20100129Application.pdf

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*SIDA~POR~
BARTON L. KLINE
Lead Counsel
bkline(âidahopower.com
An IDACORP Company
January 29, 2010
VIA HAND DELIVERY
Jean D. Jewell, Secretary
Idaho Public Utilities Commission
472 West Washington Street
P.O. Box 83720
Boise, Idaho 83720-0074
Re: Case No. IPC-E-10-02
IN THE MA TTER OF THE APPLICA TlON OF IDAHO POWER COMPANY
FOR APPROVAL OF A FIRM ENERGY SALES AGREEMENT FOR THE
SALE AND PURCHASE OF ELECTRIC ENERGY BETWEEN IDAHO
POWER COMPANY AND CARGILL INCORPORATED
Dear Ms. Jewell:
Enclosed please find for filing an original and seven (7) copies of Idaho Power
Company's Application in the above matter.
Very truly yours,~'
Barton L. Kline
BLK:csb
Enclosures
RECEI 0
DONOVAN E. WALKER (ISB No. 5921)
BARTON KLINE (ISB No. 1526)
Idaho Power Company
P.O. Box 70
Boise, Idaho 83707
Telephone: [phone]
Facsimile: [phone]
dwalker((idahopower.com
bkline((idahopower.com
iulU JMl29 PH 3: 4S
Attorneys for Idaho Power Company
Street Address for Express Mail:
1221 West Idaho Street
Boise, Idaho 83702
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION
OF IDAHO POWER COMPANY FOR
APPROVAL OF A FIRM ENERGY SALES
AGREEMENT FOR THE SALE AND
PURCHASE OF ELECTRIC ENERGY
BETWEEN IDAHO POWER COMPANY
AND CARGILL INCORPORATED.
)
) CASE NO. IPC-E-10-02
)
) APPLICATION
)
)
)
Idaho Power Company ("Idaho Powet' or the "Company"), in accordance with
Idaho Code § 61-503 and RP 52 and the applicable provisions of the Public Utilty
Regulatory Policies Act of 1978 ("PURPA"), hereby respectfully applies to the Idaho
Public Utilties Commission ("IPUC" or the "Commission") for an Order approving the
Firm Energy Sales Agreement between Idaho Power and Cargill Incorporated ("Cargil")
under which Cargill would sell and Idaho Power would purchase electric energy
generated by the Bettencourt Dry Creek Biofactory ("Facility") located near Hansen,
Idaho.
In support of this Application Idaho Power represents as follows:
APPLICATION - 1
i. BACKGROUND
1. Sections 201 and 210 of PURPA, and pertinent regulations of the Federal
Energy Regulatory Commission ("FERC"), require that regulated electric utilties
purchase power produced by cogenerators or small power producers that obtain
qualifying facilty ("QF") status. The purchase price a QF receives for the sale of its
power is generally referred to as the avoided cost rate and is computed to be equal to
the incremental cost to an electric utilty of electric energy or capacity or both, which, but
for the purchase from the QF, such utilty would generate itself or purchase from
another source. The Commission has authority under PURPA Sections 201 and 210
and the implementing regulations oftheFERC, 18 C.F.R. § 292, to set avoided costs, to
order electric utilties to enter into fixed-term obligations for the purchase of energy from
QFs, and to implement FERC's PURPA rules.
2. Cargill is currently sellng energy from this Facilty to Idaho Power on a
non-firm basis under a Schedule 86 uniform agreement dated July 28, 2008, which was
approved in Commission Order No. 30631, dated August 27, 2008. The Firm Energy
Sales Agreement specifies that the existing Schedule 86 agreement shall be terminated
at the time the Facility achieves its Operation Date in accordance with the Firm Energy
Sales Agreement.
3. The Facilty began actual energy deliveries to Idaho Power under the
Schedule 86 agreement on August 28, 2008.
II. THE FIRM ENERGY SALES AGREEMENT
4. On January 22,2010, Idaho Power and Cargil entered into a Firm Energy
Sales Agreement ("Agreement") pursuant to the terms and conditions of the various
APPLICATION - 2
Commission Orders applicable to this PURPA agreement. See, Order Nos. 30415,
30488, 30738, and 30744. A copy of the Agreement is enclosed with this Application as
Attachment NO.1. Under the terms of the Agreement, Cargil elected to contract with
Idaho Power for a 10-year term. Cargil further elected to contract with the Company
using the Non Levelized Published Avoided Cost Rates as currently established by the
Commission for energy deliveries of less than 10 average megawatts ("MW").
5. As this Facilty is already providing energy to Idaho Power under an
existing Schedule 86 agreement, the Agreement specifies that any compliance data
(Le., nameplate capacity rating, engineering certification, insurance certificates, etc.)
that were previously provided under the Schedule 86 requirements wil be reviewed and
used for compliance with this Agreement if applicable.
6. The nameplate rating of this Facilty is 2.25 MW. As defined in paragraph
1.13 of the Agreement and as described in paragraph 4.1.3 of the Agreement, Cargil
wil be required to provide data on the Facilty that Idaho Power wil use to confirm that
under normal and/or average conditions the Facilty wil not exceed 10 average MW on
a monthly basis. Furthermore, as described in paragraph 7.5 of the Agreement, should
the Facilty exceed 10 average MW on a monthly basis, Idaho Power wil accept the
energy ("Inadvertent Energy") that does not exceed the Maximum Capacity Amount, but
wil not purchase or pay for this Inadvertent Energy.
7. Cargil has elected a Scheduled Operation Date of thirty (30) days past the
date this Agreement is approved by the Commission. If the Facilty has not achieved its
Operation Date by that date, Delay Liquidated Damages and associated Delay Security
provisions within this Agreement are applicable.
APPLICATION - 3
8. Section 21 of the Agreement provides that the Agreement wil not become
effective until the Commission has approved all of the Agreement's terms and
conditions and declared that all payments Idaho Power makes to Cargil for purchases
of energy wil be allowed as prudently incurred expenses for ratemaking purposes.
9. Various requirements have been placed upon Cargil in order for Idaho
Power to accept energy deliveries from this Facilty. Idaho Power wil monitor
compliance with these initial requirements. In addition, Idaho Power wil monitor the
ongoing requirements through the full term of this Agreement. Should the Commission
approve this Agreement, Idaho Power intends to consider the Effective Date of the
Agreement to be January 22, 2010.
10. The Agreement, as signed and submitted by the Parties thereto, contains
Non Levelized Published Avoided Cost Rates in conformity with applicable IPUC
Orders.
11. The interconnection for this Facilty was completed in association with the
existing Schedule 86 agreement in 2008. All applicable interconnection charges and
monthly operation and maintenance charges under Schedule 72 have already been
assessed and collected from Cargil in association with the existing Schedule 86
agreement.
II. MODIFIED PROCEDURE
12. Idaho Power believes that a hearing is not necessary to consider the
issues presented herein and respectfully requests that this Application be processed
under Modified Procedure, Le., by written submissions rather than by hearing. RP 201,
et seq. If, however, the Commission determines that a technical hearing is required, the
APPLICATION - 4
Company stands ready to present its testimony and support the Application in such
hearing.
IV. COMMUNCIATIONS AND SERVICE OF PLEADINGS
13. Communications and service of pleadings, exhibits, orders, and other
documents relating to this proceeding should be sent to the following:
Donovan E. Walker, Senior Counsel
Barton L. Kline, Lead Counsel
Idaho Power Company
P.O. Box 70
Boise, Idaho 83707
Randy C. Allphin
Energy Contract Administrator
Idaho Power Company
P.O. Box 70
Boise, Idaho 83707
V. REQUEST FOR RELIEF
14. Idaho Power Company respectfully requests that the Commission issue
an Order: (1) authorizing that this matter may be processed by Modified Procedure; (2)
approving the Firm Energy Sales Agreement between Idaho Power Company and
Cargil Incorporated without change or condition; and (3) declaring that all payments for
purchases of energy under the Firm Energy Sales Agreement between Idaho Power
Company and Cargil Incorporated be allowed as prudently incurred expenses for
ratemaking purposes.
Respectfully submitted this 29th day of January 2010.
~~
BARTON L. KLINE
Attorney for Idaho Power Company
APPLICATION - 5
CERTIFICATE OF MAILING
I HEREBY CERTIFY that on the 29th day of January 2010 I served a true and
correct copy of the within and foregoing APPLICATION upon the following named
parties by the method indicated below, and addressed to the following:
Cargil Incorporated
Sanchayita Ray, Director of Finance
Cargil Environmental Finance
9350 Excelsior Boulevard, MS 139-4-A
Hopkins, Minnesota 55343
Hand Delivered
-. U.S. Mail
_ Overnight Mail
FAX
Email
J%JCQ
Barton L. Kline
APPLICATION - 6
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
CASE NO. IPC-E-10-02
IDAHO POWER COMPANY
ATTACHMENT NO.1
Aricle
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FIR ENERGY SALES AGREEMENT
BETWEN
IDAHO PO~R COMPAN
AN
CARGILL, INCORPORATED
TABLE OF CONTENTS
Rr:C£ItN2
lDiii JAN 29 .
