20220510Reply Comments.pdf

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Avista Corp.
1411 East Mission, P.O.Box3727
Spokane, Washington 99220-0500
Telephone [phone]
Toll Free 800-727-9170
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(l}Jan Noriyuki, Secretary
Idatro Public Utilities Commission
11331 W. Chinden Blvd
Building 8, Suite 201-A
Boise,ID 83714
RE: Avista - Reply Comme,lrts
Dear Ms. Noriyuki:
Enclosed for filing with the Commission is an electronic copy of Avista's Reply Comments in
response to Comments of Commission Staff recommending approval of an amended agreement
that includes certain changes to the Power Purchase Agreement Between Avista Corporation and
the Regents of the University of ldaho.
Please direct any questions regarding this report to Michael Andrea at [phone] or myself
at5O9-495-4584.
Sincerely,
/siPaul Kimball
Paul Kimball
Manager of Compliance & Discovery
Avista Utilities
509-495-4584
paul.kimball @avistacom. com
Enclosure
MICHAEL G. ANDREA (ISB No. 8308)
Avista Corporation
l4l l E. Mission Ave., MSC-I7
Spokane, WA99202
Telephone: [phone]
mi chael. and r ea@av istacorp. com
IN THE MATTER OF AVISTA AND THE
UNTVERSITY OF IDAHO'S JOINT
PETITION FOR APPROVAL OF A POWER
PURCHASE AGREEMENT (SOLAR
FACILITY)
BEFORE THE IDAHO PUBLIC UTILTTIES COMMISSION
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CASE NO. AVE-E-22-04
REPLY COMMENTS OF AVISTA
CORPORATION
Pursuant to the Notice issued by the ldaho Public Utilities Commission ("Commission")
on March 24,2022 in the above-captioned proceeding, Avista Corporation ("Avista")
respectfully submits the following reply comments in response to Comments of Commission
Staff recommending approval of an amended agreement that includes certain changes to the
Power Purchase Agreement Between Avista Corporation and the Regents of the University of
Idaho ("University") that was filed in this proceeding on February 23,2022 ("Original
Agreement"). Avista appreciates Staff s comments and agrees with the changes to the Original
Agreement proposed by Staff. Accordingly, Avista submits a First Amended and Restated
Power Purchase Agreement between Avista and the University of Idaho ("First Amended
Agreement").1 The University has authorized Avista to represent that the University agrees to
the proposed changes in First Amended Agreernent, as reflected in that agreement. The First
Amended Agreonent will supersede and replace the Original Agreernent in its entirety. Avista
I The First Amended Agreement is attached hereto as Attachment A. A redline showing the changes to the Original
Agreement is attached hereto as Attachment B for informational purposes only.
Page - I REPLY COMMENTS OF AVISTA CORPORATION
respectfully requests that the Commission approve the First Amended Agreement with an
effective date of February 16,2022.
I. Background
Avista and the Regents of the University of Idaho entered into the Original Agreement on
February 16,2022. Pursuant to the Original Agreement, the University intends to use its solar
facility ("Facility") to serve University load. The parties anticipate that all of the Facility output
will be used to serve University load and, therefore, little or no output from the Facility will
actually be delivered to Avista. To the extent the output from the University's Facility exceeds
the University's load, the University has elected to sell, and Avista will purchase, all such output
from the Facility at the avoided costs calculated at the time of delivery, which shall be, for each
hour in which the University delivers such output to Avista at the Point of Delivery the Market
Energy Price for such hour expressed in $ per kWh multiplied by the total kWh delivered to
Avista at the Point of Delivery for such hour. On February 23,2022, Avista and the University
filed a joint petition requesting that the Commission accept the Original Agreement effective
February 16,2022.
On May 4,2022, Staff submitted comments on the Original Agreement ("Comments").
In its Comments, Staff recommended the following five changes to the Original Agreement:
l. Rernove the option of other mutually agreed-to index in the Agreernent;
2. Set avoided cost rates in this Agreement at85Yo of the PowerDex hourly Mid-
Columbia ('Mid-C') index price;
3. Verifr the Nameplate Size and the Maximum Generation Injection at Point of
lnterconnection and make sure the correct amounts are used in the Agreernent;
Page - 2 REPLY COMMENTS OF AVISTA CORPORATION
4. Use 85% of the PowerDex hourly Mid-Columbia ("Mid-C")index price as
avoided cost rates for the potential ofa lapsed contract period; and
5. Update Article 21 in the Agreement to ensure any amendment or modification
does not become valid without Commission authorization.
Staff Comments at 2.
Staffrecommends approving an amended agreement that includes its recommended changes. .Id.
at 6.
As discussed herein, Avista agrees with Staffls recommended changes to the Original
Agreement. Avista and the University have executed the First Amended Agreement, which
incorporates the amendments recommended by Staff. Accordingly, Avista submits the First
Amended Agreernent for approval and requests that the Commission accept the First Amended
Agreernent effective February 16, 2022.
II. Reply Comments
As discussed above, Commission Staffhas five recommendations regarding the Original
Agreement. Avista has revised the Original Agreement to incorporate StafPs recommendations
as more fully discussed below.
A. Removal of the option of other mutually agreed-to index in the Agreement
Staffobjects to language in the definition of Market Energy Price in the Original
Agreement that states that such Market Energy Price is based on the hourly Mid-Columbia index
price, o'or other mutually agreed to index." Staff states "if the Parties decide to use another
market price index in the future, they should file an amendment to the Agreement so that index
can be reviewed and approved by the Commission." Staff Comments at 3.
Page - 3 REPLY COMMENTS OF AVISTA CORPORATION
The phrase "or other mutually agreed to index" was included to ensure that the parties
could agree to an index other than the Mid-Columbia index i4 for example, the Mid-Columbia
index was not available. Avista does not, however, object to the removal of that phrase.
Accordingly, in the First Amended Agreement, the parties have deleted the phrase "or other
mutually agreed to index" from the definition of "Market Energy Price."
B.Set avoided cost rates in this Agreement at85o/o of the PowerDex hourly
Mid-Columbia (rrMid-C ") index price
In the Original Agreement, the Market Energy Price was defined as the "hourly Mid-
Columbia (*Mid-C") index price . . . ." In its Comments, Staff states that "the avoided cost rates
used in this Agreement for non-firm energy generation should be 85% of the non-firm market
rates. . . ." Staff Comments at 3. Stafftherefore recommends, that "an 85o/o adjustment factor be
applied to the PowerDex hourly Mid-Columbia ("Mid-C") index price." Id. at3-4.
Avista agrees with Staffthat an 85 percent adjustment factor should be applied to the
PowerDex hourly Mid-C index price. Accordingly, the definition of "Market Energy Price" in
the First Amended Agreement has been revised so that "Market Energy Price" means:
. . . eighty-five percent (85%) of the PowerDex hourly Mid-Columbia index ("Mid-C
Index") price; provided, however, if the Mid-C Index price is less than zero, the Market
Energy Price shall be one-hundred and fifteen percent (ll5%) of the Mid-C Index price.
First Amended Agreement at Section 1.16.
As revised, the avoided cost rate when the Mid-C index is positive will be 85 percent of
the Mid-C index. To effectuate Staff s recommendation that an 85 percent adjustment factor is
to be applied to the Mid-C index, when the price is negative, the avoided cost rate when the Mid-
C index is negative must be ll5% of the Mid-C index. That is, under the proposed definition of
the Market Energy Price, Avista will be in the same position regardless of whether the Mid-C
index is positive or negative. If, however, the Market Enerry Price was 85 percent of the Mid-C
Page - 4 REPLY COMMENTS OF AVISTA CORPORATION
index regardless of whether the Mid-C is positive or negative, Avista would be adversely
impacted when the prices are negative. That is, when the Mid-C index is positive, Avista would
pay less than the Mid-C price for any output and, therefore, after transaction costs be roughly
whole if it sells such output to the market. In contrast, when the Mid-C index is negative, the QF
would pay Avista less for the output then it would cost Avista to dispose of such output in the
market and, therefore, Avista's customers would have to pay to dispose of such output. To
ensure that Avista is in the same position regardless of whether the Mid-C index is positive or
negative, the adjustrnent factor when the Mid-C index is negative must be I 15 percent.
C. Verify Nameplate Size and Maximum Generation Injection at Point of
Interconnection
Staffrecommends that the nameplate size and maximum generation injection at the point
of interconnection be verified to make sure the correct amounts are used in the agreement. The
Nameplate Capacity Rating for the Facility stated in the Original Agreement is 132.2 kW
Alternating Current (AC). Avista has verified that the Nameplate Capacity Rating for the
Facility stated in the Original Agreement is consistent with the Nameplate Size (Rating) and
Maximum Generation Injection at Point of Common Coupling stated in Attachment D (the
interconnection agreement for the Facility).
D Use 857o of the PowerDex hourly Mid-Columbia (rrMid-Crr)index price as
avoided cost rates for the potential of a lapsed contract period
Staffnotes that, because the parties requested a February 16,2022 effective date, there is
the potential for retroactive rates from February 16,2022 through the date of a Commission
order. Staffstates that, if the final approved effective date results in a lapsed contract
period, it "recommends that the Parties use 85% of the PowerDex hourlyMid-Columbia ('Mid-
C") index price for the energy delivered during the lapsed contract period." StaffComments at
Page - 5 REPLY COMMENTS OF AVISTA CORPORATION
5. To effectuate Staffs recommendation, the following has been added to Section 5.2 of the
First Amended Agreement:
For the avoidance of doubt, the rate to be paid to Seller for any Net Output Seller delivers
to Avista at the Point of Delivery from the Effective Date through the date that the
Commission issues an order (the "Lapse Period") shall be the Market Energy Price. To
the extent that Avista has paid Seller a price other than the Market Energy Price for any
Net Output delivered to Avista, Avista shall issue an invoice or payment to Seller within
30 days of the Commission's order approving this Agreement to correct any over or
under payment.
First Amended Agreernent at Section 5.2
To date, the University has not delivered any output from the Facility to Avista.
Accordingly, Avista does not anticipate that any payment will be made for output prior to
Commission approval of the First Amended Agreement. If, however, the output from the
Facility is delivered to Avista during the Lapse Period, the avoided cost rate willbe 85 percent of
the Mid-C index, as recommended by Staff.
Update Article 21 in the Agreement to ensure any amendment or
modffication does not become valid without Commission authorization
In its Comments, Staffexpresses concern that Article 2l of the Original Agreement
contemplated amendments may become effective without Commission approval. The intent of
Article 2l is to state that both parties to the agreement must agree in writing to amend the
agreanent. However, any amendment must be approved by the Commission. Accordingly, in
the First Amended Agreement Article 21 has been revised to expressly state:
No change, amendment or modification of any provision of this Agreement shall be valid
unless set forth in a written amendment to this Agreement signed by both Parties and
aoproved bv the Commission.
First Amended Agreement at Article 2l (emphasis added to show revision).
III. Conclusion
E.
Page - 6 REPLY COMMENTS OF AVISTA CORPORATION
Avista appreciates Staffs emefirl review ofthe Original Agreement. As discussed
herein, the Original Agreement has been revised to incorporate Staffs recommended
amendments. Aocordingly, Avista respectfully requests that the Commission qpprove the First
Amended Agreement (attached hereto as Attachment A) with an effective date of Febnrary 16,
2422.
DATED this l1th day of May 2022.
Michael G. Andrea
Attorney for Avista Corporation
Page - 7 REPLY COMMENTS OF AVISTA COFJORATION
FIRST AMENDED AND RESTATED
POWER PURCHASE AGREEMENT
BETWEEN
REGENTS OF THE UNIVERSITY OF IDAHO
AND
AVISTA CORPORATION
POWER PURCHASE AGREEMENT (SOLAR)
This First Amended and Restated Power Purchase Agreement ("Agreement") is made by
and betrveen Avista Corporation, a Washington colporation ("Avista"), and the Regents of the
University of tdaho ("Seller"). Avista and Seller are sometimes referred to individually as a
"Party" and collectively as the "Parties."
