20151211Settlement Stipulation and Joint Motion.pdf

DONOVAN E. WALKER
Lead Gounsel
nECI i\,/[ ij
20lI0tC I I PH 12: hE
u T r Jr?'iU Yi d*l'fi i tls r o *
Sffi*.
Alr IDACORP compar.'ty
December 11,2015
VIA HAND DELIVERY
Jean D. Jewell, Secretary
ldaho Public Utilities Commission
472 West Washington Street
Boise, ldaho 83702
Re: Case No. !PC-E-12-18
Hidden Hollow Energy 2, LLC - Settlement Stipulation and Joint Motion to
Approve Settlement Stipulation for Dismissal with Prejudice
Dear Ms. Jewell:
Enclosed for filing in the above matter are an original and seven (7) copies of a
Settlement Stipulation and Joint Motion to Approve Settlement Stipulation for Dismissa!
with Prejudice.
DEW:csb
Enclosures
1221W. ldaho 5t. (81702)
PO. Box 70
Boise. lD 83707
DONOVAN E. WALKER (lSB No. 5921)
ldaho Power Company
1221 West ldaho Street (83702)
P.O. Box 70
Boise, ldaho 83707
Telephone: [phone]
Facsimile: [phone]
dwalker@ idahopower. com
Attorney for ldaho Power Company
HIDDEN HOLLOW ENERGY 2 LLC
Complainant,
V.
IDAHO POWER COMPANY,
STEPHEN R. THOMAS (lSB No. 2326)
Moffatt, Thomas, Barrett, Rock &
Fields, Chartered
101 S. Capitol Blvd., 1Oth Floor
Post Office Box 829
Boise, ldaho 83701
Telephone [phone] E
Facsimile [phone] -=[e-mail] #Ii('/);j:;
Attorneys for Complainant 3 -.
t\,e,
c.rlO--rn /-tr,in ()
ii"l
:*:-t, ",-_:,1
N)
Ulii
BEFORE THE IDAHO PUBLIC UTILTTIES COMMISSION S
CASE NO. IPC-E-12-18
SETTLEMENT STIPULATION AND
JOINT MOTION TO APPROVE
SETTLEMENT STIPULATION FOR
DISMISSAL WITH PREJUDICE
Respondent.
This settlement stipulation ("Settlement Stipulation" or "Stipulation") is entered
into between ldaho Power Company ("ldaho Power" or "Company") and Hidden Hollow
Energy 2 LLC (sometimes referred to in this Stipulation as "Hidden Hollow"), hereafter
jointly referred to as "Parties." The Parties hereby agree as follows.
I, INTRODUCTION AND MOTION
1. The terms and conditions of this Settlement Stipulation are set forth
herein. The Parties agree that this Settlement Stipulation represents a fair, just, and
reasonable compromise of the dispute(s) between the Parties and that this Settlement
Stipulation is in the public interest. The Parties maintain that the Settlement Stipulation
as a whole and its acceptance by the ldaho Public Utilities Commission ("Commission")
tPC-E-12-18
Joint Settlement and Motion
represent a reasonable resolution of all issues between the Parties identified herein.
Therefore, the Parties hereby respectfully move the Commission, in accordance with
RP 56 and RP 274-76, for an Order approving the Settlement Stipulation executed
between the Parties and all of its terms and conditions without material change or
condition, and for dismissal of this matter with prejudice.
II. BACKGROUND
2. On December 8, 2010,ldaho Power and Hidden Hollow entered into a Firm
Energy Sales Agreement ("FESA") pursuant to the terms and conditions of the various
Commission Orders applicable to such agreements pursuant to the Public Utility
Regulatory Policies Act of 1978 ('PURPA). See IPUC Case No. IPC-E-1044. On
February 11,2011, the Commission issued Order No. 32180 approving the FESA. The
Parties selected February 28,2012, as both Hidden Hollow's Scheduled First Energy Date
and Scheduled Operation Date in the FESA. See Appendix B to the FESA.