PH 4: 20
TITLE
Definitions
No Reliance on Idaho Power
Waranties
Conditions to Acceptance of Energy
Ter and Operation Date
Purchase and Sale of Net Energy
Puchase Price and Method of Payment
Environmental Attributes
Facilty and Interconnection
Metering and Telemetry
Records
Operations
Indemnfication and Insurance
Force Majeure
Liabilty; Dedication
Several Obligations
Waiver
Choice of Laws and Venue
Disputes and Default
Governental Authorization
Commssion Order
Successors and Assigns
Modification
Taxes
Notices
Additional Ter and Conditions
Severability
Counterpars
Entire Agreement Signatures
Appendix A
AppendixB
AppendixC
AppendixD
FIR ENERGY SALES AGREEMENT
(10 aMW or Less)
Project Name: Bettencour Dry Creek Biofactory
Project Number: 31615100
THIS AGREEMENT, entered into on this:2 day of J'Qft 'ttl '7' 2010 between
CARGILL, INCORPORATED (Seller), and IDAHO PO~R COMPAN, an Idaho corporation (Idaho
Power), hereinafter sometimes referred to collectively as "Paries" or individually as "Pary."
WITNSSETH:
WHEREAS, Seller has designed, constructed, owns, maintains and operates an electric
generation facilty; and
Whereas, Seller is currently selling energy from this Facilty to Idaho Power under a Schedule 86,
Uniform Agreement for the Purchase of Non Firm Energy from a Qualifyng Facilty dated July 28, 2008.
WHEREAS, Seller wishes to sell, and Idaho Power is wiling to purchase, firm electric energy
produced by the Seller's Facility.
WHREAS, the curent Schedule 86, Uniform Agreement for the Puchase of Non Fir Energy
from a Qualifyng Facilty dated July 28, 2008 shall automatically termnate at the same time that the
Operation Date occurs for this Agreement.
THEREFORE, In consideration of the mutual covenants and agreements hereinafter set forth, the
Paries agree as follows:
ARTICLE I: DEFINITIONS
As used in this Agreement and the appendices attached hereto, the following terms
shall have the following meanings:
1.1 "Base Energy" - Monthly Net Energy less tha 110% of the monthly Net Energy Amount as
specified in paragraph 6.2 of this Agreement.
l.2 "Commssion" - The Idaho Public Utilities Commssion.
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1.3 "Contract Year" - The period commencing each calendar year on the same calendar date as the
Operation Date and ending 364 days thereafter.
1.4 "Delay Liquidated Damages" - Damages payable to Idaho Power as calculated in paragraph 5.3,
5.4,5.5,5.6 and 5.7.
1.5 "Delay Period" - All days past the Scheduled Operation Date until the Seller's Facility achieves
the Operation Date.
1.6 "Delay Price" - The curent month's Mid-Columbia Market Energy Cost minus the curent
month's All Hours Energy Price specified in paragraph 7.3 of this Agreement. If this calculation
results in a value less than 0, the result of this calculation wil be O.
1.7 "Designated Dispatch Facility" - Idaho Power's Systems Operations Group, or any subsequent
group designated by Idaho Power.
1.8 "Facility" - That electrc generation facility described in Appendix B of this Agreement.
1.9 "First Energy Date" - The day commencing at 00:01 hours, Mountain Time, following the day
that Seller has satisfied the requirements of Aricle N and the Seller begis delivering energy to
Idaho Power's system at the Point of Delivery.
1.l0 "Heavy Load Hours" - The daily hours beginnng at 7:00 am, ending at 11:00 pm Mountain
Time, (16 hours) excluding all hours on all Sundays, New Years Day, Memorial Day, Fourh of
July, Labor Day, Thangiving and Christmas.
l.l 1 "Inadvertent Energy" - Electric energy Seller does not intend to generate. Inadvertent energy is
more particularly described in paragraph 7.5 of this Agreement.
1.12 "Interconnection Facilities" - All equipment specified in Schedule 72.
1.13 "Intial Capacity Determation" - The process by which Idaho Power confirs that under
norml or average design conditions the Facility wil generate at no more than 10 average MW
per month and is therefore eligible to be paid the published rates in accordance with Commssion
Order No. 29632.
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1.14 "Light Load Hours" - The daily hours beginng at 11 :00 pm, ending at 7:00 am Mountain Time
(8 hours), plus all other hours on all Sundays, New Years Day, Memorial Day, Fourh of July,
Labor Day, Thangiving and Chrstmas.
1.15 "Losses" - The loss of electrical energy expressed in kilowatt hours (kWh) occurng as a result
of the transformtion and transmission of energy between the point where the Facility's energy is
metered and the point the Facility's energy is delivered to the Idaho Power electrical system. The
loss calculation formula wil be as specified in Appendix B of this Agreement.
1.16 "Market Energy Reference Price" - Eighty-five percent (85%) of the Mid-Columbia Market
Energy Cost.
1.17 "Materal Breach" - A Default (paragraph 19.2.1) subject to paragraph 19.2.2.
1.18 "Maximum Capacity Amount" - The maximum capacity (MW) of the Facility wil be as
specified in Appendix B of this Agreement.
1.19 "Meterig Equipment" - All equipment specified in Schedule 72, this Agreement and any
additional equipment specified in Appendix B required to measure, record and telemeter bi
directional power flows between the Seller's electric generation plant and Idaho Power's system.
1.20 "Mid- Columbia Market Energy Cost" - The montWy weighted average of the daily on-peak and
off-peak Dow Jones Mid-Columbia Index (Dow Jones Mid-C Index) prices for non-firm energy.
If the Dow Jones Mid-Columbia Index price is discontinued by the reporting agency, both Parties
wil mutually agree upon a replacement index, which is similar to the Dow Jones Mid-Columbia
Index. The selected replacement index wil be consistent with other similar agreements and a
commonly used index by the electrical industry.
1.21 "Nameplate Capacity" -The full-load electrical quantities assigned by the designer to a generator
and its prime mover or other piece of electrical equipment, such as tranformers and circuit
breakers, under standardized conditions, expressed in amperes, kilovolt-amperers, kilowatts, volts
or other appropriate unts. Usually indicated on a nameplate attached to the individual machie
or device.
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l.22 "Net Energy" - All of the electric energy produced by the Facility, less Station Use, less Losses,
expressed in kilowatt hours (kWh). Subject to the term of this Agreement, Seller commts to
deliver all Net Energy to Idaho Power at the Point of Delivery for the full term of the Agreement.
Net Energy does not include Inadvertent Energy.
1.23 "Operation Date" - The day commencing at 00:01 hours, Mountain Time, following the day that
all requirements of paragraph 5.2 have been completed.
1.24 "Point of Delivery" - The location specified in Appendix B, where Idaho Power's and the
Seller's electrical facilities are interconnected.
1.25 "Prudent Electrical Practices" - Those practices, methods and equipment that are commonly and
ordinaly used in electrical engineering and operations to operate electric equipment lawfully,
safely, dependably, efficiently and economically.
1.26 "Scheduled Operation Date" - The date specified in Appendix B when Seller anticipates
achieving the Operation Date. It is expected that the Scheduled Operation Date provided by the
Seller shall be a reasonable estimate of the date that the Seller anticipates that the Seller's Facility
shall achieve the Operation Date.
1.27 "Schedule 72" - Idaho Power's Tarff No 101, Schedule 72 or its successor schedules as
approved by the Commssion. The Seller shall be responsible to pay all costs of interconnection
and integration of this Facilty into the Idaho Power electrical system as specified withi
Schedule 72.
1.28 "Season" - The three periods identified in paragraph 6.2.1 of this Agreement.
l.29 "Special Facilities" - Additions or alterations of transmission and/or distribution lines and
transformers as described in Schedule 72.
1.30 "Station Use" - Electric energy that is used to operate equipment that is auxliar or otherwise
related to the production of electricity by the Facilty.
1.31 "Surlus Energy" - Is (1) Net Energy produced by the Seller's Facility and delivered to the Idaho
Power electrical system durng the month which exceeds 110% of the monthly Net Energy
Amount for the corresponding month specified in paragraph 6.2. or (2) If the Net Energy
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produced by the Seller's Facility and delivered to the Idaho Power electrical system durng the
month is less than 90% of the monthly Net Energy Amount for the corresponding month
specified in paragraph 6.2, then all Net Energy delivered by the Facility to the Idaho Power
electrical system for that given month or (3) All Net Energy produced by the Seller's Facility and
delivered by the Facility to the Idaho Power electrical system prior to the Operation Date.
1.32 "Total Cost of the Facility" - The total cost of structures, equipment and appurenances.
ARTICLE II: NO RELIACE ON IDAHO PO~R
2.1 Seller Independent Investigation - Seller warants and represents to Idaho Power that in entering
into this Agreement and the undertakg by Seller of the obligations set forth herein, Seller has
investigated and determned that it is capable of performng hereunder and has not relied upon
the advice, experience or expertise of Idaho Power in connection with the transactions
contemplated by this Agreement.
2.2 Seller Independent Experts - All professionals or experts including, but not limited to, engineers,
attorneys or accountants, that Seller may have consulted or relied on in underakg the
transactions contemplated by this Agreement have been solely those of Seller.
ARTICLE II: WARTIES
3.1 No Warranty by Idaho Power - Any review, acceptace or failure to review Seller's design,
specifications, equipment or facilities shall not be an endorsement or a confirtion by Idaho
Power and Idaho Power makes no waranties, expressed or implied, regarding any aspect of
Seller's design, specifications, equipment or facilities, including, but not limited to, safety,
durabilty, reliabilty, strength, capacity, adequacy or economic feasibilty.