RECITALS
WHEREAS, the Parties entered into a Power Purchase Agreement ("Original Agreement")
that was submitted to the Idaho Public Utilities Commission for approval on February 23,2022;
WHEREAS, Commission Staffrecommended certain revisions to the Original Agreement;
WHEREAS, the Parties enter into this Agreement to amend the Original Agreement
consistent with Commission Staffs recommendation and intend this Agreement to supersede and
replace the Original Agreement in its entirety;
WHEREAS, Seller will own, operate and maintain the electric power generating facility
with aNameplate Capacity Rating of 132.2 kW Altemating Current (AC), as more fully described
in Exhibit A ("Facility");
WHEREAS, Seller will operate the Facility as a Qualifying Facility, as defined by the
Public Utility Regulatory Policies Act of 1978 ("PURPA");
WHEREAS. Seller will use the Facility to serve Seller's Load (as defined herein); and
WHEREAS, to the extent the output generated from the Facility exceeds Seller's Load,
Seller will deliver and sell to Avista on an as-available basis, and Avista will purchase, output
generated from the Facility subject to the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements set forth herein, the
Parties agree as follows.
Page - I - FIRST AMENDED AND RESTATED UNIVERSITY OF IDAHO POWER
PURCHASE AGREEMENT (SOLAR)
I. DEFINITIONS
Except as otherwise defined in this Agreement, whenever used in this Agreement and
exhibits hereto, the following terms shall have the following meanings:
l.l..@!',meanSthisFirstAmendandRestatedPowerPurchaseAgreement,
including all exhibits, and any written amendments.
1.2
Agreement
..@"shallhavethemeaningprovidedinSection5.2ofthis
1.3 4oMly" means average megawatt(s). An average megawatt is calculated by
dividing the total generation in MWh over a given period of time (e.g., a calendar month) by the
number of hours in that period of time.
l.4..@4y''meanseverydayotherthanaSaturdayorSundayoranational
holiday. National holidays shall be those holidays observed NERC.
1.5 "Cqmldsgloo" means the Idaho Public Utilities Commission, or its successor
1.6 "Eflpg!@Dglg" shall have the meaning provided in Section 4 of this Agreement.
l.7*@,,meansanyandallcertificates,credits,benefits,
emissions reductions, environmental air quality credits and emissions reduction credits, offsets and
allowances, howsoever entitled, resulting from the avoidance of the emission of any gas, chemical,
or other substance attributable to the generation of energy by the Facility, and the delivery of such
energy to the electricity grid, and include without limitation, any of the same arising out of any
current or future legislation or regulation concerned with oxides of nitrogen, sulfur, or carbon, with
particulate matter, soot, or mercury, or implementing the United Nations Framework Convention
on Climate Change ("UNFCCC") or the Kyoto Protocol to the UNFCCC or crediting "early
action" with a view thereto, or laws or regulations involving or administered by the Clean Air
Markets Division of the Environmental Protection Agency or successor administrator (collectively
with any state or federal entity given jurisdiction over a program involving transferability of
Environmental Attributes, the "CAMD"), but specifically excluding investment tax credits,
production tax credits, and cash grants associated with the construction or operation of the Facility
and other financial incentives in the form of credits, reductions, or allowances associated with
ownership of the Facility that are applicable to a state or federal income tax obligation, if any.
Environmental Attributes also include the reporting rights or Renewable Energy Certificates
("RECs") associated with these Environmental Attributes. Environmental Attributes include
without limitation all "Environmental Attributes" and all "Green Attributes" as those terms are
defined in Appendix A-l and Appendix A-2 of California Public Utilities Commission D. 08-08-
028 in R. 06-02-012. RECS are accumulated on a MWh basis and one REC represents the
Environmental Attributes associated with one MWh of energy. Environmental Attributes do not
include any energy, capacity, reliability or other power attributes from the Facility.
Page - 2 - FIRST AMENDED AND RESTATED LTNIVERSITY OF IDAHO POWER
PURCHASE AGREEMENT (SOLAR)
1.8 Reserved.
1.9 "Iggi!!$" means the electric energy generating facilities, including all equipment
and structures necessary to generate and supply electric energy, more particularly described at
Exhibit A.
l.l0..@'meanstheelectricenergygeneratedandusedbythe
Facility during its operation to operate equipment that is auxiliary to primary generation equipment
including, but not limited to, pumping, generator excitation, cooling or other operations related to
the production of electric energy by the Facility.
l.ll "@g-[!igggg" shall have the meaning provided in Section ll of this
Agreement.
l.l2 '6FERC" means the Federal Energy Regulatory Commission, or its sucoessor.
l.I3..@''theagreementhtweenSellerandAvistawhich
govems how the Net Output is delivered to Avista's at the Point of Interconnection during the
Term of this Agreement.
l.l4 "W'' means megawatt. One thousand kilowatts equals one megawatt.
1.15 6'Wh" means megawatt-hour. One thousand kilowatt-hours equals one
megawatt-hour.
l.l6..@'meanseighty-fivepercent(85%)ofthePowerDexhourly
Mid-Columbia index ("Mid-C Index") price; provided, however, if the Mid-C Index price is less
than zero, the Market Energy Price shall be one-hundred and fifteen percent (l l5%) of the Mid-C
Index price.
l.l7..@'meansthemaximumgeneratingcapacityofthe
Facility, as determined by the manufacturer, and expressed in megawatts (MW) or kilowatts (kW).
1.18 *NEp means the North American Electric Reliability Corporation or its
successor.
t.l9 "Ng!99!E!" means the capability and electric energy generated by the Facility,
less Seller's Load expressed in megawatt-hours (MWh) or kilowatt-hours (kwh).
1.20 "Egjg!_pfJgJlyS4" means the location, as specified in Exhibit A of this
Agreement, where the electric energy produced by the Facility is delivered by Seller to Avista's
electrical system.
l.2l..@'meansthepractices,methods,andactscommonlyand
ordinarily used in electrical engineering and operations by a significant portion of the electric
power generation and transmission industry, in the exercise of reasonable judgment in the light of
Page . 3 . FIRST AMENDED AND RESTATED UNIVERSITY OF IDAHO POWER
PURCHASE AGREEMENT (SOLAR)
the facts known or that should have been known at the time a decision was made, that would have
been expected to accomplish the desired result in a manner consistent with law, regulation,
reliability, safety, environmental protection, economy, and expedition.
1.22 "Oualifvine Facilitv" or *S' means a generating facility which meets the
requirements for "QF" status under PURPA and part 292 of FERC's Regulations. l8 C.F.R. Part
292, and which has obtained certification of its QF status.
1.23 "Sg!!g5!.@" means Seller's electrical load on Seller's side of the retailmeter(s)
through which Avista delivers electric energy to Seller's University campus, including Facility
Service Power, to be served directly by the Facility. For the avoidance of doubt, Seller's Load
shall not include any third-party electrical load or any remote load that requires the output from
the Facility to be delivered across Avista distribution or transmission facilities.
1.24 "Term" shall have the meaning provided in Section 4 of this Agreement.
1.25 "MCC" means the Western Electricity Coordinating Council or its successor.
1.26 "WRIEGIS" means the Western Renewable Energy Generation Information
system, or a successor.
l.27..@''meansthethencurrentoperatingrulesand
requirements adopted by WREGIS, as such rules and requirements may be amended,
supplemented or replaced (in whole or in part) from time to time.
2. WARRANTIES
2.1 No Wanantv bv Avista. Avista makes no warranties, expressed or implied,
regarding any aspect of Seller's design, specifications, equipment or facilities, including, but not
limited to, safety, durability, reliability, strength, capacity, adequacy or economic feasibility, and
any review, acceptance or failure to review Seller's design, specifications, equipment or Facility
shall not be an endorsement or a confirmation by Avista. Avista assumes no responsibility or
obligation with regard to any NERC and/or WECC reliability standard associated with the Facility
or the delivery of electric energy from the Facility to the Point of Delivery.
2.2 Seller's Warranty. Seller warrants and represents that: (a) Seller has investigated
and determined that it is capable of performing and will perform the obligations hereunder and has
not relied upon the advice, experience or expertise of Avista in connection with the transactions
contemplated by this Agreement; (b) all professionals and experts including, but not limited to,
engineers, attorneys or accountants, that Seller may have consulted or relied on in undertaking the
transactions contemplated by this Agreement have been solely those of Seller; (c) Seller will
comply with all applicable laws and regulations and shall obtain and comply with applicable
Iicenses, permits and approvals in the design, construction, operation and maintenance of the
Facility; and (d) the Facility is, and during the Term of this Agreement will remain, a Quali$ing
Facility as that term is used in l8 C.F.R Part292. Seller's failure to maintain Quali$ing Facility
status will be a material breach of this Agreement. Avista reserves the right to review the Seller's
Page - 4 - FIRST AMENDED AND RESTATED LTNMRSITY OF IDAHO POWER
PURCHASE AGREEMENT (SOLAR)
Qualiffing Facility status and associated support and compliance documents at any time during
the Term of this Agreement.
3. CONDITIONS PRIOR TO DELIVERY OF NET OUTPUT
3.1 Seller Renresentation. Seller represents that, prior to the com.mencement of the
first delivery of Net Output to Avista Seller's licenses, permits and approvals (including, but not
Iimited to, evidence of compliance with Subpart B, l8 C.F.R. S 292.207, tribal, state and local
business licenses, environmental permits, easements, leases and all other required approvals) are
legally and validly issued, are held in the name ofthe Seller, and Seller is in substantial compliance
with said permits.
3,2 Indeoendent Eneineerins Certilications. Upon Avista's request, prior to the
commencement of the first delivery of Net Output to Avista, Seller shall submit to Avista applicable
Independent Engineering Certifications for Construction Adequacy for a Qualiffing Facility. The
Independent Engineering Certification shall be signed by a licensed professional engineer in good
standing and be submitted in a form specified in Exhibit C-I. . Avista's acceptance of such forms
shall not be unreasonably withheld. This Section 3.2 shall not apply to a Seller who has previously
provided the certification required by this Section to Avista for the same Facility.
3.3 Interconnection Agreement. Seller shall provide Avista a copy of its
Interconnection Agreement, which shall be attached hereto as Exhibit D.
3.4 Insurance. Upon Avista's request, Seller shall, to the extent applicable, submit to
Avista evidence of compliance with Section 7.1.
3.5 Network Resource Desienation. Upon Avista's request, Seller shall provide to
Avista all data required by Avista to enable the Facility to be designated by Avista as a network
resource.
4. TERM OFAGREEMENT
This Agreement shall be effective on the date last signed below or such other date set by
Commission order (the "Effective Date") and shall continue for two (2) years after the Effective
Date (the "Term"), unless otherwise terminated as provided herein.
5. PURCHASE PRICES AND PAYMENT
5.t Seller Election. To the extent that the Facility generates energy in excess of Seller
Load, Seller elects to provide such energy generated by the Facility to Avista as Seller determines
such energy generated by the Facility is available for sale to Avista (on an as-available basis)
5.2 Avoided Costs Calculated at the Time of Deliverv. To the extent that Seller
provides energy generated by the Facility to Avista pursuant to Section 5.1, the rate to be paid to
Seller shall be the avoided costs calculated at the time of delivery ("Avoided Cost Rates"), which
shall be, for each hour in which Seller delivers Net Output to Avista at the Point of Delivery after
Page - 5 - FIRST AMENDED AND RESTATED UNIVERSITY OF IDAHO POWER
PURCHASE AGREEMENT (SOLAR)
the Commercial Operation Date, the Market Energy Price for such hour expressed in $ per kWh
multiplied by the total kWh delivered to Avista at the Point of Delivery for such hour.
For the avoidance of doubt, the rate to be paid to Seller for any Net Output Seller delivers
to Avista at the Point of Delivery from the Effective Date through the date that the Commission
issues an order (the "Lapse Period") shall be the Market Energy Price. To the extent that Avista
has paid Seller a price other than the Market Energy Price for any Net Output delivered to Avista,
Avista shall issue an invoice or paynrent to Seller within 30 days of the Commission's order
approving this Agreement to correct any over or under payment.
