Costs charge. The Owners shall be responsible for their Pro Rata Share
(based on their respective Ownership Interests in the Segment being upgraded, improved, repaired
or reconstructed) of any Costs incurred by or on behalf of: (i) the Prior Project’s Owner prior to
the Effective Date; and (ii) the Operator commencing on the Effective Date through the completion
of such capital upgrades, improvements, repairs or reconstruction. Notwithstanding anything to
the contrary contained in this Agreement, any capital upgrades and improvements made pursuant
to this Section 5.2(e) to the Transmission Facilities shall be considered Transmission Facilities for
purposes of this Agreement. Insurance proceeds received by a Party related to the Prior Projects,
shall be forwarded to the Operator, less an amount equal to that expended by the Party on the Prior
Projects up to the Effective Date and not reflected in Net Book Value on the Effective Date. The
Operator shall apply such proceeds (up to each Owner’s Pro Rata Share (based on its respective
Ownership Interest(s) in the Segment being upgraded, improved, repaired or reconstructed)) to the
29
completion of the Prior Projects, and return to the Owners their Pro Rata Share (based on their
respective Ownership Interest(s) in the Segment being upgraded, improved, repaired or
reconstructed) of any excess insurance proceeds.
5.3 Requests for Generation or Transmission Interconnection Service.
The Owners acknowledge and agree that all requests for interconnection to any of the
jointly-owned Transmission Facilities must be coordinated with the Operator responsible for
such Transmission Facilities and processed in a manner consistent with the Owner’s OATT
pursuant to which the request was made (“Interconnection Owner”) and any Governmental
Requirements. An Interconnection Owner in receipt of a request for interconnection with any
jointly-owned Transmission Facilities will promptly notify the responsible Operator and the
other Owner, and thereafter the Owners and the Operator will coordinate and cooperate to
process the interconnection request. The Interconnection Owner will complete all studies, other
than the affected system study, to determine the impact of the interconnection request on the
jointly-owned Transmission Facilities and other affected systems, including the Owners’
Transmission Systems, in accordance with the Interconnection Owner’s OATT and any
Governmental Requirements. The Interconnection Owner will coordinate with the Operator and
other Owner and affected systems with regard to all meetings held with the entity requesting an
interconnection, and share all completed studies associated with the interconnection request with
the Operator and other Owner, and, to the extent required by the Interconnection Owner’s
OATT, with affected systems owners.
5.4 Requests for Third-Party Joint-Use of Transmission Facilities.
(a) Except as provided in subsection Section 5.4(c), all requests from a third-
party (“Third-Party Requester”) for attachment of their facilities (“Third-Party Facilities”) to any
of the jointly-owned Transmission Facilities (“Third-Party Use”) may be approved solely by the
Operator of such Transmission Facilities; provided, however, that such approval shall be
contingent on the Third-Party Requester and such Operator executing a separate agreement
acceptable to the Operator that, among other things, is not inconsistent with the terms and
conditions of this Agreement, and obligates the Third-Party Requester: (i) to protect against and
avoid any unsafe operating conditions and negative impacts on or interference with current or
future use, operations or maintenance of the Transmission Facilities that may result from such
Third-Party Use; (ii) to pay all costs associated with the installation, operation and maintenance of
any Third-Party Facilities, any upgrades or changes to the existing Transmission Facilities required
to accommodate such Third-Party Use, and all costs incurred by the Owners or the Operator in
connection with the Third-Party Use; (iii) to operate and maintain any Third-Party Facilities in a
manner consistent with Good Utility Practice, this Section 5.4, and all applicable Governmental
Requirements and Governmental Authorizations; (iv) to remove and permit the Owners or the
Operator to remove any Third-Party Facilities following the termination or expiration of such
agreement, all at the cost and expense of the Third-Party Requester; (v) to obtain and maintain
during the term of such agreement insurance in such amounts as may be reasonably required by
the Operator; and (vi) to indemnify and defend each of the Owners and the Operator and their
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respective Affiliates and their respective Representatives against damage to person or property of
the Owners or the Operator or third parties.
(b) Any revenues from Third-Party Use under this Section 5.4 will be allocated
between the Owners in accordance with their respective Ownership Interest of the Transmission
Facilities subject to such Third-Party Use as set forth in Exhibit C.
(c) Notwithstanding Section 5.4(a), the Owners acknowledge and agree that
any request from a Third-Party Requester for Third-Party Use of the 500 kilovolt Midpoint to
Hemingway to Summer Lake transmission line shall be approved by the Owners and subject to
separate agreement among the Third-Party Requester and the Owners in form and substance
mutually satisfactory to the Owners.
(d) The Owners agree that the only Third-Party Uses and Third-Party Facilities
permitted under this Agreement shall be for, or directly related to, the provision of communications
services by a third party.
5.5 Shared Capacity Transmission Facility.
(a) The Owners acknowledge and agree that certain Transmission Facilities
have historically been utilized for load service (distribution) to Idaho Falls Power in a specific
direction, are not part of a Path, and that the Total Directional Capacity of these facilities is
sufficient to meet the simultaneous Idaho Falls Power load service needs of both Owners. Subject
to the conditions in Sections 5.5(b) and 5.5(c), Owners grant each other the shared use of such
historically-utilized Transmission Facilities in the directions as specified by the use of “^” in
Exhibit C (“Shared Capacity Transmission Facility”).
(b) At any time during the Term, an Owner may identify a Shared Capacity
Transmission Facility as being insufficient to meet its Idaho Falls Power load service needs (the
“Insufficient Shared Capacity Transmission Facility”) by providing written notice to the other
Owner. Within sixty (60) days after the date notice is provided, the Owners will determine (i) the
action to be taken to enable the Insufficient Shared Capacity Transmission Facility to meet the
Owners’ simultaneous load service needs, (ii) whether a capital upgrade or improvement to the
Shared Capacity Transmission Facility or its associated Transmission Facility is required, and (iii)
whether any amendment to this Agreement is needed. If the Owners are unable to reach agreement
within sixty (60) days of the date notice is provided, the Owner that provided notice will become
the Proposing Owner, and the Owners shall follow the provisions of Article VI utilizing the
assumption that the Directional Capacity Allocation of the Insufficient Shared Capacity
Transmission Facility is allocated to each Owner in the same proportion as the applicable Shared
Capacity Transmission Facility. Once the capital upgrade or improvement identified through the
provisions of Article VI is complete, the Insufficient Shared Capacity Transmission Facility shall
be declassified as a Shared Capacity Transmission Facility in Exhibit C and the Owners shall
update Exhibit C to note the applicable Total Directional Capacity and Directional Capacity
Allocations.
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(c) Notwithstanding the Directional Capacity Allocations noted for any Shared
Capacity Transmission Facility in Exhibit C, in the event of an Owner requiring additional capacity
to serve its real time allotment of Idaho Falls Power load, each Owner of a Shared Capacity
Transmission Facility shall have the right to utilize (without cost) such portion of the Total
Directional Capacity Allocation of the Shared Capacity Transmission Facility as necessary to serve
its real-time allotment of Idaho Falls Power Load. If load curtailment is required due to overload
of a Shared Capacity Transmission Facility, the Operator shall direct load curtailment in
accordance with the Operator’s emergency plans, developed in accordance with Good Utility
Practice, Governmental Requirements, Governmental Authorizations and Reliability Standards.
ARTICLE VI
TRANSMISSION FACILITIES CAPITAL UPGRADES PROPOSED BY AN OWNER
6.1 Capital Upgrades.
(a) At any time during the Term, a Proposing Owner may elect to make a capital
upgrade or improvement to the Transmission Facilities to which it has an Ownership Interest,
provided that in no event shall a Proposing Owner be entitled to make a capital upgrade or
improvement to any Transmission Facilities that reasonably would be expected to have a material
adverse effect on the other Owner’s ownership, use or enjoyment of its Ownership Interest(s) in
such Transmission Facilities (and associated Directional Capacity Allocation Percentage(s) and
Directional Capacity Allocation(s)) as contemplated in this Agreement, and provided that for a
capital upgrade or improvement to a Shared Capacity Transmission Facility the Owners shall first
follow the provisions of Section 5.5(b). A Proposing Owner shall provide the other Owner no less
than sixty (60) days’ prior written notice of its election, together with reasonable details about the
proposed upgrade or improvement to the Transmission Facilities (each, a “Capital Upgrade
Notice”). Within sixty (60) days of receipt of the Capital Upgrade Notice, the Non-Proposing
Owner may notify the Proposing Owner in writing that it elects to participate in the capital upgrade
or improvement to jointly owned Transmission Facilities. The Non-Proposing Owner may not
participate in any capital upgrade or improvement to Transmission Facilities solely owned by the
Proposing Owner, whether or not the Non-Proposing Owner is an Impacted Party.
(i) If the Non-Proposing Owner delivers notice to the Proposing Owner
within the sixty (60) day period that it elects to participate in the capital upgrade or improvement
to the Transmission Facilities, then the Owners shall meet and agree on: (A) the final scope of the
capital upgrade or improvement and the Cost estimate, with detail to show Costs for joint owned
Transmission Facilities and Common Equipment (B) the allocation of increased transmission
capacity, if any, associated with such capital upgrade and improvement between the Owners,
including any change in the Owners’ Directional Capacity Allocation Percentage(s) and
Directional Capacity Allocation(s) which shall be determined in accordance with Section 3.3; (C)
any change in each Owner’s Ownership Interest with respect to such Transmission Facilities and
any applicable Substation O&M Allocation which shall be determined in accordance with Section
3.3; (D) each Owner’s share of the costs of such upgrade or improvement (which shall be based
on the Owners’ respective Ownership Interests in the Transmission Facilities) with the actual Costs
to each Owner to be based on the Costs of joint owned Transmission Facilities and Common
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Equipment; (E) any change in the Monthly Transmission Facilities O&M Charge, the Monthly
Substation O&M Charge, or the Monthly Common Equipment Charge, if any; and (F) such other
matters as the Owners may agree upon, all of which shall be memorialized in an amendment to
this Agreement executed by the Owners, including any amendments to the Exhibits hereto which
shall be effective as set forth in Section 6.1(b) (the “Amendment”); provided, however, that any
failure of the Owners to agree on any of the matters specified in subparts (A) through (F) above
shall be resolved pursuant to the provisions of Article XVII. Notwithstanding any provisions to
the contrary in this Agreement, an Owner shall not be prohibited from making a capital upgrade
or improvement to the Transmission Facilities pursuant to this Section 6.1(a) because the Owners
fail to agree on any of the matters specified in subparts (A) through (F) of the immediately
preceding sentence, and any such disagreement shall be resolved pursuant to Article XVII.
(ii) If the Non-Proposing Owner elects not to participate in the capital
upgrade or improvement to the Transmission Facilities (or fails to deliver a notice to the Proposing
Owner within the sixty (60) day period) or is not entitled to participate in the capital upgrade or
improvement to the Transmission Facilities pursuant to Section 6.1(a), then the Proposing Owner
may proceed with the capital upgrade or improvement, provided that the Proposing Owner shall
coordinate with the Operator responsible for the applicable Transmission Facilities on the final
scope of the capital upgrade or improvement proposed by the Proposing Owner.
(b) The applicable Operator shall design, permit, construct, install and
commission any upgrades or improvements to the Transmission Facilities provided for in
Section 6.1(a)(i) in accordance with the Amendment or, if applicable, any resolution pursuant to
Article XVII, and otherwise in accordance with Good Utility Practice, Governmental
Requirements and Governmental Authorizations. The Owners shall be responsible, based on the
Amendment or, if applicable, any resolution pursuant to Article XVII, for all of the Costs incurred
by or on behalf of the Operator in connection with such capital upgrade or improvement to the
Transmission Facilities. Effective as of the date of successful commissioning of such capital
upgrade or improvement, written notice of which the Operator shall provide to the Owners, the
Owners’ Ownership Interests, Directional Capacity Allocation Percentages and Directional
Capacity Allocations in respect of such Transmission Facilities any applicable Substation O&M
Allocation shall be adjusted, if at all, in accordance with the Amendment or, if applicable, any
resolution pursuant to Article XVII, and the Owners shall memorialize any revised Ownership
Interests, Directional Capacity Allocation Percentages, Directional Capacity Allocations, and
applicable Substation O&M Allocation in a revised Exhibit C, which shall be effective as of the
date of successful commissioning of such upgrade or improvement. Notwithstanding anything to
the contrary contained in this Agreement, any capital upgrades or improvements provided for in
this Section 6.1(b) shall be Transmission Facilities for purposes of this Agreement.
(c) The applicable Operator shall design, permit, construct, install and
commission any upgrades or improvements to the Transmission Facilities provided for in
Section 6.1(a)(ii) in accordance with the final scope of the capital upgrade or improvement
established by the Proposing Owner pursuant to Section 6.1(a)(ii), and otherwise in accordance
with Good Utility Practice, Governmental Requirements and Governmental Authorizations.
Regardless of the foregoing, when an Owner of solely-owned Transmission Facilities that are
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operated by the other Party makes a capital upgrade or improvement, the Owner and Operator will
jointly determine equipment specifications. Unless agreed to otherwise, replacement equipment
shall be consistent with the original equipment specifications. The applicable Operator shall
provide a detailed estimate of the Cost of the capital upgrade or improvement to the Proposing
Owner within sixty (60) days of receiving the final scope of the capital upgrade or improvement
from the Proposing Owner and after the joint determination of equipment specifications. The
estimate should include, but is not limited to the following: a breakdown of labor, materials,
equipment, and overheads. A reasonable effort shall be made to make the estimate as accurate as
possible. The estimate is non-binding and the Proposing Owner shall be responsible for all of the
costs incurred by or on behalf of the Operator in connection with such capital upgrade or
improvement to the Transmission Facilities and title to such capital upgrades or improvement shall
vest solely with the Proposing Owner. Effective as of the date of successful commissioning of
such capital upgrade or improvement, written notice of which the Operator shall provide to the
Owners: (i) the Owners’ Ownership Interests, Directional Capacity Allocation Percentages and
Directional Capacity Allocations in respect of such Transmission Facilities and any applicable
Monthly Transmission Facilities O&M Charge, Substation O&M Allocation, and Monthly
Common Equipment Charge shall be adjusted, if at all, in accordance with Section 3.3; and (ii) the
Operator shall operate and maintain such capital upgrade or improvement in accordance with
Section 6.1(a). In addition, the Owners shall meet and agree on: (A) the allocation of increased
transmission capacity, if any, associated with such capital upgrade and improvement between the
Owners, including any change in the Owners’ Directional Capacity Allocation Percentages and
Directional Capacity Allocations which shall be determined in accordance with Section 3.3; (B)
any change in the Monthly Transmission Facilities O&M Charge, the Monthly Substation O&M
Charge, or the Monthly Common Equipment Charge, if any; and (C) such other matters as the
Owners may agree upon, all of which shall be memorialized in an amendment to this Agreement
executed by the Owners, including any amendments to the Exhibits hereto which shall be effective
as of the date of successful commissioning of such upgrade or improvement; provided, however,
that any failure of the Owners to agree on any of the matters specified in subparts (A) through (C)
above shall be resolved pursuant to the provisions of Article XVII. Notwithstanding anything to
the contrary contained in this Agreement, any capital upgrades or improvements provided for in
this Section 6.1(c) shall be Transmission Facilities for purposes of this Agreement.
(d) Notwithstanding anything to the contrary contained herein, the provisions
of this Section 6.1 shall not apply to capital upgrades or improvements made by an Operator
pursuant to Section 6.1(c) which are necessary for the operation of the Transmission Facilities in
accordance with Good Utility Practice or required by Governmental Requirements or
Governmental Authorizations, which shall be governed by the provisions of Section 5.1(d).
(e) Each Owner shall provide the applicable Operator prompt written notice of
any request pursuant to its OATT from a customer to provide additional transmission capacity that
will require one or more capital upgrades or improvements to any of the Transmission Facilities.
If capital upgrades or improvements are required in accordance with such Owner’s OATT, then
such capital upgrades and improvements shall be made by the Operator in accordance with the
provisions of Section 6.1(a) and Section 6.1(b).
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6.2 McNary Transmission Project.
(a) Within thirty (30) days after the earlier of the date on which: (a) Idaho
Power notifies PacifiCorp in writing that it desires to proceed with negotiations regarding the
development, construction, operation and joint ownership of a new transmission line from
McNary-Walulla-Walla Walla with capacity to be determined based on future studies and needs
(the “McNary Transmission Project”); or (b) PacifiCorp notifies Idaho Power that it plans to
proceed with all or a part of the McNary Transmission Project, the Parties will meet and negotiate
in good faith to reach agreement on the definitive terms and conditions of construction, ownership
and operation agreements for the McNary Transmission Project (the “McNary Transmission
Project Agreements”) pursuant to which the Parties will develop, design, engineer, procure,
construct, test, commission, operate and jointly own the McNary Transmission Project. Any such
negotiations shall automatically terminate if the Parties fail to reach agreement on the definitive
terms and conditions of the McNary Transmission Project Agreements within ninety (90) days of
receipt of the earlier of the notice in Section 6.2(a) and Section 6.2(b) (the “Negotiations End
Date”). The Parties will attempt, to the greatest extent possible, to base the Parties’ rights, duties,
obligations, liabilities and remedies under the McNary Transmission Project Agreements on the
Parties’ rights, duties, obligations, liabilities and remedies under this Agreement; provided that the
Parties agree that PacifiCorp shall be the operator of and responsible for the design, engineering,
procurement, construction, testing and commissioning of the McNary Transmission Project under
any McNary Transmission Project Agreements and that the terms and conditions associated with
PacifiCorp’s responsibilities as operator shall be definitively negotiated as part of any McNary
Transmission Project Agreements. If the Parties fail to reach agreement by the Negotiations End
Date on the definitive terms and conditions of the McNary Transmission Project Agreements
pursuant to this Section 6.2, then PacifiCorp may proceed or not proceed with the McNary
Transmission Project and Idaho Power will have no further right to participate with PacifiCorp in
the development, construction, operation and joint ownership of the McNary Transmission Project.
ARTICLE VII
PHYSICAL DAMAGE TO TRANSMISSION FACILITIES; CONDEMNATION
7.1 Rebuilding Damaged Facilities.
(a) If any of the Transmission Facilities or Common Equipment are materially
damaged or destroyed (the “Damaged Facilities”), then within thirty (30) days of the date the
damage or destruction occurred, the Operator responsible for such Transmission Facilities and
Common Equipment shall deliver to the Owners a written notice (the “Damage Notice”) of the
Operator’s good faith reasonable estimate of the cost to repair or rebuild the Damaged Facilities.
(i) If the Damaged Facilities consist of Transmission Facilities that are
jointly owned by the Owners and the Damage Notice indicates that the total project cost to repair
or rebuild the Damaged Facilities is estimated to be Five Million Dollars ($5,000,000) or more,
inclusive of insurance proceeds, then the Owners will determine whether the Damaged Facilities
will be repaired or rebuilt within thirty (30) days of the date of the Damage Notice.
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(ii) If the Damaged Facilities consist of Transmission Facilities that are
jointly owned and the Damage Notice indicates that the total project cost to repair or rebuild the
Damaged Facilities is estimated to be less than Five Million Dollars ($5,000,000), inclusive of
insurance proceeds, then, the Operator will determine in accordance with Good Utility Practice
whether the Damaged Facilities will be repaired or rebuilt and provide notice thereof to the Owners
within thirty (30) days of the date of the Damage Notice.
(iii) If the Damaged Facilities consist of an Owner’s wholly-owned
Transmission Facilities or Common Equipment, then, the Owner will determine in accordance
with Good Utility Practice whether the Damaged Facilities will be repaired or rebuilt and provide
notice thereof to the Operator within thirty (30) days of the date of the Damage Notice.
(b) If the Owners, the Operator, or the Owner determines pursuant to Sections
7.1(a)(i), 7.1(a)(ii), or 7.1(a)(iii), respectively, to repair or rebuild the Damaged Facilities, then the
Owners will, upon receipt of any insurance proceeds paid in connection with such Damaged
Facilities, apply such proceeds (up to each Owner’s Pro Rata Share (based on its respective
Ownership Interest(s), if any, in the Damaged Facilities) in the amount to be paid) to the repair
and reconstruction of the Damaged Facilities which will be carried out by the Operator. The
Operator will be responsible for obtaining any necessary Governmental Authorizations to repair
or rebuild the Damaged Facilities and determining the manner in which to repair and reconstruct
the Damaged Facilities (including the equipment to be used). Each Owner shall reasonably
cooperate with and support the Operator in obtaining any such Governmental Authorizations in
accordance with Section 4.4(c). The Operator will cause such repairs or reconstruction to be made
so that the Damaged Facilities will be repaired and restored to substantially the same general
condition, character and use as existed prior to such damage or destruction. If the cost of such
repairs or reconstruction exceeds the insurance proceeds required to be applied to the repair or
reconstruction pursuant to this Section 7.1, then the Owners shall pay, in accordance with their
applicable Ownership Interests, if any, the shortfall amount.
7.2 Decision not to Rebuild.
If the Owners, the Operator, or the Owner determines pursuant to Sections 7.1(a)(i),
7.1(a)(ii), or 7.1(a)(iii), respectively, not to repair or rebuild the Damaged Facilities (or cannot
reach agreement to repair or rebuild the Damaged Facilities), then, in each case: (a) each Owner
shall: (i) be entitled to retain any insurance proceeds received pursuant to insurance maintained
by it with respect to the Damaged Facilities; (ii) receive its Pro Rata Share (based on its
respective Ownership Interest(s), if any, in the Damaged Facilities) of any revenues from the
salvage or sale of the Damaged Facilities; and (iii) pay its Pro Rata Share (based on its respective
Ownership Interest(s), if any, in the Damaged Facilities) of any costs of removal of parts and
equipment from the Damaged Facilities; (b) the Operator shall pay to the Owners their Pro Rata
Share (based on their respective Ownership Interest(s), if any, in the Damaged Facilities) of any
insurance proceeds received from any property insurance obtained by the Operator pursuant to
Section 4.6(b); and (c) subject to Section 7.3, this Agreement shall terminate pursuant to Section
2.3(a) solely with respect to such Damaged Facilities.
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7.3 Purchase of Ownership Interest.
If the Owners, the Operator, or the Owner determines pursuant to Sections 7.1(a)(i),
7.1(a)(ii), or 7.1(a)(iii), respectively, not to repair or rebuild the Damaged Facilities (or cannot
reach agreement to repair or rebuild the Damaged Facilities) and, in each case, one Owner
desires to repair or rebuild the Damaged Facilities (the “Continuing Owner”), then the
Continuing Owner shall have the option to purchase all of the Ownership Interest(s) (and
associated Directional Capacity Allocation Percentage(s) and Directional Capacity Allocation(s))
of the other Owner in the Damaged Facilities. In order to exercise its option to purchase all of
the Ownership Interest(s) (and associated Directional Capacity Allocation Percentage(s) and
Directional Capacity Allocation(s)) of the other Owner in the Damaged Facilities, the Continuing
Owner must give written notice thereof to the other Owner within thirty (30) days of the Owners’
or Operator’s determination pursuant to Section 7.1 not to repair or rebuild the Damaged
Facilities. The Owners shall enter into such documentation as the Continuing Owner shall
reasonably request to document the purchase and sale of all of the Ownership Interest(s) (and
associated Directional Capacity Allocation Percentage(s) and Directional Capacity Allocation(s))
of the other Owner in the Damaged Facilities, provided that the purchase price of the Ownership
Interest(s) (and associated Directional Capacity Allocation Percentage(s) and Directional
Capacity Allocation(s)) of the other Owner shall be equal to the other Owner’s Pro Rata Share
(based on its respective Ownership Interest(s) in the Damaged Facilities) of the salvage value of
the Damaged Facilities.
7.4 Cooperation.
If the Continuing Owner seeks to repair or rebuild the Damaged Facilities purchased
from the other Owner pursuant to Section 7.3, then, at the Continuing Owner’s request and
expense, the other Owner and the responsible Operator (if the Continuing Owner is not the
responsible Operator) will, for a reasonable period of time, cooperate with and use Commercially
Reasonable Efforts to assist the Continuing Owner in the repair or rebuilding of the Damaged
Facilities. This Section 7.4 shall survive the expiration or termination of this Agreement
pursuant to Section 2.3(a) solely with respect to such Damaged Facilities.
7.5 Condemnation.
If there occurs a loss of title to, or ownership of, or use and possession of, all or any
portion of any of the Transmission Facilities or Common Equipment as the result of the exercise
of the right of condemnation or eminent domain by or on behalf of any Governmental Authority,
then the Operator responsible for such Transmission Facilities or Common Equipment will
promptly give notice thereof to the Owners, which notice shall generally describe the nature and
extent of such condemnation or eminent domain proceedings (including any negotiations in
connection with such proceedings). The Operator shall, in consultation with the Owners, use
Commercially Reasonable Efforts to resist the loss of title to, or ownership of, or use and
possession of, all or any portion of any of the Transmission Facilities or Common Equipment
through condemnation or eminent domain. If, as a result of condemnation or eminent domain,
the Owners shall lose title to, or ownership of, or use and possession of, all or any portion of any
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of the Transmission Facilities or Common Equipment, then the Owner or Owners shall
determine whether:
(a) the relevant portion of the Transmission Facilities or Common Equipment
is no longer useful for the transmission of electric power and should be retired and
decommissioned, in which case the provisions of Article VIII shall control;
(b) the relevant portion of the Transmission Facilities or Common Equipment
should be replaced or modified, in which case the Owners will, upon receipt of any awards paid in
connection with such condemnation or eminent domain, apply such awards to the replacement or
modification of the Transmission Facilities or Common Equipment which will be carried out by
the Operator responsible for such Transmission Facilities or Common Equipment. The Operator
will, consistent with the decision of the Owner or Owners, as applicable, determine the manner in
which to replace or modify the Transmission Facilities or Common Equipment, and will cause
such replacement and modifications to be made so that the Transmission Facilities or Common
Equipment are replaced or modified in accordance with the decision of the Owner or Owners, as
applicable. If the cost of replacement or modification of the Transmission Facilities or Common
Equipment exceeds the awards received by the Owners in connection with such condemnation or
eminent domain, then the Owners shall pay their Pro Rata Share (based on their respective
Ownership Interest(s), if any, in the Transmission Facilities or Common Equipment) of the
shortfall amount; or
(c) if the Owner or Owners, as applicable, do not reach agreement on one of
the actions provided for in Section 7.5(a) and Section 7.5(b), or on another course of action, within
sixty (60) days after the date of the notice provided by the Operator to the Owners pursuant to the
first sentence of this Section 7.5, then each Owner shall receive its Pro Rata Share (based on its
respective Ownership Interest(s), if any, in the Transmission Facilities or Common Equipment) of
all awards received by the Owners (or their Affiliates) in connection with any such condemnation
or eminent domain (less the actual cost, fees and expenses incurred by the Operator in collection
thereof).
ARTICLE VIII
RETIREMENT AND DECOMMISSIONING OF TRANSMISSION FACILITIES
8.1 Decision to Retire Transmission Facilities.
The Owners will determine in accordance with the terms of this Article VIII when any of
the Transmission Facilities or Common Equipment are no longer useful for the transmission of
electric power and should be retired and decommissioned. If the Owner or Owners decide to
retire and decommission any of the Transmission Facilities or Common Equipment, then, subject
to Section 8.2 and Section 8.3, this Agreement shall terminate pursuant to Section 2.3(a) solely
with respect to such Transmission Facilities or Common Equipment once they are retired and
decommissioned.
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8.2 Costs of Decommissioning.
Each of the Owners shall be responsible for paying its Pro Rata Share (based on its
respective Ownership Interest(s), if any, in the Facilities Proposed for Retirement) of the
aggregate amount of all costs incurred by or on behalf of the Operator to retire permanently the
Facilities Proposed for Retirement from service, including decommissioning, dismantling,
demolishing and removal of equipment, facilities and structures, security, maintenance,
disposing of debris, abandonment and all other costs incurred by or on behalf of the Operator to
retire permanently the Facilities Proposed for Retirement from service, net of any amounts
recovered in connection with the sale of any retired equipment, facilities and structures.
8.3 Decommissioning Notice; Purchase of Ownership Interest.
A Proposing Owner shall give written notice to the other Owner when it believes any of
the Transmission Facilities or Common Equipment in which it has an Ownership Interest should
be retired and decommissioned (each notice, a “Decommissioning Notice”). If the Non-
Proposing Owner either (i) has an Ownership Interest in the Facilities Proposed for Retirement,
or (ii) is an Impacted Party with respect to the Facilities Proposed for Retirement, and, in either
case, desires to continue the operation of the Facilities Proposed for Retirement, then the Non-
Proposing Owner shall have the option to purchase all of the Ownership Interest(s) (and
associated Directional Capacity Allocation Percentage(s) and Directional Capacity
Allocation(s)), if any, of the Proposing Owner in the Facilities Proposed for Retirement. In order
to exercise its option to purchase all of the Ownership Interest(s) (and associated Directional
Capacity Allocation Percentage(s) and Directional Capacity Allocation(s), if any) of the
Proposing Owner in the Facilities Proposed for Retirement, the Non-Proposing Owner must give
written notice thereof to the Proposing Owner within ninety (90) days of receipt of the
Decommissioning Notice. The Owners shall enter into such documentation as each Owner shall
reasonably request to document the purchase and sale of the Ownership Interest(s) (and
associated Directional Capacity Allocation Percentage(s) and Directional Capacity
Allocation(s)), if any, of the Proposing Party in the Facilities Proposed for Retirement, provided
that the purchase price of the Ownership Interest(s) (and associated Directional Capacity
Allocation Percentage(s) and Directional Capacity Allocation(s)) of the Proposing Party shall be
equal to the Proposing Party’s Pro Rata Share (based on its respective Ownership Interest(s), if
any, in the Facilities Proposed for Retirement) of the depreciated cost of the Facilities Proposed
for Retirement.
8.4 Cooperation.
If the Non-Proposing Owner seeks to purchase and continue the operation of the
Facilities Proposed for Retirement, then, at the Non-Proposing Owner’s request and expense, the
Proposing Owner and the responsible Operator (if the Non-Proposing Owner is not the
responsible Operator) will, for a reasonable period of time, cooperate with and use Commercially
Reasonable Efforts to assist the Non-Proposing Owner in the continued operation of the
Facilities Proposed for Retirement. This Section 8.4 shall survive the expiration or termination
of this Agreement pursuant to Section 2.3.
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ARTICLE IX
TRANSMISSION SYSTEM BOUNDARIES
9.1 Points of Interconnection; Points of Balancing Authority Area Adjacency.
(a) Each Owner’s Transmission System, which includes the Owner’s
Ownership Interests in the Transmission Facilities, shall be considered interconnected at the Points
of Interconnection, and the location and associated meter for each Point of Interconnection, and
any other information required by Governmental Requirements to be agreed to by the Parties, shall
have been mutually agreed to by the Parties in writing and included in operating procedures of the
Parties on or before the Effective Date, which the Parties shall review and update annually as
necessary.
(b) Each Owner’s Balancing Authority Area shall be considered Adjacent
Balancing Authority Areas at the Points of Balancing Authority Area Adjacency, and the location
and associated meter for each Point of Balancing Authority Area Adjacency, and any other
information required by Governmental Requirements to be agreed to by the Parties, shall have
been mutually agreed to by the Parties in writing and included in operating procedures of the
Parties on or before the Effective Date, which the Parties shall review and update annually as
necessary.
9.2 E-Tags.
Each Party shall cause the Operator of a Path to be included on all e-Tags as a scheduling
entity.
9.3 Dynamic Transfer Capability Rights.
(a) Notwithstanding any provision of this Agreement to the contrary, Idaho
Power authorizes PacifiCorp to utilize up to 400 MW of Dynamic Transfer Capability over the
Idaho Power Transmission System in an east to west direction; provided, however, no schedule
shall exceed the scheduling capability of any point of receipt and point of delivery combination.
(b) Idaho Power’s grant of, and PacifiCorp’s utilization of, Dynamic Transfer
Capability scheduling rights pursuant to this Section 9.3 are subject to Good Utility Practice and
Governmental Requirements.
9.4 [RESERVED]
9.5 Electric Losses.
Each Party agrees that when it is the operator of the Balancing Authority Area containing
a Segment for which the other Owner is the transmission provider for the Segment, that it will:
(a) provide electric energy for transmission losses as needed to keep transmission service
schedules whole within its Balancing Authority Area, consistent with Governmental
Requirements and Reliability Standards; and (b) provide compensation for electric losses in
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accordance with Exhibit G “Joint Ownership Transmission Loss Calculation and Allocation
Methodology.”
9.6 Jim Bridger Project Generation RAS.
The Parties agree that the Jim Bridger Project shall be tripped to implement the Jim
Bridger Project Generation RAS schemes according to protocols that shall have been mutually
agreed to by the Parties and included in operating procedures of the Parties on or before the
Effective Date, which operating procedures the Parties shall review and update annually as
necessary.
ARTICLE X
TRANSMISSION SYSTEMS OPERATION AND MAINTENANCE
10.1 Service Conditions.
(a) Operation and Maintenance. Each Owner shall operate and maintain its
Transmission System in a manner consistent with Good Utility Practice, Governmental
Requirements, Governmental Authorizations and Reliability Standards; provided, however, that
nothing in this Section 10.1(a) shall modify or amend such Party’s responsibility as an Operator
under this Agreement.
(b) Additional Services. This Article X is applicable only to the physical
interconnection of the Owners’ Transmission Systems at the Points of Interconnection and does
not obligate either Owner to receive or provide any service. Other services provided by one Owner
to the other Owner shall be governed by such other agreements as the Owners may enter into from
time to time.
(c) Interruption of Service. The Owners shall use Commercially Reasonable
Efforts, consistent with Good Utility Practice, Reliability Standards and Governmental
Requirements, to provide a physical interconnection to be operated in continuous synchronization
at the Points of Interconnection, provided that an Owner (“Interrupting Owner”) may temporarily
interrupt or isolate the interconnected facilities under the following circumstances: (i) by operation
of automatic equipment installed for power system protection; (ii) after consultation with the other
Owner, other than in an emergency situation where consultation is not practicable, when an Owner
deems it necessary for installation, maintenance, inspection, repairs or replacements of equipment
on its Transmission System; (iii) at any time that, in the sole judgment of the Interrupting Owner,
such action is necessary to preserve the integrity of, or to prevent or limit any instability on its
Transmission System; (iv) where necessary to comply with documented directives from a
Governmental Authority; (v) as a result of one or more events of Force Majeure; or (vi) where
necessary to prevent: (A) death or serious injury to any person; (B) material damage or harm to
any property; or (C) any material adverse effect to the security of, or damage to its Transmission
System or the electric systems of others to which its Transmission System is directly connected,
including the other Owner’s Transmission System. An Interrupting Owner shall use Commercially
Reasonable Efforts to provide the other Owner (1) with reasonable advance notice of any planned
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interruption of the interconnection facilities in accordance with the notice requirements set forth
in Section 5.2(b), and (2) with notice of any other interruption of the interconnected facilities as
soon as practicable after the interruption. If synchronous operation is interrupted, the Owners shall
cooperate so as to remove the cause of such interruption as soon as commercially practicable
consistent with Good Utility Practice, Reliability Standards and Governmental Requirements.
(d) Physical and Cyber Security. The Operators shall cooperate with the
Owners in complying with any physical and cyber security or other security requirement
established by Governmental Requirements or Reliability Standards applicable to the Owners and
the Transmission Facilities and the Common Equipment, written notice of which the Owners shall
provide to the Operators.
10.2 Survival.
The provisions of this Article X, together with other provisions of this Agreement (but
only to the extent applicable to the surviving provisions of this Article X), shall continue in full
force and effect notwithstanding the termination of this Agreement, provided that in the event of
termination of this Agreement, the Parties shall amend this Agreement to reflect such changes to
this Agreement as shall be necessary and mutually acceptable to the Parties to conform this
Agreement to the surviving provisions of this Agreement in accordance with this Section 10.2.
ARTICLE XI
FORCE MAJEURE
11.1 Force Majeure Defined.
For purposes of this Agreement, “Force Majeure” means an event or circumstance
beyond the reasonable control of and without the fault or negligence of the Party claiming Force
Majeure (“Affected Party”), which, despite the exercise of reasonable diligence, cannot be or be
caused to be prevented, avoided or removed by such Affected Party including, to the extent
satisfying the above requirements, acts of God; earthquake; abnormal weather condition;
hurricane; flood; lightning; high winds; drought; peril of the sea; explosion; fire; war (declared or
undeclared); military action; sabotage; riot; insurrection; civil unrest or disturbance; acts of
terrorism; economic sanction or embargo; civil strike, work stoppage, slow-down, or lock-out
that are of an industry or sector-wide nature and that are not directed solely or specifically at the
Affected Party; the binding order of any Governmental Authority, provided that the Affected
Party has in good faith reasonably contested such order; the failure to act on the part of any
Governmental Authority, provided that such action has been timely requested and diligently
pursued; unavailability of equipment, supplies or products, but only to the extent caused by
Force Majeure; failure of equipment, provided that the equipment has been operated and
maintained in accordance with Good Utility Practice; and transportation delays or accidents, but
only to the extent otherwise caused by Force Majeure; provided, however, that neither
insufficiency of funds, financial inability to perform nor changes in market conditions shall
constitute Force Majeure.
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11.2 Effect of Force Majeure.
(a) If an Affected Party is rendered wholly or partly unable to perform its
obligations under this Agreement or its performance is delayed because of Force Majeure, such
Affected Party shall be excused from, and shall not be liable for, whatever performance it is unable
to perform or delayed in performing due to the Force Majeure to the extent so affected, provided
that:
(i) The Affected Party, as soon as reasonably practical after the
commencement of the Force Majeure, gives the other Party prompt written notice thereof,
including a description of the particulars of the Force Majeure;
(ii) The suspension of performance is of no greater scope and of no
longer duration than is required by the Force Majeure; and
(iii) The Affected Party uses Commercially Reasonable Efforts to
overcome and remedy its inability to perform as soon as reasonably practical after the
commencement of the Force Majeure.
(b) Notwithstanding anything in this Article XI to the contrary, no payment
obligation arising under this Agreement prior to the date of an event of Force Majeure shall be
excused by such event of Force Majeure.
(c) Whenever an Affected Party is required to commence or complete any
action within a specified period and is prevented or delayed by Force Majeure from commencing
or completing such action within the specified period, such period shall be extended by an amount
equal to the duration of such event of Force Majeure occurring or continuing during such period.
ARTICLE XII
EVENTS OF DEFAULT
12.1 Event of Default.
Each of the following events shall constitute an event of default (“Event of Default”) by
the defaulting Party (a “Defaulting Party”):
(a) The failure to make, when due, any payment required pursuant to this
Agreement, if such failure is not remedied within thirty (30) days after written notice thereof from
the Non-Defaulting Party;
(b) Any representation or warranty made by such Defaulting Party herein is
false or misleading in any material respect when made, unless: (i) the fact, circumstance or
condition that is the subject of such representation or warranty is made true within thirty (30) days
after notice thereof from the Non-Defaulting Party, provided that if the fact, circumstance or
condition that is the subject of such representation or warranty reasonably cannot be corrected
within such thirty (30) day period, then the Defaulting Party shall have an additional period of time
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(not to exceed sixty (60) days) in which to correct the fact, circumstance or condition that is the
subject of such representation or warranty; and (ii) such cure removes any adverse effect on the
Non-Defaulting Party of such fact, circumstance or condition being otherwise than as first
represented, or such fact, circumstance or condition being otherwise than as first represented does
not materially adversely affect the Non-Defaulting Party;
(c) A transfer, assignment or other disposition of its interest in this Agreement
or its Ownership Interests (or Directional Capacity Allocation Percentages and Directional
Capacity Allocations) in the Transmission Facilities, in each case, in violation of Article XIX;
(d) The failure to perform or breach of its covenants and obligations in
Section 3.7;
(e) The failure to be a Qualified Owner, if such failure is not remedied within
thirty (30) days after written notice thereof from the Non-Defaulting Party;
(f) The failure to perform or breach of any material covenant or obligation set
forth in this Agreement (other than provided for in Section 12.1(a), (b), (c), (d) or (e)), if such
failure is not remedied within thirty (30) days after written notice thereof from the Non-Defaulting
Party, provided that if such failure or breach cannot reasonably be cured within thirty (30) days,
then the Defaulting Party shall have an additional period of time (not to exceed ninety (90) days)
in which to cure such failure or breach so long as the Defaulting Party commences good faith
activities to cure the failure or breach during the initial 30-day cure period and continues to utilize
Commercially Reasonable Efforts to effect a cure; or
(g) The Defaulting Party becomes Bankrupt.
12.2 Cure by Non-Defaulting Party.
If a Defaulting Party fails to cure an Event of Default, then the Non-Defaulting Party
may, in its sole discretion, attempt to cure the Event of Default, provided that the Defaulting
Party shall reimburse the Non-Defaulting Party for all costs and expenses incurred by or on
behalf of the Non-Defaulting Party pursuant to this Section 12.2.
12.3 Remedies.
(a) If an Event of Default occurs and is continuing, then the Non-Defaulting
Party shall be entitled to exercise any of it remedies at law or in equity, including recovery from
the Defaulting Party of any damages suffered as a result of the Event of Default, subject to
Section 14.8. The Non-Defaulting Party shall use Commercially Reasonable Efforts to mitigate
any damages suffered as a result of the Event of Default.
(b) The Parties acknowledge that the obligations and covenants performed by
each Party hereunder are unique and that the Non-Defaulting Party will be irreparably injured
should such obligations and covenants not be consummated in accordance with the terms and
conditions of this Agreement. Consequently, the Non-Defaulting Party will not have an adequate
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remedy at law if the other Party shall fail to perform its obligations and covenants hereunder. The
Non-Defaulting Party shall have the right, in addition to any other remedy available under this
Agreement, to specific performance of the Defaulting Party’s obligations and covenants hereunder,
and the Parties agree not to take a position in any proceeding arising out of this Agreement to the
effect that the Non-Defaulting Party has an adequate remedy at law.
ARTICLE XIII
REPRESENTATIONS AND WARRANTIES
13.1 Representations and Warranties of Idaho Power.
Idaho Power represents and warrants to PacifiCorp as of the Execution Date as follows:
(a) It is duly formed, validly existing and in good standing under the laws of
the jurisdiction of its formation.
(b) It has all requisite corporate power necessary to own its assets and carry on
its business as now being conducted or as proposed to be conducted under this Agreement.
(c) It has all necessary corporate power and authority to execute and deliver
this Agreement and to perform its obligations under this Agreement, and the execution and
delivery of this Agreement and the performance by it of this Agreement have been duly authorized
by all necessary corporate action on its part.
(d) The execution and delivery of this Agreement and the performance by it of
this Agreement do not: (i) violate its organizational documents; (ii) violate any Governmental
Requirements; or (iii) result in a breach of or constitute a default of any material agreement to
which it is a party.
(e) This Agreement has been duly and validly executed and delivered by it and
constitutes its legal, valid and binding obligation enforceable against it in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency or other similar laws affecting
creditors’ rights generally and by principles of equity regardless of whether such principles are
considered in a proceeding at law or in equity.
(f) Except as disclosed in Schedule 13.1(f), all material Governmental
Authorizations required by Governmental Requirements to have been obtained by it prior to the
date hereof in connection with the due execution and delivery of this Agreement, have been duly
obtained or made and are in full force and effect.
(g) It is a Qualified Owner.
13.2 Representations and Warranties of PacifiCorp.
PacifiCorp represents and warrants to Idaho Power as of the Execution Date as follows:
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(a) It is duly formed, validly existing and in good standing under the laws of
the jurisdiction of its formation.
(b) It has all requisite corporate power necessary to own its assets and carry on
its business as now being conducted or as proposed to be conducted under this Agreement.
(c) It has all necessary corporate power and authority to execute and deliver
this Agreement and to perform its obligations under this Agreement, and the execution and
delivery of this Agreement and the performance by it of this Agreement have been duly authorized
by all necessary corporate action on its part.
(d) The execution and delivery of this Agreement and the performance by it of
this Agreement do not: (i) violate its organizational documents; (ii) violate any Governmental
Requirements; or (iii) result in a breach of or constitute a default of any material agreement to
which it is a party.
(e) This Agreement has been duly and validly executed and delivered by it and
constitutes its legal, valid and binding obligation enforceable against it in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency or other similar laws affecting
creditors’ rights generally and by principles of equity regardless of whether such principles are
considered in a proceeding at law or in equity.
(f) Except as disclosed in Schedule 13.2(f), all material Governmental
Authorizations required by Governmental Requirements to have been obtained by it prior to the
date hereof in connection with the due execution and delivery of this Agreement, have been duly
obtained or made and are in full force and effect.
(g) It is a Qualified Owner.
ARTICLE XIV
INDEMNIFICATION
14.1 Indemnities.
(a) Subject to the provisions of Section 14.3 and Section 14.8, each Owner (the
“Indemnifying Party”) shall indemnify, defend and hold harmless the other Owner (the
“Indemnified Party”) and its Representatives, from and against any and all suits, actions, liabilities,
legal proceedings, claims, demands, losses, costs and expenses of whatsoever kind or character
(including reasonable attorneys’ fees and expenses) of third parties (collectively, “Claims”), for
injury or death of persons or physical loss of or damage to property of Persons (other than the
Indemnified Party and its Representatives) arising from the Indemnifying Party’s (including its
Representatives’): (i) gross negligence or willful misconduct in connection with the performance
of this Agreement; or (ii) failure to perform a material obligation under this Agreement.
(b) In addition to and not in limitation of the indemnity provided in
Section 14.1(a), but subject to the provisions of Section 14.3 and Section 14.8, each Owner, as
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Indemnifying Party, shall severally and not jointly, in accordance with its applicable Ownership
Interest(s), indemnify, defend and hold harmless each Operator, as Indemnified Party, and its
Representatives from and against any and all Claims for injury or death of persons or physical loss
of or damage to property of Persons (other than the Indemnified Party and its Representatives), or
fines or penalties levied or imposed by Governmental Authorities or other Losses incurred by the
Indemnified Party and its Representatives, in each case, arising under or in connection with this
Agreement, including in connection with the performance by the Operator of its obligations under
this Agreement, except for such Claims or fines or penalties or other Losses arising from the
Operator’s or its Representatives’: (i) gross negligence or willful misconduct in connection with
the performance of this Agreement; or (ii) failure to perform a material obligation under this
Agreement.
(c) Subject to the provisions of Section 14.3 and Section 14.8, each Operator,
as Indemnifying Party, shall indemnify, defend and hold harmless each Owner, as Indemnified
Party, and its Representatives from and against any and all Claims for injury or death of persons
or physical loss of or damage to property of Persons (including the Indemnified Party and its
Representatives), or fines or penalties levied or imposed by Governmental Authorities or other
Losses incurred by the Indemnified Party and its Representatives, in each case, arising from the
Operator’s and its Representatives’: (i) gross negligence or willful misconduct in connection with
the performance of this Agreement; or (ii) failure to perform a material obligation under this
Agreement; provided, however, in no event shall the Operator be obligated to indemnify, defend
or hold harmless an Owner and its Representatives from and against any such Claims or fines or
penalties or Losses to the extent arising from such Owner’s or its Representatives’: (i) gross
negligence or willful misconduct in connection with the performance of this Agreement; or
(ii) failure to perform any material obligation under this Agreement.
14.2 Notice and Participation.
(a) If an Indemnified Party intends to seek indemnification under this
Article XIV with respect to any Claims, the Indemnified Party shall give the Indemnifying Party
prompt written notice of such Claims upon the receipt of actual knowledge or information by the
Indemnified Party of any possible Claims or of the commencement of such Claims. The
Indemnifying Party shall have no liability under this Article XIV for any Claim for which such
notice is not provided, but only to the extent that the failure to give such notice materially impairs
the ability of the Indemnifying Party to respond to or to defend the Claim.
(b) The Indemnifying Party shall have the right to assume the defense of any
Claim, at its sole cost and expense, with counsel designated by the Indemnifying Party and
reasonably satisfactory to the Indemnified Party; provided, however, that if the defendants in any
such proceeding include both the Indemnified Party and the Indemnifying Party, and the
Indemnified Party shall have reasonably concluded that there may be legal defenses available to it
which are in conflict with those available to the Indemnifying Party and that such conflict
materially prejudices the ability of the counsel selected by the Indemnifying Party to represent
both Parties, the Indemnified Party shall have the right to select separate counsel reasonably
satisfactory to the Indemnifying Party, at the Indemnifying Party’s expense, to assert such legal
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defenses and to otherwise participate in the defense of such Claim on behalf of such Indemnified
Party, and the Indemnifying Party shall be responsible for the reasonable fees and expenses of such
separate counsel.
(c) Should any Indemnified Party be entitled to indemnification under this
Article XIV as a result of a Claim, and should the Indemnifying Party fail to assume the defense
of such Claim within a reasonable period of time after the Indemnified Party has provided the
Indemnifying Party written notice of such Claim, the Indemnified Party may, at the expense of the
Indemnifying Party, contest or, with or without the prior consent of the Indemnifying Party, settle
such Claim.
(d) Except to the extent expressly provided herein, no Indemnified Party shall
settle any Claim with respect to which it has sought or is entitled to seek indemnification pursuant
to this Article XIV unless: (i) it has obtained the prior written consent of the Indemnifying Party;
or (ii) the Indemnifying Party has failed to assume the defense of such Claim within a reasonable
period of time after the Indemnified Party has provided the Indemnifying Party written notice of
such Claim.
(e) Except to the extent expressly provided otherwise herein, no Indemnifying
Party shall settle any Claim with respect to which it may be liable to provide indemnification