3.2 Qualifying Facility Status - Seller warants that the Facility is a "Qualifying Facility," as that term
is used and defined in 18 CFR 292.201 et seq. After intial qualification, Seller wil take such
steps as may be required to maintain the Facility's Qualifyng Facility status durng the term of
this Agreement and Seller's failure to maintain Quaifyng Facilty status wil be a Material
Breach of this Agreement. Idao Power reserves the right to review the Facility's Qualifyg
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Facility status and associated support and compliance documents at anytime durg the term of
this Agreement.
ARTICLE IV: CONDITIONS TO ACCEPTANCE OF ENERGY
4.1 The Seller is curently selling energy from this Facility to Idaho Power under a Schedule 86,
Uniform Agreement for the Purchase of Non Firm Energy from a Qualifyng Facility dated July
28,2008. In the event any of these requirements duplicate requirements of the Non-Firm
agreement and the Seller has previously satisfied these requirements, Idaho Power shall review
the Seller's previously supplied inormtion. If the previously supplied inormation is applicable
and curent, Idao Power may rely on the previously supplied informtion to satisfy these
requirements.
Prior to the First Energy Date and as a condition of Idao Power's acceptance of deliveries of
energy from the Seller under this Agreement, Seller shall:
4.1.1 Submit proof to Idaho Power that all licenses, permts or approvals necessar for Seller's
operations have been obtained from applicable federal, state or local authorities,
including, but not limted to, evidence of compliance with Subpart B, 18 CFR 292.20 1 et
seq. as a certified Qualifyng Facility.
4.1.2 Opinion of Counsel - Submit to Idaho Power an Opinion Letter signed by an attorney
admtted to practice and in good standing in the State of Idaho providing an
opinion tht Seller's licenses, permts and approvals as set forth in paragraph 4.1.1
above are legally and validly issued, are held in the name of the Seller and, based on
a reasonable independent review, counsel is of the opinon that Seller is in substantial
compliance with said permts as of the date ofthe Opinion Letter. The Opinion Letter
wil be in a form acceptable to Idaho Power and wil acknowledge that the attorney
renderig the opinion understands that Idaho Power is relying on said opinion. Idaho
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Power's acceptance ofthe form wil not be uneasonably withheld. The Opinion Letter
wil be governed by and shall be interpreted in accordance with the legal opinion accord
ofthe American Bar Association Section of Business Law (l99l).
4.1.3 Intial Capacity Determnation - Submit to Idaho Power such data as Idaho Power may
reasonably require to perform the Intial Capacity Determation. Such data wil include
but not be limited to, Nameplate Capacity, equipment specifications, prime mover data,
resource characteristics, normal and/or average operating design conditions and Station
Use data. Upon receipt of this informtion, Idaho Power wil review the provided data
and if necessary, request additional data to complete the Intial Capacity Determnation
within a reasonable time.
4.1.3.1 If the Maximum Capacity specified in Appendix B of ths Agreement and the
cumulative maufactue Nameplate Capacity rating of the individual generation
unts at this Facility is less than 10 MW. The Seller shall submit detailed,
manufacturer, verifiable data of the Nameplate Capacity ratings of the actual
individual generation unts to be installed at this Facility. Upon verification by
Idaho Power that the data provided establishes the combined Nameplate Capacity
rating of the generation unts to be installed at this Facility is less tha 10 MW, it
wil be deemed that the Seller has satisfied the Intial Capacity Determnation for
this Facility.
4.1.4 Nameplate Capacity - Submit to Idaho Power manufacturer's and engineerig
documentation that establishes the Nameplate Capacity of each individual generation unt
that is included withi this entire Facility. Upon receipt of ths data, Idao Power shall
review the provided data and determne if the Nameplate Capacity specified is reasonable
based upon the maufacturer's specified generation ratings for the specific generation
unts.
4.1.5 Engineer's Certifications - Submit an executed Engieer's Certification of Design &
Construction Adequacy and an Engieer's Certification of Operations and Maintenance
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(O&M) Policy as described in Commssion Order No. 21690. These certificates wil be
in the form specified in Appendix C but may be modified to the extent necessary to
recognze the different engineering disciplines providing the certificates.
4. l.6 Insurance - Submit written proof to Idaho Power of all insurance required in Aricle XIII.
4. l. 7 Interconnection - Provide written confiration from Idaho Power's delivery business
unt that Seller has satisfied all interconnection requirements.
4.1.8 Network Resource Designation and Transmission Servce Reguest-
4.1.8.1 Provide all data required by the Idaho Power delivery business unt to enable the
Seller's Facility to be designated as a network resource.
4.1.8.2 Receive confirmtion from the Idaho Power delivery business unt that the
Seller's Facility has been designated as a network resource.
4.1.8.3 Provide all data required for Idaho Power to submit a Tranmission Servce
Request (TSR) for the Seller's Facilty.
4.1.8.4 Receive confirmation from Idaho Power that the TSR has been granted in
suffcient capacity to meet or exceed the Maxum Capacity and the Seller has
paid all costs associated with any requirements of the TSR.
4.1.9 Written Acceptance - Request and obtain written confirtion from Idaho Power that all
conditions to acceptance of energy have been fulfilled. Such written confrmation shall be
provided withi a commercially reasonable time following the Seller's request and wil
not be unreasonably withheld by Idaho Power.
ARTICLE V: TERM AN OPERATION DATE
5.1 Ter - Subject to the provisions of pargraph 5.2 below, this Agreement shall become effective
on the date first written and shall continue in ful force and effect for a period often (10) Contract
Years from the Operation Date.
5.2 Operation Date - The Operation Date may occur only after the Facility has achieved all of the
following:
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a) Achieved the First Energy Date.
b) Commssion approval of this Agreement in a form acceptable to Idaho Power has
been received.
c) Seller has demonstrated to Idaho Power's satisfaction that the Facility is complete and
able to provide energy in a consistent, reliable and safe maer.
d) Seller has requested an Operation Date from Idaho Power in a written format.
e) Seller has received written confiration from Idaho Power of the Operation Date.
This confirmtion wil not be unreasonably withheld by Idaho Power.
5.3 Operation Date Delay - Seller shall cause the Facilty to achieve the Operation Date on or before the
Scheduled Operation Date. Delays in the interconnection study, design and construction process that
are not Force Majeure events accepted by both Parties shall not prevent Delay Damages being
calculated as specified in this Agreement. As this Facility is already sellng energy to Idaho Power
under a Non Fir Energy sales agreement, it is expected that the First Energy Date and the Operation
Date for this Agreement shall be the same time and date.
5.3.1 If the Operation Date occurs after the Scheduled Operation Date but on or prior to 90
days following the Scheduled Operation Date, Seller shall pay Idaho Power Delay
Liquidated Damages calculated at the end of each calendar month after the Scheduled
Operation Date as follows:
Delay Liquidated Damages are equal to ((Current month's Intial Year Net
Energy Amount as specified in paragraph 6.2.1 divided by the number of days in
the current month) multiplied by the number of days in the Delay Period in the
curent month) multiplied by the curent month's Delay Price.
5.3.2 If the Operation Date does not occur within ninety (90) days following the Scheduled
Operation Date the Seller shall pay Idaho Power Delay Liquidated Damages, in addition
to those provided in paragraph 5.3.i, calculated as follows:
Forty five dollars ($45) multiplied by the Maximum Capacity with the Maximum
Capacity being measured in KW.
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5.4 If Seller fails to achieve the Operation Date within ninety (90) days following the Scheduled
Operation Date, such failure wil be a Material Breach and Idaho Power may termate this
Agreement at any time until the Seller cures the Material Breach. Additional Delay Damages
beyond those calculated in 5.3.1 and 5.3.2 wil be calculated and payable using the Delay
Damage calculation described in 5.3.1 above for all days exceeding 90 days past the Scheduled
Operation Date until such time as the Seller cures this Material Breach or Idaho Power termnates
this Agreement
5.5 Seller shall pay Idaho Power any calculated Delay Liquidated Damages within 7 days of when
Idaho Power calculates and presents any Delay Liquidated Damages bilings to the Seller.
Seller's failure to pay these dages withi the specified time wil be a Material Breach of this
Agreement and Idaho Power shall draw fuds from the Delay Securty provided by the Seller in
an amount equal to the calculated Delay Liquidated Damges.
5.6 The Paries agree that the daages Idaho Power would incur due to delay in the Facility
achieving the Operation Date on or before the Scheduled Operation Date would be diffcult or
impossible to predict with certainty, and that the Delay Liquidated Damages are an appropriate
approxition of such damages.
5.7 Within thy (30) days of the date ofa Commssion Order as specified in Aricle XXI approving
this Agreement; Seller shall post liquid securty ("Delay Securty") in a form as described in
Appendix D equal to or exceeding the amount calculated in paragraph 5.7.1. If the Seller's
Facility achieves it's Operation Date within thirty (30) days of the date of a Commission Order as
specified in Aricle XXI approving this Agreement the Seller shall not be required to post this
liquid security.
5.7.1 Delay Security The greater of forty five ($45) multiplied by the Maxium Capacity with
the Maximum Capacity being measured in KW or the sum of three month's estimated
revenue. Where the estimated three months of revenue is the estimated revenue
associated with the first three full months following the estimated Scheduled Operation
Date, the estimated Kwh of energy production as specified in paragraph 6.2.1 for those
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three months multiplied by the All Hours Energy Price specified in paragraph 7.3 for
each of those three months.