3. On February 7, 2012. Hidden Hollow sent a letter to ldaho Power claiming
an event of force majeure had occurred pursuant to the December 2010 FESA, based
upon its fuel supply of Iandfill gas and upon issues related to air quality permitting. Hidden
Hollow sent another letter to ldaho Power on May 16, 2012, claiming an additional,
separate, and distinct event of force majeure related to both Ada County's and ldaho
Power's separate contracts with Dynamis Energy, LLC, for a power generation facility also
utilizing trash from the landfillas its fue! source.
4. On May 3,2012, ldaho Power sent a letter to Hidden Hollow stating that
disruptions in fuel supply did not constitute events of force majeure pursuant to the FESA,
and further stating that Hidden Hollow had missed its Scheduled Operation Date of
February 28,2012, and that Hidden Hollow must commence operations by June 1,2012,
lPc-E-12-18
Joint Settlement and Motion
(within 90 days of the Scheduled Operation Date) or it could be in material breach of the
FESA and subject to termination and damages. On June 14,2012,1daho Power sent a
letter to Hidden Hollow stating that the FESA had been terminated and seeking payment
of the Delay Liquidated Damages provided for in the FESA. ldaho Power subsequently
collected $144,000 in Delay Liquidated Damages from the Delay Damage Security that
Hidden Hollow 2 LLC had posted with ldaho Power pursuant to the FESA.
5. On July 13,2012, Hidden Hollow filed a Complaint with the Commission
against ldaho Power requesting that the Commission: (1) "rescind and retract" the
termination of the FESA; (2) require ldaho Power to "return the $144,000 Delay Liquidated
Damages" to Hidden Hollow; and (3) and determine that (a) Hidden Hollow is not in
material breach of the FESA and (b) its two claimed incidents of force majeure are valid
events of force majeure under the FESA.
6. Based upon settlement discussions, and as a compromise of the respective
positions of the parties, and for other consideration as set forth below, the Parties agree to
the following terms:
III. TERMS OF THE SETTLEMENT STIPULATION
7. The FESA dated December 8, 2010, and approved by the Commission
under Order No. 32180 on February 11,2011, be terminated as of the date this
Stipulation is approved by the Commission.
8. ldaho Power Company shall return to Hidden Hollow Energy 2 LLC the
Delay Liquidated Damages in the amount of $144,000.00 within thirty days of the
Commission's approval of this Settlement Stipulation.
9. The Parties agree that this Stipulation and this disposition of these matters
is in the public interest and that all of the terms and conditions are fair, just, and
tPc-E-12-18
Joint Settlement and Motion
reasonable. Each Party, along with its current and former partners, joint venturers,
representatives, successors, assigns, affiliates, subsidiaries, parents, divisions,
departments, lenders, investors, shareholders, officers, directors, employees,
managers, agents, insurers, and predecessors ("Releasing Parties") fully, finally, and
forever releases, discharges, and covenants not to sue the other Party and its current
and former partners, joint venturers, representatives, successors, assigns, affiliates,
subsidiaries, parents, divisions, departments, investors, lenders, shareholders, officers,
directors, employees, managers, agents, insurers, and predecessors ("Released
Parties") to the broadest extent allowed by law from and for any and all claims, actions,
causes of action, debts, damages, demands, offsets, payments, costs, rights, Iiabilities,
charges, and expenses, direct or indirect, regardless of the legal or equitable theory on
which they are based, whether known or unknown, liquidated or unliquidated, accrued
or unaccrued, asserted or unasserted, arising from or relating to the Firm Energy Sales
Agreement, and Case Nos. IPC-E-10-44 and IPC-E-12-18.
10. Al! terms and conditions of this Stipulation are subject to approval by the
Commission, and only after such approval, without material change or modification, has
been received shall the Stipulation be valid. The Parties hereby submit this Stipulation to
the Commission and recommend approval in its entirety pursuant to RP 274-76. The
Parties shall support this Settlement Stipulation before the Commission and shall not
appeal a Commission order approving the Stipulation or an issue resolved by the
Stipulation.
11. lf this Settlement Stipulation is challenged by anyone who is not a Party,
then each Party reserves the right to file testimony, cross-examine witnesses, and put
on such case as they deem appropriate to respond fully to the issues presented,
!PC-E-12-18
Joint Settlement and Motion
including the right to raise issues that are incorporated in the settlements embodied in
this Settlement Stipulation. Notwithstanding this reservation of rights, the Parties agree
that they will continue to support the Commission's adoption of the terms of this
Settlement Stipu lation.