pursuant to this Section without the prior written consent of the Indemnified Party; provided,
however, that if the Indemnifying Party has reached a bona fide settlement agreement with the
plaintiff(s) in any such proceeding, which settlement includes a full release of the Indemnified
Party for any and all liability with respect to such Claim and does not obligate the Indemnified
Party to take or forbear to take any action, and the Indemnified Party does not consent to such
settlement agreement, then the dollar amount specified in the settlement agreement, plus the
Indemnified Party’s reasonable legal fees and other costs related to the defense of the Claim paid
or incurred prior to the date of such settlement agreement, shall act as an absolute maximum limit
on the indemnification obligation of the Indemnifying Party with respect to the Claim, or portion
thereof, that is the subject of such settlement agreement.
14.3 Net Amount.
Subject to the limitation in Section 14.2(e), if applicable, in the event that an
Indemnifying Party is obligated to indemnify and hold any Indemnified Party harmless under
this Article XIV, the amount owing to the Indemnified Party shall be the amount of such
Indemnified Party’s actual Claims, fines or penalties or other Losses, as the case may be, net of
any insurance or other recovery actually received by the Indemnified Party.
14.4 No Release of Insurers.
The provisions of this Article XIV shall not be deemed or construed to release any
insurer from its obligation to pay any insurance proceeds in accordance with the terms and
conditions of valid and collectible insurance policies.
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14.5 Mitigation.
Each Indemnified Party entitled to indemnification hereunder shall use Commercially
Reasonable Efforts to mitigate all Claims, fines, penalties or other Losses, as the case may be,
after becoming aware of any event which could reasonably be expected to give rise to any
Claims, fines, penalties or other Losses, as the case may be, that are indemnifiable or recoverable
hereunder or in connection herewith.
14.6 Assertion of Claims.
No Claim of any kind shall be asserted against any Owner or Operator pursuant to this
Article XIV, whether arising out of contract, tort (including negligence), strict liability, or any
other cause of or form of action, unless it is filed in a court of competent jurisdiction, or a
demand for arbitration is made, within the applicable statute of limitations period for such Claim.
14.7 Survival of Obligation.
The duty to indemnify under this Article XIV shall continue in full force and effect
notwithstanding the expiration or termination of this Agreement, with respect to any Claim, fine,
penalty or other Losses, as the case may be, arising out of an event or condition which occurred
or existed prior to such expiration or termination.
14.8 Limitation on Liability.
(a) Notwithstanding any provision in this Agreement to the contrary, neither
Party shall be liable under this Agreement in any action at law or in equity, whether based on
contract, tort or strict liability or otherwise, for any special, incidental, indirect, exemplary,
punitive or consequential damages or losses, including any loss of revenue, income, profits or
investment opportunities, loss of the use of equipment, or the cost of temporary equipment or
services, provided that any fines or penalties or other Losses levied or imposed by Governmental
Authorities shall not be excluded under this Section 14.8(a) as special, incidental, indirect,
exemplary, punitive or consequential damages or losses.
(b) Notwithstanding any provision in this Agreement to the contrary, neither
Party shall be liable under this Agreement if and to the extent that the Agreement Limiting Liability
Among Western Interconnected Systems executed by Idaho Power on August 5, 1985 and by
PacifiCorp on August 22, 1973 (the “WIS Agreement”) is then in effect between the Parties and
expressly limits or precludes such liability. Nothing in this Agreement shall amend or otherwise
affect in any way the terms and conditions of or liability of the Parties under the WIS Agreement.
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ARTICLE XV
PROPRIETARY INFORMATION
15.1 Disclosure of Proprietary Information Prohibited.
Any Proprietary Information of a Party (whether in its capacity as Owner or Operator)
(the “Transferor”) which is disclosed to or otherwise received or obtained by the other Party
(whether in its capacity as Owner or Operator) (the “Transferee”) incident to this Agreement
shall be held in confidence and the Transferee shall not (subject to Sections 15.2, 15.3 and 15.5)
publish or otherwise disclose any Proprietary Information of the Transferor to any Person for any
reason or purpose whatsoever, or use any Proprietary Information for any purpose other than
performance under this Agreement, without the prior written approval of the Transferor, which
approval may be granted or withheld by the Transferor in its sole discretion. Without limiting
the generality of the foregoing, each Transferee shall observe at a minimum the same safeguards
and precautions with regard to the Transferor’s Proprietary Information which the Transferee
observes with respect to its own information of the same or similar kind.
15.2 Disclosure by Representatives.
Each Transferee agrees that it will make available Proprietary Information received from
a Transferor to its own Representatives only on a need-to-know basis and in compliance with
Governmental Requirements, and that all Persons to whom such Proprietary Information is made
available will be made aware of the confidential nature of such Proprietary Information, and will
be required to agree to hold such Proprietary Information in confidence in accordance with the
terms hereof and in compliance with Governmental Requirements.
15.3 Permitted Disclosures.
Notwithstanding anything to the contrary contained in this Article XV:
(a) A Transferee may provide any Proprietary Information to any
Governmental Authority having jurisdiction over or asserting a right to obtain such information,
provided that: (i) such Governmental Authority orders that such Proprietary Information be
provided; and (ii) unless prohibited from so doing by Governmental Requirements, the Transferee
promptly advises the Transferor of any request for such information by such Governmental
Authority and cooperates in giving the Transferor an opportunity to present objections, requests
for limitation, and/or requests for confidentiality or other restrictions on disclosure or access, to
such Governmental Authority.
(b) A Transferee may, to the extent required, disclose Proprietary Information
to any Governmental Authority in connection with the application for any Governmental
Authorization; provided that unless prohibited from so doing by Governmental Requirements, the
Transferee shall provide the Transferor prior written advance notice of such disclosure and the
Proprietary Information that is to be disclosed.
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(c) A Transferee may disclose such Proprietary Information regarding the
existence and terms of this Agreement as such Transferee deems necessary to enable it to comply
with the Securities Exchange Act of 1934, or the rules, regulations and forms of the Securities and
Exchange Commission, issued thereunder or the applicable rules of any stock exchange, or as
otherwise required by Governmental Requirements.
15.4 Injunctive Relief.
In the event of a breach or threatened breach of the provisions of this Article XV by any
Transferee, the Transferor shall be entitled to an injunction restraining the Transferee from such
breach or threatened breach. Nothing contained herein shall be construed as prohibiting the
Transferor from pursuing any other remedies available at law or equity for such breach or
threatened breach of this Agreement.
15.5 Publicity.
Any public relations matters, including public announcements and press releases or
similar publicity, arising out of or in connection with the terms of this Agreement or the
transactions contemplated herein, shall be coordinated and agreed to between the Parties prior to
said announcement or release.
15.6 Proprietary Information Defined.
For purposes of this Agreement, “Proprietary Information” means all information, written
or oral, which has been or is disclosed by the Transferor, or by any Representative of the
Transferor, or which otherwise becomes known to the Transferee, or to any Representative of
such Transferee, or any other party in a confidential relationship with, the Transferee, in each
case, incident to this Agreement, and which: (a) relates to matters such as patents, trade secrets,
research and development activities, draft or final contracts or other business arrangements,
books and records, budgets, cost estimates, pro forma calculations, engineering work product,
environmental compliance, vendor lists, suppliers, manufacturing processes, energy
consumption, pricing information, private processes, and other similar information, as they may
exist from time to time; (b) and the Transferor expressly designates in writing to be confidential,
provided that “Proprietary Information” shall exclude information falling into any of the
following categories:
(i) Information that, at the time of disclosure hereunder, is in the public
domain, other than information that entered the public domain by breach of this Agreement by
Transferee or any of its Representatives;
(ii) Information that, after disclosure hereunder, enters the public
domain, other than information that enters the public domain by breach of this Agreement by
Transferee or any of its Representatives;
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(iii) Information, other than that obtained from third-parties, that prior to
disclosure hereunder, was already in Transferee’s possession, either without limitation on
disclosure to others or subsequently becoming free of such limitation;
(iv) Information obtained by Transferee from a third-party having an
independent right to disclose the information; or
(v) Information that is available through independent research without
use of or access to the Proprietary Information.
15.7 Survival.
The provisions of this Article XV shall continue in full force and effect during the Term
and for a period of two (2) years thereafter, notwithstanding the termination of this Agreement,
with respect to any Proprietary Information obtained by any Transferee prior to such termination.
ARTICLE XVI
TAXES
16.1 No Partnership.
Nothing in this Agreement shall be deemed to create or constitute a partnership, joint
venture or association between the Owners. Each Owner agrees and covenants that it shall not
take or omit to take any action or reporting position with any Governmental Authority contrary
to this Section 16.1.
16.2 761 Election.
The Owners intend that, as tenants in common and owners of undivided Ownership
Interests, for United States income tax purposes the Owners shall elect in accordance with the
provisions of section 761 of the Internal Revenue Code of 1986, as amended (“Code”), and the
applicable income tax regulations thereunder (“Regulations”), to be excluded from all of the
provisions of Subchapter K of the Code upon the first occasion in which such election may be
filed under these Regulations and that, if such election is not filed, this Agreement shall
constitute an election under Regulations section 1.761-2(b)(2)(ii) to be excluded from all of the
provisions of Subchapter K of the Code and the applicable Regulations, beginning with the first
year of the creation of the tenancy in common as contemplated by this Agreement and that no
Owner shall object to any such election.
16.3 Responsibility for Taxes.
It is the intent of the Owners that so far as possible, each Owner shall separately report,
promptly and timely file returns with respect to, be responsible for and pay all property, income,
franchise, business, or other taxes or fees (“Taxes”), arising out of its Ownership Interests and
the matters contemplated by this Agreement, that such Taxes shall be separately levied and
assessed against each Owner severally and that each Owner shall be solely responsible for and
52
shall pay all such Taxes so levied and assessed against it without any responsibility of the other
Owner with respect thereto and without the amounts thereof being paid and apportioned between
the Owners under this Agreement. To the extent that Taxes (such as property, payroll, sales and
use Taxes) may be levied or assessed against the Transmission Facilities, their operation or the
Owners in such a manner as to make impossible the carrying out of the foregoing provisions of
this Section 16.3, then either Operator shall report, file returns with respect to and pay such
Taxes and each Owner shall immediately reimburse such Operator for each such Owner’s Pro
Rata Share (based on its applicable Ownership Interest(s)) of such Taxes; provided, however,
that sales and use tax included in Other Costs or in the Monthly Transmission Facilities O&M
Charge, the Monthly Substation O&M Charge or the Monthly Common Equipment Charge shall
be recovered by the Operator pursuant to Section 4.7. Neither Operator shall have any obligation
to contest or to seek refund of such Taxes; provided, however, that each Operator may, by its
personnel or counsel of its selection, pursue such administrative or court proceedings as the
Operator may determine. Each Owner shall on request pay to the Operator such Owner’s Pro
Rata Share (based on its applicable Ownership Interest(s)) of the costs of such proceedings and
shall share in any savings resulting from such proceedings in the same proportion. Each Owner
agrees to cooperate with the other Owner with respect to reasonable requests for information or
other matters with respect to Taxes.
16.4 Indemnification.
Each Owner (the “Tax Indemnifying Party”) shall indemnify and hold harmless the other
Owner (the “Tax Indemnitee Party”), on an after-tax basis, from and against any Taxes
(including any interest or penalties) imposed on such Tax Indemnitee Party or the Transmission
Facilities or any part thereof, to the extent such Taxes are the responsibility of the Tax
Indemnifying Party pursuant to this Article XVI.
16.5 Determination of Depreciation and Other Matters.
Each Owner shall determine the basis and method it will use for purposes of depreciation
and other matters where investment of the Transmission Facilities or Common Equipment is
relevant.
ARTICLE XVII
DISPUTES
17.1 Exclusive Procedure.
Any dispute, controversy or claim arising out of or relating to this Agreement or the
breach, interpretation, termination, performance or validity of this Agreement (each, a
“Dispute”) shall be resolved pursuant to the procedures of this Article XVII.
17.2 Dispute Notices.
If a Dispute arises between the Parties, then either Party may provide written notice
thereof to the other Party, including a detailed description of the subject matter of the Dispute
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(the “Dispute Notice”). Any Party may seek a preliminary injunction or other provisional
judicial remedy if such action is necessary to prevent irreparable harm or preserve the status quo,
in which case the Parties nonetheless will continue to pursue resolution of the Dispute pursuant
to this Article XVII.
17.3 Informal Dispute Resolution.
(a) The Parties shall make a good faith effort to resolve any Dispute by prompt
negotiations between the Party’s representative so designated in writing to the other Party (each a
“Manager”). If the Managers are not able to resolve the Dispute within thirty (30) days after the
date of the Dispute Notice, then they shall refer the matter to the designated senior officers of their
respective companies (the “Executive(s)”), who shall have authority to settle the Dispute. If the
Executives are not able to resolve the Dispute within sixty (60) days after the date of the Dispute
Notice, then the Dispute shall be resolved pursuant to Section 17.4.
(b) All negotiations, communications and writings exchanged between the
Parties pursuant to this Article XVII shall be treated and maintained as Proprietary Information,
shall be treated as compromise and settlement negotiations for purposes of the federal and state
rules of evidence, and shall not be used or referred to in any subsequent adjudicatory process
between the Parties, including at FERC, either with respect to the current Dispute or any future
Dispute between the Parties.
17.4 Submission of Dispute to FERC or Approved Courts.
If a Dispute cannot be settled amicably between the Parties pursuant to Section 17.3, then
any Party may, in its sole discretion, within one (1) year after the conclusion of the time period
for informal dispute resolution specified in Section 17.3, submit such Dispute (a) to FERC or (b)
to the jurisdiction of the state courts situated in the State of Idaho or the United States District
Court for the District of Idaho (the “Approved Courts”). Each of the Parties, in its capacity as an
Owner and Operator, consents to and accepts for itself and in respect of its property, generally
and unconditionally, the exclusive jurisdiction of the Approved Courts and appellate courts from
any appeal thereof, and irrevocably waives any objection which it may now or hereafter have to
the jurisdiction of the Approved Courts. Each of the Parties, in its capacity as an Owner and
Operator, further irrevocably waives, to the fullest extent permitted by law, any objection that it
may now or hereafter have to the laying of venue of any suit, proceeding or other action brought
pursuant to this Article XVII in any of the Approved Courts, and irrevocably waives, to the
fullest extent permitted by law, and agrees not to plead or claim in any such Approved Court that
any suit, proceeding or other action brought therein has been brought in an inconvenient forum.
17.5 Continued Performance.
During the pendency of any Dispute, each Party shall continue to perform all of its
respective obligations under this Agreement.
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ARTICLE XVIII
ASSIGNMENT
18.1 Prohibited Transfers and Assignments.
Neither Party shall have the right to transfer, assign, sell or otherwise dispose of
(collectively, “Transfer”), in whole or in part, its interest in this Agreement, including its rights,
duties and obligations hereunder, nor to Transfer, in whole or in part, its Ownership Interests (or
Directional Capacity Allocation Percentages and Directional Capacity Allocations) in the
Transmission Facilities or Common Equipment, except as permitted under this Article XVIII.
18.2 Permitted Assignments and Transfers.
Subject to Section 18.3, the restrictions set forth in Section 18.1 shall not restrict:
(a) Dispositions and sales of equipment or facilities by either Operator incident
to renewals or replacements of the Transmission Facilities or Common Equipment;
(b) The right of an Owner to subject any of its Ownership Interests (or
Directional Capacity Allocation Percentages and Directional Capacity Allocations) to the lien of
any mortgage upon all or a portion of its own physical electric utility property or to otherwise
collaterally assign its rights and obligations in this Agreement to a lender or other person providing
financing to the Owner;
(c) The right of an Owner to Transfer voluntarily all of its Ownership Interests
(and Directional Capacity Allocation Percentages and Directional Capacity Allocations) and all of
its rights and obligations in this Agreement (including as part of such Transfer, all of its rights and
obligations in this Agreement as an Operator) in connection with any sale, merger or other transfer
of substantially all of such Owner’s electric transmission facilities as an operating entity; provided,
however, that the effectiveness of such Transfer shall be conditioned upon the transferee: (i)
agreeing in writing, in form and substance reasonably satisfactory to the other Owner, to assume
all of the rights and obligations of the transferring Owner (including, all of its rights and obligations
in this Agreement as an Operator) as of the transfer date; and (ii) qualifying as a Qualified Owner
on the transfer date;
(d) The right of an Owner to Transfer voluntarily all of its Ownership Interests
(and Directional Capacity Allocation Percentages and Directional Capacity Allocations) and all of
its rights and obligations in this Agreement (including as part of such Transfer, all of its rights and
obligations in this Agreement as an Operator) to an Affiliate of such Owner which owns all or
substantially all of the transmission facilities of such Owner; provided, however, that the
effectiveness of such Transfer shall be conditioned upon the transferee: (i) agreeing in writing, in
form and substance reasonably satisfactory to the other Owner, to assume all of the rights and
obligations of the transferring Owner (including, all of its rights and obligations in this Agreement
as an Operator) as of the transfer date; and (ii) qualifying as a Qualified Owner on the transfer
date;
55
(e) The right of any Owner to Transfer voluntarily all of its Ownership Interests
(and Directional Capacity Allocation Percentages and Directional Capacity Allocations) and all of
its rights and obligations in this Agreement (including as part of such Transfer, all of its rights and
obligations in this Agreement as an Operator) to a third party; provided that: (i) the other Owner,
in its sole discretion, approves such Transfer and approves the third-party purchaser as having
demonstrated that it is financially and technically capable of performing the transferring Owner’s
(and Operator’s) obligations under this Agreement; and (ii) the other Owner is offered the right of
first refusal to purchase all of such Ownership Interests (and Directional Capacity Allocation
Percentages and Directional Capacity Allocations) and Common Equipment and all of the
transferring Owner’s rights and obligations in this Agreement (including as part of such Transfer,
all of its rights and obligations in this Agreement as an Operator), on terms no less favorable than
those offered to such proposed third-party purchaser; provided, however, that the effectiveness of
such Transfer shall be conditioned upon the third-party purchaser: (A) agreeing in writing, in form
and substance reasonably satisfactory to the other Owner, to assume all of the rights and
obligations of the transferring Owner (including as part of such Transfer, all of its rights and
obligations in this Agreement as an Operator) as of the transfer date; and (B) qualifying as a
Qualified Owner on the transfer date; and
(f) The right of an Owner to post, sell or make available for scheduling
transmission capacity or schedule energy in accordance with Sections 3.2(b) and 3.2(c), unless
otherwise mutually agreed to in writing in advance by the other Owner.
18.3 FERC Approval.
Any Transfer pursuant to Section 18.2 that is subject to FERC approval shall not take
effect until FERC has approved such Transfer and has made it effective.
ARTICLE XIX
MISCELLANEOUS
19.1 Notices.
(a) Any notice, demand, request or other communication required or permitted
to be given pursuant to this Agreement shall be in writing and signed by the Owner or Operator
giving such notice, demand, request or other communication and shall be hand delivered or sent
by certified mail, return receipt requested, or overnight courier to the other Owner and/or Operator
at the address set forth below:
If to Idaho Power as Owner: Idaho Power Company
1221 West Idaho Street
Boise, ID 83702
Attn: Director, Load Serving Operations
Telephone: [phone]
56
With a copy to: Idaho Power Company
1221 West Idaho Street
Boise, ID 83702
Attn: Legal Department
Telephone: [phone]
If to Idaho Power as Operator: Idaho Power Company
1221 West Idaho Street
Boise, ID 83702
Attn: Director, Load Serving Operations
Telephone: [phone]
With a copy to: Idaho Power Company
1221 West Idaho Street
Boise, ID 83702
Attn: Legal Department
Telephone: [phone]
If to PacifiCorp as Owner: PacifiCorp
825 NE Multnomah Street, Suite 1600
Portland, OR 97232
Attn: Director, Transmission Service
Telephone: [phone]
With a copy to: PacifiCorp
825 NE Multnomah Street, Suite 2000
Portland, OR 97232
Attn: Legal Department
Telephone: [phone]
If to PacifiCorp as Operator: PacifiCorp
825 NE Multnomah Street, Suite 1600
Portland, OR 97232
Attn: Director, Transmission Service
Telephone: [phone]
With a copy to: PacifiCorp
825 NE Multnomah Street, Suite 2000
Portland, OR 97232
Attn: Legal Department
Telephone: [phone]
(b) Each Party shall have the right to change the place to which any notice,
demand, request or other communication shall be sent or delivered by similar notice sent in like
manner to the other Party. The effective date of any notice, demand, request or other
57
communication issued pursuant to this Agreement shall be when: (i) delivered to the address of
the Party personally, by messenger, by a nationally or internationally recognized overnight
delivery service or otherwise; or (ii) received or rejected by the Party, if sent by certified mail,
return receipt requested, in each case, addressed to the Party at its address and marked to the
attention of the person designated above (or to such other address or person as a Party may
designate by notice to the other Party effective as of the date of receipt by the other Party).
19.2 Parties Bound.
This Agreement shall be binding upon each of the Parties and their respective successors
and permitted assigns.
19.3 Amendments.
(a) Except as otherwise provided in Section 19.3(c), this Agreement may not
be amended, supplemented or otherwise modified, other than pursuant to an instrument in writing
executed by the Parties.
(b) Absent agreement of both Parties to the proposed change and except as
otherwise provided in Section 19.3(c), the standard of review for changes to this Agreement
proposed by a Party, or FERC acting sua sponte, shall be the “public interest” standard of review
set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 (1956) and
Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348 (1956); provided that the
standard of review for any modification to this Agreement requested by non-contracting third
parties shall be the most stringent standard permissible under then-applicable Governmental
Requirements.
(c) Nothing contained in this Agreement shall be construed as affecting in any
way the right of either Party to unilaterally make application to FERC under Section 205 or Section
206 of the Federal Power Act for a change in the charges set forth in this Agreement. It is the
intent of the Parties that the standard of review that FERC will apply to any such unilateral
application shall be the just and reasonable standard of review rather than the “public interest”
standard of review.
(d) An amendment that is subject to FERC approval shall not take effect until
FERC has accepted such amendment for filing and has made it effective.
19.4 Waivers.
No waiver by any Party of any one or more breaches or defaults by the other Party in the
performance of any of the provisions of this Agreement shall be construed as a waiver of any
other breaches or defaults whether of a like kind or different nature. Any delay, less than any
applicable statutory period of limitations, in asserting or enforcing any rights under this
Agreement shall not be deemed a waiver of such rights. Failure of any Party to enforce any
provisions hereof shall not be construed to waive such provision, or to affect the validity of this
58
Agreement or any part thereof, or the right of the other Party thereafter to enforce each and every
provision thereof.
19.5 Choice of Law.
(a) This Agreement, the rights and obligations of the Parties under this
Agreement, and any claim or controversy arising out of this Agreement (whether based on
contract, tort, or any other theory), including all matters of construction, validity, effect,
performance and remedies with respect to this Agreement, shall be governed by and interpreted,
construed, and determined in accordance with, the laws of the State of Idaho (regardless of the
laws that might otherwise govern under applicable principles of conflicts of law).
(b) TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE
PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR
IN CONNECTION WITH THIS AGREEMENT. EACH PARTY FURTHER WAIVES ANY
RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED
WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN
WAIVED.
19.6 Headings.
Article and Section headings used in this Agreement (including headings used in any
Exhibits or Schedules attached hereto) are for convenience of reference only and shall not affect
the construction of this Agreement.
19.7 Relationship of Parties.
The covenants, obligations, and liabilities of the Owners are intended to be several and
not joint or collective, and nothing herein contained shall be construed to create an association,
joint venture, trust or partnership, or to impose a trust or partnership covenant, obligation or
liability on or with regard to any of the Owners. Each Owner shall be individually responsible
for its own covenants, obligations and liability as herein provided. No Owner shall be under the
control of, or shall be deemed to control, the other Owner. Neither Owner shall have the right or
power to bind the other Owner without its express written consent.
19.8 Severability.
In the event that any provision of this Agreement or the application thereof becomes or is
declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder
of this Agreement will continue in full force and effect and the application of such provision to
other persons or circumstances will be interpreted so as reasonably to effect the intent of the
Parties. The Parties further agree to replace such illegal, void or unenforceable provision of this
Agreement with a valid and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such illegal, void or unenforceable provision.
59
19.9 No Third Party Beneficiaries.
Nothing expressed or implied in this Agreement is intended to nor shall be construed to
confer upon or give to any Person (other than the Parties) any rights or remedies under or by
reason of this Agreement or any transaction contemplated herein.
19.10 Further Assurances.
Each Party agrees to execute and deliver from time to time such additional documents,
and take such additional actions, as may be reasonably required by the other Party to give effect
to the purposes and intent hereof.
19.11 Conflict of Interest.
Nothing in this Agreement shall prohibit any Party from engaging in or possessing any
interest in other projects or business ventures of any nature and description, independently or
with others.
19.12 Exhibits and Schedules.
The Exhibits and Schedules to this Agreement are identified as follows, and are
incorporated herein by this reference:
Exhibit A [Reserved]
Exhibit B [Reserved]
Exhibit C Ownership Interests; Directional Capacity Allocations; Directional
Capacity Allocation Percentages
Exhibit D Monthly Transmission Facilities O&M Charge; Monthly O&M
Equipment Charge
Exhibit E [Reserved]
Exhibit F Acquisition Costs
Exhibit G Joint Ownership Transmission Loss Calculation and Allocation
Methodology
Schedule 13.1(f) Idaho Power Governmental Authorizations
Schedule 13.2(f) PacifiCorp Governmental Authorizations
60
19.13 Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be
original, and all of which together shall constitute one agreement. Electronic transmission of any
signed original document, and retransmission of any signed electronic transmission, shall be the
same as delivery of an original. At the request of either Party, the other Party will confirm
electronically transmitted signatures by signing an original document.
19.14 Entire Agreement.
This Agreement and the Exhibits and Schedules attached hereto, and the other documents
between the Parties referenced herein constitute the entire agreement between the Parties and
supersede all prior agreements and understandings, whether oral and written, between the Parties
with respect to the subject matter hereof. There are no oral understandings, terms or conditions
and the Parties have not relied upon any representation or warranty, expressed or implied, not
contained in this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each of the Parties has caused its duly authorized
representative to execute this Joint Ownership and Operating Agreement as of the date first
above written.
PACIFICORP,
AS OWNER AND OPERATOR By:
Name:
Title:
IDAHO POWER COMPANY,
AS OWNER AND OPERATOR By:
Name:
Title:
62
Exhibit A
[Exhibit A has been intentionally deleted by the Parties.]
EXHIBIT B
[Exhibit B has been intentionally deleted by the Parties.]
EXHIBIT D
Monthly Transmission Facilities O&M Charge; Monthly Substation O&M Charge; Monthly
Common Equipment Charge
1. Interpretation; Cooperation.
(a) Capitalized terms not defined in this Exhibit D are defined in Article I of
this Agreement.
(b) The Parties shall cooperate as necessary to update this Exhibit D in the
event that FERC formula rate filing references change over time.
2. Monthly Transmission Facilities O&M Charge.
(a) The Monthly Transmission Facilities O&M Charge for each Transmission
Segment each month during the Term shall be equal to: (i) the product of: (A) the
Acquisition Cost of the Transmission Segment as of such month; and (B) the O&M
Expense Factor as of such month; divided by (ii) twelve (12).
(b) Beginning the first month after the Effective Date and each month
thereafter throughout the Term, pursuant to Section 4.7 of this Agreement, each Operator
shall invoice the Non-Operating Owner for its Pro Rata Share (based on its Ownership
Interest in the Transmission Segment) of the Monthly Transmission Facilities O&M
Charge with respect to each Transmission Segment for which it is responsible. The
invoice shall show the total Monthly Transmission Facilities O&M Charge with respect
to each Transmission Segment for which it is responsible as well as each Owner’s Pro
Rata Share (based on its respective Ownership Interest in the Transmission Segment).
3. Monthly Substation O&M Charge.
(a) The Monthly Substation O&M Charge for each Substation each month
during the Term shall be calculated as follows:
(i) If the description of any Substation Segment in such Substation on
Exhibit C indicates that any Substation Segment contains Line Terminal Equipment, then the
Monthly Substation O&M Charge for such Substation shall be calculated as the sum of the
following:
(A) For each Substation Segment in the Substation, the portion
of the Monthly Substation O&M Charge for the Line Terminal Equipment in each such
Substation Segment shall be equal to: (1) the product of: (x) the Acquisition Cost of the Line
Terminal Equipment in each such Substation Segment as of such month; and (y) the O&M
Expense Factor as of such month; divided by (2) twelve (12); and
(B) The portion of the Monthly Substation O&M Charge for
the Substation Bus Equipment in the Substation shall be equal to: (1) the product of: (x) the
Acquisition Cost of the Substation Bus Equipment of such Substation as of such month; and (y)
the O&M Expense Factor as of such month; divided by (2) twelve (12).
2
(ii) If the description of the Substation Segments in the Substation on
Exhibit C does not indicate that any of the Substation Segments contain Line Terminal
Equipment, then the Monthly Substation O&M Charge for such Substation shall be equal to: (A)
the product of: (1) the Acquisition Cost of the Substation Bus Equipment of such Substation as
of such month; and (2) the O&M Expense Factor as of such month; divided by (B) twelve (12).
(b) Beginning the first month after the Effective Date and each month
thereafter throughout the Term, pursuant to Section 4.7 of this Agreement, each Operator shall
invoice the Non-Operating Owner for its Pro Rata Share of the Monthly Substation O&M
Charge with respect to each Substation it is responsible for as follows.
(i) For any Monthly Substation O&M Charge calculated pursuant to
Section 3(a)(i), the Non-Operating Owner’s Pro Rata Share of the Monthly O&M Substation
Charge shall equal the sum of:
(A) For each portion of the Monthly Substation O&M
Charge calculated pursuant to Section 3(a)(i)(A), with respect to each Substation Segment, the
Non-Operating Owner’s Pro Rata Share shall be based on its Ownership Interest in each
Substation Segment in such Substation; and.
(B) For the portion of the Monthly Substation O&M
Charge calculated pursuant to Section 3(a)(i)(B), the Non-Operating Owner’s Pro Rata Share
shall be based on the applicable Substation O&M Allocation.
(ii) For any Monthly Substation O&M Charge calculated pursuant to
Section 3(a)(ii), the Non-Operating Owner’s Pro Rata Share shall be based on the applicable
Substation O&M Allocation.
4. Monthly Common Equipment Charge.
(a) The Monthly Common Equipment Charge for the Common Equipment at
each Substation each month during the Term shall be equal to: (i) the sum of the Return on
Capital, the Recovery of Capital, the State and Federal Income Taxes, the Local Property Taxes
and the Transmission O&M Expense, in each case, with respect to the Common Equipment;
divided by (ii) twelve (12).
(b) Beginning the first month following the Effective Date and each month
thereafter throughout the Term, pursuant to Section 4.7 of this Agreement, each Operator shall
invoice the Non-Operating Owner for its Pro Rata Share (based on its Common Equipment
Allocation Factor in the Substation) of the Monthly Common Equipment Charge with respect to
each Substation for which it is responsible. The invoice shall show the total Monthly Common
Equipment Charge with respect to each Substation for which it is responsible as well as each
Owner’s Pro Rata Share (based on its respective Common Equipment Allocation Factor in the
Substation).
3
5. Annual Adjustment. The following terms shall be adjusted each June (in the case
of PacifiCorp) and each October (in the case of Idaho Power) following the Effective Date by the
Operator responsible for the Transmission Segment, the Substation Segment or the Common
Equipment, as appropriate, as follows (collectively, the “Annual Adjustment”):
(a) the Acquisition Cost of the Common Equipment, the Acquisition Cost of
the Line Terminal Equipment, the Acquisition Cost of the Substation Bus Equipment, the
Acquisition Cost of the Substation Segment, the Acquisition Cost of the Transmission Segment,
and Net Book Value, all of which shall: (i) exclude any costs included in CWIP; (ii) not be
reduced for accumulated depreciation (except for Net Book Value); and (iii) be adjusted as
follows:
(1) Increased to reflect the cost of capital upgrades to such
Transmission Segment, Substation Segment or Common Equipment placed in service during the
months since the Effective Date or the last date of the immediate, prior annual adjustment; and
(2) Decreased to reflect the cost of equipment comprising such
Transmission Segment, Substation Segment or Common Equipment which has been retired (and
no longer placed in service) during the months since the Effective Date or the date of the
immediate, prior annual adjustment.
(b) The following factors from each Party’s annual rate filing:
(i) Return on Capital;
(ii) Recovery of Capital;
(iii) State and Federal Income Taxes;
(iv) Local Property Taxes;
(v) Accumulated Deferred Income Taxes:
(1) Account 190;
(2) Account 281;
(3) Account 282;
(4) Account 283;
(vi) Transmission Net Property, Plant & Equipment; and
(vii) Transmission Plant in Service.
Each of the Annual Adjustments shall be reasonably determined by the Operator responsible for
such Transmission Segment, Substation Segment or Common Equipment.
6. Definitions.
“Accumulated Deferred Income Taxes” means:
(A) In respect of the Common Equipment at each Substation owned by Idaho Power,
an amount equal to the sum of Sections (A)(1) and (A)(2) below:
(1) Account 282 based on the product of:
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(a) Transmission-related Account 282 is the product of:
(i) Total Account 282 (Idaho Power Rate Filing – Schedule 1,
Line 4); and
(ii) the sum of (1) Transmission Plant Allocator (Idaho Power
Rate Filing – Schedule 1, Line 8) and (2) General &
Intangible Plant Allocator (Idaho Power Rate Filing –
Schedule 1, Line 47); and
(b) The quotient of:
(i) Net Book Value of the Common Equipment; and
(ii) Transmission Rate Base (Idaho Power Rate Filing – Rate
Calculation, Line 20).
(2) Accounts 281, 283 and 190 based on the product of:
(a) Transmission related Accounts 281, 283 and 190 is the product of:
(i) Total Accounts 281, 283 and 190 (Idaho Power Rate Filing
– Schedule 1, Lines 3, 5 and 6); and
(ii) The sum of (1) Transmission Plant Allocator (Idaho Power
Rate Filing – Schedule 1, Line 8) and (2) General &
Intangible Plant Allocator (Idaho Power Rate Filing –
Schedule 1, Line 47); and
(b) The quotient of:
(i) The Acquisition Cost of the Common Equipment, and
(ii) Acquisition Value of Transmission Plant, Property and
Equipment (Idaho Power Rate Filing – Rate Calculation,
the sum of Lines 1 through 8).
(B) In respect of the Common Equipment at each Substation owned by PacifiCorp, an
amount equal to the sum of Sections (B)(1) and (B)(2) below:
(1) Account 282 based on the product of:
(a) Transmission-related Account 282 is the product of:
(i) Account 282 (PacifiCorp Rate Filing, Attachment 1A, Line
1); and
5
(ii) The Allocator (PacifiCorp Rate Filing, Attachment 1A,
Line 6); and
(b) The quotient of:
(aa) The Net Book Value of the Common Equipment; and
(bb) Total Net Property, Plant & Equipment (PacifiCorp Rate
Filing, Line 32).
(2) Accounts 281, 283 and 190 based on the product of:
(a) Transmission-related Accounts 281, 283 and 190 is the product of:
(i) The sum of Accounts 281, 283 and 190 (PacifiCorp Rate
Filing, Attachment 1A, Lines 2, 3 and 4); and
(ii) The Allocator (PacifiCorp Rate Filing, Attachment 1A,
Line 6); and
(b) The quotient of:
(aa) the Acquisition Cost of the Common Equipment; and
(bb) Total Plant in Rate Base (PacifiCorp Rate Filing, Line 24).
“Acquisition Cost of the Line Terminal Equipment” means, in respect of a Substation Segment,
the cost of the Line Terminal Equipment in the Substation Segment as initially determined on the
Effective Date and set forth on Exhibit F, as the same may be adjusted from time to time by the
Annual Adjustment.
“Acquisition Cost of the Substation Bus Equipment” means, in respect of a Substation, the cost
of the Substation Bus Equipment in the Substation as initially determined on the Effective Date
and set forth on Exhibit F, as the same may be adjusted from time to time by the Annual
Adjustment.
“Acquisition Cost of the Substation Segment” means, in respect of a Substation, the cost of the
Substation Segment as initially determined on the Effective Date and set forth on Exhibit F, as
the same may be adjusted from time to time by the Annual Adjustment.
“Acquisition Cost of the Transmission Segment” means, in respect of each Transmission
Segment, the cost of the Transmission Segment as initially determined on the Effective Date and
set forth on Exhibit F, as the same may be adjusted from time to time by the Annual Adjustment;
provided, however, that (i) in the case of the Antelope-Goshen Transmission Segment, the
Acquisition Cost of the Transmission Segment shall be reduced by 44.44% to account for the
fact that only approximately 25 miles of the approximately 45-mile Antelope-Goshen
Transmission Segment is jointly-owned Transmission Facilities and (ii) in the case of the
American Fall – Malad Transmission Segment, the Acquisition Cost of the Transmission
Segment shall be reduced by 57.28% to account for the fact that only approximately 29 miles of
6
the approximately 68-mile American Fall – Malad Transmission Segment is jointly-owned
Transmission Facilities.
“Acquisition Cost of the Common Equipment” means, in respect of Common Equipment in a
Substation, the cost to the Owner of such Common Equipment as initially determined on the
Effective Date and set forth on Exhibit F, as the same may be adjusted from time to time by the
Annual Adjustment.
“Annual Adjustment” is defined in Section 5 of this Exhibit D.
“Common Equipment Allocation Factor” means, in respect of each Substation and each Owner,
a percentage equal to the quotient of (a) such Owner’s total Acquisition Value (as noted in
Exhibit F) for such Substation and (b) both Owners’ total Acquisition Value (as noted in Exhibit
F) for such Substation, in each case, as may be modified from time to time, by the Annual
Adjustment.
“CWIP” means Construction Work in Progress.
“Idaho Power Rate Filing – Rate Calculation” means the rate calculation tab of Idaho Power’s
current year annual FERC formula rate filing.
“Idaho Power Rate Filing – Schedule 1” means the schedule 1 tab of Idaho Power’s current year
annual FERC formula rate filing.
“Line Terminal Equipment” means all series capacitors, shunt reactors and phase shifters and all
other equipment that the Parties mutually agree is “Line Terminal Equipment.” All Line
Terminal Equipment which is part of a Substation Segment on the Effective Date, sorted by
Substation Segment, is identified on Exhibit F.
“Local Property Taxes” means, in respect of the Common Equipment at each Substation, an
amount equal to the product of:
(A) The Acquisition Cost of the Common Equipment; and
(B) The Property Tax Rate for the State of Idaho.
“Net Book Value” means, in respect of the Common Equipment at each Substation, an amount
equal to:
(A) The Acquisition Cost of the Common Equipment;
(B) Less, the Accumulated Depreciation.
“O&M Expense Factor” means, in respect of each Operator, an amount equal to the quotient of:
(A) The Total Transmission O&M Expense of the Operator; and
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(B) The Transmission Plant in Service of the Operator.
“PacifiCorp Rate Filing” means PacifiCorp’s current year formula rate true-up.
“Rate Base” means, in respect of the Common Equipment at each Substation, an amount equal
to:
(A) The Net Book Value;
(B) Less, the Accumulated Deferred Income Taxes.
“Recovery of Capital” means, in respect of the Common Equipment at each Substation, an
amount equal to the product of:
(A) The Acquisition Cost of the Common Equipment; and
(B) The FERC approved depreciation rate for Account 353 Transmission Plant
Substation Equipment.
“Return on Capital” means:
(A) In respect of the Common Equipment at each Substation owned by Idaho Power,
an amount equal to the product of:
(1) The Rate Base; and
(2) The Rate of Return (Idaho Power annual FERC Formula Rate Filing, Rate
Calculation, Line 23).
(B) In respect of the Common Equipment at each Substation owned by PacifiCorp, an
amount equal to the product of:
(1) the Rate Base; and
(2) the Rate of Return (PacifiCorp annual True-Up Rate Filing, Schedule 1,
Line 126).
“State and Federal Income Taxes” means:
(A) In respect of the Common Equipment at each Substation owned by Idaho Power,
an amount equal to the product of:
(1) the Rate Base; and
(2) the Composite Income Tax (Federal and State) (Idaho Power annual
FERC Formula Rate Filing, Rate Calculation, Line 24).
8
(B) In respect of the Common Equipment at each Substation owned by PacifiCorp, an
amount equal to the product of:
(1) the Rate Base; and
(2) the Composite Income Tax (Federal and State) Factor, which shall be
equal to the product of:
(a) the weighted cost of preferred and common (PacifiCorp annual
True-Up Rate Filing, Schedule 1, Lines 124 and 125); and
(b) the income tax factor (PacifiCorp annual True-Up Rate Filing,
Schedule 1, Line 132).
“Substation Bus Equipment” means all equipment necessary to support the operation of the
substation bus, including foundations, lally columns, bus conductor, fittings, circuit breakers, air
break switches, shunt capacitor banks, potential transformers, current transformers, ground
switches and enclosures attached to or associated with the bus. All Substation Bus Equipment
which is part of a Substation Segment on the Effective Date, sorted by Substation Segment, is
identified on Exhibit F.
“Substation O&M Allocation” means, with respect to each Substation, the “Substation O&M
Allocation” set forth in Exhibit C, as the same may be amended from time to time pursuant to
Section 3.3(b) of this Agreement.
“Substation Segments” means, with respect to a Substation, the Substation Segments which are
listed on specific rows under the Substation on Exhibit C.
“Total Transmission O&M Expense” means:
(A) In respect of Idaho Power, the amount calculated as follows based on items
identified in Idaho Power’s annual FERC Formula Rate Filing:
(1) the Transmission O&M Expense (Idaho Power annual FERC Formula
Rate Filing, Rate Calculation, Line 33);
(2) less, Account 561 (Load Dispatching) (Idaho Power annual FERC
Formula Rate Filing, Rate Calculation, Line 34);
(3) less, Account 565 (Transmission of Electricity By Others) (Idaho Power
annual FERC Formula Rate Filing, Rate Calculation, Line 35); and
(4) plus, O&M Expense: A&G (Idaho Power annual FERC Formula Rate
Filing, Rate Calculation, Line 36).
9
A sample calculation of Idaho Power’s Total Transmission O&M Expense based
on Idaho Power’s 2013 FERC Formula Rate Filing is attached hereto as
Attachment 1 for information purposes only.
(B) In respect of PacifiCorp, the amount calculated as follows based on items
identified in PacifiCorp’s annual FERC Formula True-Up Rate Filing:
(1) the Transmission O&M Expense (PacifiCorp annual True-Up Rate Filing,
Schedule 1, Line 53);
(2) less, Cost of Providing Ancillary Services Accounts 561.0-5 (PacifiCorp
annual True-Up Rate Filing, Schedule 1, Line 54);
(3) less, Account 565 (PacifiCorp annual True-Up Rate Filing, Schedule 1,
Line 55);
(4) plus, A&G Expense Allocated to Transmission (PacifiCorp annual True-
Up Rate Filing, Schedule 1, Line 66);
(5) plus, Accounts 928 and 930.1 - Transmission Related (PacifiCorp annual
True-Up Rate Filing, Schedule 1, Line 69); and
(6) plus, A&G Directly Assigned to Transmission (PacifiCorp annual True-
Up Rate Filing, Schedule 1, Line 74).
A sample calculation of PacifiCorp’s Total Transmission O&M Expense based on
PacifiCorp’s 2013 FERC True-Up Rate Filing is attached hereto as Attachment 2
for information purposes only.
“Transmission O&M Expense” means, in respect of the Common Equipment at each Substation,
an amount equal to the product of:
(A) the Acquisition Cost of the Common Equipment; and
(B) the O&M Expense Factor.
“Transmission Plant in Service” means:
(A) in respect of Idaho Power, the amount calculated as follows based on items
identified in Idaho Power’s annual FERC Formula Rate Filing:
(1) the Transmission Plant in Service (Idaho Power Rate Filing – Rate
Calculation, Line 1);
(2) less, Generator Step-Up Facilities (Idaho Power Rate Filing – Rate
Calculation Line 2); and
10
(3) less, Large Generator Interconnects (Idaho Power Rate Filing – Rate
Calculation, Line 3).
(B) in respect of PacifiCorp, the amount calculated as follows based on items
identified in PacifiCorp’s annual FERC Formula True-Up Rate Filing:
(1) the Average Transmission Plant in Service (PacifiCorp Rate Filing, Line
15).
EXHIBIT E
[Exhibit E has been intentionally deleted by the Parties.]
EXHIBIT G
Joint Ownership Transmission Loss Calculation and Allocation Methodology
PacifiCorp and Idaho Power agree that as joint Owners of certain Transmission Facilities,
defined in this Agreement, the companies shall calculate, allocate and settle the electric losses
associated with these Transmission Facilities in accordance with this Exhibit.
Collection for Losses:
This Exhibit G does not affect PacifiCorp’s and Idaho Power’s respective OATT-based losses
methodologies. PacifiCorp and Idaho Power shall continue to collect for electric losses in
accordance with their OATTs.
Calculation of the Quantity of Losses:
The quantity of losses for each jointly-owned transmission line or transformer will be calculated
by implementing an I2R calculation based on measurements at one end of each transmission asset
using existing metering equipment and assumed series resistance for each asset. The calculations
and selection of inputs, such as which line or transformer terminal is metered, which quantities
are used (amps or MVA/voltage), and what resistance values for each transmission element are
used, will be agreed upon by each Party. In the case of jointly-owned transformers, a constant
core loss value agreed upon by each Party shall be included in the calculation. The metering
devices used to provide the inputs to the loss calculations may or may not be revenue quality. A
metering device calibration process and schedule shall be agreed upon between the Parties. The
Party responsible for the calculation of losses for each jointly-owned asset is described in Table
1, below. Calculations are to be developed for all hours each calendar month and results are to
be shared with the other Party no later than the 7th working day of the following month.
Allocation of Losses:
The quantity of electric losses on each jointly-owned transmission line or transformer shall be
allocated between each Party consistent with each Party’s asset ownership percentage. Losses
for each asset will be calculated for each hour and multiplied by the asset Ownership Interest of
each Party. Losses will be totaled on a monthly basis differentiating between on-peak hours and
off-peak hours. The Idaho Power portion of losses for all assets located within a PacifiCorp
Balancing Area will be summed and owed to PacifiCorp. The PacifiCorp portion of losses for
all assets located within the Idaho Power Balancing Area will be summed and owed to Idaho
Power. Table 1, below, defines the Balancing Area of each asset, the Party measuring the losses
for the asset, and each Party’s Ownership Interest.
2
Return of Losses to PacifiCorp:
Other than losses for the Jim Bridger generator main step-up transformers (which are described
below), for each calendar month, if the losses owed to PacifiCorp are greater than the losses
owed to Idaho Power, Idaho Power will choose to settle either financially or physically. If settled
financially, Idaho Power’s will settle financially with PacifiCorp in accordance with PacifiCorp
loss return business practice. If settled physically, Idaho Power will return losses to PacifiCorp.
Losses to be returned are the amount owed from Idaho Power to PacifiCorp less the amount
owed from PacifiCorp to Idaho Power. The loss return period will begin on the 15th of the next
month and will continue until the 15th one month later. On-peak losses for the month will be
evenly distributed across all on-peak hours in the loss return period and off-peak losses for the
month will be evenly distributed across all off-peak hours in the loss return period.
Return of Losses to Idaho Power:
For each calendar month, if the losses owed to Idaho Power are greater than the losses owed to
PacifiCorp, PacifiCorp will settle financially with Idaho Power in accordance with Idaho
Power’s loss return business practice. Losses to be settled financially are the amount owed from
PacifiCorp to Idaho Power less the amount owed from Idaho Power to PacifiCorp.
Table 113
(1) (2) (3) (4)
Asset
Asset
Balancing
Area
Party
Asset Loss
Calculation
Performed
By
IPC Loss
Allocation
(Asset
Ownership
Interest)
PAC Loss
Allocation
(Asset
Ownership
Interest)
Kinport-Midpoint 345kV Line IPC IPC 73.2% 26.8%
Borah-Adelaide Tap (Borah-
Adelaide-Midpoint #1 345kV Line)
IPC
IPC 64.4% 35.6%
13In the event of a conflict between the percentage of asset Ownership Interest set forth in columns (3) and (4) of this table and
those set forth in Exhibit C for such asset, the Parties agree that the percentage of asset Ownership Interest set forth in Exhibit C shall control.
3
Adelaide-Adelaide Tap (Borah-
Adelaide-Midpoint #1 345kV Line)
IPC
IPC 64.4% 35.6%
Midpoint-Adelaide Tap (Borah-
Adelaide-Midpoint #1 345kV Line)
IPC
IPC 64.4% 35.6%
Borah-Adelaide#2 345kV Line IPC IPC 64.4% 35.6%
Adelaide-Midpoint#2 345kV Line IPC IPC 64.4% 35.6%
Midpoint 500/345kV Transformer IPC IPC 63.7% 36.3%
Midpoint-Hemingway 500kV Line IPC_ IPC 37.0% 63.0%
Hemingway-Summer Lake 500kV
Line PAC PAC 22.0% 78.0%
American Falls-Arbon Valley
(American Falls-Malad 138kV Line) PAC IPC 3.6% 96.4%
Hurricane-Walla Walla 230kV Line PAC PAC 40.8% 59.2%
Goshen 345/161kV Transformer#1 PAC PAC 5.6% 94.4%
Goshen 345/161kV Transformer#2 PAC PAC 5.6% 94.4%
Goshen-Haven Tap (Goshen-
Antelope 161kV Line) PAC PAC 21.9% 78.1%
Antelope 230/161kV Transformer PAC PAC 26.8% 73.2%
Antelope 161/138kV Transformer#1 PAC PAC 66.7% 33.3%
Antelope 161/138kV Transformer#2 PAC PAC 66.7% 33.3%
Antelope-Scoville#1 138kV Line PAC PAC 66.7% 33.3%
Antelope-Scoville#2 138kV Line PAC PAC 66.7% 33.3%
Goshen-Jefferson 161kV Line PAC PAC 23% 77%
Jefferson-Big Grassy 161kV Line PAC PAC 37.8% 62.2%
4
Jefferson 161kV Phase Shifting
Transformer PAC PAC 37.8% 62.2%
Bridger-Three Mile Knoll 345kV
Line PAC PAC 29.2% 70.8%
Goshen-Three Mile Knoll 345kV
Line PAC PAC 29.2% 70.8%
Bridger-Populus#1 345kV Line PAC PAC 29.2% 70.8%
Bridger-Populus#2 345kV Line PAC PAC 29.2% 70.8%
Populus-Borah#1 345kV Line PAC PAC 29.2% 70.8%
Populus-Kinport 345kV Line PAC PAC 29.2% 70.8%
Goshen-Kinport 345kV Line PAC PAC 18.3% 81.7%
Jim Bridger Generator Main Step-up Transformer Losses:
Losses on the Jim Bridger generator main step-up transformers shall be allocated each hour
between Idaho Power and PacifiCorp based on each Party’s pro rata share of Jim Bridger project
net generation for such hour. The calculation of such losses shall be in accordance with the
following:
1) Jim Bridger #1 generator main step-up transformer loss =
((Jim Bridger #1 generation)2 x (4.4 x 10-6)) + 0.3 MWh
2)
3) Jim Bridger #2 generator main step-up transformer loss =
((Jim Bridger #2 generation)2 x (4.4 x 10-6)) + 0.3 MWh
4) Jim Bridger #3 generator main step-up transformer loss =
((Jim Bridger #3 generation)2 x (4.4 x 10-6)) + 0.3 MWh
5
5) Jim Bridger #4 generator main step-up transformer loss =
((Jim Bridger #4 generation)2 x (4.4 x 10-6)) + 0.3 MWh
Jim Bridger main step-up transformer loss = Jim Bridger #1 step-up transformer loss + Jim
Bridger #2 step-up transformer loss + Jim Bridger #3 step-up transformer loss + Jim Bridger #4
step-up transformer loss.
Idaho Power’s share of Jim Bridger main step-up transformer losses shall be physically returned
to PacifiCorp. Such losses shall be scheduled to PacifiCorp 168 hours after the hour in which
such obligation for losses was incurred.
SCHEDULE 13.1(f)
Idaho Power Governmental Authorizations
1. Federal Power Act, Section 203 Approval
2. Federal Power Act, Section 205 Approval
3. Approval of the transaction by the Idaho Public Utilities Commission
4. Approval of the transaction by the Oregon Public Utility Commission
SCHEDULE 13.2(f)
PacifiCorp Governmental Authorizations
1. Federal Power Act, Section 203 Approval
2. Federal Power Act, Section 205 Approval
3. Approval of the transaction by the California Public Utilities Commission
4. Approval of the transaction by the Idaho Public Utilities Commission
5. Approval of the transaction by the Oregon Public Utility Commission
6. Approval of the transaction by the Utah Public Service Commission
7. Approval of the transaction by the Washington Utilities and Transportation Commission
8. Approval of the transaction by the Wyoming Public Service Commission
JOINT PURCHASE AND SALE AGREEMENT SCHEDULE 1.1(a)
Schedule 1.1(a)
Idaho Power Permitted Encumbrances
The Encumbrances resulting from conditions set forth in governmental right-of-way grants
JOINT PURCHASE AND SALE AGREEMENT SCHEDULE 1.1(b)
Schedule 1.1(b)
Idaho Power’s Knowledge
Ryan Adelman, Senior Vice President of Power Supply
Benjamin Brandt, Load Serving Operations Director
Jared Ellsworth, Transmission, Distribution & Resource Planning Director
JOINT PURCHASE AND SALE AGREEMENT SCHEDULE 1.1(c)
Schedule 1.1(c)
PacifiCorp Permitted Encumbrances
The Encumbrances resulting from conditions set forth in governmental right-of-way grants.
JOINT PURCHASE AND SALE AGREEMENT SCHEDULE 1.1(d)
Schedule 1.1(d)
PacifiCorp’s Knowledge
Richard Vail – Vice President, Transmission
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JOINT PURCHASE AND SALE AGREEMENT SCHEDULE 1.1(f)
Schedule 1.1(f)
PacifiCorp Improvements