5.3 Pavments to Seller. For any calendar month in which Seller has delivered Net
Output from the Facility to Avista in accordance with this Agreement, Avista_shall prepare and
submit to Seller a monthly statement based upon Net Ouput delivered to Avista during the
previous month. Payments owed by Avista shall be paid no later than the 20th day of the month
following the end of the monthly billing period or five days after the receipt of a monthly statement,
whichever is later. If the due date falls on a non-Business Day, then the payment shall be due on
the next Business Day.
5.4 Payments to Avista and Rieht of Set Off. If Seller is obligated to make any
payment or refund to Avista, Seller agrees that Avista may set off such payment or refund amount
against any current or future payments due Seller under this Agreement. If Avista does not elect
to set off, or if no current or future payment is owed by Avista, Avista shall submit an invoice to
Seller for such payments. Seller shall pay Avista no later than the 20s day of the month following
the end of the monthly billing period or five days after the receipt of a monthly statement,
whichever is later. If the due date falls on a non-Business Day, then the payment shall be due on
the next Business Day.
5.5 Interest. In addition to the remedies set forth in Section l5 of this Agreement, any
amounts owing after the due date specified in Sections 7.3 and 7.4 will be subject to interest in the
amount of one and one half percent (15%) per month, not to exceed the maximum rate allowed
by the law, multiplied by the unpaid balance.
5.6 Wire Transfer. All payments shall be made by ACH or wire transfer in accordance
with further agreement of the Panies.
5.7 Title and Risk of Loss. As between the Parties, Seller shall be deemed to be in
control of the output from the Facility up to and until delivery to and receipt by Avista at the Point
of Delivery and Avista shall be deemed to be in control of the Net Output delivered to and received
by Avista.
6. ENVIRONMENTAL ATTRIBUTES
6.1 Ownershin of Environmental Attributes. To the full extent allowed by
applicable laws or regulations, Avista shall own or be entitled to claim fifty percent of the
Environmental Attributes associated with the Net Outpul delivered to Avista.
Page - 6 - FIRST AMENDED AND RESTATED LI-NIVERSITY OF IDAHO POWER
PURCHASE AGREEMENT (SOLAR)
To the extent necessary, Seller shall assign to Avista all rights, title and authority necessary
for Avista to register, own. hold and manage such Environmental Attributes in Avista's own name
and to Avista's account, including any rights associated with WREGIS (or any other renewable
energy information or tracking system that may be established) with regard to monitoring,
tracking, certifying. or trading such Environmental Attributes. The Environmental Attributes to be
transferred to Avista hereunder will be sourced from the Facility. Seller shall take all reasonable
steps, at Seller's expense, required to obtain and maintain tradable renewable certification,
including Green-e, California Energy Commission, or other similar certification for the Facility
and/or the Gross Facility Output.
6.2 Transfers. To the extent that Avista is to own any Environmental Attributes in
accordance with Section 6.1 of this Agreement, Seller shall transfer all such Environmental
Attributes to Avista on a monthly basis in accordance with the certification procedure established
by the WREGIS Operating Rules. Seller shall comply with all laws, including, without limitation,
the WREGIS Operating Rules, regarding the certification and transfer of such Environmental
Attributes to Avista and Avista shall be given sole title to all such Environmental Attributes. Seller
warrants that upon delivery to Avista, the Environmental Attributes will be free and clear of all
liens, security interests, claims and encumbrances. Upon request of Avista, Seller shall, at its sole
expense, take all actions and execute all documents or instruments necessary to ensure that such
Environmental Attributes are issued and tracked for purposes of satisfoing state renewable
portfolio standard requirements, including Washington State's Energy Independence Act
requirements, and are transferred in a timely manner to Avista.
6.3 Chanses to WREGIS. If the WREGIS Operating Rules are changed or replaced
after the Effective Date, WREGIS applies the WREGIS Operating Rules in a manner inconsistent
with Section 6.2 after the Effective Date, or WRECIS is eliminated or replaced, the Parties
promptly shall modiff Section 6.2 as reasonably required to cause and enable Seller to transfer
Environmental Attributes to Avista (to the extent required by Sections 6.1 and 6.2), including but
not limited to those modifications reasonably required to cause and enable Seller to transfer to
Avista's WREGIS Account the Environmental Attributes that are required to be transfened to
Avista for each given calendar month under this Agreement.
7. INSURANCE:CONTINUINGOBLIGATIONS
7.1 Insurance. Prior to the commencement of the first delivery of Net Output to
Avista, Seller, at its own cost, shall obtain and maintain the following insurance in force over the
term of this Agreement and shall provide certificates of all insurance policies. All insurance
policies required to fulfill the requirements of this Section 7 shall include language requiring that
any notice of cancellation or notice of change in policy terms be sent to Avista by the insurance
carrier(s) at least sixty days prior to any change or termination of the policies.
7.1,1 General Liabilitv. Seller shall carry commercial general liability insurance
for bodily injury and property damage with a minimum limit equal to $1,000,000 fbr each
occurrence. The deductible shall not exceed the Seller's financial ability to cover claims
and shall not be greater than prevailing practices for similar operations in the State of
Washington.
PAge . 7 - FIRST AMENDED AND RESTATED LINIVERSITY OF IDAHO POWER
PURCHASE AGREEMENT (SOLAR)
7.1.2 Propertv. Seller shall carry all-risk property insurance for repair or
replacement of the Facility. The limit of property insurance shall be suffrcient to restore
operations in the event of reasonably foreseeable losses from natural, operational,
mechanical and human-caused perils. The deductible shall not exceed the Seller's financial
ability to fund the cost of losses and shall not be greater than prevailing practices for similar
operations in the State of ldaho.
7.1.3 Oualifvins Insurance. The insurance coverage required by this Section 7
shall be obtained from an insurance company reasonably acceptable to Avista and shall
include an endorsement naming Avista as an additional insured and loss payee as
applicable.
7.1.4 Notice of Loss or Lapse of Insurance bv Seller. If the insurance coverage
required by this Section 7 is lost or lapses for any reason, Seller will immediately notify
Avista in writing of such loss or lapse. Such notice shall advise Avista of (i) the reason for
such loss or lapse and (ii) the steps Seller is taking to replace or reinstate coverage. Seller's
failure to provide the notice required by this Section and/or to promptly replace or reinstate
coverage will constitute a material breach of this Agreement
7.2 Self-Insurance. Notwithstanding the foregoing, Seller shall be entitled to self-
insure through its self-funded liability program administered by the State of Idaho Office of Risk
Management, which has a Combined Single Limit of $500,000. Seller will provide a Certificate
of Financial Responsibility upon request.
7.3 Continuine Oblisations. For the Term of this Agreement, Seller will provide
Avista with the following:
7.3.1 Insurance. Upon Avista's request, Seller shall provide Avista evidence of
compliance with the provisions of Section 7.1. lf Seller fails to comply, such failure will
be a material breach and may only be cured by Seller promptly supplying evidence that the
required insurance coverage has been replaced or reinstated.
7.3,2 Engineer's Certification. If requested by Avista, Seller will supply Avista
with a Certification of Ongoing Operations and Maintenance from a Registered
Prof'essional Engineer licensed in the state in which the Facility is located, which
certification shall be in the form specified in Exhibit C-2. Seller's failure to supply the
certificate required by this Section 7.3.2 will be a material breach that may only be cured
by Seller promptly providing the required certificate. Avista may request the Certification
of Ongoing Operations and Maintenance required by this Section once in during the Term.
7.3.3 Licenses and Permits. During the Term of this Agreement, Seller shall
comply with all applicable federal, state, and local laws and regulations. Seller shall
maintain compliance with all permits and licenses described in Section 3.1 of this
Agreement. In addition, Seller will obtain, and supply Avista with copies of, any new or
additional permits or licenses that may be required for Seller's operations. At least every
fifth year after the Effective Date, Seller will update the documentation described in
Page - 8 - FIRST AMENDED AND RESTATED LINMRSITY OF IDAHO POWER
PURCHASE AGREEMENT (SOLAR)
Section 3.1. If at any time Seller fails to maintain compliance with the permits and licenses
described in Section 3.1 or this Section, or to provide documentation required by this
Section, such failure will be a material breach of this Agreement that may only be cured
by Seller submitting to Avista evidence of compliance.
8. CURTAILMENT.INTERRUPTION OR REDUCTION OF DELIVERY
Avista may require Seller to curtail, intemrpt or reduce delivery of Net Output if; in
accordance with Section9.Z, Avista determines that curtailment, intemrption or reduction is
necessary because of a Force Majeure event or to protect persons or property from injury or
damage, or because of emergencies, necessary system maintenance, system modification or special
operating circumstances. Avista will use commercially reasonable efforts to keep any period of
curtailment, intemrption, or reduction to a minimum. In order not to interfere unreasonably with
Seller operations, Avista will, to the extent practical, give Seller reasonable prior notice of any
curtailment, intemrption, or reduction, the reason for its occurrence and its probable duration.
Seller understands and agrees that Avista may not be able to provide notice to Seller prior to
intemrption, curtailment, or reduction of electrical energy deliveries to Avista in emergency
circumstances, real-time operations of the electric system, and/or unplanned events.
9. OPERATION
9.1 Communications and Renortins. Avista and the Seller shall maintain appropriate
operating communications through the Communicating and Reporting Guidelines specified in
Exhibit B.
9.2 Excuse From Acceotance of Deliverv of Enerry.
9.2.1 Avista may curtail, interrupt, reduce or suspend delivery, receipt or
acceptance of Net Output if Avista, in its sole discretion, reasonably determines that such
curtailment, intemrption, reduction or suspension is necessary, consistent with Prudent
Utility Practice, and that the failure to do so may:
(a) endanger any person or property, or Avista's electric system, or any
electric system with which Avista's system is interconnected;
(b) cause, or contribute to, an imminent significant disruption of electric
service to Avista's or another utility's customers;
(c) interfere with any construction, installation, inspection, testing, repair,
replacement, improvement, alteration, modification, operation, use or maintenance
of, or addition to. Avista's electric system or other property of Avista; or
(d) prevent or interfere with Avista's compliance with any applicable law
or regulatory requirement.
9.2.2 Avista shall promptly notiff Seller of the reasons for any such curtailment,
intemrption, reduction or suspension provided for in Section 9.2. Avista shall use
Page - 9 - FIRST AMENDED AND RESTATED UNIVERSITY OF IDAHO POWER
PURCHASE AGREEMENT (SOLAR)
reasonable efforts to limit the duration of any such curtailment, intemrption, reduction or
suspension.
9.3 Seller's Risk Seller shall design, construct, own, operate and maintain the Facility
at its own risk and expense in compliance with all applicable laws, ordinances, rules, regulations,
orders and other requirements, now or hereafter in effect, of any governmental authority.
9.4 Avista's Risht to Inspect. Seller shall permit Avista to inspect and audit the
Facility, any related production, delivery and scheduling documentation or the operation, use or
maintenance of the Facility at any reasonable time and upon reasonable notice. Seller shallprovide
Avista reasonable advance notice of any Facility test or inspection performed by or at the direction
of Seller.
9.5 Seller Oblieations in Accordance with Prudent Utilitv Practices. Seller shall
own, operate and maintain the Facility and any Seller-owned Interconnection Facilities so as to
allow reliable generation and delivery of Net Output to Avista for the full Term of the Agreement, in
accordance with Prudent Utility Practices.
9.6 Modifications. Seller shall notifr Avista in writing of any material modifications to
the Facility. Material modifications to the Facility include, but are not limited to, any modification
that increases or decreases the Facility nameplate capacity rating, changes the primary energy source,
and changes to the generator fuel. Any material modifications to the Facility, including but not limited
to the generator or turbine, that (l) increases the Facility nameplate capacity rating, or (2) changes the
primary energy source, or (3) changes to the generator fuel, will require a review of the Agreement
terms, conditions and pricing and Avista, at its sole determination, may adjust the pricing or terminate
the Agreement. If the Agreement is terminated because of said modifications, the Seller will be
responsible for any termination damages.
IO. INTERCONNECTION.METERINGANDTRANSMISSION
Seller shall make all necessary arrangements to interconnect its Facility with the electrical
system of Avista. Any required metering for the Facility shall be pursuant to the Interconnection
Agreement.