5.7.1.l In the event (a) Seller provides Idaho Power with certification that (1) a
generation interconnection agreement specifying a schedule that wil enable this
Facility to achieve the Operation Date no later tha the Scheduled Operation
Date has been completed and the Seller has paid all required interconnection
costs or (2) a generation interconnection agreement is substantially complete and
all material costs of interconnection have been identified and agreed upon and
the Seller is in compliance with all terms and conditions of the generation
interconnection agreement, the Delay Security calculated in accordance with
paragraph 5.7.1 wil be reduced by ten percent (10%).
5.7.1.2 If the Seller has received a reduction in the calculated Delay Securty as specified
in paragraph 5.7.1.1 and subsequently (1) at Seller's request, the generation
interconnection agreement specified in paragraph 5.7.1.1 is revised and as a
result the Facility wil not achieve its Operation Date by the Scheduled Operation
Date or (2) if the Seller does not maintain compliance with the generation
interconnection agreement, the full amount of the Delay Securty as calculated in
paragraph 5.7.1 wil be subject to reinstatement and wil be due and owing withi
5 business days from the date Idaho Power requests reinstatement. Failure to
timely reinstate the Delay Securty wil be a Material Breach of this Agreement.
5.7.2 Idaho Power shall release any remaining security posted hereunder after all calculated Delay
Damages and/or Delay Liquidated Damages are paid in full to Idaho Power and the earlier of (1)
30 days after the Operation Date has been achieved or (2) 60 days after the Agreement has been
termnated.
ARTICLE VI: PURCHASE AN SALE OF NET ENERGY
6.1 Delivery and Acceptance of Net Energy - Except when either Pary's performance is excused as
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provided herein, Idaho Power wil purchase and Seller wil sell all of the Net Energy to Idaho
Power at the Point of Delivery. All Inadvertent Energy produced by the Facility wil also be
delivered by the Seller to Idaho Power at the Point of Delivery. At no time wil the total amount
of Net Energy and/or Inadvertent Energy produced by the Facility and delivered by the Seller to
the Point of Delivery exceed the Maximum Capacity Amount.
6.2 Net Energy Amounts - Seller intends to produce and deliver Net Energy in the following monthly
amounts:
6.2.1 Intial Year Monthly Net Energy Amounts:
Month kWh
Season 1
March
April
May
l,339,200
1,296,000
1,190,400
July
August
l,190,400
l,190,400
1,296,000
1,339,200
Season 2 November
December
Season 3
June
September
October
Januar
Februar
1,152,000
1,152,000
1,339,200
1,339,200
1,209,600
6.2.2 Ongoing Monthly Net Energy Amounts - Seller shall initially provide Idao Power with
one year of monthly generation estimates (Intial Year Monthly Net Energy Amounts)
and beginnng at the end of month nine and every three months thereafter provide Idaho
Power with an additional three months of forward generation estimates. This informtion
wil be provided to Idaho Power by written notice in accordance with paragraph 25.l, no
later than 5:00 PM of the 5th business day following the end of the previous month. If the
Seller does not provide the Ongoing Monthly Net Energy Amounts in a timely maner,
Idaho Power wil use the most recent 3 months of the Intial Year Monthly Net Energy
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Amounts specified in paragraph 6.2.1 for the next 3 months of monthly Net Energy
amounts.
6.2.3 Seller's Adjustment of Net Energy Amount-
6.2.3.1 No later than the Operation Date, by written notice given to Idaho Power in
accordance with paragraph 25.1, the Seller may revise all of the previously
provided Intial Year Monthly Net Energy Amounts.
6.2.3.2 Beginning with the end of the 9th month after the Operation Date and at the end
of every third month thereafter: (1) the Seller may not revise the immediate next
three months of previously provided Net Energy Amounts, (2) but by written
notice given to Idaho Power in accordance with paragraph 25.1, no later than
5 :00 PM of the 5th business day following the end of the previous month, the
Seller may revise all other previously provided Net Energy Amounts. Failure to
provide timely written notice of changed amounts wil be deemed to be an
election of no change.
6.2.4 Idaho Power Adjustment of Net Energy Amount - If Idaho Power is excused from
accepting the Seller's Net Energy as specified in paragraph l2.2.1 or if the Seller declares
a Suspension of Energy Deliveries as specified in paragraph 12.3.1 and the Seller's
declared Suspension of Energy Deliveries is accepted by Idao Power, the Net Energy
Amount as specified in paragraph 6.2 for the specific month in which the reduction or
suspension under paragraph 12.2.1 or 12.3.1 occurs wil be reduced in accordance with
the following:
Where:
NEA Curent Month's Net Energy Amount (Paragraph 6.2)
SGU a.) IfIdaho Power is excused from accepting the Seller's Net
Energy as specified in paragraph 12.2.1 this value wil be
equal to the percentage of curailment as specified by
Idaho Power multiplied by the TGU as defined below.
b.) If the Seller declares a Suspension of Energy Deliveries as
specified in paragraph 12.3.1 this value wil be the sum of
the individual generation unts size ratings as specified in
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TGU
RSH
TH
Appendix B that are impacted by the circumstances
causing the Seller to declare a Suspension of Energy
Deliveries.
Sum of all of the individual generator ratings of the generation
unts at this Facility as specified in Appendix B ofthis
agreement.
Actual hours the Facility's Net Energy deliveries were either
reduced or suspended under paragraph 12.2.1 or 12.3.1
Actual total hours in the curent month
Resulting formula being:
~~~~~:gy = NEA _ (( ~~~ X NEA ) X (~: ) )
Amount
This Adjusted Net Energy Amount wil be used in applicable Surlus Energy calculations for
only the specific month in which Idaho Power was excused from accepting the Seller's Net
Energy or the Seller declared a Suspension of Energy.
6.3 Unless excused by an event of Force Majeure, Seller's failure to deliver Net Energy in any
Contract Year in an amount equal to at least ten percent (10%) of the sum of the Intial Year Net
Energy Amounts as specified in paragraph 6.2 shall constitute an event of default.
ARTICLE VII: PURCHASE PRICE AN METHOD OF PAYMENT
7.1 Base Energy Heavy Load Purchase Price - For all Base Energy received durg Heavy Load
Hours, Idaho Power wil pay the non-levelized energy price in accordance with Commssion
Order 30744,30738 and adjusted in accordace with Commssion Order 30415 for Heavy Load
Hour Energy deliveries with seasonalization factors applied:
Year
2009
2010
2011
2012
2013
Season 1 - (73.50 %)
Mils/kWh
58.65
57.98
59.54
61.22
62.62
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Season 2 - (120.00 %)
Mils/kWh
95.76
94.67
97.21
99.95
102.23
Season 3 - (100.00 %)
Mils/kWh
79.80
78.89
81.01
83.29
85.19
2014 64.05 104.57 87.14
2015 65.52 106.97 89.14
2016 67.10 109.55 91.29
2017 68.63 112.05 93.38
2018 70.29 114.77 95.64
2019 71.91 117.40 97.83
2020 73.56 120.10 100.08
7.2 Base Energy Light Load Purchase Price - For all Base Energy received durg Light Load Hours,
Idaho Power wil pay the non-levelized energy price in accordance with Commssion Order
30744, 30738 and adjusted in accordance with Commssion Order 30415 for Light Load Hour
Energy deliveries with seasonalization factors applied:
Year
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
Season 1 - (73.50 %)
Mils/kWh
53.30
52.63
54.19
55.87
57.27
58.70
60.17
61.75
63.28
64.94
66.56
68.21
Season 2 - (120.00 %)
Mils/kWh
87.02
85.93
88.47
91.21
93.49
95.83
98.23
100.81
103.32
106.03
108.66
111.36
Season 3 - (100.00 %)
Mils/kWh
72.52
71.61
73.73
76.01
77.91
79.86
81.86
84.01
86.10
88.36
90.55
92.80
7.3 All Hours Energy Price - The price to be used in the calculation of the Surlus Energy Price and
Delay Damage Price shall be the non-levelized energy price in accordace with Commssion
Order 30744 and 30738 with seasonalization factors applied:
Year
2009
2010
2011
2012
2013
2014
2015
2016
Season 1 - (73.50 %)
Mills/kWh
56.27
55.60
57.16
58.84
60.24
61.67
63.14
64.72
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Season 2 - (120.00 %)
Mils/kWh
91.87
90.78
93.32
96.06
98.34
100.68
103.08
105.66
Season 3 - (100.00 %)
Mils/kWh
76.56
75.65
77.77
80.05
81.95
83.90
85.90
88.05
2017
2018
2019
2020
66.25
67.91
69.53
71.18
108.17
110.88
113.51
116.21
90.14
92.40
94.59
96.84
7.4 Surlus Energy Price - For all Surplus Energy, Idaho Power shall pay to the Seller the curent
month's Market Energy Reference Price or the All Hours Energy Price specified in paragraph
7.3, whichever is lower.
7.5 Inadvertent Energy -
7.5.1 Inadvertent Energy is electric energy produced by the Facility, expressed in kWh,
which the Seller delivers to Idaho Power at the Point of Delivery that exceeds 10,000
kW multiplied by the hours in the specific month in which the energy was delivered.