Substation Projects Status Asset Designation 2022 Budget 2023 Budget 2024 Budget 2025 Budget 2026 Budget 2027 Buddget
Midpoint 500 kV Series Capacitor Bank Replacement (IDP) Inprog Shared/Common 2,729,228$ 8,899$
Midpoint 500 kV TFMR Crt Swtchs Rpl IDP Inprog Shared/Common 34,137$ -$ Midpoint 542Z Circuit Sw Rplcmt (IDP) Inprog Shared/Common 335,033$ 11,450$
Terminal 125/350 MVAR Static Var Compenstor Planned Shared/Common 39,527,810$ 11,078,586$
Sugarmill Second 161-12 kV Transformer Planned Common 329,000$ 2,099,215$ 5,389,647$
Terminal West Bus Convert to Breaker and a Half Planned Shared/Common 400,000$ 4,700,000$
Spare 161-46kV 75MVA XFMR (Sugarmill) Planned Shared/Common 200,000$ 3,500,000$
Repl 345kV Live Tank CBs ELF models @ Mona & Birch Ck Planned Shared/Common 1,000,000$ 1,000,000$ 1,000,000$
Replace Substation Meters and Relays - T - ID1 Planned Common 530,649$ 551,875$ 551,875$ 551,875$ 551,875$ 551,875$
Replace Substation Meters and Relays - T - UT1 Planned Common 790,202$ 821,811$ 821,811$ 821,811$ 821,811$ 821,811$
Replace Substation Transformers - T - ID1 Planned Shared/Common 1,103$ 242,857$ 100,000$ 100,000$ 100,000$ 100,000$
Replace Substation Transformers - T - UT1 Planned Shared/Common 1,630,456$ 428,571$ 1,000,000$ 1,000,000$ 1,000,000$ 1,000,000$
Substation High Voltage - CT/PT Replacements - ID1 Planned Shared/Common 62,118$ 65,000$ 65,000$ 65,000$ 65,000$ 65,000$
Substation High Voltage - CT/PT Replacements - UT1 Planned Shared/Common 62,118$ 65,000$ 65,000$ 65,000$ 65,000$ 65,000$
Replace Substation Battery Banks - D - ID1 Planned Common 77,648$ 80,754$ 80,754$ 80,754$ 80,754$ 80,754$
Replace Substation Battery Banks - D - UT1 Planned Common 103,531$ 107,672$ 107,672$ 107,672$ 107,672$ 107,672$
Replace Substation Bushings, Glass & Other - T - ID1 Planned Common 814,000$ 846,560$ 582,010$ 582,010$ 582,010$ 582,010$
Replace Substation Bushings, Glass & Other - T - UT1 Planned Common 1,526,520$ 1,587,300$ 1,058,200$ 1,058,200$ 1,058,200$ 1,058,200$
Replace Substation Switchgear, Breakers, Reclosers - T - ID1 Planned Common 517,653$ 538,359$ 538,359$ 538,359$ 538,359$ 538,359$
Idaho Power 2021 Emergent Capital Work1 Planned Shared/Common 164,000$ 258,750$ 258,750$ 258,750$ 258,750$ 258,750$
Replace Substation Switchgear, Breakers, Reclosers - T - UT1 Planned Common 5,176,531$ 5,383,593$ 5,383,593$ 5,383,593$ 5,383,593$ 5,383,593$
Total Substation 14,554,927$ 11,327,450$ 13,312,238$ 64,730,480$ 22,691,609$ 11,613,023$
Transmission Line Projects Status Asset Designation 2022 Budget 2023 Budget 2024 Budget 2025 Budget 2026 Budget 2027 Buddget
Fort Hall/BIA Goshen Kinport 2310(1185) Planned Common 9,500,000$ -$
Rexburg to Webster 161kV conversion Planned Shared 5,200,000$
Reroute JB Goshen 345kV line for Slide: IPC Shared Inprog Shared 143,000$ 2,400,000$
Camp Williams 4 Corners: BIA ROW Renewal - Ute Mtn Tribal Planned Common 3,000,000$
Replace Overhead Transmission Poles - ID1 Planned Shared 600,000$ 600,000$ 600,000$ 600,000$ 600,000$ 600,000$
Replace Overhead Transmission Poles - UT1 Planned Shared 5,200,000$ 5,200,000$ 5,200,000$ 5,200,000$ 5,200,000$ 5,200,000$
Replace Overhead Transmission Lines - Other - ID1 Planned Shared 1,322,750$ 1,322,750$ 1,322,750$ 1,322,750$ 1,322,750$ 1,322,750$
Replace Overhead Transmission Lines - Other - UT1 Planned Shared 2,328,040$ 2,328,040$ 2,328,040$ 2,328,040$ 2,328,040$ 2,328,040$
Total Transmission Line 9,593,790$ 21,350,790$ 12,450,790$ 9,450,790$ 9,450,790$ 14,650,790$
Total 24,148,717$ 32,678,240$ 25,763,028$ 74,181,270$ 32,142,399$ 26,263,813$
Notes:
1. These are program projects where the specific locations have not been identifed, these projects are included for information and as specific
projects are identified the projects that are associated with Joint Owned assets will be provided to Idaho Power.
JOINT PURCHASE AND SALE AGREEMENT SCHEDULE 1.1(g)
Schedule 1.1(g)
Reserved