1I. FORCE MAJEURE
ll.l Except as expressly provided in Section 11.6, neither Party shall be liable to the
other Party, or be considered to be in breach of or default under this Agreement, for delay in
performance due to a cause or condition beyond such Party's reasonable control which despite the
exercise of reasonable due diligence, such Party is unable to prevent or overcome ("Force
Majeure"), including but not limited to:
(a) fire, flood, earthquake, volcanic activity; court order and act of civil, military
or govemmental authority; strike, lockout and other labor dispute; riot, insurrection,
sabotage or war; pandemic or epidemic; unanticipated electrical disturbance originating in
or transmitted through such Party's electric system or any electric system with which such
Party's system is interconnected; or
Page - l0 - FIRST AMENDED AND RESTATED UNIVERSITY OF IDAHO POWER
PURCHASE ACREEMENT (SOLAR)
(b) an action taken by such Party which is, in the sole judgment of such Party,
necessary or prudent to protect the operation, performance, integrity, reliability or stability
of such Party's electric system or any electric system with which such Party's electric
system is interconnected, whether such actions occur automatically or manually.
ll.2 In the event of a Force Majeure event, the time for performance shall be extended
by a period of time reasonably necessary to overcome such delay. Avista shall not be required to
pay for Net Output which, as a result of any Force Majeure event, is not delivered.
I1.3 Nothing contained in this Section shall require any Party to settle any strike, lockout
or other labor dispute.
ll.4 In the event of a Force Majeure event, the delayed Party shall provide the other
Party notice by telephone or email as soon as reasonably practicable and written notice within
fourteen days after the occurrence of the Force Majeure event. Such notice shall include the
particulars of the occwrence. The suspension of performance shall be of no greater scope and no
longer duration than is required by the Force Majeure and the delayed Party shall use its best efforts
to remedy its inability to perform.
I1.5 Force Majeure shall include any unforeseen electrical disturbance that prevents any
electric energy deliveries from occurring at the Point of Delivery.
11.5 Notwithstanding anything to the contrary herein, Force Majeure shall not apply to,
or excuse any default under, Sections l5.l(a), l5.l(b), l5.l(c), or l5.l(d). For the avoidance of
doubt, Avista may declare Seller in Default if an event described in any of Sections lS.l(a),
l5.l(b), l5.l(c), or l5.l(d), occurs and Avista may pursue any remedy available to it under this
agreement.
12. INDEMNITY
l2.l Except as precluded by applicable law (including the limitations prescribed by the
laws of the state of Idaho and, to the extent required by such laws, the lawful policies
promulgated by the University of Idaho's Board of Regents), the Parties shall at all times
indemniff, defend, and hold the other Party harmless from, any and all damages, losses, claims,
including claims and actions relating to injury to or death of any person or damage to property,
demand, suits, recoveries, costs and expenses, court costs, attomey fees, and all other obligations
by or to third parties, arising out of or resulting from such Party's action or failure to meet its
obligations under this Agreement, except in cases of gross negligence or intentional wrongdoing
by the indemnified Party. This indemnity shall not extend the responsibility or liability of
University of Idaho beyond that allowed by applicable law, including without limit and to the
extent applicable, the Idaho constitution, the Idaho Tort Claims Act, and ldaho Code sections 59-
1015, 1016, and 1017. Nothing herein shall obligate the Legislature of the State of Idaho to
make future appropriations for any payment of any obligation of the University of ldaho, and any
such obligation is an independent obligation of the University and not of the State of ldaho.
Page - I 1 - FIRST AMENDED AND RESTATED LINIVERSITY OF IDAHO POWER
PURCHASE ACREEMENT (SOLAR)
Nothing herein shall be deemed a waiver of the University of Idaho's or the State of Idaho's
sovereign immunity, which is hereby expressly reserved.
12.2 SELLER AND AVISTA SPECIFICALLY WARRANT THAT THE TERMS
AND CONDITIONS OF THE FOREGOING INDEMNITY PROVISIONS ARE THE
SUBJECT OF MUTUAL NEGOTIATION BY THE PARTIES, AND ARE
SPECIFICALLY AND EXPRESSLY AGREED TO IN CONSIDERATION OF THE
MUTUAL BENEFITS DERIVED UNDER THE TERMS OF THE AGREEMENT.
12.3 EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY
SHALL BE LIABLE UNDER ANY PROVISION OF THIS AGREEMENT FOR ANY
SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES,
INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, SAYINGS OR REVENUE,
LOSS OF THE USE OF EQUIPMENT, COST OF CAPTTAL, OR COST OF
TEMPORARY EQUIPMENT OR SERVICES, WHETHER BASED IN WHOLE OR IN
PART IN CONTRACT, IN TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY,
OR ANY OTHER THEORY OF LIABILITY; PROVIDED, HOWEVER, THAT ANY
AMOUNTS DUE TO SELLER AS PAYMENT FOR NET OUTPUT DELIVERED TO
AVISTA PURSUANT TO THE TERMS OF THIS AGREEMENT SHALL BE DEEMED
TO BE DIRECT DAMAGES.
13. ASSIGNMENT
l3.t Seller shall not assign its rights or delegate its duties under this Agreement without
the prior written consent of Avista, which consent shall not be unreasonably withheld. Subject
to the foregoing restrictions on assignments, this Agreement shall be fully binding upon, inure to
the benefit ofand be enforceable by the Parties and their respective successors, heirs and assigns.
13.2 Seller shall have the right without Avista's consent, but with a thirty days prior
written notice to Avist4 to make collateral assignments of its rights under this Agreement to satisfy
the requirements of any development, construction, or other reasonable long-term financing. A
collateral assignment shall not constitute a delegation of Seller's obligations under this Agreement,
and this Agreement shall not bind the collateral assignee. Any collateral assignee succeeding to
any portion of the ownership interest of Seller shall be considered Seller's successor in interest
and shall thereafter be bound by this Agreement.
14, NO UNSPECIFIED THIRD-PARTY BENEFICIARIES
There are no third-party beneficiaries of this Agreement. Nothing contained in this
Agreement is intended to confer any right or interest on anyone other than the Parties, and their
respective successors, heirs and assigns permitted under Section 13.
15. DEFAULT AND TERMINATION
15.1 In addition to any other breach or failure to perform under this Agreement, each of
the following events shall constitute a Default:
Page - 12 - FIRST AMENDED AND RESTATED LTNIVERSITY OF IDAHO POWER
PURCHASE AGREEMENT (SOLAR)
(a) The Facility ceases to be a Qualifying Facility;
b) A Parfy becomes insolvent (e.g., is unable to meet its obligations as they become
due or its liabilities exceed its assets);
(c) Seller makes a general assignment of substantially all of its assets for the benefit
of its creditors, files a petition for bankruptcy or reorganization or seeks other relief under
any applicable insolvency laws;
(d) Seller has filed against it a petition for bankruptcy, reorganization or other relief
under any applicable insolvency laws and such petition is not dismissed or stayed within
sixty days after it is filed;
(e) Seller is in default under any Agreement related to this Agreement; or
(f) Termination, cancellation or expiration of any agreement required for Seller to
deliver electric energy to Avista under this Agreement, including but not limited to the
Interconnection Agreement.
15.2 Notice and Opportunity to Cure. In the event of a Default, the non-Defaulting
Party shall give written notice to the Defaulting Party of a Default in accordance with Section 27.
Except as provided in Section I 5. I (d), if the Defaulting Party has not cured the breach within thirty
days after receipt of such written notice, the non-Defaulting Party may, at its option, terminate this
Agreement and/or pursue any remedy available to it in law or equity; provided that, if a Default
occurs under Sections l5.l(a) or lS.l(f), Seller shall not deliver any Net Output to Avista, and
Avista shall have no obligation to accept any Net Output from the Facility, until such Default is
cured.
15.3 Additional Rights and Remedies. Any right or remedy afforded to either Party
under this Agreement on account of a Default by the other Party is in addition to, and not in lieu
of, all other rights or remedies available to such Party under any other provisions of this
Agreement, by law or otherwise on account of the Default.
15.4 Damages. If this Agreement is terminated as a result of Seller's Default after the
Effective Date, Seller shall pay Avista, in addition to other damages, the positive difference, if
any, between the applicable Avoided Cost Rate and the cost to replace the Net Output for twelve
months beginning on the date of the original Default, plus all associated transmission costs to
Avista to acquire such replacement Net Output.
16. DISPUTE RESOLUTION
Each Party shall strive to resolve any and all differences during the term of the Agreement
through meetings and discussions. If a dispute cannot be resolved within a reasonable time, not to
exceed thirty days, each Party shall escalate the unresolved dispute to a senior officer designated
by each Party. If the senior officers are not able to resolve the dispute within ten Business Days
Page - l3 - FIRST AMENDED AND RESTATED LINIVERSITY OF IDAHO POWER
PURCHASE AGREEMENT (SOLAR)
of escalation then the Parties may agree to mediate or arbitrate the dispute. In the event that the
Parties do not agree to mediation or arbitration, either Party may, as applicable, request a hearing
before the Commission or seek relief in a court of competent jurisdiction.
17. RELEASE BY SELLER
Seller releases Avista from any and all claims, losses, harm, liabilities, damages, costs and
expenses to the extent resulting from any:
l7.l Electric disturbance or fluctuation that migrates, directly or indirectly, from
Avista's electric system to the Facility;
17.2 Intemrption, suspension or curtailment of electric service to the Facility or any
other premises owned, possessed, controlled or served by Seller, which intemrption, suspension
or curtailment is caused or contributed to by the Facility or the interconnection of the Facility;
17.3 Disconnection, intemrption, suspension or curtailment by Avista pursuant to terms
of this Agreement or the Interconnection Agreement.
18. SEVERAL OBLIGATIONS
The duties, obligations and liabilities of the Parties under this Agreement are intended to
be several not joint or collective. This Agreement shall not be interpreted or construed to create
an association, joint venture or partnership between the Parties. Each Party shall be individually
and severally liable for its own obligations under this Agreement. Further, neither Party shall have
any rights, power or authority to enter into any agreement or undertaking for or on behalf of, to act
as to be an agent or representative of, or to otherwise bind the other Party.
I9. IMPLEMENTATION
Each Party shall promptly take such action (including, but not limited to, the execution,
acknowledgement and delivery of documents) as may be reasonably requested by the other Party
for the implementation or continuing performance of this Agreement.
20. NON-WAIVER
The failure of either Party to insist upon or enforce strict performance by the other Party of
any provision of this Agreement or to exercise any right under this Agreement shall not be
construed as a waiver or relinquishment of such Party's right to assert or rely upon any such
provision or right in that or any subsequent instance; rather, the same shall be and remain in full
force and effect.
Page - 14 - FIRST AMENDED AND RESTATED UNIVERSITY OF IDAHO POWER
PURCHASE AGREEMENT (SOLAR)
21. AMENDMENT
No change, amendment or modification of any provision of this Agreement shall be valid
unless set forth in a written amendment to this Agreement signed by both Parties and approved by
the Commission.
22. CHOICE OF LAWS
This Agreement shallbe construed and interpreted in accordance with the laws of the State
of Idaho without reference to its choice of law provisions.
23. HEADINGS
The Section headings in this Agreement are for convenience only and shall not be
considered part of or used in the interpretation of this Agreement.
24. SEVERABILITY
The invalidity or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement, and this Agreement shall be
construed in all respects as if the invalid or unenforceable provision were omitted.
25. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which shall be
deemed as an original, and together shall constitute one and the same document.
26. TAXES
Each Party shall pay before delinquency all taxes and other governmental charges which,
if failed to be paid when due, could result in a lien upon the Facility or the Interconnection
Facilities.
Page - l5 - FIRST AMENDED AND RESTATED UNIVERSITY OF IDAHO POWER
PURCHASE AGREEMENT (SOLAR)
27. NOTICES
Unless otherwise specified, all written notices or other communications required by or
provided under this Agreement shall be mailed or delivered to the following addresses, and shall
be considered delivered when deposited in the US Mail, postage prepaid, by certified or registered
mail or delivered in person:
to Avista:Director, Power Supply
Avista Corporation
P.O. Box 3727
Spokane, WA 99220
to Seller:Director of Facilities
University of Idaho
875 Perimeter Drive, MS228l
Moscow, ID 83844-2281
Either Party may change its designated representative to receive notice and/or address
specified above by giving the other Party written notice of such change.