(For example Januar contains 744 hours. 744 hours times 10,000 kW = 7,440,000
kWh. Energy delivered in Januar in excess of 7,440, 000 kWh in this example
would be Inadvertent Energy.)
7.5.2 Although Seller intends to design and operate the Facilty to generate no more than 10
average MW and therefore does not intend to generate Inadvertent Energy, Idaho
Power wil accept Inadvertent Energy that does not exceed the Maximum Capacity
Amount but wil not purchase or pay for Inadvertent Energy.
7.6 Payment Due Date - Energy payments, less any payments due to Idaho Power wil be disbursed
to the Seller within 30 days of the date which Idaho Power receives and accepts the
documentation of the monthly Net Energy actually delivered to Idaho Power as specified in
Appendix A. If Idaho Power disputes in good faith par or all of an invoice or the supporting
documentation, then Idaho Power shall provide notice of the disputed portion, including a written
explanation of the dispute, and pay any undisputed portion no later than the due date.
7.7 Continuing Jursdiction of the Commssion _ This Agreement is a special contract and, as such, the
rates, terms and conditions contained in this Agreement wil be construed in accordance with
Idaho Power Company v. Idaho Public Utilities Commssion and Afton Energy, Inc., 107 Idao
781, 693 P.2d 427 (1984), Idaho Power Company v. Idao Public Utilities Commssion, 107
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Idaho 1122,695 P.2d 1261 (1985), Afton Energy, Inc, v. Idaho Power Company, 11 1 Idaho 925,
729 P.2d 400 (1986), Section 210 of the Public Utilities Regulatory Policies Act of 1978 and 18
CFR §292.303-308.
ARTICLE Vll: ENVIRONMENTAL ATTRIUTES
8.1 Idaho Power waives any claim to ownership of Environmental Attbutes. Environmental
Attributes include, but are not limited to, Green Tags, Green Certificates, Renewable Energy
Credits (RECs) and Tradable Renewable Certificates (TRCs) directly associated with the
production of energy from the Seller's Facility.
ARTICLE IX: FACILITY AN INERCONNCTION
9.l Design of Facilty - Seller has designed, constrcted, installed, owns, operates and wil maintain
the Facility and any Seller-owned Interconnection Facilities so as to allow safe and reliable
generation and delivery of Net Energy and Inadvertent Energy to the Idaho Power Point of
Delivery for the full term of the Agreement.
ARTICLE X: METERIG AN TELEMETRY
10.1 Metering and Telemetry - Idaho Power has, for the account of Seller, provided, installed, and
wil maintain Meterig Equipment to be located at a mutually agreed upon location to record and
measure power flows to Idaho Power in accordance with Schedule 72 at the Point of Delivery.
The Metering Equipment wil be at the location and the type required to measure, record and
report the Facility's Net Energy, Station Use, Inadvertent Energy and maximum energy deliveries
(kW) in a manner to provide Idaho Power adequate energy measurement data to admster this
Agreement and to integrate this Facility's energy production into the Idaho Power electrical
system.
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ARTICLE XI - RECORDS
11.1 Maintenance of Records - Seller shall maintain at the Facility or such other location mutually
acceptable to the Parties adequate total generation, Net Energy, Station Use, Inadvertent Energy
and maximum generation (kW) records in a form and content acceptable to Idaho Power as
reasonably recommended by Idaho Power.
11.2 Inspection - Either Party, after reasonable notice to the other Pary, shall have the right, durg
normal business hours, to inspect and audit any or all generation, Net Energy, Station Use,
Inadvertent Energy and maximum generation (kW) records pertaining to the Seller's Facility.
Each pary shall be responsible for their own costs associated with any reasonable Inspection
request.
ARTICLE XII: OPERATIONS
12 .1 Communications - Idaho Power and the Seller shall maintain appropriate operating
communcations through Idaho Power's Designated Dispatch Facility in accordance with
Appendix A of this Agreement.
12.2 Energy Acceptance-
12.2.1 Idaho Power shall be excused from accepting and paying for Net Energy or accepting
Inadvertent Energy which would have otherwise been produced by the Facility and
delivered by the Seller to the Point of Delivery, if it is prevented from doing so by an
event of Force Majeure, or temporar disconnection of the Facility in accordance with
Schedule 72. If, for reasons other than an event of Force Majeure, a temporar
disconnection under Schedule 72 exceeds twenty (20) days, beginng with the twenty-
first day of such interrption, curilment or reduction, Seller wil be deemed to be
delivering Net Energy at a rate equivalent to the pro rata daily average of the amounts
specified for the applicable month in pargraph 6.2. Idaho Power wil notify Seller when
the interrption, curailment or reduction is termnated.
12.2.2 If, in the reasonable opinon of Idaho Power, Seller's operation of the Facility or
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Interconnection Facilities is unsafe or may otherwise adversely affect Idaho Power's
equipment, personnel or service to its customers, Idaho Power may temporarly
disconnect the Facility from Idaho Power's transmission/distribution system as specified
within Schedule 72 or take such other reasonable steps as Idaho Power deems
appropriate.
12.2.3 Under no circumstances wil the Seller deliver Net Energy and/or Inadvertent Energy
from the Facility to the Point of Delivery in an amount that exceeds the Maximum
Capacity Amount. Seller's failure to limit deliveries to the Maximum Capacity Amount
wil be a Material Breach of this Agreement.
12.3 Seller Declared Suspension of Energy Deliveries
12.3.1 If the Seller's Facility experiences a forced outage due to equipment failure which is not
caused by an event of Force Majeure or by neglect, disrepair or lack of adequate
preventative maintenance of the Seller's Facility, Seller may, after giving notice as
provided in paragraph 12.3.2 below, temporarily suspend all deliveries of Net Energy to
Idaho Power from the Facilty or from individual generation untes) within the Facility
impacted by the forced outage for a period of not less than 48 hours to correct the forced
outage condition ("Declared Suspension of Energy Deliveries"). The Seller's Declared
Suspension of Energy Deliveries wil begin at the star of the next full hour following the
Seller's telephone notification as specified in paragraph 12.3.2 and wil continue for the
time as specified (not less than 48 hours) in the written notification provided by the
Seller. In the month(s) in which the Declared Suspension of Energy occurred, the Net
Energy Amount wil be adjusted as specified in paragrph 6.2.4.
12.3.2 If the Seller desires to initiate a Declared Suspension of Energy Deliveries as provided in
paragraph l2.3.l, the Seller wil notify the Designated Dispatch Facility by telephone.
The beginnng hour of the Declared Suspension of Energy Deliveries wil be at the
earliest the next full hour after makng telephone contact with Idaho Power. The Seller
wil, withi 24 hours after the telephone contact, provide Idaho Power a written notice in
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accordance with Aricle XXV that wil contain the beginnng hour and duration of the
Declared Suspension of Energy Deliveries and a description of the conditions that caused
the Seller to initiate a Declared Suspension of Energy Deliveries. Idaho Power wil
review the documentation provided by the Seller to determe Idaho Power's acceptance
of the described forced outage as qualifyg for a Declared Suspension of Energy
Deliveries as specified in paragraph 12.3.1. Idaho Power's acceptance of the Seller's
forced outage as an acceptable forced outage wil be based upon the clear documentation
provided by the Seller that the forced outage is not due do an event of Force Majeure or
by neglect, disrepair or lack of adequate preventative maintenance of the Seller's Facilty.
12.4 Scheduled Maintenance - On or before Januar 31 of each calendar year, Seller shall submit a
written proposed maintenance schedule of signficant Facility maintenance for that calendar year
and Idaho Power and Seller shall mutually agree as to the acceptabilty of the proposed schedule.
The Paries determnation as to the acceptabilty of the Seller's timetable for scheduled
maintenance wil take into consideration Prudent Electrical Practices, Idaho Power system
requirements and the Seller's prefered schedule. Neither Pary shall uneasonably withhold
acceptance of the proposed maintenance schedule.
12.5 Maintenance Coordination - The Seller and Idaho Power shall, to the extent practical, coordiate
their respective line and Facility maintenace schedules such that they occur simultaneously.
12.6 Contact Prior to Curailment - Idaho Power wil make a reasonable attempt to contact the Seller
prior to exercising its rights to interrpt interconnection or curil deliveries from the Seller's
Facility. Seller understands that in the case of emergency circumtances, real time opertions of
the electrical system, and/or unplanned events Idaho Power may not be able to provide notice to
the Seller prior to interrption, curailment, or reduction of electrical energy deliveries to Idaho
Power.
ARTICLE XII: INEMNIFICATION AN INSURCE
l3.1 Indemnfication - Each Pary shall agree to hold haress and to indemnfy the other Pary, its
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officers, agents, affliates, subsidiaries, parent company and employees against all loss, damage,
expense and liability to thid persons for injury to or death of person or injur to property,
proximately caused by the indemnfying Party's (a) construction, ownership, operation or
maintenance of, or by failure of, any of such Pary's works or facilities used in connection with
this Agreement or (b) negligent or intentional acts, errors or omissions. The indemnfying Pary
shall pay all documented costs, including reasonable attorney fees that may be incured by the
other Pary in enforcing this indemnity.