JOINT PURCHASE AND SALE AGREEMENT SCHEDULE 1.1(h)
Schedule 1.1(h)
Reserved

JOINT PURCHASE AND SALE AGREEMENT SCHEDULE 1.1(i)
Schedule 1.1(i)
Idaho Power Required Regulatory Approvals
1. The FPA 203 Approval
2. The FPA 205 Approval
3. Approval of the Transaction by the Idaho Public Utilities Commission
4. Approval of the Transaction by the Oregon Public Utility Commission
JOINT PURCHASE AND SALE AGREEMENT SCHEDULE 1.1(j)
Schedule 1.1(j)
PacifiCorp Required Regulatory Approvals
1. The FPA 203 Approval
2. The FPA 205 Approval
3. Approval of the Transaction by the California Public Utilities Commission
4. Approval of the Transaction by the Idaho Public Utilities Commission
5. Approval of the Transaction by the Oregon Public Utility Commission
6. Approval of the Transaction by the Utah Public Service Commission
7. Approval of the Transaction by the Washington Utilities and Transportation Commission
8. Approval of the Transaction by the Wyoming Public Service Commission

JOINT PURCHASE AND SALE AGREEMENT SCHEDULE 3.1(f)
Schedule 3.1(f)
PacifiCorp Acquired Assets – Liabilities

None.
JOINT PURCHASE AND SALE AGREEMENT SCHEDULE 3.1(g)
Schedule 3.1(g)
PacifiCorp Acquired Assets – Title Exceptions
None.
JOINT PURCHASE AND SALE AGREEMENT SCHEDULE 3.1(h)(i)
Schedule 3.1(h)(i)
PacifiCorp Acquired Assets – Environmental Law and Environmental Permit Exceptions

None.

JOINT PURCHASE AND SALE AGREEMENT SCHEDULE 3.1(h)(ii)
Schedule 3.1(h)(ii)
PacifiCorp Acquired Assets – Violation of Environmental Laws
None.
JOINT PURCHASE AND SALE AGREEMENT SCHEDULE 3.1(h)(iii)
Schedule 3.1(h)(iii)
PacifiCorp Acquired Assets – Releases

None.
JOINT PURCHASE AND SALE AGREEMENT SCHEDULE 3.1(h)(iv)
Schedule 3.1(h)(iv)
PacifiCorp Acquired Assets – Storage Tanks, etc.
None.
JOINT PURCHASE AND SALE AGREEMENT SCHEDULE 3.1(h)(v)
Schedule 3.1(h)(v)
PacifiCorp Acquired Assets – Assumed Obligations under Environmental Laws
None.
JOINT PURCHASE AND SALE AGREEMENT SCHEDULE 3.1(j)
Schedule 3.1(j)
PacifiCorp Acquired Assets – Intellectual Property
None.
JOINT PURCHASE AND SALE AGREEMENT SCHEDULE 3.2(f)
Schedule 3.2(f)
Idaho Power Acquired Assets – Liabilities

None.
JOINT PURCHASE AND SALE AGREEMENT SCHEDULE 3.2(g)
Schedule 3.2(g)
Idaho Power Acquired Assets – Title Exceptions
None.
JOINT PURCHASE AND SALE AGREEMENT SCHEDULE 3.2(h)(i)
Schedule 3.2(h)(i)
Idaho Power Acquired Assets – Environmental Law and Environmental Permit Exceptions

None.

JOINT PURCHASE AND SALE AGREEMENT SCHEDULE 3.2(h)(ii)
Schedule 3.2(h)(ii)
Idaho Power Acquired Assets – Violation of Environmental Laws
None.
JOINT PURCHASE AND SALE AGREEMENT SCHEDULE 3.2(h)(iii)
Schedule 3.2(h)(iii)
Idaho Power Acquired Assets – Releases
None.
JOINT PURCHASE AND SALE AGREEMENT SCHEDULE 3.2(h)(iv)
Schedule 3.2(h)(iv)
Idaho Power Acquired Assets – Storage Tanks, etc.