28. SURVIVAL
Rights and obligations which, by their nature, should survive termination or expiration of
this Agreement, will remain in effect until satisfied, including without limitation, all outstanding
financial obligations, and the provisions of Section 12 (lndemnity) and Section 16 (Dispute
Resolution).
29, ENTIRE AGREEMENT
This Agreement, including the following exhibits which are attached and incorporated by
reference herein, constitutes the entire agreement of the Parties and supersedes all prior and
contemporaneous oral or written agreements between the Parties with respect to the subjeet matter
hereof.
Exhibit A
Exhibit B
Exhibit C-l
Exhibit C-2
Exhibit D
Project Description and Point of Delivery
Communications and Reporting
Independent Engineering Certifications for Construction Adequacy for a
Qualifuing Facility
Independent Engineering Certifications for Ongoing Operations and
Maintenance for a Qualifoing Facility
Interconnection Agreement
Page - 16 - FIRST AMENDED AND RESTATED LNIVERSITY OF IDAHO POWER
PURCHASE AGREEMENT (SOLAR)
30. Authoritv
In entering this Agreement, the Seller's represenative is acting under delegated authority
under Board of Regents Policy V.l.
IN WITNESS WIIEREOF, the Parties have caused this Agreement to be executed by
their duly authorized representatives as of the date set forth below.
REGENTS OF TITE UNIVERSITY OF AVISTA CORPORATION
IDAHO
bf U.!L
Printed Name Dennis Vermillion
TitIC +President and CEO
sltol2022
Page - l7 - FIRST AMENDED AND RESTATED LTNIVERSITY OF IDAHO POWER
PURCHASE AGREEMENT (SOLAR)
Exhibit A
Proiect Descrintion and Point of Deliverv
Descriotion of the Facilitv:
Seller's Facility is described as University of Idaho INC Solar Array, and consists of:o Nameplate size (rating) - 132.2 kW (AC)o Maximum Generation Iqiection at Point of Interconnection - 132,2 kW (AC)o Interconnectionfeeder: MoscowCity Ml55l Io Generator Type - four Solar Edge 33.3KUS inverterso Interconnection Type - Network Resource
Location:
Seller's Facility is located at the University of ldaho Integrated Research and Innovation Center
(IRIC), Bldg 770,685 S. Line Street, Moscow,Idaho 83844
Point of Deliverv:
The secondary terminals of the Transmission Provider's Distribution Transformer(s) where the
Seller's secondary conductors are connected.
Exhibit B
Communication and Renortins
(l) Email communications between Seller and Avista shall be submitted to:
Avista: [e-mail]; or
@pvistacorp.com
Seller: j [e-mail]
Alternate : _ vineyard@uidaho. edu
(2) All oral communications relating to electric energy scheduling, generation level changes,
intemrptions or outages between Seller and Avista will be communicated on a recorded line as
follows:
(a) Pre-Schedule (5:30 am to l2:00 noon on Business Days):
Avista Pre-Scheduler: (509) 495-491 I
Alternate Phone: [phone]
Seller: [phone]
Alternate Phone: Q08) 885-6246
(b) Real-Time Schedule (available 24 hours a day)
Avista Real-Time Scheduler: [phone]
Seller: [phone]
Alternate Phone:
(3) Either Party may change its contact information upon written notice to the other Party.
Exhibit C -l
Independent Ensineerine Certification for
Construction Adequaca for a Oualifvine Facilitv
am a licensed professional engineer registered to
practice and in good standing in the State of _. I have substantial experience in the design,
construction and operation of elecric power plants of the same type as
(Title of QF) sited at ln
County, State of _ (the "Facility").
2. I have reviewed and"/or supervised the review of the construction in progress or of
the completed Facility and it is my professional opinion that said Facility has been designed and
built according to appropriate plans and specifications bearing the words "CERTIFIED FOR
ACCEPTANCE 'and with the stamp of the certifying licensed professional engineer of the design,
and that the Facility was built to commercially acceptable standards for this type of facility.
3. I have no economic relationship to the designer or owner of said Facility and have
made my analysis of the plans and specifications independently.
4. I hereby CERTIFY that the above statements are complete, true, and accurate to the
best of my knowledge and I therefore set my hand and seal below.
Signed and Sealed
DATE:
SIGNATURE
PRINTED NAME:
Exhibit C -2
Indeoendent Eneineering Certification of Oneoine Onerations and
Maintenance for a Oualifvins Facilitv
L The undersigned is a duly authorized representative of in its
capacity asanindependent engineer(the "Independent Engineer"). The Independent
Engineer has substantial experience reviewing the design, construction, and operation
ofelectric power plants ofthe sametype as the University of ldaho's IRIC solar aray
("Facility").
2. Independent Engineer has reviewed the operation and maintenance agreement ("O&M
Agreement"') for the Facility and it is the Independent Engineer's professional opinion that,
provided the Facility has been designed and built to appropriate standards, the O&M
Agreement is the same as the original O&M Agreement in place at COD, the is consistent
with Prudent Utility Practices (as defined in the Agreement) and therefore is considered
adequate to support the Facility's production of energy in accordance with the requirements
of the Agreement, noting that the Independent Engineer makes no representation as to the
amounts of energy that will be produced by the Facility.
3. Independent Engineer has no economic relationship to the designer or owner of said Facility
and has made its analysis of the O&M Agreement independently.
4. Independent Engineer hereby confirms thattheabove statements are complete, true, and
accurate to the best of its knowledge.
Signed and Sealed
DATE:
SIGNATURE:
PRINTED NAME
FIRST AMENDED AND RESTATED
POWER PURCHASE AGREEMENT
BETWEEN
REGENTS OF'THE T]NIVERSITY OF IDAHO
AI\D
AVISTA CORPORATION
POWER PURCHASE AGREEMENT (SOLAR)
This First Amended and Restated Power Purchase Aqreement ("AgreementJ is made by
and between Avista Corporation, a Washington corporation ("Avista"), and the Regents of the
University of Idaho ("Seller"). Avista and Seller are sometimes referred to individually as a
'6Party" and collectively as the "Parties."
RECITALS
WHEREAS. the Parties entered into a Power Purchase Agreement ("Original Agreement")
that was submitted to the Idaho Public Utilities Commission for approval on February 23. 2022:
WHEREAS. Commission Staff recommended certain revisions to the Orieinal Asreement:
WHEREAS, the Parties enter into this Agreement to amend the Orisinal Agreement
consistent with Commission Stafls recommendation and intend this Agreement to supersede and
replace the Orieinal Aereement in its entirety:
WHEREAS, Seller will own, operate and maintain the electric power generating facility
with a Nameplate Capacity Rating of 132.2 kW Altemating Current (AC), as more fully described
in Exhibit A ("Facility");
WHEREAS, Seller will operate the Facility as a Qualifuing Facility, as defined by the
Public Utility Regulatory Policies Act of 1978 ("PURPA");
WHEREAS, Seller will use the Facility to serve Seller's Load (as defined herein); and
WHEREAS, to the extent the output generated from the Facility exceeds Seller's Load,
Seller will deliver and sell to Avista on an as-available basis, and Avista will purchase, output
generated from the Facility subject to the terms of this Agreement.
NOW, TIIEREFORE, in consideration of the mutual agreements set forth herein, the
Parties agree as follows.
Page - I - FIRST AMENDED AND RESTATED UNIVERSITY OF IDAHO POWER
-PURCHASE
AGREEMENT (SOLAR)
1. DEFINITIONS
Except as otherwise defined in this Agreement, whenever used in this Agreernent and
exhibits hereto, the following terms shall have the following meanings:
1.1 "A@'means this First Amend and Restated Power Purchase Agreement,
including all exhibits, and any written amendments.
1.2 "Avoided Cost Rates" shall have the meaning provided in Section 5.2 of this
Agreement.
1.3 6'allIIV" means average megawatt(s). An average megawatt is calculated by
dividing the total generation in MWh over a glven period of time (e.9., a calendar month) by the
number of hours in that period of time.
1.4 "Eg$4gSIly" means every day other than a Saturday or Sunday or a national
holiday. National holidays shall be those holidays observed NERC.
1.5 "Commission" means the Idaho Public Utilities Commission, or its successor.
1.6 '(Effective Date" shall have the meaning provided in Section 4 of this Agreement.
1.7 "@'means any and all certificates, credits, benefits,
emissions reductions, environmental air quality credits and ernissions reduction credits, offsets and
allowances, howsoever entitled, resulting from the avoidance of the emission of any gas, chemical,
or other substance attributable to the generation of energy by the Facility, and the delivery of such
energy to the electricity grid, and include without limitation, any of the same arising out of any
current or future legislation or regulation concerned with oxides of nitrogen, sulfur, or carbon, with
particulate matter, soot, or mercury, or implementing the United Nations Framework Convention
on Climate Change ("UNFCCC") or the Kyoto Protocol to the UNFCCC or crediting "early
action" with a view thereto, or laws or regulations involving or administered by the Clean Air
Markets Division of the Environmental Protection Agency or successor administrator (collectively
with any state or federal entity glven jurisdiction over a program involving transferability of
Environmental Attributes, the "CAMD"), but specifically excluding investment tax credits,
production tax credits, and cash grants associated with the construction or operation of the Facility
and other financial incentives in the form of credits, reductions, or allowances associated with
ownership of the Facility that are applicable to a state or federal income tax obligation, if any.
Environmental Athibutes also include the reporting rights or Renewable Energy Certificates
("RECs") associated with these Environmental Attributes. Environmental Attributes include
without limitation all "Environmental Attributes" and all "Green Attributes" as those terms are
defined in Appendix A-l and Appendix A-2 of California Public Utilities Commission D. 08-08-
028 in R. 06-02-012. RECS are accumulated on a MWh basis and one REC represents the
Environmental Attributes associated with one MWh of energy. Environmental Attributes do not
include any energy, capacity, reliability or other power attributes from the Facility.
Page - 2 - FIRST AMENDED AND RESTATED UNTVERSITY OF IDAHO POWER
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AGREEMENT (SOLAR)
1.8 Reserved.
1.9 "[gg![[''means the electric energy generating facilities, including all equipment
and structures necessary to generate and supply electric energy, more particularly described at
Exhibit A.
1.10 "@'means the electric energy generated and used by the
Facility during its operation to operate equipment that is auxiliary to primary generation equipment
including, but not limited to, pumping, generator excitation, cooling or other operations related to
the production of electric energy by the Facility.
1.11
Agreement.
"@@ig' shall have the meaning provided in Section 1l of this
l.l2 (FERC' means the Federal Energy Regulatory Commission, or its successor.
1.13 "@" the agreement between Seller and Avista which
govems how the Net Output is delivered to Avista's at the Point of Interconnection during the
Term of this Agreement.
l.l4 ('MIV" means megawatt. One thousand kilowatts equals one megawatt.
1.15 661![TVht' means megawatt-hour. One thousand kilowatt-hours equals one
megawatt-hour.
1.16 "@' means eishty-five percent (85olo) of the PowerDex hourly
Mid-Columbia index ("Mid-C Index") price:however- if the Mid-C Index orice is less
than zero. the Market Energ.v Price shall be one-hundred and fifteen percent (_l l5%) of the Mid-C
Indqrprice.
l.l7 " ' means the maximum generating capacity of the
Facility, as determined by the manufacturer, and expressed in megawatts (MlV) or kilowatts (k!V).
1.18
successor.