13.2 Insurance - During the term of this Agreement, Seller shall secure and continuously car the
following inurance coverage:
13.2.1 Comprehensive General Liabilty Insurance for both bodily injur and property damage
with limits equal to $l,OOO,OOO, each occurence, combined single limit. The deductible
for such insurance shall be consistent with curent Insurance Industry Utilty practices for
similar property.
13.2.2 The above insurance coverage shall be placed with an insurance company with an A.M.
Best Company rating of A- or better and shall include:
(a) An endorsement namng Idaho Power as an additional insured and loss payee as
applicable; and
(b) A provision stating that such policy shall not be canceled or the limts of liabilty
reduced without sixty (60) days' prior wrtten notice to Idaho Power.
13.3 Seller to Provide Certificate of Insurance - As required in paragraph 4.1.5 herein and annually
thereafter, Seller shall fush Idaho Power a certificate of insurance, together with the
endorsements required therein, evidencing the coverage as set forth above.
13.4 Seller to Notify Idaho Power of Loss of Coverage - If the insurance coverage required by
paragraph 13.2 shall lapse for any reason, Seller wil imediately notify Idaho Power in writing.
The notice wil advise Idaho Power of the specific reason for the lapse and the steps Seller is
takg to reinstate the coverage. Failure to provide this notice and to expeditiously reinstate or
replace the coverage wil constitute a Material Breach of this Agreement.
- 2l-
ARTICLE XIV: FORCE MAJEUR
l4.1 As used in this Agreement, "Force Majeure" or "an event of Force Majeure" means any cause
beyond the control of the Seller or of Idaho Power which, despite the exercise of due diligence,
such Pary is unable to prevent or overcome. Force Majeure includes, but is not limted to, acts of
God, fire, flood, storm, wars, hostilities, civil strife, strikes and other labor disturbances,
earhquaes, fires, lightning, epidemics, sabotage, or changes in law or regulation occurng after
the effective date, which, by the exercise of reasonable foresight such pary could not reasonably
have been expected to avoid and by the exercise of due dilgence, it shall be unable to overcome.
If either Party is rendered wholly or in part unable to perform its obligations under this
Agreement because of an event of Force Majeure, both Paries shall be excused from whatever
performce is affected by the event of Force Majeure, provided that:
(1) The non-performng Party shall, as soon as is reasonably possible after the
occurence of the Force Majeure, give the other Par written notice describing
the particulars of the occurence.
(2) The suspension of performance shall be of no greater scope and of no longer
duration than is required by the event of Force Majeure.
(3) No obligations of either Pary which arose before the occurence causing the
suspension of performance and which could and should have been fully
performed before such occurence shall be excused as a result of such
occurence.
ARTICLE XV: LIMITATION OF LIAILITY; DEDICATION
15.1 Limitation of Liability Nothing in this Agreement shall be construed to create any duty to, any
standard of care with reference to, or any liabilty to any person not a Pary to this Agreement.
Neither party shall be liable to the other for any indiect, special, consequential, nor puntive
damges, except as expressly authorized by this Agreement. Consequential damages wil
include, but not be limited to, the value of renewable energy credits and, if the Facility is fueled
- 22-
by gas produced by an anaerobic digester system, any diminution or loss of anaerobic activity due
to the inability ofIdaho Power to accept energy from the Facility.
15.2 Dedication No undertakng by one Pary to the other under any provision of this Agreement
shall constitute the dedication of that Pary's system or any portion thereofto the Party or the
public or affect the status of Idaho Power as an independent public utility corporation or Seller as
an independent individual or entity.
ARTICLE XVI: SEVERA OBLIGATIONS
16.1 Except where specifically stated in this Agreement to be otherwise, the duties, obligations and
liabilities of the Paries are intended to be several and not joint or collective. Nothing contained
in this Agreement shall ever be construed to create an association, trust, parership or joint
venture or impose a trust or parnership duty, obligation or liabilty on or with regard to either
Party. Each Party shall be individually and severally liable for its own obligations under this
Agreement.
ARTICLE XVII: WAIER
17.1 Any waiver at any time by either Party of its rights with respect to a default under this Agreement
or with respect to any other matters arsing in connection with this Agreement shall not be
deemed a waiver with respect to any subsequent default or other matter.
ARTICLE XVII: CHOICE OF LAWS AN VENU
18.1 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.
18 .2 Venue for any litigation arsing out of or related to this Agreement wil lie in the District Cour of
the Fourh Judicial District ofIdaho in and for the County of Ada.
ARTICLE XIX: DISPUTES AN DEFAULT
19.1 Disputes - All disputes related to or arsing under this Agreement, including, but not limited to,
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the interretation of the term and conditions of this Agreement, wil be submitted to the
Commssion for resolution.
19.2 Notice of Default -
19.2.1 Defaults. "Default" means, with respect to a Pary (the defaulting Pary), the
occurrence of any of the following; (i) the failure to make, when due, any payment
required pursuant to this Agreement; (ii) the failure to perform any covenant or
obligation set forth in this Agreement; (ii) such Pary becomes bankpt or insolvent
(however evidenced), fies a petition (or otherwise commences, authorizes or
acquiesces to the commencement of a proceeding or cause of action with respect to it)
under any banptcy proceeding or similar laws for the protection of creditors, or has
such a petition fied against it (if such petition is not withdrawn, dismissed,
dischaged, stayed or restrained, in each case within five (5) days of the presentation
thereof); or (iv) such Party makes an assignent or any general arangement for the
benefit of creditors Items (iii) and (iv) shall be considered Material Breaches.
19.2.2 If either Party Defaults, as defmed above, the nondefaulting Pary may cause notice in
writing to be given to the defaulting Party, specifying the manner in which such
default occurred. If the defaulting Pary shall fail to cure such default within the sixty
(60) days after servce of such notice, or if the defaulting Pary reasonably
demonstrates to the other Party that the default can be cured within a commercially
reasonable time but not withi such sixty (60) day period and then fails to dilgently
pursue such cure, then, the nondefaulting Pary may, at its option, termate this
Agreement and/or pursue its legal or equitable remedies.
19.2.3 Material Breaches - The notice and cure provisions in paragraph 19.2.2 do not apply
to defaults identified in this Agreement as Material Breaches. Material Breaches must
be cured as expeditiously as possible following occurrence of the breach.
19.3 Securty for Performnce - Prior to the Operation Date and thereafter for the full term of this
Agreement, Seller wil provide Idaho Power with the following:
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19.3.1 Insurance - Evidence of compliance with the provisions of paragraph 13.2. If Seller
fails to comply, such failure wil be a Material Breach and may only be cured by
Seller supplying evidence that the required insurance coverage has been replaced or
reinstated;
19.3.2 Engineer's Certifications - Every three (3) years after the Operation Date, Seller wil
supply Idaho Power with a Certification of Ongoing Operations and Maintence
(O&M) from a Registered Professional Engineer licensed in the State of Idaho, which
Certification of Ongoing 0 & M shall be in the form specified in Appendix C. Seller's
failure to supply the required cerificate wil be an event of default. Such a default
may only be cured by Seller providing the required certificate; and
19.3.3 Licenses and Permts - During the full term of this Agreement, Seller shall maintain
compliance with all perts and licenses described in paragraph 4.1.1 of this
Agreement. In addition, Seller wil supply Idaho Power with copies of any new or
additional permts or licenses. At least every fifth Contract Year, Seller wil update the
documentation described in Paragraph 4.1.1. If at any time Seller fails to maintain
compliance with the permts and licenses described in paragraph 4.1.1 or to provide
the documentation requied by this paragraph, such failure wil be an event of default
and may only be cured by Seller submitting to Idaho Power evidence of compliance
from the permtting agency.
ARTICLE XX: GOVERNENTAL AUTHORIATION
20.1 This Agreement is subject to the jursdiction of those governental agencies having control over
either Pary of this Agreement.
ARTICLE XXI: COMMISSION ORDER
21.l This Agreement shall become finally effective upon the Commssion's approval of all term and
provisions hereof without change or condition and declaration that all payments to be made to
- 25-
Seller hereunder shall be allowed as prudently incured expenses for ratemang puroses.
ARTICLE XXII: SUCCESSORS AN ASSIGNS
22.1 This Agreement and all of the terms and provisions hereof shall be binding upon and inure to the
benefit of the respective successors and assigns of the Paries hereto, except that no assignent
hereof by either Party shall become effective without the written consent of both Paries being
first obtained. Such consent shall not be uneasonably withheld. Notwithstanding the foregoing,
any party which Idaho Power may consolidate, or into which it may merge, or to which it may
conveyor transfer substantially all of its electric utility assets, shall automatically, without fuher
act, and without need of consent or approval by the Seller, succeed to all ofIdaho Power's rights,
obligations and interests under this Agreement. This article shall not prevent a financing entity
with recorded or secured rights from exercising all rights and remedies available to it under law
or contract. Idaho Power shall have the right to be notified by the finacing entity that it is
exercising such rights or remedies.
ARTICLE XXII: MODIFICATION
23.1 No modification to this Agreement shall be valid uness it is in wrting and signed by both Paries
and subsequently approved by the Commssion.
ARTICLE XXIV: TAXES
24.1 Each Pary shall pay before delinquency all taxes and other governental charges which, if failed
to be paid when due, could result in a lien upon the Facility or the Interconnection Facilities.