None.
JOINT PURCHASE AND SALE AGREEMENT SCHEDULE 3.2(h)(v)
Schedule 3.2(h)(v)
Idaho Power Acquired Assets – Assumed Obligations under Environmental Laws
None.
JOINT PURCHASE AND SALE AGREEMENT SCHEDULE 3.2(j)
Schedule 3.2(j)
Idaho Power Acquired Assets – Intellectual Property
None.
EXECUTION
SECOND AMENDED AND RESTATED BOARDMAN TO HEMINGWAY
TRANSMISSION PROJECT JOINT PERMIT FUNDING AGREEMENT
dated as of
April 14, 2023
by and between
IDAHO POWER COMPANY
and
PACIFICORP
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS; RULES OF INTERPRETATION ....................................................3
1.1 Definitions......................................................................................................................3
1.2 Interpretation ..................................................................................................................8
ARTICLE II THE PERMITTING PROJECT .................................................................................9
2.1 Permitting Project ..........................................................................................................9
2.2 Funding Obligations.......................................................................................................9
2.3 Permitting Project Schedule ...........................................................................................9
2.4 Acquisition and Rights-of-Way Options .......................................................................9
2.5 Construction Activities Excluded ................................................................................10
ARTICLE III FUNDERS & PERMIT FUNDING COMMITTEE ...............................................10
3.1 Funders’ Rights & Obligations ....................................................................................10
3.2 Permit Funding Committee ..........................................................................................12
3.3 Execution of Construction Funding Agreement ..........................................................13
ARTICLE IV PERMITTING PROJECT MANAGER .................................................................17
4.1 Appointment of Permitting Project Manager ...............................................................17
4.2 Authority of Permitting Project Manager ....................................................................17
4.3 Funder’s Ownership Interests ......................................................................................18
4.4 Standard of Work .........................................................................................................19
4.5 Assistance ....................................................................................................................19
4.6 Remedies ......................................................................................................................20
4.7 Injury to Third Parties ..................................................................................................20
ARTICLE V TRANSFER OF RIGHTS AND INTERESTS; ASSIGNMENT ............................21
5.1 Prohibited Transfers and Assignments ........................................................................21
5.2 Permitted Assignments and Transfers .........................................................................21
5.3 Release .........................................................................................................................22
ARTICLE VI TERM .....................................................................................................................22
6.1 Term .............................................................................................................................22
6.2 Early Termination ........................................................................................................22
6.3 Effect of Early Termination .........................................................................................22
Page
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ARTICLE VII WITHDRAWAL ...................................................................................................22
7.1 Withdrawal from this Agreement ................................................................................22
ARTICLE VIII EVENT OF DEFAULT .......................................................................................23
8.1 Event of Default ...........................................................................................................23
8.2 Cure by Non-Defaulting Funder ..................................................................................23
8.3 Remedies ......................................................................................................................24
ARTICLE IX FORCE MAJEURE ................................................................................................24
9.1 Force Majeure Defined ................................................................................................24
9.2 Effect of Force Majeure ...............................................................................................25
ARTICLE X REPRESENTATIONS AND WARRANTIES ........................................................25
10.1 Representations and Warranties of Idaho Power .........................................................25
10.2 Representations and Warranties of PAC ......................................................................26
ARTICLE XI COMMON DEFENSE & LIMITATION OF LIABILITY ....................................27
11.1 Common Defense.........................................................................................................27
11.2 Notice and Participation ...............................................................................................27
11.3 Control of Defense Prior to Joint Defense Agreement ................................................28
11.4 Failure to Provide Timely Joint Defense Agreement Notice .......................................28
11.5 Survival of Obligation..................................................................................................28
11.6 Limitation on Liability .................................................................................................28
ARTICLE XII PROPRIETARY INFORMATION .......................................................................29
12.1 Disclosure of Proprietary Information Prohibited .......................................................29
12.2 Publicity .......................................................................................................................29
ARTICLE XIII DISPUTE RESOLUTION ...................................................................................29
13.1 Exclusive Procedure.....................................................................................................29
13.2 Dispute Notices ............................................................................................................30
13.3 Informal Dispute Resolution ........................................................................................30
13.4 Remedies ......................................................................................................................30
13.5 Continued Performance ...............................................................................................30
ARTICLE XIV MISCELLANEOUS ............................................................................................30
14.1 Counterparts .................................................................................................................30
14.2 Headings ......................................................................................................................31
14.3 Waiver ..........................................................................................................................31
14.4 Relationship of Funders ...............................................................................................31
Page
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14.5 Severability ..................................................................................................................31
14.6 Binding Effect ..............................................................................................................32
14.7 Amendments ................................................................................................................32
14.8 No Third Party Beneficiary ..........................................................................................32
14.9 Entire Agreement .........................................................................................................32
14.10 Notices .........................................................................................................................32
14.11 Choice of Law ..............................................................................................................33
14.12 Further Assurances.......................................................................................................33
14.13 Conflict of Interest .......................................................................................................33
Exhibit A - Description of Boardman to Hemingway Transmission Project
Exhibit B - Permitting Project Schedule
Exhibit C - Project Costs Schedule
Exhibit D - Permitting Interests
SECOND AMENDED AND RESTATED BOARDMAN TO HEMINGWAY
TRANSMISSION PROJECT JOINT PERMIT FUNDING AGREEMENT
This Second Amended and Restated Boardman to Hemingway Transmission Project Joint
Permit Funding Agreement (the “Agreement”) is entered into April 14, 2023 (the “Effective
Date”), by and between Idaho Power Company, an Idaho corporation (“Idaho Power” or “Idaho
Power Funder”), and PacifiCorp, an Oregon corporation (“PAC” or “PAC Funder”). Idaho Power
and PAC are hereinafter sometimes referred to individually as a “Funder” and collectively as the
“Funders.”
RECITALS
WHEREAS, Idaho Power and PAC have independent obligations to plan for and expand
their respective transmission systems to provide safe, reliable, and cost-effective service to their
native load customers, network customers, and/or eligible customers;
WHEREAS, Idaho Power and PAC recognize the potential to fulfill their respective service
obligations through the development of certain new transmission facilities;
WHEREAS, the proposed Boardman to Hemingway Transmission Project is a
500-kilovolt single circuit transmission line running from the proposed Longhorn station in the
vicinity of Boardman, Oregon to the existing Hemingway substation near Melba, Idaho (as
further described in Exhibit A, the “Boardman to Hemingway Transmission Project”) that if
constructed could assist Idaho Power and PAC in fulfilling their respective service obligations;
WHEREAS, the Funders and the Bonneville Power Administration (“BPA”) previously
signed the Boardman to Hemingway Transmission Project Joint Permit Funding Agreement on
or about January 12, 2012; amended the Boardman to Hemingway Transmission Project Joint
Permit Funding Agreement on January 16, 2018; signed the Amended and Restated Boardman
to Hemingway Transmission Project Joint Permit Funding Agreement on or about February 13,
2018; and amended the Amended and Restated Boardman to Hemingway Transmission Project
Joint Permit Funding Agreement on January 16, 2020, April 7, 2020, July 13, 2020, August 31,
2020, January 5, 2021, July 9, 2021, July 20, 2021, November 5, 2021, January 6, 2022,
February 4, 2022, July 25, 2022, and December 29, 2022 (collectively, referred to as the
“Amended and Restated Joint Permit Funding Agreement”);
WHEREAS, the Funders and BPA entered into the Amended and Restated Joint Permit
Funding Agreement for the purposes of providing the definitive terms and conditions by which the
Funders and BPA would jointly support and contribute funds to the processes associated with
obtaining necessary Governmental Authorizations and completing other necessary work to permit,
site, and acquire Rights-of-Way for the Boardman to Hemingway Transmission Project, with the
intent to be joint owners of the Boardman to Hemingway Transmission Project subject to the terms
of the Amended and Restated Joint Permit Funding Agreement;
WHEREAS, on May 22, 2019, Idaho Power issued the Completion Notice contemplated
under Section 3.3(a)(i) of the Amended and Restated Joint Permit Funding Agreement, prompting
the Funders and BPA to meet to negotiate one or more asset exchanges, transmission service
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agreements, amended and restated existing and future agreements, and other agreements the
Funders and BPA intended to pursue in connection with the development and construction of the
Boardman to Hemingway Transmission Project (collectively, the “Definitive Development and
Construction Agreements”);
WHEREAS, on January 18, 2022, the Funders and BPA entered into a non-binding Term
Sheet (the “Term Sheet”), providing the terms and conditions of the Definitive Development and
Construction Agreements;
WHEREAS, on March 24, 2023, Idaho Power and BPA signed the Purchase, Sale, and
Security Agreement pursuant to which Idaho Power purchased all of BPA’s rights, title, and
interests in and to the Boardman to Hemingway Transmission Project and the Amended and
Restated Joint Permit Funding Agreement;
WHEREAS, Idaho Power and PAC continue to recognize that obtaining appropriate and
necessary Governmental Authorizations and completing other necessary work to permit, site,
and acquire Rights-of-Way for the Boardman to Hemingway Transmission Project are essential
components to developing the Boardman to Hemingway Transmission Project;
WHEREAS, Idaho Power and PAC continue to desire to jointly support and contribute
funds to the processes associated with obtaining the necessary Governmental Authorizations and
completing other necessary work to permit, site, and acquire Rights-of-Way for the Boardman to
Hemingway Transmission Project, with the intent to be joint owners of the Boardman to
Hemingway Transmission Project subject to the terms of this Agreement;
WHEREAS, Idaho Power and PAC are entering into this Agreement for the purposes of
providing the definitive terms and conditions by which Idaho Power and PAC will continue to
jointly support and contribute funds to the processes associated with obtaining necessary
Governmental Authorizations and completing other necessary work to permit, site, and acquire
Rights-of-Way for the Boardman to Hemingway Transmission Project, with the intent to be joint
owners of the Boardman to Hemingway Transmission Project subject to the terms of this
Agreement; to amend and restate the Amended and Restated Joint Permit Funding Agreement to
reflect, among other things, that BPA has transferred all of its rights, title, and interests in and to
the Boardman to Hemingway Transmission Project and the Amended and Restated Joint Permit
Funding Agreement to Idaho Power; to incorporate all prior amendments to the Amended and
Restated Joint Permit Funding Agreement; to amend the process by which the Funders will
consider the Construction Funding Agreement, which will, subject to certain terms, supersede this
Agreement in its entirety; and to authorize funding of certain Limited Construction Objectives;
WHEREAS, after the Effective Date, the Parties intend to negotiate and enter into a
Construction Funding Agreement in form and substance mutually satisfactory to the Parties for
the purposes of providing the definitive terms and conditions by which Idaho Power and PAC
would jointly support and contribute funds for the procurement, construction, and commissioning
of the Boardman to Hemingway Transmission Project (the “Construction Funding Agreement”);
WHEREAS, nothing in this Agreement shall affect any other existing or proposed projects,
expansions, or developments that are not a part of this Agreement; and
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NOW, THEREFORE, in consideration of the promises and the mutual covenants and
agreements herein contained, the adequacy of which is hereby acknowledged, Idaho Power and
PAC agree as follows:
ARTICLE I
DEFINITIONS; RULES OF INTERPRETATION
1.1 Definitions. As used in this Agreement, the following capitalized terms have the meanings
specified in this Section 1.1:
“Acquiring Funder” has the meaning set forth in Section 3.3(d).
“Affected Party” has the meaning set forth in Section 9.1.
“Affiliate” means, with respect to a Person, each other Person that, directly or indirectly,
controls, is controlled by or is under common control with, such designated Person;
provided, however, that in the case of PAC “Affiliate” includes Berkshire Hathaway
Energy Company and its direct and indirect subsidiaries. For the purposes of this definition,
“control” (including with correlative meanings, the terms “controlled by” and “under
common control with”), as used with respect to any Person, shall mean (a) the direct or
indirect right to cast at least fifty percent (50%) of the votes exercisable at an annual general
meeting (or its equivalent) of such Person or, if there are no such rights, ownership of at
least fifty percent (50%) of the equity or other ownership interest in such Person, or (b) the
right to direct the policies or operations of such Person.
“Agreement” has the meaning set forth in the Preamble.
“Amended and Restated Joint Permit Funding Agreement” has the meaning set forth in the
Recitals.
“Bankrupt” means, with respect to any Person, that such Person: (a) files a petition or
otherwise commences, authorizes or acquiesces in the commencement of a proceeding or
cause of action under any bankruptcy, insolvency, reorganization or similar law, or has any
such petition filed or commenced against it which it fails to contest in a timely and
appropriate manner, (b) makes an assignment or any general arrangement for the benefit
of creditors, (c) otherwise becomes insolvent (however evidenced), (d) has a liquidator,
administrator, receiver, trustee, conservator or similar official appointed with respect to it
or any substantial portion of its property or assets, and such appointment is not dismissed
or stayed for a period of sixty (60) days, or (e) is generally unable to pay its debts as they
fall due.
“BLM” means the Bureau of Land Management.
“Boardman to Hemingway Transmission Project” has the meaning set forth in the Recitals.
“BPA” has the meaning set forth in the Recitals.
-4-
“Business Day” means any day other than Saturday, Sunday and any day which is not a
federal holiday or a day on which banking institutions in New York, New York are
authorized or obligated by Governmental Requirements to close.
“Claims” has the meaning set forth in Section 11.1.
“Commercially Reasonable Efforts” means the level of effort that a reasonable electric
utility would take in light of the then known facts and circumstances to accomplish the
required action at a then commercially reasonable cost (taking into account the benefits to
be gained thereby).
“Confidential Information” has the meaning set forth in Section 12.1.
“Construction Funding Agreement” has the meaning set forth in the Recitals.
“Defaulting Funder” has the meaning set forth in Section 8.1.
“Departing Funder” has the meaning set forth in Section 3.3(d).
“Dispute” has the meaning set forth in Section 13.1.
“Dispute Notice” has the meaning set forth in Section 13.2.
“Disputing Party” has the meaning set forth in Section 13.2.
“Definitive Development and Construction Agreements” has the meaning set forth in the
Recitals.
“Effective Date” has the meaning set forth in the Preamble.
“Event of Default” has the meaning set forth in Section 8.1.
“Executives” has the meaning set forth in Section 13.3(a).
“FERC” means the Federal Energy Regulatory Commission.
“Force Majeure” has the meaning set forth in Section 9.1.
“Funder” has the meaning set forth in the Preamble.
“Funders” has the meaning set forth in the Preamble.
“Funding Committee Representative” has the meaning set forth in Section 3.2(a).
“Good Utility Practice” means any of the practices, methods and acts engaged in or
approved by a significant portion of the electric utility industry during the relevant time
period, or any of the practices, methods and acts which, in the exercise of reasonable
judgment in light of the facts known at the time the decision was made, would have been
expected to accomplish the desired result at a reasonable cost consistent with good business
-5-
practices, reliability, safety and expedition. Good Utility Practice is not intended to be
limited to the optimum practice, method, or act to the exclusion of all others, but rather to
be acceptable practices, methods, or acts generally accepted in the region, including those
practices required by Federal Power Act section 215(d).
“Governmental Authority” means any federal, state, local or municipal governmental
body; any governmental, quasi-governmental, regulatory or administrative agency,
commission, body or other authority exercising or entitled to exercise any administrative,
executive, judicial, legislative, policy, regulatory or taxing authority or power, including
FERC, NERC or any regional reliability council; or any court or governmental tribunal, in
each case, having jurisdiction over any Funder (whether as Funder or as Permitting Project
Manager) or any of its Affiliates or the development, permitting, siting, acquisition of
Rights-of-Way, or preliminary design of the Boardman to Hemingway Transmission
Project.
“Governmental Authorizations” means any license, permit, order, approval, filing, waiver,
exemption, variance, clearance, entitlement, allowance, franchise, or other authorization
from or by a Governmental Authority.
“Governmental Requirements” means all laws, statutes, ordinances, rules, regulations,
codes, and similar acts or promulgations or other legally enforceable requirements of any
Governmental Authority.
“Idaho Power” has the meaning set forth in the Preamble.
“Idaho Power Funder” has the meaning set forth in the Preamble.
“Joint Defense Agreement” has the meaning set forth in Section 11.1.
“Joint Defense Agreement Notice” has the meaning set forth in Section 11.2.
“LiDAR” has the meaning set forth in Section 2.1.
“Limited Construction Objectives” has the meaning set forth in Section 2.1.
“Manager” has the meaning set forth in Section 13.3(a).
“Mitigation Activities” means researching, negotiating, planning, and acquiring options for
wildlife habitat mitigation projects and properties, reservation of wildlife mitigation bank
credits, and in lieu fee wildlife mitigation programs; cultural mitigation; and other
mitigation required in connection with the Governmental Authorizations.
“Negotiation Period” has the meaning set forth in Section 3.3(a).
“Negotiation End Date” has the meaning set forth in Section 3.3(b).
“NEPA” means the National Environmental Policy Act, as the same may be amended
from time to time.
-6-
“NERC” means the North American Electric Reliability Corporation.
“Non-Defaulting Funder” means a Funder that is not a Defaulting Funder.
“PAC” has the meaning set forth in the Preamble.
“PAC Funder” has the meaning set forth in the Preamble.
“Permit Funding Committee” has the meaning set forth in Section 3.2(a).
“Permitting Interest” means, with respect to each of the Funders, their Permitting Interest
as set forth in Exhibit D.
“Permitting Objectives” has the meaning set forth in Section 2.1.
“Permitting Project” has the meaning set forth in Section 2.1.
“Permitting Project Schedule” has the meaning set forth in Section 2.3.
“Permitting Project Manager” means Idaho Power.
“Person” means an individual, partnership, corporation, limited liability company, joint
venture, association, trust, unincorporated organization, Governmental Authority, or other
form of entity.
“Post-ROD Monthly Permitting Payments” has the meaning set forth in Section 3.1(a).
“Preconstruction Objectives” has the meaning set forth in Section 2.1.
“Private Property Interests” means the final planning, final design, all procurement, and all
acquisition of private rights of way, private easements, private licenses, and similar private
property interests, which are expressly excluded from this Agreement.
“Project Assets” has the meaning set forth in Section 3.3(d).
“Project Costs” means the cost and expenses incurred by or on behalf of the Permitting
Project Manager pursuant to this Agreement to achieve the Permitting Project as further
described in Exhibit C attached hereto.
“Project Costs Schedule” has the meaning set forth in Section 2.2.
“Project Costs Records” has the meaning set forth in Section 3.1(c).
“Representatives” means, in respect of a Funder or Permitting Project Manager, the
directors, officers, shareholders, partners, members, employees, agents, consultants,
contractors or other representatives of such Funder or Permitting Project Manager.
-7-
“Rights-of-Way” means all rights-of-way, easements, grants and other real property
interests on which the Boardman to Hemingway Transmission Project is or will be
constructed.
“Rights-of-Way Options” means the contractual agreements which the Permitting Project
Manager enters into in accordance with the terms of this Agreement with an owner of
private real property to purchase Rights-of Way at a specified price within a specified time,
or within a reasonable time in the future, but without imposing an obligation to purchase
on the Permitting Project Manager or any Funder. The term Rights-of-Way Options does
not include acquisition of Rights-of-Way or Private Property Interests.
“Rights-of-Way Options Objectives” has the meaning set forth in Section 2.1.
“ROFR” has the meaning set forth in Section 3.3(d).
“Subchapter K” has the meaning set forth in Section 14.4(b).
“Term” has the meaning set forth in Section 6.1.
“Term Sheet” has the meaning set forth in the Recitals.
“Transfer” has the meaning set forth in Section 5.1.
“Transferred Interest” has the meaning set forth in Section 5.2(a).
“Uniform Act” has the meaning set forth in Section 2.4(b).
1.2 Interpretation. The following rules of interpretation and construction shall apply in this
Agreement:
(a) The masculine shall include the feminine and neuter.
(b) References to “Articles,” “Sections” and “Exhibits” shall be to articles and sections
of and exhibits to this Agreement.
(c) The Exhibits attached hereto are incorporated in and are intended to be a part of
this Agreement.
(d) This Agreement was negotiated and prepared by Idaho Power and PAC with the
advice and participation of counsel. Idaho Power and PAC have agreed to the
wording of this Agreement and none of the provisions hereof shall be construed
against one Funder on the ground that such Funder is the author of this Agreement
or any part hereof.
(e) Each reference in this Agreement to any agreement or document or a portion or
provision thereof shall be construed as a reference to the relevant agreement or
document as amended, supplemented or otherwise modified from time to time with
the written approval of Idaho Power and PAC.
-8-
(f) Each reference in this Agreement to Governmental Requirements and to terms
defined in, and other provisions of, Governmental Requirements shall be references
to the same (or a successor to the same) as amended, supplemented or otherwise
modified from time to time.
(g) The term “day” shall mean a calendar day, the term “month” shall mean a calendar
month, and the term “year” shall mean a calendar year. Whenever an event is to be
performed, a period commences or ends, or a payment is to be made on or by a
particular date and the date in question falls on a day which is not a Business Day,
the event shall be performed, or the payment shall be made, on the next succeeding
Business Day; provided, however, that all calculations shall be made regardless of
whether any given day is a Business Day and whether any given period ends on a
Business Day.
(h) Each reference in this Agreement to a Person includes its successors and permitted
assigns; and each reference to a Governmental Authority includes any
Governmental Authority succeeding to its functions and capacities.
(i) In this Agreement, the words “include,” “includes” and “including” are to be
construed as being at all times followed by the words “without limitation.”
References to “or” shall be deemed to be disjunctive but not necessarily exclusive.
(j) The words “hereof,” “herein” and “hereunder” and words of similar import when
used in this Agreement shall, unless otherwise specified, refer to this Agreement as
a whole and not to any particular provision of this Agreement.
ARTICLE II
THE PERMITTING PROJECT
2.1 Permitting Project. Subject to the terms of this Agreement, the Funders desire to jointly
fund and support, with the intent to be joint owners pursuant to this Agreement: (a) the
process of obtaining Governmental Authorizations and completing other necessary work
directly related to the siting, permitting, preliminary designing, Light Detection and
Ranging (“LiDAR”), preparing and issuing requests for proposal for detailed design,
geotechnical exploration, Rights-of-Way and legal surveying, and developing request for
proposal for constructability consulting (collectively, “Permitting Objectives”);
(b) detailed design, geotechnical exploration, legal surveying, constructability consulting,
risk assessment, and BLM construction plan of development (collectively,
“Preconstruction Objectives”); (c) acquisition of Rights-of-Way Options and
condemnation preparation (“Rights-of-Way Options Objectives”); and (d) compliance
inspection contractor hiring and onboarding, construction inspection team hiring and
onboarding, limited purchase order award for long lead materials, Mitigation Activities,
and the Bonneville Power Administration 230/69kV station and removal of transmission
line from Naval Weapons Systems Training Facility Boardman (“Limited Construction
Objectives.” The “Permitting Project” means the Permitting Objectives, Preconstruction
Objectives, Rights-of-Way Options Objectives, and the Limited Construction Objectives.
-9-
2.2 Funding Obligations. Subject to the terms of this Agreement, each of the Funders agrees
to fund Project Costs incurred by or on behalf of the Permitting Project Manager in
performing the Permitting Project in accordance with the schedule attached hereto as
Exhibit C, as the same may be revised from time to time with the approval of the Permit
Funding Committee pursuant to Section 3.2 (“Project Costs Schedule”).
2.3 Permitting Project Schedule. Subject to the terms of this Agreement, the Permitting Project
Manager shall use Commercially Reasonable Efforts to achieve the outstanding objectives
of the Permitting Project pursuant to the schedule set forth in Exhibit B, as the same may
be revised from time to time with the approval of the Permit Funding Committee pursuant
to Section 3.2 (“Permitting Project Schedule”).
2.4 Acquisition and Rights-of-Way Options. Subject to the terms of this Agreement, the
Funders desire to jointly fund and support the Permitting Project Manager in acquiring
Rights-of-Way Options. Acquisition of the Rights-of-Way Options includes research and
negotiations, as well as Rights-of-Way Option acquisition and related legal fees. In
acquiring Rights-of-Way Options, the Permitting Project Manager shall adhere to the
following requirements:
(a) The Permitting Project Manager shall use a Rights-of-Way Options template that
has been approved by Idaho Power and PAC for purposes of acquiring Rights-of-
Way Options. The Permitting Project Manager shall evaluate template revisions
requested by landowners during the acquisition process, and shall have the sole
authority to negotiate such requested revisions as the Permitting Project Manager
deems reasonably appropriate in the interest of the Permitting Project.
(b) The Permitting Project Manager shall comply with all applicable laws, including
the federal Uniform Relocation and Real Property Acquisition Policies Act of 1970
as amended (“Uniform Act”), 42 U.S.C. Section 4601 et seq.
(i) The Permitting Project Manager shall be considered an acquiring agency,
as defined in 42 U.S.C. Section 4655(b), for purposes of the Uniform Act.
(ii) Pursuant to 42 U.S.C. Section 4655, the Permitting Project Manager agrees
that:
(A) In acquiring Rights-of-Way Options and real property, it will be
guided, to the greatest extent practicable under state law, by the land
acquisition policies in 42 U.S.C Section 4651 and the provisions of
42 U.S.C. Section 4652, and
(B) Property owners will be paid or reimbursed for necessary expenses
as specified in 42 U.S.C. Sections 4653 and 4654.
(c) Appraisals or waiver valuations, as permitted by Governmental Requirements, shall
be conducted according to the Uniform Act and completed before the initiation of
negotiations for Rights-of-Way Options with a landowner. The Permitting Project
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Manager shall establish an amount which it believes is just compensation for the
Rights-of-Way and that amount shall not be less than the waiver valuation or the
approved appraisal of the fair market value of the Rights-of-Way. Prior to
exercising any Rights-of-Way Options to acquire the Rights-of-Way, Permitting
Project Manager shall have first obtained PAC’s consent for such offering, such
consent not to be unreasonably delayed, withheld or conditioned.
2.5 Construction Activities Excluded. Construction activities not otherwise included in the
Permitting Project are expressly excluded from the Permitting Project and this Agreement.
ARTICLE III
FUNDERS & PERMIT FUNDING COMMITTEE
3.1 Funders’ Rights & Obligations.
(a) Method of Payment. All payments required to be made by the Funders under the
terms of this Agreement shall be made to an account or accounts designated by the
Permitting Project Manager to which payment is owed by electronic transfer in
immediately available funds in the lawful currency of the United States. The
Permitting Project Manager shall provide the Funders with a monthly invoice
within thirty (30) days after the end of each month that includes all Project Costs
that were incurred by the Permitting Project Manager for that month (the “Post-
ROD Monthly Permitting Payments”). Each Post-ROD Monthly Permitting
Payment invoice shall provide the Funders sufficient level of detail describing the
activities performed by the Permitting Project Manager, as may be reasonably
requested by any Funder. The invoice shall not include Project Costs previously
paid by the Funder to the Permitting Project Manager. The failure by the Permitting
Project Manager to timely deliver any Post-ROD Monthly Permitting Payments
invoice shall not relieve any Funder of its payment obligations in respect to the
Post-ROD Monthly Permitting Payments shown on such invoice. The Funders shall
tender payment to the Permitting Project Manager within thirty (30) days of receipt
of the invoice.
(b) Disputed Amounts. If PAC Funder disputes any portion of any amount it is invoiced
by Permitting Project Manager pursuant to this Agreement, then it shall pay the
total amount of the invoiced amount when due, and, if actually known at the time,
identify the disputed amount and state that the disputed amount is being paid under
protest. Any disputed amount shall be resolved pursuant to the provisions of Article
XIII. If it is determined pursuant to Article XIII that an overpayment or
underpayment has been made by a Funder or any amount allocated to a Funder on
an invoice is incorrect, then (i) in the case of any overpayment by a Funder, the
Permitting Project Manager shall promptly return the amount of the overpayment
(or credit the amount of the overpayment on the next invoice) to the Funder; and
(ii) in the case of an underpayment by the Funder, the Funder shall promptly pay
the amount of the underpayment to the Permitting Project Manager (in each case,
together with interest for the period from the date of overpayment, underpayment,
or incorrect allocation, until such amount has been paid or credited against a future
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invoice calculated in the manner prescribed for calculating interest in Section
3.1(a)).
(c) Audit Rights. PAC Funder may, at its cost, at any time during normal business
hours and with reasonable prior notice to the Permitting Project Manager of not less
than ten (10) Business Days, but not more often than twice in any twelve (12) month
period, inspect and audit the books and records of the Permitting Project Manager
and any of its Affiliates (and the Permitting Project Manager shall secure such
rights from its Affiliates) relating: (i) to the determination of the payments for
which the Funders are responsible under this Agreement, including the Project
Costs included in the Project Costs Schedule, within twelve (12) months prior to
the date of the audit notice; and (ii) directly related to and involved in formulating
any Post-ROD Monthly Permitting Payments and any other payments pursuant to
this Agreement (“Project Costs Records”). Audit findings shall be provided to the
Funders. If any audit discloses that, during such twelve (12)-month period, an
overpayment or underpayment of Project Costs has been made by the Funders or
the amount of any Project Costs allocated to the Funders on an invoice is incorrect,
then such overpayment, underpayment or incorrect amount shall be resolved
pursuant to Article XIII. PAC Funder shall reimburse one hundred percent (100%)
of all reasonable costs and expenses (including internal costs and expenses)
incurred by or on behalf of the Permitting Project Manager and any of its Affiliates
in complying with the provisions of this Section 3.1(d), provided, however, that
PAC Funder shall not be required to reimburse any such costs if the audit
determines that PAC Funder has made more than Twenty-Five Thousand Dollars
($25,000) in overpayments of Project Costs or more than Twenty-Five Thousand
Dollars ($25,000) in Project Costs have been incorrectly allocated to the PAC
Funder.
(d) Access. The Permitting Project Manager shall, to the extent possible under any
Rights-of-Way, provide each Funder and its designees reasonable access to the
Boardman to Hemingway Transmission Project sites to permit each Funder and its
designees to inspect the development, preliminary design, siting, Rights-of-Way
acquisition and permitting of the Boardman to Hemingway Transmission Project,
provided that (i) the Funder and its designees do not interfere with the development,
preliminary designing, siting, Rights-of-Way acquisition and permitting of the
Boardman to Hemingway Transmission Project or any portion thereof or pose a
safety hazard; (ii) the Funder and its designees comply with any requirements of
any Rights-of-Way applicable to the Boardman to Hemingway Transmission
Project; and (iii) the Funder and its designees performing the inspection comply
with the Permitting Project Manager’s or any other contractor’s safety and security
rules, notice of which the Permitting Project Manager shall provide to the Funder.
3.2 Permit Funding Committee.
(a) Scope and Authority. The Funders hereby establish a committee (the “Permit
Funding Committee” comprised of a representative of each Funder (each a
“Funding Committee Representative”). The Permit Funding Committee shall
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consider, evaluate and take action with respect to mutually resolving the following
matters: (i) any and all changes in the scope or schedule of the Permitting Project,
including any and all changes in the Permitting Project that directly affect the
Permitting Project Schedule or the Project Costs Schedule; (ii) any and all changes
to the Project Costs Schedule, including changes to the Post-ROD Monthly
Permitting Payments; (iii) any and all technical specifications and other matters
related to the Permitting Project; (iv) requests from the Permitting Project Manager
from time to time relating to the execution and achievement of the Permitting
Project or the performance of its obligations under this Agreement; (v) general
development of policy and strategy with respect to the Permitting Project; and (vi)
any and all direct or indirect effects of the development of other regional
transmission projects (including project schedule and location of potential
interconnection points), including, but not limited to, the Gateway West Project, on
the development and permitting of the Boardman to Hemingway Transmission
Project. In addition, the Permit Funding Committee may provide the Permitting
Project Manager guidance from time to time on the execution and achievement of
the Permitting Project in accordance with the Permitting Project Schedule and
Project Costs Schedule and other matters affecting the performance by Permitting
Project Manager of its obligations under this Agreement.
(b) Membership. Each Funder’s Funding Committee Representative shall be a senior
level representative or designee with authority to consider and act to resolve issues
that arise between the Funders or with the Permitting Project Manager.
(c) Permitting Project Manager. The Permitting Project Manager shall inform the
Permit Funding Committee and the Funding Committee Representatives through
formal and informal communication of the ongoing progress and matters that
impact the Governmental Authorizations or other necessary work relating to the
Permitting Project. The Permitting Project Manager shall confer and communicate
with the Permit Funding Committee and Funding Committee Representatives as to
the matters described in Section 3.2(a) or as otherwise provided in this Agreement.
(d) Funding Committee Meetings. The Permit Funding Committee will meet at least
monthly, in person or telephonically, or as deemed necessary by the Funding
Committee Representatives. Any Funding Committee Representative may request
a meeting of the Permit Funding Committee at any time and for any reason. The
Permitting Project Manager shall provide the Permit Funding Committee with
regular statements, at least monthly, regarding the Permitting Project that include
future expense projections.
(e) Funding Committee Procedures. The Funding Committee Representatives shall
work in good faith to consider, evaluate and make best efforts to mutually resolve
any issues that are raised before the Permit Funding Committee. If the Funding
Committee Representatives are unable to mutually resolve any issue, they shall
refer the matter to the Executives that have the authority to settle the issue. All
communications and writings exchanged between and/or among the Permitting
Project Manager, Funding Committee Representatives, and Executives in
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connection with the Permit Funding Committee shall be treated as Confidential
Information in accordance with Article XII.
(f) Joint Working Groups. Joint working groups may be established by the Permit
Funding Committee on an ad hoc basis when the need arises to advance certain
specific tasks related to the Permitting Project and the Boardman to Hemingway
Transmission Project, including, but not limited to, consultation on technical
specifications and other matters related to the Permitting Project.
3.3 Execution of Construction Funding Agreement.
(a) Negotiation Period. The Funders shall negotiate and enter into the Construction
Funding Agreement within thirty-five (35) days after the Effective Date (the
“Negotiation Period”). The Funders may mutually agree to extend the
Negotiation Period for an additional period or periods not to exceed thirty-five
(35) days.
(b) Negotiation Termination. Any negotiations pursuant to Section 3.3(a) shall
automatically terminate upon the completion of the Negotiation Period (the
“Negotiation End Date”).
(c) Following Negotiation End Date. For a period of one (1) year following the
Negotiation End Date and notwithstanding Article V, if a Construction Funding
Agreement is not executed by the Funders:
i. The Permitting Project Manager shall continue to use Commercially
Reasonable Efforts, and the Funders shall continue to provide funding and
support, to achieve the Permitting Objectives in accordance with the terms
of this Agreement;
ii. The Permitting Project Manager shall take any necessary steps to maintain
the Governmental Authorizations and Rights-of-Way Options, including
but not limited to paying any renewal fees, rental payments, or similar
costs, and that the Funders shall provide funding and support to complete
those activities; and
iii. The Funders’ obligations under this Agreement to fund and support the
Preconstruction Objectives, Rights-of-Way Options Objectives, and
Limited Construction Objectives are terminated, unless mutually agreed to
by the Funders.
At the end of such one (1) year period, if a Construction Funding Agreement is
not executed by the Funders, then this Agreement shall automatically terminate
without any further action by the Funders and the Funders shall retain their
respective right, title and interest in the Permitting Project.
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(d) ROFR Right. Following the Negotiation End Date, to the extent a Construction
Funding Agreement is not executed by the Funders, each Funder shall have an
option to purchase and a right of first refusal (collectively, a “ROFR”) to acquire
all of the other Funder’s right, title and interest in and to this Agreement and the
Permitting Project, including: (i) all Governmental Authorizations, and amounts
paid to the Permitting Project Manager; (ii) all Rights of Way Options and all
Rights-of-Way issued by the BLM and other federal agencies (including any other
permits, licenses, options, permissions); and (iii) any and all reports and studies
(collectively, the “Project Assets”). If either Funder (the “Acquiring Funder”)
exercises the ROFR, the other Funder’s (the “Departing Funder”) right, title and
interest in and to the Project Assets and the Departing Funder’s Permitting
Interest (including all project investments associated therewith) shall be
transferred and assigned to the Acquiring Funder pursuant to a bill of sale and
assignment and assumption agreement in form and substance reasonably
acceptable to both Funders for an amount equal to the greater of (1) Permitting
Project costs paid by the Departing Funder under this Agreement and prior
versions of this Agreement, and including, if applicable, Idaho Power’s
obligations under the Permitting Purchase, Sale and Security Agreement dated
March 24, 2023 between Idaho Power and BPA, as of the date of the transfer plus
AFUDC charged to the project until final payment is made; or (2) in the event
Departing Funder has solicited from a third-party a purchase of the Project Assets,
the lowest offer made by a third-party and accepted by the Departing Funder to
acquire the Departing Funder’s Permitting Interest and interest in the Project
Assets.
(e) Survival. The terms of Section 3.3, subsections (d) and (e) shall be specifically
enforceable and shall survive the expiration or termination of this Agreement.
ARTICLE IV
PERMITTING PROJECT MANAGER
4.1 Appointment of Permitting Project Manager.
(a) Appointment. The Funders hereby appoint Idaho Power, and Idaho Power hereby
accepts appointment, to serve as Permitting Project Manager of the Permitting
Project and will perform the obligations of the Permitting Project Manager
expressly set forth in this Agreement, in accordance with the terms and conditions
of this Agreement.
(b) Duty. The Funders agree that the Permitting Project Manager shall not have any
obligations, responsibilities or duties to the Funders other than as are expressly
provided for in this Agreement.
4.2 Authority of Permitting Project Manager.
(a) Role of Permitting Project Manager. The Permitting Project Manager shall
administer and oversee the Permitting Project and shall be responsible for the day-