12. lf the Commission or any reviewing body on appeal rejects any part or al!
of this Settlement Stipulation or imposes any additional material conditions on approval
of this Settlement Stipulation, then each Party reserves the right, upon written notice to
the Commission and the other Party to this proceeding within fourteen (14) days of the
date of such action by the Commission, to withdraw from this Settlement Stipulation. ln
such case, no Party shall be bound or prejudiced by the terms of this Settlement
Stipulation and each Party shall be entitled to seek reconsideration of the Commission's
order, file testimony as it chooses, cross-examine witnesses, and do all other things
necessary to put on such case as it deems appropriate. ln such case, the Parties
immediately will request the prompt reconvening of a prehearing conference for
purposes of establishing a procedural schedule for the completion of IPUC Case No.
IPC-E-12-18, and the Parties agree to cooperate in development of a schedule that
concludes the proceeding on the earliest possible date, taking into account the needs of
the Parties in participating in hearings and preparing briefs.
13. The Parties agree that this Settlement Stipulation is in the public interest
and that all of its terms and conditions are fair, just, and reasonable.
14. This Settlement Stipulation sets forth the complete understanding of the
Parties, and this Settlement Stipulation includes no other promises, understandings,
representations, arrangements or agreements pertaining to the subject matter of this
Settlement Stipulation, or any other subject matter, not expressly contained herein.
!PC-E-12-18
Joint Settlement and Motion
15. All terms and conditions of this Settlement Stipulation, including the
obligations of the Parties, are subject to the Commission's approval of this Settlement
Stipulation in accordance with its terms and conditions and upon such approval being
upheld on appeal, if any, by a court of competent jurisdiction. Only after such approva!,
without material change or modification, has been received shall the Settlement
Stipulation be valid.
IV. PROCEDURE
16. Pursuant to RP 274, lhe Commission has discretion to determine the
manner with which it considers a proposed settlement. ln this matter, the Parties have
reached agreement on a final resolution to this case. This Settlement Stipulation is
reasonable and in the public interest. The Parties request that the Commission approve
the Settlement Stipulation without further proceedings.
17. In the alternative, should the Commission determine that further
proceedings are required to consider the Settlement Stipulation, pursuant to RP 201,
the Parties believe the public interest does not require a hearing to consider the issues
presented by this Motion and request it be processed as expeditiously as possible by
Modified Procedure, without waiving the right to a hearing on the previously disputed
matters in this proceeding should the Commission reject the settlement.
V. REQUESTED RELIEF
NOW, THEREFORE, the Parties respectfully request that the Commission enter its
Order approving the Settlement Stipulation without material change or condition, and
dismissing Case No. IPC-E-12-18 without further proceedings.
tPc-E-12-18
Joint Settlement and Motion
6
I
DATED this 11th day of December 2015.
Attorney for ldaho Power Company.
- Of the Firm
Attorneys for Complainant
tPc-E-12-18
Joint Settlement and Motion
7
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 11th day of December 2015 I served a true and
correct copy of the SETTLEMENT STIPULATION AND JOINT MOTION TO APPROVE
SETTLEMENT STIPULATION FOR DISMISSAL WITH PREJUDICE upon the following
named parties by the method indicated below, and addressed to the following:
Commission Staff
Donald L. Howell, ll
Deputy Attorney Genera!
ldaho Public Utilities Commission
47 2 \N est Wash ington (83702)
P.O. Box 83720
Boise, ldaho 83720-007 4
Hidden Hollow Energy 2, LLC
Stephen R. Thomas
MOFFATT, THOMAS, BARRETT
ROCK & FIELDS, CHARTERED
101 South Capitol Boulevard, 1Oth Floor
P.O. Box 829
Boise, ldaho 83701
X Hand Delivered
U.S. Mail
Overnight Mail
FAX
Email [e-mail]
Hand Delivered
U.S. Mail
Overnight Mail
FAXX Email [e-mail]
lPc-E-12-18
Joint Settlement and Motion
8