Seller shall be responsible for and pay all property taxes and Seller shall bear those taxes and fees
which are incured before the passage oftitle from Seller to Buyer. Buyer shall bear only those
taxes and fees which are incured concurent with or after the passage of title from Seller to
Buyer
ARTICLE XXV: NOTICES
25.1 All written notices under this Agreement shall be directed as follows and shall be
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considered delivered when faxed, e-mailed and confirmed with deposit in the U.S. Mail,
first-class, postage prepaid, as follows:
To Seller:Cargil Environmental Finance
Attn: Sanchayita Ray
Director Finance
9350 Excelsior Boulevard
MS 139-4-A
Hopkins, MN 55343
E-mail: sanchayitaJay~cargiii.com
To Idaho Power:
Origial document to:
Vice President, Power Supply
Idaho Power Company
POBox 70
Boise, Idaho 83707
Email:jimller~idahopower.com
Copy of document to:
Cogeneration and Small Power Production
Idaho Power Company
POBox 70
Boise, Idaho 83707
E-mail: rallphilfidaopower.com
Either Party may change the contact person and/or address informtion listed above, by providing written
notice from an authorized person representing the Par.
ARTICLE XXVI: ADDITIONAL TERMS AN CONDITIONS
26.1 This Agreement includes the following appendices, which are attached hereto and included by
reference:
Appendix A
AppendixB
AppendixC
AppendixD
Generation Scheduling and Reporting
Facility and Point of Deliver
Engineer's Certifications
Forms of Liquid Securty
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ARTICLE XXVII: SEVERAILITY
27.1 The invalidity or unenforceability of any term or provision of this Agreement shall not affect the
validity or enforceabilty of any other terms or provisions and this Agreement shall be construed
in all other respects as if the invalid or unenforceable term or provision were omitted.
ARTICLE XXVII: COUNTERPARTS
28.1 This Agreement may be executed in two or more counterpars, each of which shall be deemed an
original but all of which together shall constitute one and the same instruent.
ARTICLE XXIX: ENTIR AGREEMENT
29.1 This Agreement constitutes the entire Agreement of the Parties concerg the subject matter
hereof and supersedes all prior or contemporaneous oral or written agreements between the
Parties concernng the subject matter hereof.
IN WITNSS WHREOF, The Paries hereto have caused this Agreement to be executed
in their respective names on the dates set forth below:
Idaho Power Company Cargill
By
"l~ ß.. thA)LisaA Grow
Sr. Vice President, Power Supply
By
+ay~_
Managing Director, Cargil Envionmental
Finance division of Cargil, Incorporated
Dated
I, 22..10
Dated ipl/IOi ,
"Idaho Power""Sellet'
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APPENDIX A
A -1 MONTHLY PO~R PRODUCTION AN SWITCHING REPORT
At the end of each month the following required documentation wil be submitted to:
Idaho Power Company
Attn: Cogeneration and Small Power Production
POBox 70
Boise, Idaho 83707
The meter readings required on this report wil be the readings on the Idaho Power Meter Equipment
measuring the Facilty's total energy production and Station Usage delivered to Idaho Power and the
maximum generated energy (kW) as recorded on the Meterig Equipment and/or any other required
energy measurements to adequately admnister this Agreement. This document shall be the document to
enable Idaho Power to begin the energy payment calculation and payment process. The meter readings
on this report shall not be used to calculate the actual payment, but instead wil be a check of the
automated meter reading information that wil be gathered as described in item A-2 below:
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Idaho Power Company
Cogeneration and Small Power Production
MONTHLY POWER PRODUCTION AND SWITCHING REPORT
Project Name
Month Year
Project Number:
Address
City
Meter Number:
End of Month kWh Meter Readig:
Beginnig of Month kWh Meter:
Difference:
Times Meter Constant:
kWh for the Month:
Metered Demand:
Breaker Opening Record
Date Time Meter
*Breaker Opening Reason Codes
Lack of Adequate Prime Mover
Forced Outage of Facilty
Disturbance of IPCo System
Scheduled Maintenance
Testing of Protection Systems
Cause Unknown
Other (Explain)
i
2
3
4
5
6
7
State Zip
Facilty
Output
Station
Usage
Phone Number:
Station
Usage
Metered
Maximum Generation
kW
Net Generation
Breaker Closing Record
Date Time Meter
I hereby certify that the above meter readings are
true and correct as of Midnight on the last day ofthe
above month and that the switching record is accurate
and complete as requied by the Firm Energy Sales
Agreement to which I am a Party.
Signature
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*Reason
Date
A-2 AUTOMATED METER READING COLLECTION PROCESS
Monthly, Idaho Power wil use the provided Metering and Telemetry equipment and processes to collect
the meter reading informtion from the Idaho Power provided Meterng Equipment that measures the Net
Energy and energy delivered to supply Station Use for the Facility recorded at 12:00 AM (Midnght) of
the last day of the month..
The meter information collected wil include but not be limited to energy production, Station Use, the
maximum generated power (kW) and any other required energy measurements to adequately admnister
this Agreement.
A-3 ROUTIN REPORTING
Once the Facility has achieved its Operation Date and has operated in a reliable and consistent
maner for a reasonable period of time, the Paries may mutually agree to modify this Routine
Reporting requirement.
Idaho Power Contact Inormation
Daily Energy Production Reporting
Call daily by lO a.m., 1 -800-356-4328 or 1-800-635- 1 093 and leave the following
informtion:
· Project Identification - Project Name and Project Number
· Curent Meter Reading
· Estimated Generation for the curent day
· Estimated Generation for the next day
Planed and Unplanned Project outages
Call 1-800-345-l319 and leave the following inormation:
· Project Identification - Project Name and Project Number
· Approximate time outage occurred
· Estimated day and time of project coming back online
Seller's Contact Informtion
24-Hour Project Operational Contact
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Name:
Telephone Number:
Cell Phone:
Ryan Coleman
208-340-642l
570-905-5799
Project On-site Contact information
Telephone Number:
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APPENDIXB
FACILITY AN POINT OF DELNERY
PROJECT NO. 31615100
Bettencour Dry Creek BioFactory
B-1 DESCRITION OF FACILITY
(Must include the Nameplate Capacity rating and VAR capabilty (both leading and lagging) of all
generation units to be included in the Facility.)
This Facility wil consist of an Anerobic Digester waste processing unt that wil supply fuel to 3
Guascor SFGLD 560 engines that wil drive three (3) Stamford Newage P1736D generators, each
with a nameplate rating of 750 kW. Connected to Idaho Power Company using Gen-Tec
GENCON II controls, ABB Isomax Breaker, and Beckwith m341 OA protective relays.
B-2 LOCATION OF FACILITY
Near: Hansen, Idao 2940 South 4225 East Twin, Falls Idaho
Sections: 34 Township: T11S Range: R19E County: Twin Falls ID.
Description of Interconnection Location: _low side bushings on two padmounted transformers
located on Dry Creek Dair.
Nearest Idaho Power Substation: Aresian (ARTN
B-3 SCHEDULED FIRST ENERGY AN OPERATION DATE
Seller has selected 30 days past the date ths Agreement is approved by the Commssion as
specified in paragraph 21.1 of this Agreement as the Scheduled First Energy Date.
Seller has selected 30 days past the date this Agreement is approved by the Commssion as
specified in paragraph 2l. 1 of this Agreement as the Scheduled Operation Date.
In making these selections, Seller recognzes that adequate testing of the Facility and completion
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of all requirements in paragraph 5.2 of this Agreement must be completed prior to the project
being granted an Operation Date.
B-4 MAXIM CAPACITY AMOUNT: This value will be 2.25 MW which is consistent with the
value provided by the Seller to Idaho Power in accordance with Schedule 72. This value is the
maximum energy (MW) that potentially could be delivered by the Seller's Facilty to the Idaho
Power electrical system at any moment in time.
B-5 POINT OF DELIVERY
"Point of Delivery" means, unless otherise agreed by both Paries, the point of where the Sellers
Facility's energy is delivered to the Idaho Power electrical system. Schedule 72 wil determne
the specific Point of Deliver for this Facility. The Point of Delivery identified by Schedule 72
wil become an integral part of this Agreement.
B-6 LOSSES
If the Idaho Power Meterig equipment is capable of measurng the exact energy deliveries by the
Seller to the Idaho Power electrical system at the Point of Delivery, no Losses wil be calculated
for this Facility. If the Idaho Power Metering is unble to measure the exact energy deliveries by
the Seller to the Idaho Power electrical system at the Point of Delivery, a Losses calculation wil
be established to measure the energy losses (kWh) between the Seller's Facility and the Idaho
Power Point of Delivery. This loss calculation wil be initially set at 2% of the kWh energy
production recorded on the Facility generation metering equipment. At such time as Seller
provides Idaho Power with the electrical equipment specifications (transformer loss
specifications, conductor sizes, etc) of all of the electrcal equipment between the Facility and the
Idaho Power electrical system, Idaho Power wil confgue a revised loss calculation formula to
be agreed to by both parties and used to calculate the kWh Losses for the remainng term of the
Agreement. If at any time durg the term of this Agreement, Idaho Power determes that the
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loss calculation does not correctly reflect the actual kWh losses attributed to the electrical
equipment between the Facility and the Idaho Power electrical system, Idaho Power may adjust
the calculation and retroactively adjust the previous months kWh loss calculations.