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to-day activities involved in advancing the Permitting Project to achieve the
Permitting Project, including the responsibility for obtaining all required
Governmental Authorizations, siting, and Rights-of-Way acquisition relating to the
Boardman to Hemingway Transmission Project. The Permitting Project Manager
will exercise or enforce all benefits, rights and remedies under this Agreement for
the benefit of the Funders pro rata (in accordance with their respective Permitting
Interests) and without adverse distinction or undue discrimination between or
against the Funders or their respective Permitting Interests. In furtherance and not
in limitation of the immediately preceding sentence, the Permitting Project
Manager agrees to transfer, assign, distribute, pay over or otherwise make available
to PAC Funder, PAC Funder’s pro rata share (based on its Permitting Interest) in
any payments or proceeds obtained pursuant to this Agreement.
(b) Communication. The Permitting Project Manager shall have the duty to
communicate the status of the Permitting Project on a regular basis with the Permit
Funding Committee and the Funding Committee Representatives in a manner
consistent with Section 3.2(c).
(c) Reporting. The Permitting Project Manager shall be responsible for preparing and
distributing monthly reports to the Permit Funding Committee and the Funding
Committee Representatives (or less frequently if mutually required by the Permit
Funding Committee) regarding (i) Project Costs paid and projected to be incurred,
and, to the extent necessary, recommend to the Permit Funding Committee
adjustments to the Project Costs Schedule and (ii) activity and progress with respect
to achieving the Permitting Project in accordance with the Permitting Project
Schedule. The Permitting Project Manager shall be responsible for preparing and
distributing reports to the Permit Funding Committee and the Funding Committee
Representatives at such other times as any material change occurs or is reasonably
expected to occur to the Permitting Project Schedule or the Project Costs Schedule.
(d) Project Coordination. Notwithstanding anything to the contrary contained in this
Agreement, the Permitting Project Manager shall consult with and obtain the
express written approval of the Funders with respect to the location, technical
design and engineering specifications relating directly to the interconnection point
of the Boardman to Hemingway Transmission Project and the Gateway West
Project.
4.3 Funder’s Ownership Interests.
(a) Perfection of Existing Ownership Interests. The Funders will take all necessary and
reasonable action permissible under applicable Governmental Requirements to
develop a plan for ownership of property, in accordance with the Funders’
Permitting Interest, to be memorialized in the Construction Funding Agreement,
including all right, title, and interest in all reports, studies, Governmental
Authorizations (including permits) and other property of whatever nature and kind,
whether real or personal, tangible or intangible, purchased or acquired prior to the
Effective Date by or on behalf of the Permitting Project Manager or Idaho Power
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for the Boardman to Hemingway Transmission Project, including all Governmental
Authorizations and Rights-of-Way required for the Boardman to Hemingway
Transmission Project and acquired by Idaho Power hereunder. In the event the
Funders do not enter into a Construction Funding Agreement, Section 3.3 will
control the disposition of the Governmental Authorizations and Private Property
Interests as authorized under Section 2.1 of this Agreement.
(b) Perfection of Future Ownership Interests. Following the Effective Date, the
Permitting Project Manager shall acquire, on behalf of the Funders, in accordance
with the Funders’ respective Permitting Interests, title and interest in all reports,
studies, Governmental Authorizations (including permits) and other property of
whatever nature and kind, whether real or personal, tangible or intangible, for the
Boardman to Hemingway Transmission Project, including all Governmental
Authorizations and Rights-of-Way required for the Boardman to Hemingway
Transmission Project. The Funders and the Permitting Project Manager agree that
any reports and studies shall be issued in the names of both Funders. The Permitting
Project Manager shall make all applications for Government Authorizations, and
shall obtain all such Government Authorizations, reports, and studies, in the name
of the Funders, to the extent permitted by applicable Governmental Requirements.
In the event that because of applicable Governmental Authorizations, the
Permitting Project Manager cannot obtain any Governmental Authorization, report
or study or other property in the name of both Funders, the Funders and the
Permitting Project Manager agree to take all necessary and reasonable actions to
create an ownership plan for all such Governmental Authorizations, reports, studies
or other property acquired for the Permitting Project to reflect the Funders’
respective Permitting Interests, which plan will be included in the Construction
Funding Agreement. In the event the Funders do not enter into Construction
Funding Agreement, Section 3.3 will control the disposition of the Governmental
Authorizations; Private Property Interests as authorized under Section 2.1 of this
Agreement; and all reports, studies, and any other property whatsoever of whatever
nature and kind, whether real or personal, tangible or intangible, acquired or
perfected by the Permitting Project Manager for the benefit of the Funders pursuant
to the terms of this Agreement.
4.4 Standard of Work. The Permitting Project Manager shall perform all of its obligations
under this Agreement as an independent contractor and in accordance with Good Utility
Practice and applicable Governmental Requirements and Governmental Authorizations
and without adverse distinction or undue discrimination between or against the Funders or
their respective Permitting Interests.
4.5 Assistance. Each Funder shall cooperate with the Permitting Project Manager promptly, as
and when reasonably requested by the Permitting Project Manager, to assist the Permitting
Project Manager in the performance of its duties, responsibilities and obligations under this
Agreement, including executing and delivering from time to time such additional
documents, certificates or instruments, and taking such additional actions, as may be
reasonably requested by the Permitting Project Manager. Each Funder shall bear its own
costs for providing such cooperation and assistance as requested by the Permitting Project
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Manager unless both Funders agree otherwise in writing. Each Funder shall provide
internal personnel, services, know how, intellectual property or other internal resources as
may be reasonably necessary or appropriate to carry out the intent of and to perform the
Funders’ and Permitting Project Manager’s duties, responsibilities and obligations under
this Agreement or as both Funders may otherwise agree to in writing. Internal personnel
and internal resources refers to the employees, contractors, and resources of the Funder,
not its subsidiaries, or Affiliates. No Funder (other than Idaho Power in its role as
Permitting Project Manager) shall have the right to invoice the other Funder for the costs
or expenses associated with the utilization of internal personnel, services, know how
intellectual property or other internal resources necessary or appropriate to carry out the
intent of and to perform its obligations under this Agreement, unless otherwise agreed upon
in writing by both Funders. The Permitting Project Manager shall request assistance under
this Section 4.5 without adverse distinction or undue discrimination between or against the
Funders.
4.6 Remedies.
(a) Notwithstanding any provision to the contrary contained in this Agreement, the
Permitting Project Manager shall have no liability whatsoever to the Funders in
connection with the performance of its covenants and obligations under this
Agreement, provided, however, the Permitting Project Manager shall be liable to
the Funders for any direct actual damages resulting from its own negligence or
breach of this Agreement. The Funders agree that each Funder has a duty to mitigate
any damages and shall use Commercially Reasonable Efforts to minimize any
damages it may incur as a result of the Permitting Project Manager’s failure to
perform or breach of any of its covenants or its obligations under this Agreement.
(b) The Funders and the Permitting Project Manager acknowledge that the obligations
and covenants performed by the Permitting Project Manager hereunder are unique
and that PAC Funder will be irreparably injured should such obligations and
covenants not be performed in accordance with the terms and conditions of this
Agreement. Consequently, PAC Funder will not have an adequate remedy at law if
the Permitting Project Manager shall fail to perform its obligations and covenants
hereunder and the Funders and the Permitting Project Manager agree not to take a
position in any proceeding arising out of this Agreement to the effect that PAC
Funder has an adequate remedy at law. PAC Funder shall have the right, in addition
to any other remedy available under this Agreement, to specific performance of the
Permitting Project Manager’s obligations and covenants hereunder or injunctive
relief, in each case without the need for posting bond or other security.
4.7 Injury to Third Parties. Each Funder shall be responsible for obtaining and maintaining
during the Term insurance covering their respective legal liabilities to third persons or the
property of third persons related to their respective obligations under this Agreement
(including any obligations as Permitting Project Manager hereunder) in amounts consistent
with Good Utility Practice and any applicable Governmental Requirements. Insurance
coverage required by this Section 4.7 for each Funder may be through a carrier or self-
insured, or any combination of carrier insured and self-insured.
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ARTICLE V
TRANSFER OF RIGHTS AND INTERESTS; ASSIGNMENT
5.1 Prohibited Transfers and Assignments. Except as provided in Section 3.3 and Section 5.2,
no Funder may, without the express written consent of the other Funder (such consent not
to be unreasonably withheld, conditioned or delayed) sell, assign, transfer, convey or
otherwise dispose of (each, a “Transfer”), directly, in whole or in part, any of its rights,
titles or interest in and to (a) this Agreement including its rights, duties and obligations
hereunder, or (b) the Permitting Project. Any Transfer in violation of Section 3.3 and
Section 5.2 shall be null and void.
5.2 Permitted Assignments and Transfers. Notwithstanding anything to the contrary contained
in this Agreement, including Section 5.1:
(a) either Funder may Transfer voluntarily (and without the consent of, but with at least
thirty (30) days’ prior written notice to, the other Funder) all of its Permitting
Interest in the Permitting Project and all of its rights, titles and interests in and to
this Agreement (including all of its rights and obligations in this Agreement as
Permitting Project Manager, if any) (collectively, the “Transferred Interest”) in
connection with any sale, merger or other transfer of substantially all of such
Funder’s electric transmission facilities as an operating entity; provided, however,
that the effectiveness of such Transfer shall be conditioned upon the transferee
agreeing in writing to assume all of the rights and obligations of the transferring
Funder under this Agreement (including all of its rights and obligations in this
Agreement as Permitting Project Manager, if any) as of the effective date of
Transfer;
(b) either Funder may Transfer voluntarily (and without the consent of, but with at least
thirty (30) days’ prior written notice to, the other Funder) all of its Transferred
Interest to an Affiliate; provided, that the Affiliate has the same or better credit
rating (as reasonably determined by the other Funder) than the transferring Funder
as of the effective date of Transfer; provided, however, that the effectiveness of
such Transfer shall be conditioned upon the transferee agreeing in writing to
assume all of the rights and obligations of the transferring Funder under this
Agreement (including all of its rights and obligations in this Agreement as
Permitting Project Manager, if any) as of the effective date of Transfer; and
(c) either Funder may Transfer voluntarily (and with at least thirty (30) days’ prior
written notice to, the other Funder) all of its Transferred Interest to a third party that
is financially and technically capable of performing the transferring Funder’s (and,
Permitting Project Manager’s, if any) obligations under this Agreement; provided
that: (i) the other Funder approves, in its sole discretion, such Transfer; and (ii) the
other Funder is offered the right of first refusal to purchase such Transferred Interest
and all of the transferring Funder’s rights, titles and interests in and to this
Agreement (including all of its rights and obligations in this Agreement as
Permitting Project Manager, if any) for an amount equal to the greater of (1) Project
Costs paid by the transferring Funder under this Agreement and prior versions of
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this Agreement and including, if applicable, Idaho Power’s obligations under the
Permitting Purchase, Sale and Security Agreement dated March 24, 2023 between
Idaho Power and BPA, as of the date of the transfer plus AFUDC charged to the
project until final payment is made, or (2) in the event the transferring Funder has
solicited from a third-party a purchase of the Project Assets, the lowest offer made
by a third-party and accepted by the transferring Funder to acquire the transferring
Funder’s Permitting Interest and interest in the Project Assets; provided, however,
that the effectiveness of such Transfer shall be conditioned upon the third-party
purchaser agreeing in writing to assume all of the rights and obligations of the
transferring Funder under this Agreement (including all of its rights and obligations
in this Agreement as Permitting Project Manager, if any) as of the effective date of
Transfer.
5.3 Release. Upon any Transfer pursuant to Section 5.2, the transferring Funder shall have no
further obligations, liabilities or responsibilities under this Agreement.
ARTICLE VI
TERM
6.1 Term. The term of this Agreement (“Term”) shall commence on the Effective Date and
shall continue in full force and effect until the earlier of: (a) successful completion of the
duties and obligations under this Agreement in accordance with the terms of this
Agreement; (b) termination of this Agreement pursuant to Section 6.2(a); or (c) January 1,
2025.
6.2 Early Termination. The Term of this Agreement shall terminate effective upon the
occurrence of any of the following: (a) the mutual written consent of both Funders; (b) the
effective date of a separate written agreement between both Funders which by its terms
supersedes this Agreement, including the Construction Funding Agreement; (c)
termination of this Agreement pursuant to Section 3.3(c), or (d) delivery of a termination
notice pursuant to Section 9.2(d).
6.3 Effect of Early Termination. If this Agreement is terminated early pursuant to Sections
6.1(b) or (c), then, except as for those provisions that are expressly intended to survive
termination pursuant to this Agreement, this Agreement shall terminate and become void
and of no further force and effect, without further action by any Funder, provided that no
Funder shall be relieved from any of its obligations or liabilities hereunder accruing prior
thereto.
ARTICLE VII
WITHDRAWAL
7.1 Withdrawal from this Agreement. Except by agreement of the other Funder as provided in
Section 6.2, no Funder may withdraw from this Agreement.
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ARTICLE VIII
EVENT OF DEFAULT
8.1 Event of Default. Each of the following events shall constitute an event of default (“Event
of Default”) by the defaulting Funder (a “Defaulting Funder”):
(a) the failure to make, when due, any payment required pursuant to this Agreement,
if such failure is not remedied within ninety (90) days after written notice thereof
from a Non-Defaulting Funder;
(b) any material representation or warranty made by a Defaulting Funder herein that is
false or misleading in any material respect when made, unless (i) the fact,
circumstance or condition that is the subject of such representation or warranty is
made true within thirty (30) days after notice thereof from a Non-Defaulting
Funder, provided that if the fact, circumstance or condition that is the subject of
such representation or warranty reasonably cannot be corrected within such thirty
(30) day period, then the Defaulting Funder shall have an additional period of time
(not to exceed sixty (60) days) in which to correct the fact, circumstance or
condition that is the subject of such representation or warranty so long as the
Defaulting Funder commences good faith activities to correct the fact, circumstance
or condition that is the subject of such representation or warranty during the initial
30-day cure period and continues thereafter to utilize Commercially Reasonable
Efforts to effect a cure, and (ii) (A) such cure removes any adverse effect on the
Non-Defaulting Funder of such fact, circumstance or condition being otherwise
than as first represented, or (B) such fact, circumstance or condition being
otherwise than as first represented does not materially adversely affect the Non-
Defaulting Funder;
(c) a Transfer of its Permitting Interest in the Permitting Project or its rights, titles or
interests in and to this Agreement, in each case, in violation of Article V;
(d) the failure to perform or breach of any material covenant or obligation set forth in
this Agreement (other than provided for in this Section 8.1), if such failure is not
remedied within thirty (30) days after written notice thereof from the Non-
Defaulting Funder, provided that if such failure or breach cannot reasonably be
cured within thirty (30) days, then the Defaulting Funder shall have an additional
period of time (not to exceed ninety (90) days) in which to cure such failure or
breach so long as the Defaulting Funder commences good faith activities to cure
the failure or breach during the initial thirty (30)-day cure period and thereafter
continues to utilize Commercially Reasonable Efforts to effect a cure; or
(e) the Defaulting Funder becomes Bankrupt.
8.2 Cure by Non-Defaulting Funder. If a Defaulting Funder fails to cure an Event of Default,
then the Non-Defaulting Funder may, in its sole discretion, attempt to cure the Event of
Default, provided that the Defaulting Funder shall reimburse the Non-Defaulting Funder
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for all costs and expenses incurred by or on behalf of the Non-Defaulting Funder pursuant
to this Section 8.2.
8.3 Remedies. If an Event of Default occurs by either Funder and is not cured as provided in
this Article VIII, then the Non-Defaulting Funder shall be entitled to exercise the following
remedies:
(a) the Non-Defaulting Funder may exercise any of its remedies provided for in this
Agreement and any of its remedies at law or in equity, including recovery from the
Defaulting Funder of any damages suffered as a result of the Event of Default,
subject to Section 11.6; provided, however, that the Non-Defaulting Funder shall
use Commercially Reasonable Efforts to mitigate any damages suffered as a result
of such Event of Default; and
(b) the Non-Defaulting Funder may elect (by written notice delivered to Defaulting
Funder) to acquire all of the Defaulting Funder’s rights, titles and interests in and
to its Permitting Interest in the Permitting Project and this Agreement (including all
of its rights and obligations in this Agreement as Permitting Project Manager, if
any). If the Non-Defaulting Funder makes the election pursuant to this Section
8.3(b), then the Defaulting Funder shall convey to the Non-Defaulting Funder all
of the Defaulting Funder’s rights, titles and interests in and to its Permitting Interest
in the Permitting Project and this Agreement (including all of its rights and
obligations in this Agreement as Permitting Project Manager, if any) free and clear
of any liens or encumbrances created by or on behalf of the Defaulting Funder;
provided that if and to the extent that any of the Defaulting Funder’s rights, titles
or interests in its Permitting Interests in the Permitting Project is by its terms or
pursuant to applicable Governmental Authorizations not assignable, then the
Defaulting Funder shall execute such reasonable agreements, licenses, or other
instruments as shall be deemed reasonably necessary by the Non-Defaulting Funder
to otherwise convey to the Non-Defaulting Funder all use and enjoyment of the
Defaulting Funder’s rights, titles, and interests in its Permitting Interests in the
Permitting Project.
ARTICLE IX
FORCE MAJEURE
9.1 Force Majeure Defined. For purposes of this Agreement, “Force Majeure” means an event
or circumstance beyond the reasonable control of, and without the fault or negligence of, a
Funder or Permitting Project Manager claiming Force Majeure (“Affected Party”), which,
despite the exercise of reasonable diligence, cannot be or be caused to be prevented,
avoided or removed by such Affected Party including, to the extent satisfying the above
requirements, acts of God; epidemics and pandemics (including the effects of COVID-19);
earthquake; abnormal weather condition; hurricane; flood; lightning; high winds; drought;
peril of the sea; explosion; fire; war (declared or undeclared); military action; sabotage;
riot; insurrection; civil unrest or disturbance; acts of terrorism; economic sanction or
embargo; civil strike, work stoppage, slow-down, or lock-out that are of an industry or
sector-wide nature and that are not directed solely or specifically at the Affected Party; the
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binding order of any Governmental Authority, provided that the Affected Party has in good
faith reasonably contested such order; the failure to act on the part of any Governmental
Authority, provided that such action has been timely requested and diligently pursued;
unavailability of equipment, supplies or products, but only to the extent caused by Force
Majeure; failure of equipment, provided that the equipment has been operated and
maintained in accordance with Good Utility Practice; and transportation delays or
accidents, but only to the extent otherwise caused by Force Majeure; provided, however,
that neither insufficiency of funds, financial inability to perform nor changes in market
conditions shall constitute Force Majeure.
9.2 Effect of Force Majeure.
(a) If an Affected Party is rendered wholly or partly unable to perform its obligations
under this Agreement or its performance is delayed because of Force Majeure, such
Affected Party shall be excused from, and shall not be liable for, whatever
performance it is unable to perform or delayed in performing due to the Force
Majeure to the extent so affected, provided that:
(i) The Affected Party, as soon as reasonably practical after the
commencement of the Force Majeure, gives the other Funder and/or the
Permitting Project Manager prompt written notice thereof, including a
description of the particulars of the Force Majeure;
(ii) The suspension of performance is of no greater scope and of no longer
duration than is required by the Force Majeure; and
(iii) The Affected Party uses Commercially Reasonable Efforts to overcome and
remedy its inability to perform as soon as reasonably practical after the
commencement of the Force Majeure.
(b) Notwithstanding anything in this Article IX to the contrary, no payment obligation
arising under this Agreement prior to the date of an event of Force Majeure shall
be excused by such event of Force Majeure.
(c) Whenever an Affected Party is required to commence or complete any action within
a specified period and is prevented or delayed by Force Majeure from commencing
or completing such action within such period, such period shall be extended by an
amount equal to the duration of such event of Force Majeure occurring or
continuing during such period.
ARTICLE X
REPRESENTATIONS AND WARRANTIES
10.1 Representations and Warranties of Idaho Power. Idaho Power represents and warrants to
PAC as of the Effective Date as follows:
(a) It is duly formed, validly existing and in good standing under the laws of the
jurisdiction of its formation.
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(b) It has all requisite corporate power necessary to own its assets and carry on its
business as now being conducted or as proposed to be conducted under this
Agreement.
(c) It has all necessary corporate power and authority to execute and deliver this
Agreement and to perform its obligations under this Agreement, and the execution
and delivery of this Agreement and the performance by it of this Agreement have
been duly authorized by all necessary corporate action on its part.
(d) The execution and delivery of this Agreement and the performance by it of this
Agreement do not: (i) violate its organizational documents; (ii) violate any
Governmental Requirements applicable to it; or (iii) result in a breach of or
constitute a default of any material agreement to which it is a party, in each case,
which violation, breach or default would reasonable be expected to have a material
adverse effect on its ability to perform its obligations under this Agreement.
(e) This Agreement has been duly and validly executed and delivered by it and
constitutes its legal, valid and binding obligation enforceable against it in
accordance with its terms, except as the same may be limited by bankruptcy,
insolvency or other similar laws affecting creditors’ rights generally and by
principles of equity regardless of whether such principles are considered in a
proceeding at law or in equity.
(f) All material Governmental Authorizations required by Governmental
Requirements to have been obtained by it prior to the date hereof in connection
with the due execution and delivery of, and performance by it of its obligations
under, this Agreement, have been duly obtained or made and are in full force and
effect.
10.2 Representations and Warranties of PAC. PAC represents and warrants to Idaho Power as
of the Effective Date as follows:
(a) It is duly formed, validly existing and in good standing under the laws of the
jurisdiction of its formation.
(b) It has all requisite corporate power necessary to own its assets and carry on its
business as now being conducted or as proposed to be conducted under this
Agreement.
(c) It has all necessary corporate power and authority to execute and deliver this
Agreement and to perform its obligations under this Agreement, and the execution
and delivery of this Agreement and the performance by it of this Agreement have
been duly authorized by all necessary corporate action on its part.
(d) The execution and delivery of this Agreement and the performance by it of this
Agreement do not: (i) violate its organizational documents; (ii) violate any
Governmental Requirements applicable to it; or (iii) result in a breach of or
constitute a default of any material agreement to which it is a party, in each case,
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which violation, breach or default would reasonable be expected to have a material
adverse effect on its ability to perform its obligations under this Agreement.
(e) This Agreement has been duly and validly executed and delivered by it and
constitutes its legal, valid and binding obligation enforceable against it in
accordance with its terms, except as the same may be limited by bankruptcy,
insolvency or other similar laws affecting creditors’ rights generally and by
principles of equity regardless of whether such principles are considered in a
proceeding at law or in equity.
(f) All material Governmental Authorizations required by Governmental
Requirements to have been obtained by it prior to the date hereof in connection
with the due execution and delivery of, and performance by it of its obligations
under, this Agreement, have been duly obtained or made and are in full force and
effect.
ARTICLE XI
COMMON DEFENSE & LIMITATION OF LIABILITY
11.1 Common Defense. The Funders shall, at such time as specified in this Section 11, enter
into a joint defense agreement in form and substance mutually acceptable to the Funders
(“Joint Defense Agreement”) that is consistent with applicable Governmental
Requirements and that provides for the common defense, as well as payment for the
common defense, including actual damages, for any and all suits, actions, liabilities, legal
proceedings, claims, demands, losses, costs and expenses of whatsoever kind or character
(including reasonable attorneys’ fees and expenses of third parties) of third parties, for
injury or death of persons or physical loss of or damage to property of persons (other than
of the Funders or the Permitting Project Manager) arising from the performance by the
Permitting Project Manager of its obligations under this Agreement (“Claims”); provided,
however, that the Funders shall not be obligated to enter into a Joint Defense Agreement
or otherwise be responsible for any Claims arising from the Permitting Project Manager’s
own negligence or willful misconduct in connection with the performance of its obligations
under this Agreement. The Joint Defense Agreement shall set forth the terms under which
the Funders shall provide a common defense for the Claims described in this Section 11.1,
including, but not limited to, the retention of appropriate legal counsel, advisors, and
experts and the resolution of any such Claims. Each Funder shall contribute under the Joint
Defense Agreement, in proportion to its Permitting Interest, or as otherwise mutually
agreed to by the Funders in writing, to such common defense.
11.2 Notice and Participation. The Permitting Project Manager shall give the other Funder
prompt written notice of any Claim upon the receipt of actual knowledge or information
by the Permitting Project Manager of a Claim (the “Joint Defense Agreement Notice”).
Upon the issuance of the Joint Defense Agreement Notice, the Funder and Permitting
Project Manager shall use all Commercially Reasonable Efforts to agree to the terms of
and enter into a Joint Defense Agreement consistent with the provisions of this Section 11
as soon as practicable. Except as otherwise provided in Section 11.1, during such period as
the Funders shall not be a party to a Joint Defense Agreement but a Joint Defense
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Agreement Notice or Joint Defense Agreement Notices shall have been delivered, each
Funder shall contribute funds and otherwise support the common defense of the Claims
that are the subject of such Joint Defense Agreement Notice, in proportion to its Permitting
Interest or as otherwise mutually agreed to by the Funders in writing, and during such
period all costs incurred by or on behalf of the Permitting Project Manager for the defense
or resolution of any such Claims (including, but not limited to, actual damages to be paid
to resolve such Claims and reasonable attorneys’ fees and costs) shall be considered Project
Costs and payable to the Permitting Project Manager in proportion to the Funders’
Permitting Interest and pursuant to the terms of this Agreement.
11.3 Control of Defense Prior to Joint Defense Agreement. After delivery of a Joint Defense
Agreement Notice but before the Funders have entered into a Joint Defense Agreement,
the Permitting Project Manager shall have the right to assume the defense of the Claim,
with counsel designated by the Permitting Project Manager and reasonably satisfactory to
the PAC Funder, and contest or, with or without the prior consent of the PAC Funder, settle
such Claim, provided that the Permitting Project Manager shall not settle any Claim, or
with respect to which it has sought or is entitled to seek recovery pursuant to Section 11.1
unless it has obtained the prior written consent of the PAC Funder.
11.4 Failure to Provide Timely Joint Defense Agreement Notice. The Funders shall have no
obligation to enter into a Joint Defense Agreement for any Claim for which a Joint Defense
Agreement Notice is not timely provided, but only to the extent that such failure to give
such notice materially and prejudicially impairs the ability of the Funders to jointly defend
the applicable Claim. To the extent that failure to provide a timely Joint Defense
Agreement Notice materially and prejudicially impairs a Funder’s ability to jointly defend
the applicable Claim, the Permitting Project Manager shall not be entitled to recover any
costs incurred by or on behalf of the Permitting Project Manager in respect of such Claim
as such Claim shall not be considered a Project Cost.
11.5 Survival of Obligation. The duty to provide for the common defense and enter into a Joint
Defense Agreement shall continue in full force and effect for a period of one year after the
expiration or termination of this Agreement, unless a Funder withdraws pursuant to Article
VII in which case the duties and obligations under Sections 11.1 and 11.2 shall not apply
to the Withdrawing Funder for any Claim where it receives the Joint Defense Agreement
Notice after the Notice of Withdrawal.
11.6 Limitation on Liability.
(a) In the case of breach or default by a Funder or Permitting Project Manager
hereunder for which an express remedy or measure of damages is provided, such
express remedy or measure of damages shall be the sole and exclusive remedy, and
the Funder’s or Permitting Project Manager’s liability shall be limited as set forth
in such provision and all other remedies or damages at law or in equity are hereby
irrevocably waived, unless the provision in question provides that the express
remedies are in addition to other remedies that may be available. Unless otherwise
provided in this Agreement, if no remedy or measure of damages is expressly
provided herein (and a remedy or damages is otherwise permitted), then the
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Funder’s or Permitting Project Manager’s liability shall be limited to direct actual
damages only, and such direct actual damages shall be the sole and exclusive
remedy and all other remedies or damages at law or in equity are hereby irrevocably
waived.
(b) Notwithstanding any provision in this Agreement to the contrary, no Funder,
whether in its capacity as Funder or Permitting Project Manager, shall be liable
under this Agreement in any action at law or in equity, whether based on contract,
tort or strict liability or otherwise, for any special, incidental, indirect, exemplary,
punitive or consequential damages or losses, including any loss of revenue, income,
profits or investment opportunities, loss of the use of equipment, or the cost of
temporary equipment or services, provided that any Claims shall not be excluded
under this Section 11.6(b) as special, incidental, indirect, exemplary, punitive or
consequential damages or losses.
ARTICLE XII
PROPRIETARY INFORMATION
12.1 Disclosure of Proprietary Information Prohibited. The Funders agree that all information
exchanged in connection with this Agreement (but not this Agreement) shall be treated as
“Confidential Information” subject to the terms and conditions of the Nondisclosure
Agreement, dated April 7, 2023, between the Funders (the “Confidentiality Agreement”),
or any successor confidentiality agreement between the Funders related to this Agreement,
the provisions of which are incorporated herein by reference.
12.2 Publicity. Each Funder shall provide reasonable advance notice to, and shall consult with,
the other Funder of any planned press release, public statement or meeting with the public
or Governmental Authorities by such Funder in which discussion of the Permitting Project
is expected to be a material part, provided that nothing herein shall prevent, limit, or delay
any Funder from making any disclosure required by Governmental Requirements or
Governmental Authorizations. Each Funder shall provide notice to the other Funder as
promptly as possible of the nature and content of any significant unplanned
communications about the Permitting Project with the public or with Governmental
Authorities. Notwithstanding the foregoing, when the information provided at a meeting is
part of a previously agreed to public affairs plan or otherwise previously approved for
disclosure by the Funders, notice of each such meeting or communication is not required.
ARTICLE XIII
DISPUTE RESOLUTION
13.1 Exclusive Procedure. Any dispute, controversy or claim arising out of or relating to this
Agreement or the breach, interpretation, termination, performance or validity of this
Agreement (each, a “Dispute”) shall be resolved pursuant to the procedures of this Article
XIII.
13.2 Dispute Notices. If a Dispute arises between the Funders or between the Permitting Project
Manager and the PAC Funder, then any Funder or Permitting Project Manager to such
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Dispute (a “Disputing Party”) may provide written notice thereof to the other Disputing
Party, including a detailed description of the subject matter of the Dispute (the “Dispute
Notice”). Any Disputing Party may seek a preliminary injunction or other provisional
judicial remedy to the extent allowed by law if such action is necessary to prevent
irreparable harm or preserve the status quo, in which case the Disputing Parties nonetheless
will continue to pursue resolution of the Dispute pursuant to this Article XIII.
13.3 Informal Dispute Resolution.
(a) The Disputing Parties shall make a good faith effort to resolve the Dispute by
prompt negotiations between each Disputing Party’s representative so designated
in writing to the other Disputing Party (a “Manager”). If the Managers are not able
to resolve the Dispute within thirty (30) days after the date of the Dispute Notice,
they shall refer the matter to the designated senior officers of the Disputing Parties
(the “Executives”), who shall have authority to settle the Dispute. If the Executives
are not able to resolve the Dispute within sixty (60) days after the date of the
Dispute Notice, then the Dispute shall be resolved pursuant to Section 13.4.
(b) All communications and writings exchanged between the Disputing Parties in
connection with these negotiations shall be confidential and shall not be used or
referred to in any subsequent binding adjudicatory process between the Disputing
Parties, either with respect to the current Dispute or any future Dispute between the
Funders and/or the Permitting Project Manager.
13.4 Remedies. If any Dispute arising under this Agreement cannot be resolved as provided in
Section 13.3, then any Disputing Party may, in its sole discretion, pursue any available
remedy at law or equity. The forum for any litigation arising from this Agreement between
the Funders and/or the Permitting Project Manager shall exclusively be a federal court of
the United States, unless the Disputing Parties agree to pursue alternative dispute
resolution.
13.5 Continued Performance. During the pendency of any Dispute, each Funder and the
Permitting Project Manager shall continue to perform all of its respective obligations under
this Agreement.
ARTICLE XIV
MISCELLANEOUS
14.1 Counterparts. This Agreement may be executed in counterparts, each of which shall be
considered an original, but all of which together shall constitute the same instrument.
Electronic transmission of any signed original document, and retransmission of any signed
electronic transmission, shall be the same as delivery of an original. At the request of any
Funder, the other Funder will confirm electronically transmitted signatures by signing an
original document.
14.2 Headings. The Article and Section headings used in this Agreement (including headings
used in any Exhibits attached hereto) are for convenience of reference only and shall not
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affect the construction of the Agreement or limit the scope of the particular provisions to
which they refer.
14.3 Waiver. No waiver by any Funder of any breach or default by the other Funder or the
Permitting Project Manager of its obligations herein shall be construed as a waiver of any
other breach or default whether of a like kind or different nature. Any delay by a Funder,
less than any applicable statutory period of limitations, in asserting or enforcing any rights
or remedies under this Agreement shall not be deemed a waiver of such rights or remedies.
Failure of any Funder or Permitting Project Manager to enforce any provision hereof shall
not be construed to waive such provision, or to affect the validity of this Agreement or any
part hereof, or the right of any Funder thereafter to enforce each and every provision hereof.
14.4 Relationship of Funders.
(a) Several and not Joint. The covenants, obligations, and liabilities of the Funders are
intended to be several and not joint or collective, and nothing herein contained shall
be construed to create an association, joint venture, trust or partnership, or to
impose a trust or partnership covenant, obligation or liability on or with regard to
either of the Funders. Each Funder shall be individually responsible for its own
covenants, obligations and liabilities as herein provided. No Funder shall be under
the control of, or shall be deemed to control, the other Funder. No Funder shall have
a right or power to bind the other Funder without such other Funder’s express
written consent.
(b) No Partnership. None of the provisions of this Agreement shall be deemed to
constitute a partnership between the Funders and neither Funder shall have any
authority to bind the other Funder in any way, and the Funders agree that the
arrangement contemplated by this Agreement shall be excluded from subchapter K
of the U.S. Internal Revenue Code of 1986, as amended (“Subchapter K”). Idaho
Power and PAC agree to report their respective Permitting Interest of any items of
income, deductions and credits of the arrangement contemplated by this Agreement
in a manner consistent with the exclusion of such arrangement from Subchapter K
beginning with the taxable year which includes the Effective Date.
(c) Additional Funders. This Agreement may be amended to include one or more
additional parties as Funders (together with such conforming changes to this
Agreement as may be necessary and mutually acceptable to the Funders) upon
mutual written agreement of the then current Funders.
14.5 Severability. In the event that any provision of this Agreement or the application thereof
becomes or is declared by a court of competent jurisdiction to be illegal, void or
unenforceable, the remainder of this Agreement will continue in full force and effect and
the application of such provision to other persons or circumstances will be interpreted so
as reasonably to effect the intent of the Funders. The Funders further agree to replace such
illegal, void or unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the maximum extent possible, the economic, business and
other purposes of such illegal, void or unenforceable provision.
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14.6 Binding Effect. Upon execution by the Funders, this Agreement shall be binding upon each
Funder and their respective successors and permitted assigns. This Agreement is null and
void unless it is executed by both Funders.
14.7 Amendments. This Agreement shall not be modified, amended, supplemented or otherwise
changed in any respect except by a written document signed by the Funders.
14.8 No Third Party Beneficiary. This Agreement is for the exclusive benefit of the Funders,
and is not intended to nor shall be construed to confer upon or give to any Person (other
than the Funders) any rights or remedies under or by reason of this Agreement or any
transaction contemplated herein.
14.9 Entire Agreement. This Agreement, including the Exhibits attached hereto, constitutes the
entire agreement of the Funders with respect to the transactions contemplated by this
Agreement and supersedes all prior agreements (other than the Confidentiality
Agreement), oral or written, with respect thereto.
14.10 Notices.
(a) Except as otherwise provided herein, any notice, demand, request or other
communication required or permitted to be given pursuant to this Agreement shall
be in writing and signed by the Funder or Permitting Project Manager giving such
notice, demand, request or other communication and shall be hand delivered or sent
by certified mail, return receipt requested, or overnight courier to the other Funder
and/or Permitting Project Manager at the address set forth below:
If to Idaho Power
(as Funder and Permitting Project Manager) Idaho Power Company
1221 West Idaho Street
Boise, ID 83702
Attn: Manager, Delivery Projects
Telephone: [phone]
With a copy to: Idaho Power Company
1221 West Idaho Street
Boise, ID 83702
Attn: Legal Department
Telephone: [phone]
If to PAC
(as Funder) PacifiCorp
825 NE Multnomah Street, Ste. 1600
Portland, OR 97232
Attn: Vice President, Transmission
Telephone: [phone]
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With a copy to: PacifiCorp
825 NE Multnomah Street, Ste. 1800
Portland, OR 97232
Attn: Legal Department
Telephone: [phone]
(b) Each Funder and the Permitting Project Manager shall have the right to change the
place to which any notice, demand, request or other communication shall be sent
or delivered by similar notice sent in like manner to the other Funder and Permitting
Project Manager. The effective date of any notice, demand, request or other
communication issued pursuant to this Agreement shall be when: (i) delivered to
the address of the Funder or Permitting Project Manager personally, by messenger,
by a nationally or internationally recognized overnight delivery service or
otherwise; or (ii) received or rejected by the Funder or Permitting Project Manager,
if sent by certified mail, return receipt requested, in each case, addressed to the
Funder or Permitting Project Manager at its address and marked to the attention of
the person designated above (or to such other address or person as a Funder or
Permitting Project Manager may designate by notice to the Funder and/or
Permitting Project Manager effective as of the date of receipt by such Funder).
14.11 Choice of Law. This Agreement shall be governed by and construed in accordance with
the laws of the state of Idaho, without giving effect to conflicts of laws principles.
14.12 Further Assurances. Each Funder and the Permitting Project Manager agrees to execute
and deliver from time to time such additional documents, and to take such additional
actions, as may be reasonably required by the other Funder or the Permitting Project
Manager to give effect to the purposes and intent hereof.
14.13 Conflict of Interest. Nothing in this Agreement shall prohibit any Funder or the Permitting
Project Manager from (a) engaging in or possessing any interest in other projects or
business ventures of any nature and description, independently or with others or (b)
exercising any rights expressly granted it under this Agreement or taking any action (or
having its Affiliates take any action) with respect to any other transmission project,
including any such project that may compete with the Permitting Project.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, each of the Parties has caused this Second Amended and
Restated Joint Permit Funding Agreement to be executed by its duly authorized officer as of the
date first above written.
IDAHO POWER COMPANY