56NERC" means the North American Electric Reliability Corporation or its
1.19 "NS!S@!" means the capability and electric energy generated by the Facility,
less Seller's Load expressed in megawatt-hours (M\ ft) or kilowatt-hours (kvfh).
|.20..@,meanSthe1ocation,asspecifiedinExhibitAofthis
Agreement, where the electric energy produced by the Facility is delivered by Seller to Avista's
electrical system.
l.2l..@,'meansthepractices,methods,andactscommonlyand
ordinarily used in elechical engineering and operations by a significant portion of the electric
power generation and transmission industry, in the exercise of reasonable judgment in the light of
Page - 3 - FIRST AMENDED AND RESTATED UNIVERSITY OF IDAHO POWER
PURCHASE AGREEMENT (SOLAR)
the facts known or that should have been known at the time a decision was made, that would have
been expected to accomplish the desired result in a manner consistent with law, regulation,
reliability, safety, environmental protection, economy, and expedition.
l.22..@'or..g,'meansageneratingfacilitywhichmeetsthe
requirements for "QF" status under PURPA and part 292 of FERC's Regulations, 18 C.F.R. Part
292, and which has obtained certification of its QF status.
1.23 "Sg!!gg!!g34" means Seller's electrical load on Seller's side ofthe retail meter(s)
through which Avista delivers electric energy to Seller's University campus, including Facility
Service Power, to be served directly by the Facility. For the avoidance of doubt, Seller's Load
shall not include any third-party electrical load or any remote load that requires the output from
the Facility to be delivered across Avista distribution or transmission facilities.
1.24 6'Term" shall have the meaning provided in Section 4 of this Agreement.
1.25 ..WECC'means the Western Electricity Coordinating Council or its successor.
1.26 "BreIg" means the Western Renewable Energy Generation Information
System, or a successor.
1.27 " t means the then current operating rules and
requirements adopted by WREGIS, as such rules and requiranents may be amended,
supplemented or replaced (in whole or in part) from time to time.
2, WARRANTIES
2.1 No Warrantv bv Avista. Avista makes no warranties, expressed or implied,
regarding any aspect of Seller's design, specifications, equipment or facilities, including, but not
limited to, safety, durability, reliability, strength, capacity, adequacy or economic feasibility, and
any review, acceptance or failure to review Seller's design, specifications, equipment or Facility
shall not be an endorsement or a confirmation by Avista. Avista assumes no responsibility or
obligation with regard to any NERC and/or WECC reliability standard associated with the Facility
or the delivery of electric energy from the Facility to the Point of Delivery.
2.2 Seller's Warrantv. Sellerwarrants and represents that: (a) Sellerhas investigated
and determined that it is capable of performing and will perform the obligations hereunder and has
not relied upon the advice, experience or expertise of Avista in connection with the transactions
contemplated by this Agreement; (b) all professionals and experts including, but not limited to,
engineers, attorneys or accountants, that Seller may have consulted or relied on in undertaking the
transactions contemplated by this Agreement have been solely those of Seller; (c) Seller will
comply with all applicable laws and regulations and shall obtain and comply with applicable
licenses, permits and approvals in the design, construction, operation and maintenance of the
Facility; and (d) the Facility is, and during the Term of this Agreement will remain, a Qualiffing
Facility as that term is used in l8 C.F.R Part292. Seller's failure to maintain Qualifuing Facility
status will be a material breach of this Agreement. Avista reserves the right to review the Seller's
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AGREEMENT (SOLAR)
Qualifring Facility status and associated support and compliance documents at any time during
the Term of this Agreement.
3. CONDITIONS PRIOR TO DELIVERY OF NET OUTPUT
3.1 Seller Representation. Seller represents that, prior to the cofirmencement of the
first delivery of Net Output to Avista Seller's licenses, permits and approvals (including but not
limited to, evidence of compliance with Subpart B, 18 C.F.R. g 292.207, tribal, state and local
business licenses, environmental permits, easements, leases and all other required approvals) are
legally and validly issued, are held in the ruIme ofthe Seller, and Seller is in substantial compliance
with said permits.
3.2 Upon Avista's request, prior to the
commencement of the first delivery ofNet Output to Avista, Seller shall zubmit to Avista applicable
Independent Engineering Certifications for Construction Adequacy for a Qualiffing Facility. The
lndependent Engineering Certification shall be signed by a licensed professional engineer in good
standing and be submitted in a form specified in Exhibit C-I. . Avista's acceptance of such forms
shall not be unreasonably withheld. This Section 3.2 shall not apply to a Seller who has previously
provided the certification required by this Section to Avista for the same Facility.
3.3 Interconnection Agreement. Seller shall provide Avista a copy of its
Interconnection Agreement, which shall be attached hereto as Exhibit D.
3.4 Insurance. Upon Avista's request Seller shall, to the extent applicable, submit to
Avista evide,nce of compliance with Section 7.1.
3.5 Network Resource Desisration. Upon Avista's request, Seller shall provide to
Avista all data required by Avista to enable the Facility to be designated by Avista as a network
resource.
4. TERM OF AGREEMENT
This Agreement shall be effective on the date last signed below or such other date set by
Commission order (the "Effective Date") and shall continue for two (2) years after the Effective
Date (the "Term"), unless otherwise terminated as provided herein.
5. PURCHASE PRICES AI\D PAYMENT
5.1 Seller Election. To the extent that the Facility generates energy in excess of Seller
Load, Seller elects to provide such energy generated by the Facility to Avista as Seller determines
such energy generated by the Facility is available for sale to Avista (on an as-available basis)
5.2 Avoided Costs Calculated at the Time of Deliverv. To the extent that Seller
provides energy generated by the Facility to Avista pursuant to Section 5.1, the rate to be paid to
Seller shall be the avoided costs calculated at the time of delivery ("Avoided Cost Rates"), which
shall be, for each hour in which Seller delivers Net Output to Avista at the Point of Delivery after
Page - 5 - FIRST AMENDED AND RESTATED UNTVERSITY OF IDAHO POWER
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AGREEMENT (SOLAR)
the Commercial Operation Date, the Market Energy Price for such hour expressed in $ per kWh
multiplied by the total kWh delivered to Avista at the Point of Delivery for such hour.
For the avoidance of doubt, the rate to be paid to Seller for any Net Outpqt Seller {eltyers
to Avista at the Point of Delivery from the Effective Date throuelh the date that the Commission
issues an order (the "Lapse Period") shall be the Market Energy Price. To the extent that Avista
has paid Seller a price other than the Market Energy Price for any Net Output delivered to Avista,
Avista shall issue an invoice or payment to Seller within 30 days of the Commission's order
approving this Agreement to correct any over or under payment.
5.3 Pavments to Seller. For any calendar month in which Seller has delivered Net
Output from the Facility to Avista in accordance with this Agreement, Avista_shall prepare and
submit to Seller a monthly statement based upon Net Output delivered to Avista during the
previous month. Payments owed by Avista shall be paid no later than the 20ft day of the month
following the end of the monthly billing period or five days after the receipt of a monthly statement,
whichever is later. If the due date falls on a non-Business Day, then the payment shall be due on
the next Business Day.
5.4 Payments to Avista and Rieht of Set Off. If Seller is obligated to make any
payment or refrrnd to Avista, Seller agrees that Avista may set offsuch payment or refund amount
against any current or future payments due Seller under this Agreement. If Avista does not elect
to set off, or if no current or future payment is owed by Avista, Avista shall submit an invoice to
Seller for such payments. Seller shall pay Avista no later than the 20tr day of the month following
the end of the monthly billing period or five days after the receipt of a monthly statement,
whichever is later. If the due date falls on a non-Business Day, then the payment shall be due on
the next Business Day.
5.5 Interest. In addition to the remedies set forth in Section 15 of this Agreement, any
amounts owing after the due date specified in Sections 7.3 andT.4willbe subject to interest in the
amount of one and one half percent (1.5%) per month, not to exceed the maximum rate allowed
by the law, multiplied by the unpaid balance.
5.6 Wire Transfer. All payments shall be made by ACH or wire transfer in accordance
with further agreement of the Parties.
5.7 Title and Risk of Loss. As between the Parties, Seller shall be deemed to be in
control of the output from the Facility up to and until delivery to and receipt by Avista at the Point
of Delivery and Avista shall be deemed to be in control of the Net Output delivered to and received
by Avista.
6. EI\IVIRONMENTAL ATTRIBUTES6.1 Ownership of Environmental Attributes. To the full extent allowed by
applicable laws or regulations, Avista shall own or be entitled to claim fifty percent of the
Environmental Attributes associated with the Net Output delivered to Avista.
Page - 6 - FIRST AMENDED AND RESTATED UNIVERSITY OF IDAHO POWER
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AGREEMENT (SOLAR)
To the extent necessary, Seller shall assign to Avista all rights, title and authority necessary
for Avista to register, own, hold and manage such Environmental Attributes in Avista's own name
and to Avista's account, including any rights associated with WREGIS (or any other renewable
energy information or tracking systern that may be established) with regard to monitoring,
tracking, certiffing, or hading such Environmental Attributes. The Environmental Attributes to be
transferred to Avista hereunder will be sourced from the Facility. Seller shall take all reasonable
steps, at Seller's expense, required to obtain and maintain tradable renewable certification,
including Green-e, California Energy Commission, or other similar certification for the Facility
and/or the Gross Facility Output.
6.2 Transfers. To the extent that Avista is to own any Environmental Attributes in
accordance with Section 6.1 of this Agreement, Seller shall transfer all such Environmental
Attributes to Avista on a monthly basis in accordance with the certification procedure established
by the WREGIS Operating Rules. Seller shall comply with all laws, including, without limitation,
the WREGIS Operating Rules, regarding the certification and transfer of such Environmental
Athibutes to Avista and Avista shall be grven sole title to all such Environmental Attributes. Seller
warrants that upon delivery to Avista, the Environmental Athibutes will be free and clear of all
liens, security interests, claims and encumbrances. Upon request of Avista, Seller shall, at its sole
expense, take all actions and execute all documents or instruments necessary to ensure that such
Environmental Attributes are issued and tracked for purposes of satisffing state renewable
portfolio standard requirements, including Washington State's Energy Independence Act
requirements, and are transferred in a timely manner to Avista.
6.3 Changes to WREGIS. If the WREGIS Operating Rules are changed or replaced
after the Effective Date, WREGIS applies the WREGIS Operating Rules in a manner inconsistent
with Section 6.2 after the Effective Date, or WREGIS is eliminated or replaced, the Parties
promptly shall modifu Section 6.2 as reasonably required to cause and enable Seller to transfer
Environmental Attributes to Avista (to the extent required by Sections 6.1 and 6.2), including but
not limited to those modifications reasonably required to cause and enable Seller to transfer to
Avista's WREGIS Account the Environmental Attributes that are required to be transferred to
Avista for each given calendar month under this Agreement.
7. INSURANCE:CONTIITIUINGOBLIGATIONS
7.1 Insurance. Prior to the corlmencement of the first delivery of Net Output to
Avista, Seller, at its own cost, shall obtain and maintain the following insurance in force over the
term of this Agreement and shall provide certificates of all insurance policies. All insurance
policies required to fulfiII the requirements of this Section 7 shall include language requiring that
any notice of cancellation or notice of change in policy terms be sent to Avista by the insurance
carrier(s) at least sixty days prior to any change or termination of the policies.
7.1.1 General LiabiliW. Seller shall carry commercial general liability insurance
forbodily injury and property damage with a minimum limit equal to $1,000,000 for each
occurrence. The deductible shall not exceed the Seller's financial ability to cover claims
and shall not be greater than prevailing practices for similar operations in the State of
Washington.
PAge - 7 - FIRST AMENDED AND RESTATED UNIVERSITY OF IDAHO POWER
PURCHASE AGREEMENT (SOLAR)
7.1.2 Propertv. Seller shall carry all-risk property insurance for repair or
replacement of the Facility. The limit of property insurance shall be sufficient to restore
operations in the event of reasonably foreseeable losses from natural, operational,
mechanical and human-caused perils. The deductible shall not exceed the Seller's financial
ability to fund the cost of losses and shall not be greater than prevailing practices for similar
operations in the State of Idaho.
7.1.3 Oualifuins Insurance. The insurance coverage required by this Section 7
shall be obtained from an insurance company reasonably acceptable to Avista and shall
include an endorsernent naming Avista as an additional insured and loss payee as
applicable.
