20141008Motion~Stipulation.pdf

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DONOVAN E. WALKER
Lead Counsel
dwal [e-mail]
October 8,2014
VIA HAND DELIVERY
Jean D. Jewell, Secretary
ldaho Public Utilities Commission
47 2 W est Washington Street
Boise, ldaho 83702
Re: Case Nos. IPC-E-12-25 and IPC-E-12-26
Complaints and Petitions of ldaho Power Company for Declaratory Order
New Energy Two, LLC (Swager Farms) and New Energy Three, LLC
(Double B Dairy) - Motion and Stipulation to Terminate Contracts and to
Dismiss the Complaints and Petitions
Dear Ms. Jewell:
Enclosed for filing in the above matter are an original and seven (7) copies of a
Motion and Stipulation to Terminate Contracts and to Dismiss the Complaints and
Petitions.
DEW:csb
Enclosures
1221 W. ldaho St. (83702)
P.O. 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]
dwalke r@ida h opower.com
Attorney for ldaho Power Company
IN THE MATTER OF THE COMPLAINT
AND PETITION OF IDAHO POWER
COMPANY FOR A DECLARATORY
ORDER REGARDING THE FIRM ENERGY
SALES AGREEMENT AND GENERATOR
INTERCONNECTION AGREEMENT WITH
NEW ENERGY TWO, LLC.
IN THE MATTER OF THE COMPLAINT
AND PETITION OF IDAHO POWER
COMPANY FOR A DECLARATORY
ORDER REGARDING THE FIRM ENERGY
SALES AGREEMENT AND GENERATOR
I NTERCONNECTION AGREEMENT WITH
NEW ENERGY THREE, LLC.
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
CASE NO. IPC-E-12-25
oASE NO. !PC-E-12-26
MOTION AND STIPULATION TO
TERMINATE CONTRACTS AND
TO DISMISS THE COMPLAINTS
AND PETITIONS.
l. MoTtoN
1. The Petitioner/Complainant, ldaho Power Company ("ldaho Powe/'), and
New Energy Two, LLC and New Energy Three, LLC ("New Energy") (ldaho Power and
New Energy collectively referred to as "Parties") pursuant to the ldaho Public Utilities
Commission's ("Commission") Rules of Procedure, including, but not limited to, RP 56,
MOTION AND STIPULATION TO TERMINATE
CONTMCTS AND TO DISMISS THE COMPLAINTS AND PETITIONS - 1
hereby file this Motion and Stipulation to Terminate Contracts and to Dismiss the
Complaints and Petitions in these matters.
II. SUMMARY
2. ldaho Power filed Complaints and Petitions for Declaratory Orders in the
above-captioned cases seeking termination of the contracts for failure to meet the
Scheduled Operation Dates. New Energy asserted claims of force majeure, alleging
that its required performance was suspended, and filed a Motion to Dismiss challenging
the Commission's jurisdiction to hear these matters. The Commission denied New
Energy's Motion to Dismiss, and directed New Energy to answer the Complaints. New
Energy subsequently sought and was granted permission to file an interlocutory appeal
with the ldaho Supreme Court, challenging the Commission's decision that it has the
jurisdiction to resolve the dispute between the parties.
3. On June 17, 2014, the ldaho Supreme Court issued its opinion in ldaho
Power Company v. New Energy Two, 156 ldaho 462, 328 P.3d 442 (2014). ln its
opinion, the Supreme Court held that the Commission has jurisdiction to determine
whether events of force majeure have occurred that excuse New Energy's performance
under its power purchase agreements with ldaho Power. On July 9, 2014, the Court
issued its remittitur and remanded the matter to the Commission. On September 12,
2014, the Commission issued Order No. 33126 directing New Energy to answer the
Complaints and Petitions, and encouraging the parties to "explore whether settlement is
possible." Order No. 33126, p. 3.
III. STIPULATION
4. With consideration to the date of these contracts, the passage of time and
circumstances, and the Commission's direction noted above, the Parties hereby agree
MOTION AND STIPULATION TO TERMINATE
CONTRACTS AND TO DISMISS THE COMPLAINTS AND PETITIONS - 2
to a final resolution to these matters. THEREFORE, the Parties hereby stipulate that:
the contract between ldaho Power and New Energy Two, LLC, dated May 24,2010, is
hereby terminated; the contract between ldaho Power and New Energy Three, LLC,
dated May 24, 2010, is hereby terminated; Case No. IPC-E-12-25 and Case No. !PC-E-
12-26 shall hereby be dismissed; and any Delay Security shall hereby be forfeit as
Delay Liquidated Damages pursuant to sections 5.3, 5.4, 5.5. 5.6, and 5.8 of the
contracts and directed to customers pursuant to Order No. 32625.
5. 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
reasonable. Both Parties, along with their 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, fina!!y, and
forever release, discharge, and covenant 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 Iaw from and for any and all claims, actions,
causes of action, debts, damages, demands, offsets, payments, costs, rights, liabilities,
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
Agreements, and Case Nos. IPC-E-12-25 and IPC-E-12-26.
6. All terms and conditions of this Stipulation are subject to approval by the
MOTION AND STIPULATION TO TERMINATE
CONTRACTS AND TO DISMISS THE COMPLAINTS AND PETITIONS - 3
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.
IV. RELIEF REQUESTED
7. The Parties respectfully request that the Commission approve the
Stipulation and dismiss Case Nos. IPC-E-'12-25 and IPC-E-12-26.
DATED this 7th day of October 2014.
ldaho Power Company New Energy Two, LLC
New Energy Three, LLC
Peter J. Richardson
Attorney for New Energy Two, LLC and
New Energy Three, LLC
MOTION AND STIPULATION TO TERMINATE
CONTRACTS AND TO DISMISS THE COMPI.AINTS AND PETITIONS - 4
Attorney for ldaho Power Company.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 8th day of October 2014 I served a true and
correct copy of this MOTION AND STIPULATION TO TERMINATE CONTMCTS AND
TO DISMISS THE COMPLAINTS AND PETITIONS upon the following named parties
by the method indicated below, and addressed to the following:
Commission Staff
Donald L. Howell, ll
Deputy Attorney General
ldaho Public Utilities Commission
47 2 W est Wash i ngton (83702 )
P.O. Box 83720
Boise, ldaho 83720-007 4
New Energy Two, LLC, and New Energy
Three, LLG
Peter J. Richardson
Gregory M. Adams
RICHARDSON ADAMS, PLLC
515 North 27th Street (83702)
P.O. Box 7218
Boise, ldaho 83707
Leslie White, Registered Agent
New Energy Two, LLC
New Energy Three, LLC
6152 North Sparkford Way
Boise, ldaho 83713
James Carkulis
Exergy Development Group of ldaho, LLC
802 West Bannock, Suite 1200
Boise, ldaho 83702
Laura Knothe
Exergy Development Group of ldaho, LLC
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MOTION AND STIPULATION TO TERMINATE
CONTRACTS AND TO DISMISS THE COMPLAINTS AND PETITIONS - 5