By: ________________________
Name: Ryan Adelman
Title: Vice President, Power Supply
PACIFICORP

By:_________________________
Name: Rick Vail
Title: Vice President, Transmission
Exhibit A
Exhibit A
Description of Boardman to Hemingway Transmission Project
The development, siting, and acquisition of permits and Rights-of-Way over public
land, construction, operation, and maintenance of a single circuit 500kV overhead electric
transmission line and facilities beginning near Boardman, Oregon, and terminating near Melba,
Idaho, including the Midline Series Capacitor
Exhibit B-1
Exhibit B
Permitting Project Schedule
1. Permitting Objectives
BLM
o BLM Publishes Draft Environmental Impact Statement – Completed
o BLM Publishes Final Environmental Impact Statement – Completed
o BLM issues Record of Decision – Completed
Department of the Navy
o Navy issues Record of Decision – Completed
o Navy issues an easement – Completed
United States Forest Service
o Forest Service issues Record of Decision – Completed
o Forest Service issues Special Use Authorization – Completed
United States Bureau of Reclamation
Oregon Energy Facility Siting Council (EFSC)
o File preliminary Application for Site Certificate (ASC) – Completed
o File amended preliminary ASC – Completed
o File Final ASC – Completed
o EFSC issues Draft Proposed Order – Completed
o EFSC issues Proposed Order & Notice of Contested Case – Completed
o EFSC issues Final Site Certificate – Completed
o Any associated appeals – Completed
o Final Site Certificate allows issuance of all Conditional Use Permits in
affected Oregon counties – Completed
o File Amendment(s) to Site Certificate – Q2 of 2023
o EFSC issues Amendment(s) to Site Certificate – Q3/Q4 2023
Owyhee County Conditional Use Permit
o Owyhee County issues a Conditional Use Permit – Q2 of 2023
o Any associated appeals – Q2/Q3 2023
Light Detection and Ranging (LiDAR) – Completed
Preparing and issuing requests for proposal for:
o Detailed design – Completed
o Geotechnical exploration – Completed
o Rights-of-Way and legal surveying – Completed
Developing request for proposal for constructability consulting – Completed
Other required Governmental Authorizations, including but not limited to:
o United States Army Corps of Engineers Section 404 Permit
o Federal Aviation Administration Notice of Proposed Construction
o Oregon Department of Aviation Notice of Proposed Construction
o Oregon Department of Water Quality Section 401 Water Quality Certification
Exhibit B-2
o Oregon Heritage/State Historic Preservation Office Archeological Excavation
Permit
o Oregon Public Utilities Commission Certificate of Public Convenience and
Necessity
o Idaho Department of Transportation Notice of Proposed Construction
o Idaho Department of Environmental Quality Section 401 Water Quality
Certification
o Idaho State Historic Preservation Office Archeological Excavation Permit
o Idaho Public Utilities Commission Certificate of Public Convenience and
Necessity
o Flood Plain Development Permits in all affected Oregon and Idaho counties
NEPA compliance activity
o Cultural and biological resource surveys and reports
Public involvement activity
2. Preconstruction Objectives
Detailed design
o Detailed design complete – Q2 2023
Geotechnical exploration
o Finalize geotechnical studies – Q2 2023
Legal surveying
o Land surveying activities complete – Q2 2023
Constructability consulting or Construction Manager At-Risk (CMAR)
o Constructability consulting complete – Q2 2023
Risk assessments – Q2 2023
BLM Construction Plan of Development and partial Notice to Proceed issued – Q3
2023
ODOE pre-construction conditions and partial Notice to Proceed issued – Q3 2023
3. Rights-of-Way Options Objectives
Right-of-Way Option acquisition – Q2 2023
Condemnation prep – Q2 2023
4. Limited Construction Objectives
CIC contractor hiring and onboarding – Q2 2023
Construction inspection team hiring and onboarding – Q2 2023
Limited Purchase Order awarded for long lead materials (foundation embeds, etc.) – Q2
2023
Wildlife mitigation property acquisition option agreements, fee title purchase, or
combination – Q2 2023
Noise mitigation – Q2 2023
Cultural mitigation – Q2 2023
BPA 230/69kV Station and Remove Line off BR study, engineering, long lead material
order– 2023
Exhibit C
Exhibit C
Project Costs Schedule
Exhibit D
Exhibit D
Permitting Interest
Each Funder is assigned a Permitting Interest based on the annual weighted capacity
expressed in the Permitting Project. The Permitting Interest is determined by the sum of a
Funder’s eastbound capacity interest and westbound capacity interest, divided by the total of all
Funders’ eastbound and westbound capacity interests.
Table 1: Boardman to Hemingway Weighted Interest
Total
Requested
Capacity
(MW)
Idaho Power
Capacity Interest
(MW)
PacifiCorp
Capacity Interest
(MW)
West to East 1050 750 300
East to West 600 0 600
Permitting Interest 45.45% 54.55%
The capacity interests are based on:
Idaho Power’s capacity interest is constant throughout the entire calendar year.
PacifiCorp’s capacity interest is constant throughout the entire calendar year.
The sum of all Permitting Interest will equal one hundred percent.
The sum of capacity interest may or may not equal the total rated capacity of
project.
Additional Considerations:
If the capacity interests are less than the total rated capacity of the Boardman to
Hemingway Transmission Project, the unallocated capacity will be divided among
the Funders based on the Funders’ Permitting Interest.
The total rated capacity of the Boardman to Hemingway Transmission Project is
subject to the results of the WECC Rating Process.
Exhibit D
Assumed B2H Ratings and Unassigned Capacity
Assumed Rating
(MW)
Unallocated
Capacity (MW)
West to East 1050 0
East to West 1000 400
Allocation of Unassigned Capacity
Percentage Allocation of
West to East
Unassigned
Capacity (MW)
Allocation of
East to West
Unassigned
Capacity (MW)
Idaho Power 45.45% 0 182
PacifiCorp 54.55% 0 218
DE-MS79-94BP94333
SECOND AMENDED AND RESTATED MIDPOINT-MERIDIAN TRANSMISSION
AGREEMENT
executed by the
UNITED STATES OF AMERICA
DEPARTMENT OF ENERGY
acting by and through the
BONNEVILLE POWER ADMINISTRATION
and
PACIFICORP

Index of Sections
Section Page
1. Definition and Explanation of Terms. ............................................................................... 3
2. Term of Agreement ............................................................................................................ 3
3. Intentionally Omitted......................................................................................................... 3
4. Right to Use Transmission Capacity.................................................................................. 4
5. Transmission of Electric Power and Energy...................................................................... 4
6. Scheduling.......................................................................................................................... 5
7. Notices ............................................................................................................................... 5
8. Assignment ........................................................................................................................ 6
9. Choice of Law Forum ........................................................................................................ 6
10. Reactive Power .................................................................................................................. 6
11. Termination of Agreement ................................................................................................. 6
12. Rules if Interpretation ........................................................................................................ 6
13. Amendments ...................................................................................................................... 6
14. Relationship of Parties ....................................................................................................... 6
15. Section Headings ............................................................................................................... 6
16. Several Obligations............................................................................................................ 6
17. Waivers .............................................................................................................................. 7
18. Dispute Resolution ............................................................................................................. 7
19. Signatures........................................................................................................................... 7
1
This Second Amended and Restated Midpoint-Meridian Transmission Agreement
(“Agreement”) executed March 24, 2023, by the UNITED STATES OF AMERICA, Department
of Energy, acting by and through the BONNEVILLE POWER ADMINISTRATION
(“Bonneville”), and PacifiCorp (“PacifiCorp”), a corporation organized and existing under the
laws of the State of Oregon, (hereinafter referred to individually as “Party” and collectively as
“Parties.”
W I T N E S S E T H
WHEREAS on June 1, 1994, the Parties entered into the Midpoint-Meridian Transmission
Agreement (Contract No. DE-MS79-94BP94333), hereinafter referred to as the “1994 Midpoint-
Meridian Agreement.” The 1994 Midpoint-Meridian Agreement superseded and replaced the
Midpoint-Medford Transmission Agreement (Contract No. DE-MS79-79BP90091), as amended,
and incorporated terms set forth in an Agreement of Principles, dated May 28, 1993, which
provided, among other things, for the revision of certain terms and conditions in the Intertie
Agreement (Contract No. DE-MS79-86BP92299) and the Midpoint-Medford Agreement; and
WHEREAS the Parties have entered into the AC Intertie Agreement (Contract No. DE-
MS79-94BP94332), as amended, which hereinafter is referred to as “AC Intertie Agreement”
which replaces and supersedes the Intertie Agreement; and
WHEREAS PacifiCorp has constructed and owns a 500 kV transmission line from
Midpoint Substation to Meridian Substation (“Midpoint-Meridian Line”), to transmit electric
power and energy from resources which it owned or which were under construction by PacifiCorp,
as of September 2, 1977, in Wyoming and adjacent states (“PacifiCorp’s Eastern System”) to the
Pacific Northwest; and
WHEREAS the Midpoint-Meridian Line consists of three segments hereinafter referred to
as “Midpoint-Summer Lake Line”, “Summer Lake-Malin Line” and “Malin-Meridian Line”; and
WHEREAS PacifiCorp has constructed a 500 kV transmission line from the
interconnection with Bonneville at Alvey Substation to Meridian Substation (“Alvey-Meridian
Line”) which is jointly owned by PacifiCorp and Bonneville; and
WHEREAS the Midpoint-Meridian Line is interconnected with the Alvey-Meridian Line
at Meridian Substation; and
WHEREAS the Midpoint-Meridian Line is interconnected with the Federal Transmission
System and the AC Intertie; and
WHEREAS the Midpoint-Meridian Line is interconnected with the California-Oregon
Transmission Project at Captain Jack Substation; and
WHEREAS Bonneville has constructed a 500 kV transmission line from the Government’s
Buckley Substation to its Summer Lake Substation (“Buckley-Summer Lake Line”) to
interconnect with PacifiCorp’s Midpoint-Meridian Line at Summer Lake Substation; and
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WHEREAS under Section 5 of the 1994 Midpoint-Meridian Agreement, Bonneville
agreed to provide PacifiCorp transmission service over the Federal Transmission System and to
provide additional transmission services to PacifiCorp at times of abnormal operations of the
Midpoint-Summer Lake Line and the Summer Lake-Malin Line (“Midpoint-Malin Line”); and
WHEREAS under Section 4 of the 1994 Midpoint-Meridian Agreement, the Parties agreed
to exchange rights to capacity in the Buckley-Summer Lake Line and Summer Lake-Malin Line;
the amounts PacifiCorp scheduled over the Buckley-Summer Lake Line were subject to the terms
of the Exchange Agreement (Contract No. 14-03-29245) as amended (“Exchange Agreement”),
which provided, among other things, for points of delivery, scheduling arrangements and an energy
exchange account; and
WHEREAS the Parties have entered into the Malin Operation and Maintenance Trust
Agreement (Contract No. 14-03-62876), as amended (which hereinafter is referred to as
“Operation and Maintenance Agreement”) and which provides, among other things, for the
operation and maintenance of certain facilities at Malin Substation; and
WHEREAS on November 30, 2021, Bonneville and PacifiCorp entered into Tables 232,
233, 234, 235, 236, 239 of Point-to-Point Contract No. 04TX-11722, as such contract may be
amended from time to time, which replaced and superseded the transmission services provided
under Section 5 and associated terms, conditions and exhibits of the 1994 Midpoint-Meridian
Agreement; and
WHEREAS on December 1, 2021, to reflect the aforementioned conversion of service
under Section 5 and associated terms, conditions and exhibits and to retain Section 4 of the 1994
Midpoint-Meridian Agreement, the Parties entered into the Amended and Restated Midpoint-
Meridian Agreement, (“First Amended and Restated Midpoint-Meridian Agreement”); and
WHEREAS, on January 18, 2022, Bonneville, PacifiCorp, and Idaho Power Company
entered into a non-binding Term Sheet, Contract No. 22TX-17207, (“B2H Term Sheet”)
regarding the proposed Boardman to Hemingway Transmission Project (“B2H Project”), which,
in addition to other terms, described Bonneville and PacifiCorp’s intent to replace PacifiCorp’s
rights to capacity in the Buckley-Summer Lake Line in Section 4 of the First Amended and
Restated Midpoint-Meridian Agreement with Point-to-Point service provided by Bonneville to
PacifiCorp; and
WHEREAS the Parties negotiated the contracts agreed as necessary that were
contemplated in the B2H Term Sheet, including this Second Amended and Restated Midpoint-
Meridian Agreement and related Point-to-Point tables in Point-to-Point Contract No. 04TX-
11722; and
WHEREAS, on March 2 , 2023, Bonneville and PacifiCorp entered into Tables 250, 251,
252, 253, 254, and 255 of Point-to-Point Contract No. 04TX-11722, which replaces and supersedes
the rights to capacity in the Buckley-Summer Lake Line provided to PacifiCorp under Section 4(a)
and associated terms and conditions of the First Amended and Restated Midpoint-Meridian
Agreement; and
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3
WHEREAS the Parties desire to supersede and replace the First Amended and Restated
Midpoint-Meridian Agreement with this Second Amended and Restated Midpoint-Meridian
Agreement to reflect the aforementioned conversion of service under Section 4(a) of the First
Amended and Restated Midpoint-Meridian Agreement to Bonneville point-to-point service; and
WHEREAS Bonneville is authorized pursuant to law to dispose of electric power and
energy generated at various Federal hydroelectric projects in the Pacific Northwest, or acquired
from other resources, to construct and operate transmission facilities, to provide transmission and
other services, and to enter into agreements to carry out such authority.
NOW, THEREFORE, the Parties hereto mutually agree as follows;
1. Definition and Explanation of Terms.
(a) “AC Intertie” means Bonneville’s rights in the alternating current (“AC”)
transmission facilities for transferring power and energy between Oregon and
California as follows: two 500 kV lines extending from John Day Substation to
Malin Substation and to the California-Oregon Border; portions of John Day,
Grizzly, and Malin Substations and the Sand Springs, Fort Rock, and Sycan
Compensation Stations; a portion of the Buckley-Summer Lake 500 kV
transmission line and associated substations; portions of the Buckley-Marion and
Marion-Alvey 500 kV transmission lines and associated facilities; Bonneville’s
capacity rights in the Summer Lake-Malin 500 kV transmission line; Bonneville’s
share of ownership of the Alvey-Dixonville and Dixonville-Meridian 500 kV
transmission lines; portions of the Alvey, Dixonville, Meridian and Captain Jack
Substations; the 500 kV transmission line extending from Captain Jack Substation
to the California-Oregon Border; and any modifications, improvements, or
additions to such facilities.
(b) “Federal Transmission System” means transmission facilities owned by
Bonneville.
2. Term of Agreement. This Agreement shall be effective and shall supersede the First
Amended and Restated Midpoint-Meridian Agreement upon satisfaction of all of the
following conditions: (a) execution by the Parties; (b) approval or acceptance of this
Agreement for filing without change by the Federal Energy Regulatory Commission for a
term coincident with the AC Intertie Agreement; (c) satisfaction of all conditions precedent
in the Joint Purchase and Sale Agreement (“JPSA”) between PacifiCorp and Idaho Power
Company to transfer certain transmission facilities related to the Boardman to Hemingway
Transmission Project (“B2H Project”) in accordance with the terms of the JPSA, including
the development, construction and energization of the B2H Project; and (d) satisfaction of
all conditions precedent in Point-to-Point Contract No. 04TX-11722, Tables 250, 251, 252,
253, 254, and 255 in accordance with the terms thereof. Upon termination of this
Agreement, all liabilities accrued hereunder shall be and are hereby preserved until
satisfied.
3. [Intentionally Omitted.]
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4. Right to Use Transmission Capacity.
(a) Summer Lake-Malin. During the term hereof, Bonneville shall have the use of 1000
megawatts of bi-directional scheduling capability above PacifiCorp’s 1000
megawatts of capability in the Summer Lake-Malin Line. Such rights of use shall
include PacifiCorp’s terminal facilities in the Summer Lake and Malin Substations.
PacifiCorp shall be responsible for the capital and annual costs of two 500 kV line
terminal positions at Summer Lake Substation, including two power circuit
breakers, and the additions required at Malin Substation in accordance with the
Operation and Maintenance Agreement; provided, however, that Bonneville will
operate all such equipment at PacifiCorp’s expense. Bonneville shall be responsible
for all other facilities at Summer Lake and, with other owners of the AC Intertie,
for the facilities to connect Buckley to the AC Intertie. Use of the capacity in the
Summer Lake-Malin Line by Bonneville shall be subject to availability, as
determined by PacifiCorp, and shall be subject to payment and loss provisions
agreed upon by the Parties. The Parties shall be compensated for balancing
authority area electric power losses pursuant to Section 8 of the AC Intertie
Agreement.
(b) [Intentionally Omitted]
(c) Bonneville’s Right to Obtain Additional Summer Lake-Midpoint Capacity. During
the term of this Agreement, Bonneville shall have the option to acquire up to 400
megawatts of eastbound firm scheduling rights over the Midpoint-Summer Lake
Line and an option to tap such line to serve loads and for interregional transfers. If
Bonneville exercises its option to acquire up to 400 megawatts of eastbound firm
scheduling rights over the Midpoint-Summer Lake Line, Bonneville shall pay
PacifiCorp based upon PacifiCorp’s then-effective applicable FERC filed tariff for
firm transmission services. If Bonneville exercises this option, during periods when
the eastbound capability of the Midpoint-Summer Lake Line is reduced,
Bonneville’s eastbound scheduling rights shall be reduced pro-rata with such
reduction. However, during periods when transfer capability is reduced, PacifiCorp
shall provide Bonneville the right to use PacifiCorp’s capability not required for
PacifiCorp’s firm need, as determined by PacifiCorp, at no additional cost. In the
event Bonneville wishes to tap the Midpoint-Summer Lake Line, Bonneville and
PacifiCorp shall mutually develop the plan of service for such tap. Such tap shall
not degrade or reduce PacifiCorp’s East to West transfer capability on the
Midpoint-Malin Line or reduce PacifiCorp’s Load Carrying Capability as defined
in the AC Intertie Agreement. Unless otherwise mutually agreed, Bonneville shall
be responsible for all costs associated with any such tap. Unless otherwise mutually
agreed, such tap shall not increase Bonneville’s eastbound transfer rights on the
Midpoint-Summer Lake Line.
5. Transmission of Electric Power and Energy.
(a) [Intentionally Omitted]
5
(b) [Intentionally Omitted]
(c) [Intentionally Omitted]
(d) [Intentionally Omitted]
(e) [Intentionally Omitted]
(f) PacifiCorp shall not transmit electric power and energy west to east over the
Midpoint-Meridian Line, or any segment thereof, in a manner which will adversely
impact the operation of the Federal Transmission System or the AC Intertie. The
determination of an adverse impact shall be made by Bonneville.
6. Scheduling. Unless otherwise agreed by the Parties, schedules for electric energy and
losses under Section 4(a) shall be in accordance with AC Intertie scheduling practices.
Schedules for electric energy and losses under Section 4(c) shall be in accordance with
PacifiCorp’s scheduling practices and Open Access Transmission Tariff.
7. Notices. Any notice or other communication related to this Agreement shall be delivered
in person, or with proof of receipt by email, facsimile, First Class mail or overnight delivery
service. Notices are effective on the date received. Either Party may change the contact
information by providing notice to the other Party as provided below:
To PacifiCorp:
825 NE Multnomah Street, Suite 1600
Portland, OR 97232
Transmission Services
Attention: Rick Vail
Title: Vice President
Phone: [phone]

Email:[e-mail]
To Bonneville Power Administration:
Attention: Transmission Account
Executive for PacifiCorp — TSE/TPP-2
Phone: [phone]
Fax: [phone]
Email: [e-mail]

By First Class Mail:
Bonneville Power Administration
P.O. Box 61409
Vancouver, WA 98666

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8. Assignment. This Agreement is binding on any successors and permitted assigns of the
Parties. Neither Party may transfer or assign this Agreement, in whole or in part, without
the other Party's prior written consent (which consent shall not be unreasonably withheld,
conditioned or delayed), except that, after thirty (30) days written notice to the other Party,
either Party may assign this Agreement to any: (i) affiliate, (ii) successor in interest, or (iii)
corporation or any other business entity acquiring all or substantially all of the assets of the
assigning Party.
9. Choice of Law and Forum. This Agreement shall be interpreted, construed, enforced and
implemented pursuant to Federal law. The forum for litigation arising from this contract
shall exclusively be a Federal court of the United States, unless the Parties agree to pursue
alternative dispute resolution.
10. Reactive Power. The Parties shall jointly plan and operate their systems so that the flow of
reactive power accompanying or resulting from deliveries of electric power and energy
hereunder will not adversely affect the system of either Party.
11. Termination of Agreement. The Parties agree that the 1994 Midpoint-Meridian
Transmission Agreement superseded and terminated in its entirety the Midpoint-Medford
Agreement, Contract No. DE-MS79-79BP90091, that the First Amended and Restated
Midpoint-Meridian Agreement superseded and terminated in its entirety the 1994
Midpoint-Meridian Transmission Agreement, and that this Agreement is superseding and
terminating in its entirety the First Amended and Restated Midpoint-Meridian Agreement;
provided, however, that any liabilities incurred under the Midpoint-Medford Agreement,
the 1994 Midpoint-Meridian Transmission Agreement, or the First Amended and Restated
Midpoint-Meridian Agreement are hereby preserved until satisfied.
12. Rules of Interpretation. The Parties agree that each Party fully participated in the drafting
of each provision of this Agreement. The rule of law interpreting ambiguities against the
drafting Party shall not be applicable or utilized in resolving any dispute over the meaning
or intent of this Agreement or any of its provisions.
13. Amendments. The Parties may by mutual agreement amend this Agreement through a
written instrument signed by authorized representatives of each Party. Notwithstanding
the forgoing, neither Party relinquishes its rights under applicable law.
14. Relationship of the Parties. Neither Party is the agent or principal of the other, nor are they
partners or joint venturers. Each Party agrees that it will not represent that, in performing
its obligations hereunder, it acts in the capacity of agent or principal of the other Party, nor
that it is a partner or joint venturer with the other Party with respect to the subject matter
of this Agreement.
15. Section Headings. Section headings and subheadings appearing in this Agreement are
inserted for convenience only and are not to be construed as interpretations of text.
16. Several Obligations. Except where specifically stated in this Agreement, the duties,
obligations and liabilities of the Parties are intended to be several and not joint or collective.
7
17. Waivers. No waiver of any provision or breach of this Agreement shall be effective unless
such waiver is in writing and signed by the waiving Party, and any such waiver shall not
be deemed a waiver of any other provision of this Agreement or any other breach of this
Agreement.
18. Dispute Resolution. In the event that either Party has a dispute that arises out of this
Agreement, such Party shall provide the other Party with written notice of the dispute,
which will be referred to a designated senior representative for each Party for resolution on
an informal basis as promptly as practicable after receipt of the notice of dispute by the
other Party. In the even the designated representatives are unable to resolve the dispute
within thirty (30) calendar days of the other Party’s receipt of the notice of dispute, such
dispute may, upon mutual agreement of the Parties, be submitted to arbitration. In the event
the Parties do not agree to submit such dispute to arbitration, each Party may exercise
whatever rights and remedies it may have at law. Each Party shall be responsible for its
own costs incurred.
19. Signatures. This Agreement may be executed in several counterparts, all of which taken
together will constitute one single agreement, and may be executed by electronic signature
and delivered electronically. The Parties have executed this Agreement as of the last date
indicated below.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement.
PACIFICORP UNITED STATES OF AMERICA
Department of Energy
Bonneville Power Administration
By: By: ______________________________
Title: Vice President Title: Senior Transmission Account Executive
If opting out of the electronic signature:
By:
Name:
(Print/Type)
Title:
Date:
■ k V ■ 1 Digitally signed by Rick Vail Ric a 1 ~~~~~~023.03.24 09:41:18 ERIC CARTER Digitally signed by ERIC CARTER
Date: 2023.03.24 07:53:01 -07'00'
1
PROJECT CONSTRUCTION AGREEMENT PROJECT TITLE:
Kinport – Midpoint 345 kV Series Capacitor Bank
This Project Construction Agreement (this “Agreement”) is entered into as of April 14, 2023, by and between Idaho Power Company, an Idaho corporation (“Idaho Power”), and PacifiCorp, an Oregon corporation (“PacifiCorp”). Idaho Power and PacifiCorp are
sometimes hereinafter referred to individually as a “Party” and collectively as the “Parties.”
RECITALS: WHEREAS, Idaho Power is a transmission provider which owns and operates
certain facilities for the transmission of electric power and energy located in Idaho; and
WHEREAS, PacifiCorp is a transmission provider which owns and operates certain facilities for the transmission of electric power and energy located in Idaho; and
WHEREAS, the Parties own and operate certain transmission facilities and
substations pursuant to that certain Joint Ownership and Operating Agreement, dated as of October 24, 2014, as amended and restated on October 30, 2015, as further amended and restated on April 27, 2016, and as further amended and restated on August 22, 2019, as further amended and restated on April 7, 2023, and as amended from time to time
thereafter, (the “JOOA”) between Idaho Power and PacifiCorp, including the Kinport-
Midpoint 345 kV transmission line and the Kinport 345 kV substation; and WHEREAS, the Parties have entered into that certain Joint Purchase and Sale Agreement, dated as of the date hereof (the “JPSA”), pursuant to which at the closing of
the transaction contemplated by the JPSA the ownership of certain jointly-owned equipment
will be reallocated and the ownership of certain additional equipment will be exchanged between the Parties; and WHEREAS, this Agreement and the JPSA are part of a larger transaction, including
the Boardman-to-Hemingway transmission project (the “B2H Project”), among Idaho
Power, PacifiCorp and the Bonneville Power Administration (“BPA”) contemplated in that certain Term Sheet dated as of January 18, 2022 by and among PacifiCorp, Idaho Power and BPA; and
WHEREAS, pursuant to Section 6.1(a) of the JOOA, PacifiCorp, in its capacity as
a “Proposing Owner” under the JOOA, provided notice to Idaho Power by letter dated April 14, 2023 of its desire to make the addition of a 345 kV series capacitor at the Kinport substation, on the Kinport-Midpoint 345 kV transmission line which is expected to increase the transfer capacity of the Borah West transmission path from 2,557 MW to 3,180 MW in
the east-to-west direction, only (the “Project”); and

2
WHEREAS, pursuant to Section 6.1(a) of the Agreement, Idaho Power, in its capacity as a “Non-Proposing Owner” under the JOOA, provided notice to PacifiCorp by
letter dated April 14, 2023 of its election to participate in the Project; and
WHEREAS, pursuant to Section 6.1 of the JOOA, the Parties have agreed on (a) the Project, (b) the scope of the Project, (c) each Party’s share of the costs of the Project, and (d) the planned in-service date of the Project, all of which are incorporated into this
Agreement;
WHEREAS, pursuant to Section 6.1 of the JOOA, the Parties have agreed on (a) the allocation between the Parties of increased Directional Capacity Allocation and the corresponding Directional Capacity Allocation Percentages associated with the Project,
and (b) any change in each Parties’ Ownership Interest in the Transmission Facilities and
Substations associated with the Project, all of which are incorporated into this Agreement and reflected in that certain Agreement to Amend the Joint Ownership and Operating Agreement as of the date hereof (the “Kinport JOOA Amendment”), a copy of which is attached hereto as Exhibit A;

WHEREAS, Idaho Power, in its capacity as “Operator” of the Kinport 345 kV substation under the JOOA, is responsible for the design, permitting, construction, installation and commissioning of the Project in accordance with this Agreement and Section 6.1 of the JOOA; and
WHEREAS, this Agreement sets forth the Parties’ understanding with respect to design, permitting, construction, installation and commissioning of the Project and certain
related matters, including cost responsibility of the Parties with respect to the design, permitting, construction, installation and commissioning of Project. NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties enter into this Agreement with the understanding that each mutually benefits from this Agreement and further agree to the following: 1. Definitions. Capitalized terms used but not defined herein shall have the meanings
set forth in the JOOA. 2. Term; Termination.
(a) Term. The term of this Agreement shall commence on the date (“Effective
Date”) that is the later of (i) the date of this Agreement and (ii) the date designated by FERC, if filed at the FERC and accepted for filing. (b) Termination. This Agreement shall terminate ninety (90) days following the
later of (i) the in-service date of the Project, (ii) Idaho Power’s receipt of final
payment from PacifiCorp for PacifiCorp’s share of the Project Costs in accordance with the terms of this Agreement, and (iii) the JPSA closing date or, if earlier, the date the JPSA terminates. In addition, in the event that the
3
B2H Project is cancelled prior to the in-service date of the Project, the Parties shall mutually agree on whether to proceed with the Project and, if so, on what
terms.
3. Scope and Performance of Work. (a) The Project. The Project shall consist of a 345 kV series capacitor bank
(with MVA rating sized appropriately to the line capacity) to be installed
within the Kinport 345 kV substation on the Kinport – Midpoint 345 kV transmission line which will increase the transfer capability of the Borah West Transmission Path from 2,557 MW to 3,180 MW in the east-to-west direction, only. The Parties may mutually agree (such agreement not to be
unreasonably withheld, conditioned, or delayed) to revise the scope of the
Project from time to time. (b) Idaho Power Responsibilities. Idaho Power will be responsible for all aspects of the design, permitting, construction, installation, and
commissioning of the Project in accordance with the terms of this
Agreement and the JOOA. (c) Standard of Work. Idaho Power is acting under this Agreement in its capacity as Operator under the JOOA. As such, Idaho Power shall perform
its obligations under this Agreement in accordance with the standard set
forth in Article 5.1 of the JOOA. In the event of any conflict between the terms of this Agreement and the JOOA, the terms of the JOOA shall control. 4. Responsibility for Costs.