7.1.4 Notice of Loss or Lapse of Insurance bv Seller. Ifthe insurance coverage
required by this Section 7 is lost or lapses for any reason, Seller will immediately notifu
Avista in writing of such loss or lapse. Such notice shall advise Avista of (i) the reason for
such loss or lapse and (ii) the steps Seller is taking to replace or reinstate coverage. Seller's
failure to provide the notice required by this Section and/or to promptly replace or reinstate
coverage will constitute a material breach of this Agreernent
7.2 Self-Insurance. Notwithstanding the foregoing, Seller shall be entitled to self-
insure through its self-funded liability program administered by the State of Idaho Office of Risk
Managernent, which has a Combined Single Limit of $500,000. Seller will provide a Certificate
of Financial Responsibility upon request.
7.3 Continuine Oblieations. For the Term of this Agreement, Seller will provide
Avista with the following:
7.3.1 Insurance. Upon Avista's request, Seller shall provide Avista evidence of
compliance with the provisions of Section 7 .1. If Seller fails to comply, such failure will
be a material breach and may only be cured by Seller promptly supplyrng evidence that the
required insurance coverage has been replaced or reinstated.
7.3.2 Ensineer's Certification. Ifrequestedby Avista, Sellerwill supplyAvista
with a Certification of Ongoing Operations and Maintenance from a Registered
Professional Engineer licensed in the state in which the Facility is located, which
certification shall be in the form specified in Exhibit C-2. Seller's failure to supply the
certificate required by this Section 7.3.2 will be a material breach that may only be cured
by Seller promptly providing the required certificate. Avista may request the Certification
of Ongoing Operations and Maintenance required by this Section once in during the Term.
7.3.3 Licenses and Permits. During the Term of this Agreanent, Seller shall
comply with all applicable federal, state, and local laws and regulations. Seller shall
maintain compliance with all permits and licenses described in Section 3.1 of this
Agreernent. In addition, Seller will obtain, and supply Avista with copies of, any new or
additional permits or licenses that may be required for Seller's operations. At least every
fifth year after the Effective Date, Seller will update the documentation described in
Page. 8 . FIRST AMENDED AND RESTATED LINIVERSITY OF IDAHO POWER
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AGREEMENT (SOLAR)
Section 3.1. If at any time Seller fails to maintain compliance with the permits and licenses
described in Section 3.1 or this Section, or to provide documentation required by this
Section, such failure will be a material breach of this Agreement that may only be cured
by Seller submitting to Avista evidence of compliance.
8. CURTAILMENT.INTERRUPTION OR REDUCTION OF DELIVERY
Avista may require Seller to curtail, intemrpt or reduce delivery of Net Output if in
accordance with Section9.2, Avista determines that curtailment, intemrption or reduction is
necessary because of a Force Majeure event or to protect persons or property from injury or
damage, or because of emergencies, necessary system maintenance, system modification or special
operating circumstances. Avista will use commercially reasonable ef[orts to keep any period of
curtailment, intemrption, or reduction to a minimum. In order not to interfere unreasonably with
Seller operations, Avista will, to the extent practical, give Seller reasonable prior notice of any
curtailment, intemrption, or reduction, the reason for its occturence and its probable duration.
Seller understands and agrees that Avista may not be able to provide notice to Seller prior to
interruption, curtailment, or reduction of electrical energy deliveries to Avista in emergency
circumstances, real-time operations of the electric systern, and/or unplanned events.
9. OPERATION
9.1 Communications and Reportins. Avista and the Seller shall maintain appropriate
operating communications through the Communicating and Reporting Guidelines specified in
Exhibit B.
9.2 Excuse From Acceptance of Deliverv of Enerw.
9.2.1 Avista may curtail, intemrpt, reduce or suspend delivery, receipt or
acceptance of Net Output if Avista, in its sole discretion, reasonably determines that such
curtailment, interruption, reduction or suspension is necessary, consistent with Prudent
Utility Practice, and that the failure to do so may:
(a) endanger any person or property, or Avista's electric system, or any
electric system with which Avista's system is interconnected;
(b) cause, or contribute to, an imminent significant disruption of electric
service to Avista's or another utility's customers;
(c) interfere with any construction, installation, inspection, testing, repair,
replacement, improvement, alteration, modification, operation, use or maintenance
of or addition to, Avista's electric system or other property of Avista; or
(d) prevent or interfere with Avista's compliance with any applicable law
or regulatory requirement.
9.2.2 Avista shall promptly notifu Seller of the reasons for any such curtailment,
intemrption, reduction or suspension provided for in Section 9.2. Avista shall use
Page - 9 - FIRST AMENDED AND RESTATED UNryERSITY OF IDAHO POWER
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AGREEMENT (SOLAR)
reasonable efforts to limit the duration of any such curtailment, interruption, reduction or
suspension.
9.3 Seller's Risk Seller shall design, construct, own, operate and maintain the Facility
at its own risk and expense in compliance with all applicable laws, ordinances, rules, regulations,
orders and other requirements, now or hereafter in efGct, of any governmental authority.
9.4 Avista's Rieht to Inspect. Seller shall permit Avista to inspect and audit the
Facility, any related production, delivery and scheduling documentation or the operation, use or
maintenance ofthe Facility at any reasonable time and upon reasonable notice. Seller shall provide
Avista reasonable advance notice of any Facility test or inspection performed by or at the direction
of Seller.
9.5 Seller Oblisations in Accordance with Prudent Utility Practices. Seller shall
own, operate and maintain the Facility and any Seller-owned Interconnection Facilities so as to
allow reliable generation and delivery ofNet Output to Avista for the full Term ofthe Agreement, in
accordance with Prudent Utility Practices.
9.6 Modffications. Seller shall notifu Avista in writing of any material modifications to
the Facility. Material modifications to the Facility include, but are not limited to, any modification
that increases or decreases the Facility nameplate capacity rating, changes the primary energy source,
and changes to the generator fuel. Any material modifications to the Facility, including but not limited
to the generator or turbine, that (l) increases the Facility nameplate capacity rating, or (2) changes the
primary energy source, or (3) changes to the generator fuel, will require a review of the Agreement
terms, conditions and pricing and Avista, at its sole determination, may adjust the pricing or terminate
the Agreement. If the Agreement is terminated because of said modifications, the Seller will be
responsible for any termination damages.
10. INTERCONNECTION.METERINGANDTRANSMISSION
Seller shall make all necessary arrangements to interconnect its Facility with the electrical
system of Avista. Any required metering for the Facility shall be pursuant to the Interconnection
Agreement.
11. FORCE MAJEURE
11.1 Except as expressly provided in Section 11.6, neither Party shall be liable to the
other Party, or be considered to be in breach of or default under this Agreonent, for delay in
performance due to a cause or condition beyond such Party's reasonable control which despite the
exercise of reasonable due diligence, such Party is unable to prevent or overcome ("Force
Majeure"), including but not limited to:
(a) fire, flood, earthquake, volcanic activity; court order and act of civil, military
or govemmental authority; strike, lockout and other labor dispute; riot, insurrection,
sabotage or war; pandanic or epidemic; unanticipated electrical disturbance originating in
or transmitted through such Party's electric systan or any electric systan with which such
Party's syston is interconnected; or
Page - 10 - FIRST AMENDED AND RESTATED UNTVERSITY OF IDAHO POWER
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AGREEMENT (SOLAR)
(b) an action taken by such Party which is, in the sole judgment of such Party,
necessary or prudent to protect the operation, performance, integrity, reliability or stability
of such Party's electric system or any electric system with which such Party's electric
system is interconnected, whether such actions occur automatically or manually.
ll.2 ln the event of a Force Majeure event, the time for performance shall be extended
by a period of time reasonably necessary to overcome such delay. Avista shall not be required to
pay for Net Output which, as a result of any Force Majeure event, is not delivered.
11.3 Nothing contained in this Section shall require any Party to settle any sfike, lockout
or other labor dispute.
ll.4 In the event of a Force Majeure event, the delayed Party shall provide the other
Party notice by telephone or ernail as soon as reasonably practicable and written notice within
fourteen days after the occurrence of the Force Majeure event. Such notice shall include the
particulars of the occulrence. The suspension of performance shall be of no greater scope and no
longer duration than is required by the Force Majeure and the delayed Party shall use its best efforts
to rernedy its inability to perform.
11.5 Force Majeure shall include any unforeseen electrical disturbance that prevents any
electric energy deliveries from occurring at the Point of Delivery.
11.6 Notwithstanding anything to the contrary herein, Force Majeure shall not apply to,
or excuse any default under, Sections 15.1(a), 15.1(b), 15.1(c), or 15.1(d). For the avoidance of
doubt, Avista may declare Seller in Default if an event described in any of Sections 15.1(a),
15.1(b), l5.l(c), or 15.1(d), occurs and Avista may pursue any remedy available to it under this
agreement.
12. INDEMNITY
l2.l Except as precluded by applicable law (including the limitations prescribed by the
laws of the state of Idaho and, to the extent required by such laws, the lawful policies
promulgated by the University of Idaho's Board of Regents), the Parties shall at all times
indemniff, defend, and hold the other Party harmless from, any and all damages, losses, claims,
including claims and actions relating to injury to or death of any person or damage to property,
demand, suits, recoveries, costs and expenses, court costs, attorney fees, and all other obligations
by or to third parties, arising out of or resulting from such Party's action or failure to meet its
obligations under this Agreernent, except in cases of gross negligence or intentional wrongdoing
by the indernnified Party. This indemnity shall not extend the responsibility or liability of
University of Idaho beyond that allowed by applicable law, including without limit and to the
extent applicable, the Idaho constitution, the Idaho Tort Claims Act, and Idaho Code sections 59-
1015, 1016, and 1017. Nothing herein shall obligate the Legislature of the State of Idaho to
make future appropriations for any payment of any obligation of the University of Idaho, and any
such obligation is an independent obligation of the University and not of the State of ldaho.
Page - 1l - FIRST AMENDED AND RESTATED UNIVERSITY OF IDAHO POWER
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AGREEMENT (SOLAR)
Nothing herein shall be deemed a waiver of the University of Idaho's or the State of Idaho's
sovereign immunity, which is hereby expressly reserved.
I2.2 SELLER AND AVISTA SPECIFICALLY WARRANT THAT THE TERMS
AI\D CONDITIONS OF THE FOREGOING INDEMNITY PROVISIONS ARE THE
SUBJECT OF MUTUAL NEGOTIATION BY THE PARTIES, AI\D ARE
SPECIFICALLY AND EXPRESSLY AGREED TO IN CONSIDERATION OF THE
MUTUAL BENEFITS DERIVED UNDER THE TERMS OF THT AGREEMENT.
12.3 EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY
SIIALL BE LIABLE UNDER AI{Y PRO\ISION OF THIS AGREEMENT FOR AI\Y
SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PT]NITIVE DAMAGES,
INCLUDING BUT NOT LIMITED TO LOSS OF PROFTT, SAVINGS OR REVENUE,
LOSS OF TIIE USE OF EQUIPMENT, COST OF CAPITAL, OR COST OF
TEMPORARY EQUIPMENT OR SERVICES, WHETHER BASED IN WHOLE OR IN
PART IN CONTRACT, IN TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY,
OR AI{Y OTIIER THEORY OF LIABILITY; PROVIDED, HOWEVE& THAT AI\Y
AMOI.INTS DUE TO SELLER AS PAYMENT FOR NET OUTPUT DELIVERED TO
AVISTA PURSUAIIT TO THE TERMS OF THIS AGREEMENT SHALL BE DEEMED
TO BE DIRECT DAMAGES.
13. ASSIGNMENT
13.1 Seller shall not assign its rights or delegate its duties under this Agreement without
the prior written consent of Avista, which consent shall not be unreasonably withheld. Subject
to the foregoing restrictions on assignments, this Agreernent shall be fully binding upon, inure to
the benefit of and be enforceable by the Parties and their respective successors, heirs and assigns.
13.2 Seller shall have the right without Avista's consent, but with a thirty days prior
written notice to Avista, to make collateral assignments of its rights under this Agreement to satisff
the requirements of any development, construction, or other reasonable long-term financing. A
collateral assignment shall not constitute a delegation of Seller's obligations under this Agreement,
and this Agreement shall not bind the collateral assignee. Any collateral assignee succeeding to
any portion of the ownership interest of Seller shall be considered Seller's successor in interest
and shall thereafter be bound by this Agreement.