B-7 METERIG AN TELEMETRY
Schedule 72 wil determne the specific metering and telemetry requirements for this Facility. At
the mimum the Meterig Equipment and Telemetry equipment must be able to provide and
record hourly energy deliveries to the Point of Delivery and any other energy measurements
required to admster this Agreement. These specifications wil include but not be limited to
equipment specifications, equipment location, Idaho Power provided equipment, Seller provided
equipment, and all costs associated with the equipment, design and installation of the Idaho
Power provided equipment. Seller wil arrange for and make available at Seller's cost
communcation circuit(s) compatible with Idaho Power's communications equipment and
dedicated to Idaho Power's use termnating at the Idaho Power facilties capable of providing
Idaho Power with continuous instantaneous informtion on the Facilities energy production.
Idaho Power provided equipment wil be owned and maintained by Idaho Power, with total cost
of purchase, installation, operation, and maintenance, including admstrative cost to be
reimbursed to Idaho Power by the Seller. Payment of these costs wil be in accordace with
Schedule 72 and the total metering cost wil be included in the calculation of the MontWy
Operation and Maintenance Charges specified in Schedule 72.
B-8 NETWORK RESOURCE DESIGNATION AN TRASMISSION SERVICE REQUEST
Idaho Power cannot accept or pay for generation from this Facility until a Transmission Service
Request ("TSR") and a Network Resource Designation ("NR") application have been accepted
by Idaho Power's delivery business unt. Federal Energy Regulatory Commssion ("FERC")
Rules require Idaho Power to prepare and submit the TSR and NR. Because much of the
information Idaho Power needs to prepare the TSR and NR is specific to the Seller's Facility,
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Idaho Power's ability to fie the TSR and NR in a timely maner is contingent upon timely
receipt of the required information from the Seller. Seller's failure to provide complete and
accurate information in a tiely manner can delay the First Energy Date and may result in
Seller paying higher costs for interconnection.
i.) Transmission Servce Request (TSR)- Idaho Power wil prepare and submit the
TSR within a reasonable period of time after the Seller (a) provides written
confrmation that the Generation Interconnection Agreement ("GIA") between
Seller and Idaho Power's delivery business unt has been executed for this
Facility and (b) provides all of the Facility-specific details required to complete
the TSR.
ii.) Network Resource Designation - Idaho Power wil complete and fie the NR
application within a reasonable period of time after a) this Agreement has been
executed by both paries and b) the TSR has been fied and accepted and c) all
necessar informtion has been received from the Seller to enable Idao Power to
complete the NR application.
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APPENDIXC
ENGINER'S CERTIFICATION
OF
OPERATIONS & MAITENANCE POLICY
The undersigned , on behalf of hiself and Cargill,
Incorporated, hereinafter collectively referred to as "Engineer," hereby states and certifies to the Seller as
follows:
1. That Engineer is a Licensed Professional Engineer in good standing in the State ofIdaho.
2. That Engineer has reviewed the Energy Sales Agreement, hereinafter "Agreement," between
Idaho Power as Buyer, and as Seller, dated
3. That the cogeneration or small power production project which is the subject of the Agreement
and this Statement is identified as IPCo Facility No. and is hereinafter referred to as
the "Project."
4. That the Project, which is commonly known as the Project, is located in
Section _ Township Range , Boise Merdian, County, Idaho.
5. That Engineer recognzes that the Agreement provides for the Project to fush electrical energy
to Idaho Power for a year period.
6. That Engineer has substantial experience in the design, construction and operation of electrc
power plants of the same type as this Project.
7. That Engineer has no economic relationship to the Design Engieer of this Project.
8. That Engineer has reviewed and/or supersed the review of the Policy for Opertion and
Maintenance ("O&M") for this Project and it is his professional opinion that, provided said Project has
been designed and built to appropriate standards, adherence to said O&M Policy wil result in the
Project's producing at or nea the design electrical output, efficiency and plant factor for a twenty (20)
year period.
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9. That Engineer recognzes that Idaho Power, in accordace with paragraph 5.2 of the Agreement,
is relying on Engineer's representations and opinions contained in this Statement.
LO. That Engineer certifies that the above statements are complete, true and accurate to the best of his
knowledge and therefore sets his hand and seal below.
By
(P.E. Stamp)
Date
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APPENDIXC
ENGINEER'S CERTIFICATION
OF
ONGOING OPERATIONS AN MAIENANCE
The undersigned , on behalf of hiself and
Cargil, Incorporated, hereinafter collectively referred to as "Engineer," hereby states and certifies to the
Seller as follows:
1. That Engineer is a Licensed Professional Engineer in good standing in the State of Idaho.
2. That Engieer has reviewed the Energy Sales Agreement, hereinafter "Agreement," between
Idaho Power as Buyer, and as Seller, dated
3. That the cogeneration or small power production project which is the subject of the Agreement
and this Statement is identified as IPCo Facility No. and hereinafter referred to as the
"Project".
4. That the Project, which is commonly known as the Project, is located in
Section _ Township Range , Boise Meridian, County, Idao.
5. That Engineer recognzes that the Agreement provides for the Project to fush electrical energy
to Idaho Power for a year period.
6. That Engineer has substantial experience in the design, construction and operation of electric
power plants of the same type as this Project.
7. That Engineer has no economic relationship to the Design Engineer of this Project.
8. That Engineer has made a physical inspection of said Project, its operations and maintenace
records since the last previous certified inspection. It is Engineer's professional opinon, based on the
Project's appearance, that its ongoing O&M has been substantially in accordance with said O&M Policy;
that it is in reasonably good operating condition; and that if adherence to said O&M Policy continues, the
Project wil continue producing at or near its design electrical output, efficiency and plant factor for the
remainig years of the Agreement.
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9. That Engineer recognzes that Idaho Power, in accordace with paragraph 5.2 of the Agreement,
is relying on Engineer's representations and opinions contained in this Statement.
10. That Engineer certifies that the above statements are complete, true and accurate to the best of his
knowledge and therefore sets his had and seal below.
By
(P .E. Stamp)
Date
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APPENDIXC
ENGINEER'S CERTIFICATION
OF
DESIGN & CONSTRUCTION ADEQUACY
The undersigned , on behalf of himself and Cargill,
Incorporated, hereinafter collectively referred to as "Engineer", hereby states and certifies to Idaho Power
as follows:
1.
2.
That Engineer is a Licensed Professional Engineer in good standing in the State ofIdaho.
That Engineer has reviewed the Fir Energy Sales Agreement, hereinafter "Agreement",
between Idaho Power as Buyer, and as Seller, dated ~
3. That the cogeneration or small power production project, which is the subject of the
Agreement and this Statement, is identified as IPCo Facility No and is hereinafter
referred to as the "Project".
4. That the Project, which is commonly known as the Project, is located in
Section _ Township Range , Boise Meridian, County, Idaho.
5. That Engineer recognzes that the Agreement provides for the Project to fush electrcal
energy to Idaho Power for a year period.
6. That Engineer has substantial experence in the design, construction and operation of
electric power plants of the same type as this Project.
7. That Engineer has no economic relationship to the Design Engineer of this Project and
has made the analysis ofthe plans and specifications independently.
8. That Engieer has reviewed the engineering design and construction of the Project,
including the civil work, electrical work, generating equipment, prime mover conveyance system, Seller
fushed Interconnection Facilities and other Project facilties and equipment.
9. That the Project has been constructed in accordance with said plans and specifications, all
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applicable codes and consistent with Prudent Electrical Practices as that term is described il the
Agreement.
LO. That the design and construction of the Project is such that with reasonable and prudent
operation and maintenance practices by Seller, the Project is capable of performng in accordance with the
term of the Agreement and with Prudent Electrical Practices for a twenty (20) year period.
11.That Engineer recognzes that Idaho Power, in accordance with paragraph 5.2 of the
Agreement, in interconnecting the Project with its system, is relying on Engineer's representations and
opinions contained in this Statement.
12. That Engineer certifies that the above statements are complete, true and accurate to the
best of his knowledge and therefore sets his hand and seal below.
By
(P.E. Stamp)
Date
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APPENDIXD
FORMS OF LIQUID SECURY
The Seller shall provide Idaho Power with commercially reasonable securty instruents such as
Cash Escrow Securty, Guaantee or Letter of Credit as those terms are defined below or other
forms of liquid finncial security that would provide readily available cash to Idaho Power to
satisfy the Delay Securty requirement within this Agreement.
For the purose ofthis Appendix D, the ter "Credit Requirements" shall mean acceptable
financial creditworthiness of the entity providing the security instrument in relation to the term of
the obligation in the reasonable judgment of Idaho Power, provided that any guarantee and/or
letter of credit issued by any other entity with a short-term or long-term investment grade credit
rating by Standad & Poor's Corporation or Moody's Investor Servces, Inc. shall be deemed to
have acceptable financial creditworthiness.
1. Cash Escrow Securty - Seller shall deposit fuds in an escrow account established by the
Seller in a bankg institution acceptable to both Paries equal to the Delay Securty.
2. Guarantee or Letter of Credit Security - Seller shall post and maintain in an amount
equal to the Delay Securty: (a) a guaranty from a pary that satisfies the Credit
Requirements, in a form acceptable to Idaho Power at its discretion, or (b) a Letter of
Credit in a form acceptable to Idaho Power, in favor of Idaho Power. The Letter of
Credit wil be issued by a financial institution acceptable to both paries.
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