(a) Estimated Project Costs. Idaho Power estimates as of the Effective Date that the total Project Costs for the Project will be $11,300,000 (“Total Project Costs”). Subject to Section 4(c), (i) PacifiCorp will be responsible for 96.31% (“PacifiCorp’s Cost Share”) of the Total Project Costs (i.e.,
$10,883,030 as of the Effective Date) and (ii) Idaho Power will be
responsible for the remaining 3.69% (“Idaho Power’s Cost Share”) of the Total Project Costs (i.e., $416,970 as of the Effective Date). (b) Project Costs Funding. Idaho Power will invoice PacifiCorp for
PacifiCorp’s Cost Share of the actual costs and expenses incurred by or on
behalf of Idaho Power in connection with the design, permitting, construction, installation, and commissioning of the Project in accordance with the terms of this Agreement and the JOOA (the “Project Costs”). Idaho Power shall invoice PacifiCorp for Project Costs no more often than
once a month in accordance with a schedule to be provided by Idaho Power
to PacifiCorp (“Project Costs Schedule”). PacifiCorp shall pay such invoice within thirty (30) calendar days of receipt. Idaho Power shall provide PacifiCorp with an updated Project Costs Schedule from time to time;
4
provided, however, Idaho Power shall consult with PacifiCorp prior to any material increases in the Total Project Costs, and shall provide to PacifiCorp
such reasonable supporting documentation and information with respect to
Total Project Costs as PacifiCorp may request from time to time; provided, further, that in no event shall such revised Project Costs Schedule require PacifiCorp to pay additional Project Costs to Idaho Power within thirty (30) days of receipt of such revised Project Costs Schedule.

(c) Actual Project Costs True-up. Notwithstanding any provision to the contrary contained in this Agreement, (i) if the JPSA closes pursuant to and in accordance with the terms of the JPSA, then PacifiCorp’s Cost Share and Idaho Power’s Cost Share shall be as provided in Section 4(a) and (ii) if the
JPSA is terminated pursuant to and in accordance with the terms of the
JPSA, then PacifiCorp’s Cost Share shall be 42.6% and Idaho Power’s Cost Share shall be 57.4%. Idaho Power shall submit to PacifiCorp a final invoice for its unpaid share of the Project Costs or refund any overpayment within one hundred twenty (120) calendar days after the commissioning and
energization of the Project. PacifiCorp shall pay Idaho Power the invoiced
amount within (30) calendar days of receipt. 5. Project Schedule. Promptly after the Effective Date, the Parties shall develop an agreed upon schedule for the design, permitting, construction, installation and
commissioning, including Project milestones (“Project Schedule”). The Parties
agree to develop a schedule around an estimated Project in-service date that matches the B2H energization date, while attempting to ensure that this Project does not result in delaying the JPSA closing date. Idaho Power shall not place the Project in service until the B2H energization date, unless the Parties mutually agree
to a different in-service date for the Project. Idaho Power shall provide PacifiCorp
with an updated Project Schedule from time to time; provided, however, Idaho Power shall consult with PacifiCorp prior to any material changes in the Project Schedule and shall provide to PacifiCorp such reasonable supporting documentation and information with respect to the Project Schedule as PacifiCorp
may request from time to time. All Project Schedule milestones shall be best
estimates of the Parties. The Parties acknowledge and agree that completion of the Project is a condition precedent to closing under the JPSA. 6. Capacity Allocations. The Parties agree that (a) the allocation between the Parties
of increased Directional Capacity Allocation and the corresponding Directional
Capacity Allocation Percentages associated with the Project, and (b) any change in each Parties’ Ownership Interest in the Transmission Facilities and Substations associated with the Project shall be in accordance with the Kinport Capacitor JOOA Amendment; provided, however, if the JPSA terminates before the closing occurs,
then the Parties shall agree on different values in Section 6(a) and Section 6(b) and
any other changes to the JOOA as may be necessary.
5
7. Governing Law; Waiver of Jury Trail.
(a) Governing Law. This Agreement, the rights and obligations of the Parties under this Agreement, and any claim or controversy arising out of this Agreement (whether based on contract, tort, or any other theory), including all matters of construction, validity, effect, performance and remedies with respect to this Agreement, shall be governed by and interpreted, construed, and determined in accordance with, the laws of the State of Idaho (regardless of the laws that might otherwise govern under applicable principles of conflicts of law).
(b) Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY FURTHER WAIVES ANY RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. 8. No Partnership. This Agreement shall not be interpreted or construed to create an association, joint venture, agency relationship, or partnership between the Parties
or to impose any partnership obligation or partnership liability upon either Party.
Neither Party shall have any right, power or authority to enter into any agreement or undertaking for, or act on behalf of, or to act as or be an agent or representative of, or to otherwise bind, the other Party.
9. Assignment. This Agreement may not be assigned, in whole or in part, without the
prior written consent of the other Party which consent will not be unreasonably withheld, conditioned or delayed. Any attempt to assign this Agreement, in whole or in part, without the prior written consent of the other Party will be deemed voidable by the other Party. Notwithstanding the foregoing, either Party may at
any time assign its rights and delegate its obligations under this Agreement, in
whole or in part, including, without limitation, transferring its rights and obligations under this Agreement to any: (a) Affiliate; (b) successor in interest; or (c) corporation or any other business entity in conjunction with a merger, consolidation or other business reorganization to which the assigning Party is a party. A Party
making such an assignment shall notify the other Party in writing within thirty (30)
days of the assignment. 10. Disputes. Article 17 of the JOOA is incorporated by reference herein.
11. Entire Contract. This Agreement and the Exhibits attached hereto, and the other
documents referenced herein constitute the entire agreement between the Parties and supersede all prior agreements and understandings, whether oral and written, between the Parties with respect to the subject matter hereof. There are no oral
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understandings, terms or conditions and the Parties have not relied upon any representation or warranty, expressed or implied, not contained in this Agreement.

12. Notices. Any notice, demand, request or other communication required or permitted to be given pursuant to this Agreement shall be in writing and signed by the Party giving such notice, demand, request or other communication and shall be hand delivered or sent by certified mail, return receipt requested, or overnight courier to the
other Party at the address set forth below:
Idaho Power: Idaho Power Attn: Transmission, Distribution & Resource Planning Director
1221 W. Idaho Street
PO Box 70 (83707) Boise, ID 83702 Phone: [phone] e-mail: [e-mail]

With a copy to: Idaho Power Legal Department 1221 W. Idaho Street
PO Box 70 (83707)
Boise, ID 83702 PacifiCorp: PacifiCorp Transmission
Attn: PacifiCorp Transmission Services
825 NE Multnomah St., Suite 1600 Portland, OR 97232 Phone: [phone] e-mail: [e-mail]

13. Invoices and Payment. Invoices and payments shall be sent to the address(es) set out below, as the same may be changed from time to time by written notice delivered to the other Party:
PacifiCorp: Invoices:
PacifiCorp Transmission Attn: PacifiCorp Transmission Services, Lori Rolow 825 NE Multnomah St., Suite 1600 Portland, OR 97232
with a copy by e-mail to: [e-mail]
Idaho Power: Payments: Idaho Power
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Attn: Principal Engineering & Const. Project Manager, Mike Bracke 1221 W. Idaho Street
PO Box 70 (83707)
Boise, ID 83702 with a copy by e-mail to: [e-mail] 14. Indemnification; Limitation of Liability. Article 14 of the JOOA is incorporated
by reference herein.
15. Force Majeure. Article 11 of the JOOA is incorporated by reference herein.
16. Successors. This Agreement shall be binding upon each of the Parties and their respective successors and permitted assigns.
17. Severability. In the event that any provision of this Agreement or the application
thereof becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other persons or circumstances will be interpreted so as reasonably to affect the intent of the Parties. The Parties further agree
to replace such illegal, void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such illegal, void or unenforceable provision.
18. Multiple Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be original, and all of which together shall constitute one agreement. Electronic transmission of any signed original document, and retransmission of any signed electronic transmission, shall be the same as delivery of an original. At the request of either Party, the other Party will confirm
electronically transmitted signatures by signing an original document. 19. Contractors and Subcontractors. Nothing in this Agreement shall prevent either Party from utilizing the services of any third-party contractor or subcontractor as it
deems appropriate to perform its obligations under this Agreement; provided,
however, that such Party shall require any such third-party contractor or subcontractor to comply with all applicable terms and conditions of this Agreement; provided, further, that each Party shall remain primarily liable to the other Party for the performance of such third-party contractor and subcontractor.
20. No Third-Party Beneficiaries. Nothing expressed or implied in this Agreement is intended to nor shall be construed to confer upon or give to any Person (other than the Parties) any rights or remedies under or by reason of this Agreement or any
transaction contemplated herein.
21. Survival. The provisions of Sections 4, as well as all payment obligations and liabilities incurred before the termination or expiration of this Agreement, will survive its termination or expiration.
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22. Modifications or Amendments. This Agreement may not be amended,
supplemented or otherwise modified, other than pursuant to an instrument in writing executed by the Parties. All amendments to this Agreement, if originally filed with FERC, will be filed with FERC by Idaho Power as a restated agreement.
23. Recitals. The above-stated recitals are hereby incorporated into and made a part of this Agreement.
24. Waiver. Waivers of any right, privilege, claim, obligation, condition, or default shall be in writing and signed by the waiving Party. No waiver by a Party of any breach of this Agreement shall be a waiver of any preceding or succeeding breach, and no waiver by a Party of any right or obligation under this Agreement shall be construed as a waiver of any other right or obligation under this Agreement.
25. Further Assurances. Each Party agrees to execute and deliver from time to time such additional documents, and take such additional actions, as may be reasonably required by the other Party to give effect to the purposes and intent hereof.
26. NO WARRANTY. EXCEPT AS STATED HEREIN, IDAHO POWER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE ACCURACY, VALIDITY, RELIABILITY, USABILITY, VALUE OR OTHERWISE OF THE WORK PERFORMED BY OR ON BEHALF OF IDAHO
POWER HEREUNDER. IDAHO POWER DISCLAIMS ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES AS TO ANY ASPECT OF SUCH WORK, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, AND ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. [SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties hereto have entered into this Agreement effective as of the day and year first herein above written.

PACIFICORP IDAHO POWER

Signature Signature Rick Vail Mitch Colburn
Name Name
Vice President, Transmission VP of Planning, Engineering & Construction Title Title

Exhibit A
Kinport Capacitor JOOA Amendment

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PROJECT CONSTRUCTION AGREEMENT PROJECT TITLE:
Midpoint 500/345 kV Transformer (T502)
This Project Construction Agreement (this “Agreement”) is entered into as of April 14, 2023, by and between Idaho Power Company, an Idaho corporation (“Idaho Power”), and PacifiCorp, an Oregon corporation (“PacifiCorp”). Idaho Power and PacifiCorp are
sometimes hereinafter referred to individually as a “Party” and collectively as the “Parties.”
RECITALS: WHEREAS, Idaho Power is a transmission provider which owns and operates
certain facilities for the transmission of electric power and energy located in Idaho; and
WHEREAS, PacifiCorp is a transmission provider which owns and operates certain facilities for the transmission of electric power and energy located in Idaho; and
WHEREAS, the Parties own and operate certain transmission facilities and
substations pursuant to that certain Joint Ownership and Operating Agreement, dated as of October 24, 2014, as amended and restated on October 30, 2015, as further amended and restated on April 27, 2016, and as further amended and restated on August 22, 2019, as further amended and restated on April 7, 2023, and as amended from time to time
thereafter, (the “JOOA”) between Idaho Power and PacifiCorp, including the Midpoint –
Hemingway 500 kV transmission line, the Midpoint 345 kV Substation, and the Midpoint 500 kV Substation; and WHEREAS, the Parties have entered into that certain Joint Purchase and Sale
Agreement, dated as of the date hereof (the “JPSA”), pursuant to which at the closing of
the transaction contemplated by the JPSA the ownership of certain jointly-owned equipment will be reallocated and the ownership of certain additional equipment will be exchanged between the Parties; and
WHEREAS, this Agreement and the JPSA are part of a larger transaction, including
the Boardman-to-Hemingway transmission project (the “B2H Project”), among Idaho Power, PacifiCorp and the Bonneville Power Administration (“BPA”) contemplated in that certain Term Sheet dated as of January 18, 2022 by and among PacifiCorp, Idaho Power and BPA; and

WHEREAS, pursuant to Section 6.1(a) of the JOOA, PacifiCorp, in its capacity as a “Proposing Owner” under the JOOA, provided notice to Idaho Power by letter dated April 14, 2023 of its desire to install a 500/345 kV 2,000 MVA transformer within the Midpoint 500 kV substation and add an additional 345 kV tie line between the Midpoint
500 kV and Midpoint 345 kV substations to increase the transfer capability of the Midpoint
– Hemingway 500 kV transmission line from 1,500 MW to 2,050 MW in the east-to-west direction, only (the “Project”); and

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WHEREAS, pursuant to Section 6.1(a) of the Agreement, Idaho Power, in its capacity as a “Non-Proposing Owner” under the JOOA, provided notice to PacifiCorp by
letter dated April 14, 2023 of its election to participate in the Project; and
WHEREAS, pursuant to Section 6.1 of the JOOA, the Parties have agreed on (a) the Project, (b) the scope of the Project, (c) each Party’s share of the costs of the Project, and (d) the planned in-service date of the Project, all of which are incorporated into this
Agreement;
WHEREAS, pursuant to Section 6.1 of the JOOA, the Parties have agreed on (a) the allocation between the Parties of increased Directional Capacity Allocation and the corresponding Directional Capacity Allocation Percentages associated with the Project,
and (b) any change in each Parties’ Ownership Interest in the Transmission Facilities and
Substations associated with the Project, all of which are incorporated into this Agreement and reflected in that certain Agreement to Amend the Joint Ownership and Operating Agreement as of the date hereof (the “Midpoint Transformer JOOA Amendment”), a copy of which is attached hereto as Exhibit A;

WHEREAS, Idaho Power, in its capacity as “Operator” of the Midpoint – Hemingway 500 kV transmission line, the Midpoint 345 kV Substation, and the Midpoint 500 kV Substation under the JOOA, is responsible for the design, permitting, construction, installation and commissioning of the Project in accordance with this Agreement and
Section 6.1 of the JOOA; and
WHEREAS, this Agreement sets forth the Parties’ understanding with respect to design, permitting, construction, installation and commissioning of the Project and certain related matters, including cost responsibility of the Parties with respect to the design, permitting, construction, installation and commissioning of Project.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties enter into this Agreement with the understanding that each mutually benefits from this Agreement and further agree to the following:
1. Definitions. Capitalized terms used but not defined herein shall have the meanings set forth in the JOOA. 2. Term; Termination.

(a) Term. The term of this Agreement shall commence on the date (“Effective Date”) that is the later of (i) the date of this Agreement and (ii) the date designated by FERC, if filed at the FERC and accepted for filing.
(b) Termination. This Agreement shall terminate ninety (90) days following the
later of (i) the in-service date of the Project, (ii) Idaho Power’s receipt of final payment from PacifiCorp for PacifiCorp’s share of the Project Costs in accordance with the terms of this Agreement, and (iii) the JPSA closing date

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or, if earlier, the date the JPSA terminates. In addition, in the event that the B2H Project is cancelled prior to the in-service date of the Project, the Parties
shall mutually agree on whether to proceed with the Project and, if so, on what
terms. 3. Scope and Performance of Work.
(a) The Project. The Project shall consist of Idaho Power installing (i) a second
500 to 345 kV 2,000 MVA transformer (T502) within an expanded Midpoint 500 kV substation (“transformer T502”); (ii) an additional 345 kV tie line between the Midpoint 500 kV and Midpoint 345 kV substations (“500/345 kV Midpoint Substations Tie Line”); and (iii) an additional 345
kV transmission line bay at the Midpoint 345 kV substation to
accommodate the new 345 kV tie line between the Midpoint 500 kV and Midpoint 345 kV substations (“500 kV Tie Terminal #2”), which will increase the transfer capability of the Midpoint – Hemingway 500 kV transmission line from 1,500 MW to 2,050 MW in the east-to-west
direction, only. The Parties may mutually agree (such agreement not to be
unreasonably withheld, conditioned, or delayed) to revise the scope of the Project from time to time. (b) Idaho Power Responsibilities. Idaho Power will be responsible for all
aspects of the design, permitting, construction, installation, and
commissioning of the Project in accordance with the terms of this Agreement and the JOOA. (c) Standard of Work. Idaho Power is acting under this Agreement in its
capacity as Operator under the JOOA. As such, Idaho Power shall perform
its obligations under this Agreement in accordance with the standard set forth in Article 5.1 of the JOOA. In the event of any conflict between the terms of this Agreement and the JOOA, the terms of the JOOA shall control.
4. Responsibility for Costs.
(a) Estimated Project Costs. Idaho Power estimates as of the Effective Date that the total Project Costs for the Project will be $35.4 million (“Total Project Costs”). Subject to Section 4(c), (i) PacifiCorp will be responsible for
94.15% (“PacifiCorp’s Cost Share”) of the Total Project Costs (i.e., $ 33.33
million as of the Effective Date) and (ii) Idaho Power will be responsible for the remaining 5.85% (“Idaho Power’s Cost Share”) of the Total Project Costs (i.e., $ 2.07 million as of the Effective Date).
(b) Project Costs Funding. Idaho Power will invoice PacifiCorp for
PacifiCorp’s Cost Share of the actual costs and expenses incurred by or on behalf of Idaho Power in connection with the design, permitting, construction, installation, and commissioning of the Project in accordance

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with the terms of this Agreement and the JOOA (the “Project Costs”). Idaho Power shall invoice PacifiCorp for Project Costs no more often than
once a month in accordance with a schedule to be provided by Idaho Power
to PacifiCorp (“Project Costs Schedule”). PacifiCorp shall pay such invoice within thirty (30) calendar days of receipt. Idaho Power shall provide PacifiCorp with an updated Project Costs Schedule from time to time; provided, however, Idaho Power shall consult with PacifiCorp prior to any
material increases in the Total Project Costs, and shall provide to PacifiCorp
such reasonable supporting documentation and information with respect to Total Project Costs as PacifiCorp may request from time to time; provided, further, that in no event shall such revised Project Costs Schedule require PacifiCorp to pay additional Project Costs to Idaho Power within thirty (30)
days of receipt of such revised Project Costs Schedule.
(c) Actual Project Costs True-up. Notwithstanding any provision to the contrary contained in this Agreement, (i) if the JPSA closes pursuant to and in accordance with the terms of the JPSA, then PacifiCorp’s Cost Share and
Idaho Power’s Cost Share shall be as provided in Section 4(a) and (ii) if the
JPSA is terminated pursuant to and in accordance with the terms of the JPSA, then PacifiCorp’s Cost Share shall be 50% and Idaho Power’s Cost Share shall be 50%. Idaho Power shall submit to PacifiCorp a final invoice for its unpaid share of the Project Costs or refund any overpayment within
one hundred twenty (120) calendar days after the commissioning and
energization of the Project. PacifiCorp shall pay Idaho Power the invoiced amount within (30) calendar days of receipt.
5. Project Schedule. Promptly after the Effective Date, the Parties shall develop an
agreed upon schedule for the design, permitting, construction, installation and commissioning, including Project milestones (“Project Schedule”). The Parties agree to develop a schedule around an estimated Project in-service date that matches the B2H energization date, while attempting to ensure that this Project
does not result in delaying the JPSA closing date. Idaho Power shall not place the
Project in service until the B2H energization date, unless the Parties mutually agree to a different in-service date for the Project. Idaho Power shall provide PacifiCorp with an updated Project Schedule from time to time; provided, however, Idaho Power shall consult with PacifiCorp prior to any material changes in the Project
Schedule and shall provide to PacifiCorp such reasonable supporting
documentation and information with respect to the Project Schedule as PacifiCorp may request from time to time. All Project Schedule milestones shall be best estimates of the Parties. The Parties acknowledge and agree that completion of the Project is a condition precedent to closing under the JPSA.

6. Capacity Allocations. The Parties agree that (a) the allocation between the Parties of increased Directional Capacity Allocation and the corresponding Directional Capacity Allocation Percentages associated with the Project, and (b) any change in

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each Parties’ Ownership Interest in the Transmission Facilities and Substations associated with the Project shall be in accordance with the Midpoint Transformer
JOOA Amendment; provided, however, if the JPSA terminates before the closing
occurs, then the Parties shall agree on different values in Section 6(a) and Section 6(b) and any other changes to the JOOA as may be necessary. 7. Governing Law; Waiver of Jury Trail.
(a) Governing Law. This Agreement, the rights and obligations of the Parties under this Agreement, and any claim or controversy arising out of this Agreement (whether based on contract, tort, or any other theory), including all matters of construction, validity, effect, performance and remedies with respect to this Agreement, shall be governed by and interpreted, construed, and determined in accordance with, the laws of the State of Idaho (regardless of the laws that might otherwise govern under applicable principles of conflicts of law).
(b) Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY FURTHER WAIVES ANY RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. 8. No Partnership. This Agreement shall not be interpreted or construed to create an
association, joint venture, agency relationship, or partnership between the Parties
or to impose any partnership obligation or partnership liability upon either Party. Neither Party shall have any right, power or authority to enter into any agreement or undertaking for, or act on behalf of, or to act as or be an agent or representative of, or to otherwise bind, the other Party.

9. Assignment. This Agreement may not be assigned, in whole or in part, without the prior written consent of the other Party which consent will not be unreasonably withheld, conditioned or delayed. Any attempt to assign this Agreement, in whole or in part, without the prior written consent of the other Party will be deemed
voidable by the other Party. Notwithstanding the foregoing, either Party may at
any time assign its rights and delegate its obligations under this Agreement, in whole or in part, including, without limitation, transferring its rights and obligations under this Agreement to any: (a) Affiliate; (b) successor in interest; or (c) corporation or any other business entity in conjunction with a merger, consolidation
or other business reorganization to which the assigning Party is a party. A Party
making such an assignment shall notify the other Party in writing within thirty (30) days of the assignment. 10. Disputes. Article 17 of the JOOA is incorporated by reference herein.

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11. Entire Contract. This Agreement and the Exhibits attached hereto, and the other
documents referenced herein constitute the entire agreement between the Parties
and supersede all prior agreements and understandings, whether oral and written, between the Parties with respect to the subject matter hereof. There are no oral understandings, terms or conditions and the Parties have not relied upon any representation or warranty, expressed or implied, not contained in this Agreement.

12. Notices. Any notice, demand, request or other communication required or permitted to be given pursuant to this Agreement shall be in writing and signed by the Party giving such notice, demand, request or other communication and shall be hand delivered or sent by certified mail, return receipt requested, or overnight courier to the
other Party at the address set forth below:
Idaho Power: Idaho Power Attn: Transmission, Distribution & Resource Planning Director
1221 W. Idaho Street
PO Box 70 (83707) Boise, ID 83702 Phone: [phone] e-mail: [e-mail]

With a copy to: Idaho Power Legal Department 1221 W. Idaho Street
PO Box 70 (83707)
Boise, ID 83702 PacifiCorp: PacifiCorp Transmission
Attn: PacifiCorp Transmission Services
825 NE Multnomah St., Suite 1600 Portland, OR 97232 Phone: [phone] e-mail: [e-mail]

13. Invoices and Payment. Invoices and payments shall be sent to the address(es) set out below, as the same may be changed from time to time by written notice delivered to the other Party:
PacifiCorp: Invoices:
PacifiCorp Transmission Attn: PacifiCorp Transmission Services, Lori Rolow 825 NE Multnomah St., Suite 1600

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Portland, OR 97232 with a copy by e-mail to: [e-mail]

Idaho Power: Payments: Idaho Power Attn: Principal Engineering & Const. Project Manager, Mike Bracke 1221 W. Idaho Street
PO Box 70 (83707)
Boise, ID 83702 with a copy by e-mail to: [e-mail] 14. Indemnification; Limitation of Liability. Article 14 of the JOOA is incorporated
by reference herein.
15. Force Majeure. Article 11 of the JOOA is incorporated by reference herein.
16. Successors. This Agreement shall be binding upon each of the Parties and their respective successors and permitted assigns.
17. Severability. In the event that any provision of this Agreement or the application
thereof becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other persons or circumstances will be interpreted so as reasonably to affect the intent of the Parties. The Parties further agree
to replace such illegal, void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such illegal, void or unenforceable provision.
18. Multiple Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be original, and all of which together shall constitute one agreement. Electronic transmission of any signed original document, and retransmission of any signed electronic transmission, shall be the same as delivery of an original. At the request of either Party, the other Party will confirm
electronically transmitted signatures by signing an original document. 19. Contractors and Subcontractors. Nothing in this Agreement shall prevent either Party from utilizing the services of any third-party contractor or subcontractor as it
deems appropriate to perform its obligations under this Agreement; provided,
however, that such Party shall require any such third-party contractor or subcontractor to comply with all applicable terms and conditions of this Agreement; provided, further, that each Party shall remain primarily liable to the other Party for the performance of such third-party contractor and subcontractor.
20. No Third-Party Beneficiaries. Nothing expressed or implied in this Agreement is intended to nor shall be construed to confer upon or give to any Person (other than the Parties) any rights or remedies under or by reason of this Agreement or any
transaction contemplated herein.

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21. Survival. The provisions of Sections 4, as well as all payment obligations and
liabilities incurred before the termination or expiration of this Agreement, will survive its termination or expiration.
22. Modifications or Amendments. This Agreement may not be amended,
supplemented or otherwise modified, other than pursuant to an instrument in writing executed by the Parties. All amendments to this Agreement, if originally filed with FERC, will be filed with FERC by Idaho Power as a restated agreement.
23. Recitals. The above-stated recitals are hereby incorporated into and made a part of
this Agreement.
24. Waiver. Waivers of any right, privilege, claim, obligation, condition, or default shall be in writing and signed by the waiving Party. No waiver by a Party of any
breach of this Agreement shall be a waiver of any preceding or succeeding breach, and no waiver by a Party of any right or obligation under this Agreement shall be construed as a waiver of any other right or obligation under this Agreement.
25. Further Assurances. Each Party agrees to execute and deliver from time to time such additional documents, and take such additional actions, as may be reasonably required by the other Party to give effect to the purposes and intent hereof.
26. NO WARRANTY. EXCEPT AS STATED HEREIN, IDAHO POWER MAKES
NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE ACCURACY, VALIDITY, RELIABILITY, USABILITY, VALUE OR OTHERWISE OF THE WORK PERFORMED BY OR ON BEHALF OF IDAHO
POWER HEREUNDER. IDAHO POWER DISCLAIMS ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES AS TO ANY ASPECT OF SUCH WORK, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, AND ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. [SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, the Parties hereto have entered into this Agreement effective as of the day and year first herein above written.

PACIFICORP IDAHO POWER
Signature Signature
Rick Vail Mitch Colburn Name Name

Vice President, Transmission VP of Planning, Engineering & Construction Title Title

Exhibit A
Midpoint Transformer JOOA Amendment