14. NOIINSPECIFIEDTHIRD-PARTYBENEF'ICIARIES
There are no third-party beneficiaries of this Agreernent. Nothing contained in this
Agreement is intended to confer any right or interest on anyone other than the Parties, and their
respective successors, heirs and assigns permitted under Section 13.
15. DEFAULT AI\D TERMINATION
15.1 In addition to any other breach or failure to perform under this Agreement, each of
the following events shall constitute a Default:
Page - 12 - FIRST AMENDED AND RESTATED TINIVERSITY OF IDAHO POWER
PURCHASE AGREEMENT (SOLAR)
(a) The Facility ceases to be a Qualifuing Facility;
b) A Party becomes insolvent (e.g., is unable to meet its obligations as they become
due or its liabilities exceed its assets);
(c) Seller makes a general assignment of substantially all of its assets for the benefit
of its creditors, files a petition for bankruptcy or reorganization or seeks other relief under
any applicable insolvency laws;
(d) Seller has filed against it a petition for bankruptcy, reorganization or other relief
under any applicable insolvency laws and such petition is not dismissed or stayed within
sixty days after it is filed;
(e) Seller is in default under any Agreonent related to this Agreement; or
(f) Termination, cancellation or expiration of any agreement required for Seller to
deliver electric energy to Avista under this Agreement, including but not limited to the
Interconnection Agreernent.
15.2 Notice and Opportunity to Cure. In the event of a Default, the non-Defaulting
Party shall give written notice to the Defaulting Party of a Default in accordance with Section 27.
Except as provided in Section 15.1(d), if the Defaulting Party has not cured the breach within thirty
days after receipt of such written notice, the non-Defaulting Party may, at its option, terminate this
Agreonent and/or pursue any remedy available to it in law or equity; provided that, if a Default
occurs under Sections 15.1(a) or lS.l(f), Seller shall not deliver any Net Output to Avista, and
Avista shall have no obligation to accept any Net Output from the Facility, until such Default is
cured.
15.3 Additional Rights and Remedies. Any right or remedy afforded to either Party
under this Agreement on account of a Default by the other Party is in addition to, and not in lieu
of, all other rights or remedies available to such Party under any other provisions of this
Agreement, by law or otherwise on account of the Default.
15.4 Damages. If this Agreement is terminated as a result of Seller's Default after the
Effective Date, Seller shall pay Avista, in addition to other damages, the positive difference, if
any, between the applicable Avoided Cost Rate and the cost to replace the Net Output for twelve
months beginning on the date of the original Default, plus all associated transmission costs to
Avista to acquire such replacement Net Output.
16. DISPUTE RESOLUTION
Each Party shall strive to resolve any and all differences during the term of the Agreement
through meetings and discussions. If a dispute cannot be resolved within a reasonable time, not to
exceed thirty days, each Party shall escalate the unresolved dispute to a senior officer designated
by each Party. If the senior officers are not able to resolve the dispute within ten Business Days
Page - 13 - FIRST AMENDED AND RESTATED UNIVERSITY OF IDAHO POWER
-PURCHASE
AGREEMENT (SOLAR)
of escalation then the Parties may agree to mediate or arbitrate the dispute. In the event that the
Parties do not agree to mediation or arbitration, either Party may, as applicable, request a hearing
before the Commission or seek relief in a court of competent jurisdiction.
17. RELEASE BY SELLER
Seller releases Avista from any and all claims, losses, harm, liabilities, damages, costs and
expenses to the extent resulting from any:
l7.l Electric disturbance or fluctuation that migrates, directly or indirectly, from
Avista's electric systern to the Facility;
17.2 Intemrption, suspension or curtailment of electric service to the Facility or any
other premises owned, possessed, controlled or served by Seller, which interruption, suspension
or curtailment is caused or contributed to by the Facility or the interconnection of the Facility;
17.3 Disconnection, intemrption, suspension or curtailment by Avista pursuant to terms
of this Agreement or the lnterconnection Agreement.
18. SEVERAL OBLIGATIONS
The duties, obligations and liabilities of the Parties under this Agreement are intended to
be several not joint or collective. This Agreement shall not be interpreted or construed to create
an association, joint venture or partnership between the Parties. Each Party shall be individually
and severally liable for its own obligations under this Agreement. Further, neither Party shall have
any rights, power or authority to enter into any agreement or undertaking for or on behalf of, to act
as to be an agent or representative of, or to otherwise bind the other Pafiy.
19. IMPLEMENTATION
Each Party shall promptly take such action (including, but not limited to, the execution,
acknowledgement and delivery of documents) as may be reasonably requested by the other Party
for the implonentation or continuing performance of this Agreement.
20. NON.WAIYER
The failure of either Party to insist upon or enforce strict performance by the other Party of
any provision of this Agreement or to exercise any right under this Agreement shall not be
construed as a waiver or relinquishment of such Party's right to assert or rely upon any such
provision or right in that or any subsequent instance; rather, the same shall be and remain in fulI
force and effect.
2I. AMENDMENT
Page - 14 - FIRST AMENDED AND RESTATED UNIVERSITY OF IDAHO POWER
-PURCHASE
AGREEMENT (SOLAR)
No change, amendment or modification of any provision of this Agreement shall be valid
unless set forth in a written amendment to this Agreernent signed by both Parties and approved by
the Commission.
22. CHOICE OF LAWS
This Agreement shall be construed and interpreted in accordance with the laws of the State
of Idaho without reference to its choice of law provisions.
23. IIEADINGS
The Section headings in this Agreement are for convenience only and shall not be
considered part of or used in the interpretation of this Agreement.
24. SEVERABILITY
The invalidity or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement, and this Agreement shall be
construed in all respects as if the invalid or unenforceable provision were omitted.
25. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which shall be
deemed as an original, and together shall constitute one and the same document.
26. TAXES
Each Party shall pay before delinquency all taxes and other goveflrmental charges which,
if failed to be paid when due, could result in a lien upon the Facility or the Interconnection
Facilities.
27. NOTICES
Unless otherwise specified, all written notices or other communications required by or
provided under this Agreanent shall be mailed or delivered to the following addresses, and shall
be considered delivered when deposited in the US Mail, postage prepaid, by certified or registered
mail or delivered in person:
to Avista:Director, Power Supply
Avista Corporation
P.O.Box3727
Spokane, WA 99220
to Seller:Director of Facilities
University of Idaho
875 Perimeter Drive, MS2281
Page - 15 - FIRST AMENDED AND RESTATED UNIVERSITY OF IDAHO POWER
PURCHASE AGREEMENT (SOLAR)
Moscow, [D 83844-2281
Either Party may change its designated representative to receive notice and/or address
specified above by giving the other Party written notice of such change.
28. SURVWAL
Rights and obligations which, by their nature, should survive termination or expiration of
this Agreanent, will remain in effect until satisfied, including without limitation, all outstanding
financial obligations, and the provisions of Section 12 (Indemnity) and Section 16 (Dispute
Resolution).
29. ENTIRE AGREEMENT
This Agreement, including the following exhibits which are attached and incorporated by
reference herein, constitutes the entire agreement of the Parties and supersedes all prior and
contemporaneous oral or written agreements between the Parties with respect to the subject matter
hereof.
Exhibit A Project Description and Point of Delivery
Exhibit B Communications and Reporting
Exhibit C-l Independent Engineering Certifications for Construction Adequacy for a
Qualiffing Facility
Exhibit C-2 Independent Engineering Certifications for Ongoing Operations and
Maintenance for a Qualifuing Facility
Exhibit D Interconnection Agreement
30. Authoritv
In entering this Agreement, the Seller's representative is acting under delegated authority
under Board of Regents Policy V.I.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly authorized representatives as of the date set forth below.
REGENTS OF THE UNTVERSITY OF
IDAHO
AYISTA CORPORATION
B
Printed Name Printed Name
Page - 16 - FIRST AMENDED AND RESTATED UNwERSITY OF IDAHO POWER
-PURCHASE
AGREEMENT (SOLAR)
By
Tifle:Tifle:
Date:
Page - 17 - FIRST AMENDED AI{D RESTATED T NWERSITY OF IDAHO POYTER
PLJRCHASE AGREEMENT (SOLAR)
Exhibit A
Proiect Description and Point of Deliverv
@:
Seller's Facility is described as University of Idatro IRIC Solar Array, and consists of:. Nameplate size (rating) - 132.2 kW (AC)
o Maximum Generation Injection at Point of Interconnection - 132.2 kW (AC)o lnterconnection feeder: Moscow City Ml55l Io Generator Type - four Solar Edge 33.3KUS inverterso lnterconnection Type - Network Resotrce
@:
Seller's Facility is located at the University of Idaho Integrated Research and Innovation Center
(IRIC),81d9770,685 S. Line Street, Moscow, Idaho 83844
Point of Deliverv:
The secondary terminals of the Transmission Provider's Distribution Transformer(s) where the
Seller's secondary conductors are connected.
Exhibit B
Communication and Reoorting
(1) Email communications between Seller and Avista shall be submitted to:
Avista: @aistacorp.com; or
@avistacorp.com
Seller: j ohnsonb@uidaho. edu
Alternate: _ [e-mail]
(2) All oral communications relating to electric energy scheduling, generation level changes,
intemrptions or outages between Seller and Avista will be communicated on a recorded line as
follows:
(a) Pre-Schedule (5:30 am to 12:00 noon on Business Days):
Avista Pre-Scheduler: [phone]
Alternate Phone: [phone]
Seller: [phone]
Alternate Phone: [phone]
(b) Real-Time Schedule (available 24 hours a day)
Avista Real-Time Scheduler: [phone]
Seller: [phone]
Alternate Phone:
(3) Either Party may change its contact information upon written notice to the other Party.
Exhibit C -1
Independent Ensineering Certilication for
am a licensed professional engineer registered to
practice and in good standing in the State of _. I have substantial experience in the design,
construction and operation of electric power plants of the same type as
(Title of QF) sited at ln
County, State of_ (the "Facility")
2. I have reviewed and/or supervised the review of the construction in progress or of
the completed Facility and it is my professional opinion that said Facility has been designed and
built according to appropriate plans and specifications bearing the words "CERTIFIED FOR
ACCEPTANCE 'and with the starnp of the certifring licensed professional engineer ofthe design,
and that the Facility was built to commercially acceptable standards for this type of facility.
3. I have no economic relationship to the designer or owner of said Facility and have
made my analysis of the plans and specifications independently.
4. I hereby CERTIFY that the above statements are complete, true, and accurate to the
best of my knowledge and I therefore set my hand and seal below.
Signed and Sealed
DATE:
SIGNATURE:
PRINTED NAME:
l. I,
Exhibit C -2
Independent Ensineerine Certilication of Ongoing Operations and
Maintenance for a Oualifrins Facilitv
l. The undersigned is a duly authorized representative of inits
capacity asanindependent engineer(the "lndependent Engineer"). The Independent
Engineer has substantial experience reviewing the design, construction, and operation
of electric power plants ofthe same type as the University of Idaho's IRIC solar aray
("Facility").
2. Independent Engineer has reviewed the operation and maintenance agreement C'O&M
Agreernent"') for the Facility and it is the Independent Engineer's professional opinion that,
provided the Facility has been designed and built to appropriate standards, the O&M
Agreement is the same as the original O&M Agreemrent in place at COD, the is consistent
with Prudent Utility Practices (as defined in the Agreonent) and therefore is considered
adequate to support the Facility's production of energy in accordance with the requirements
of the Agreernent, noting that the Independent Engineer makes no rqrresentation as to the
amounts of energy that will be produced by the Facility.
3. Independent Engineer has no economic relationship to the designer or owner of said Facility
and has made its analysis of the O&M Agreement independently.
4. Independent Engineer hereby confirms thattheabove statements are complete, true, and
accurate to the best of its knowledge.
Signed and Sealed
DATE:
SIGNATURE:
PRINTED NAME: