20140131Affidavit of Gregory Adams.pdf

Gregory M. Adams (ISB No. 7454)
Richardson Adams, PLLC rii:, 1::'! -i : i,', i: 1 fi
515N.27thStreet- ! ""'-i' r'i i'i !;':u
Boise, Idaho 83702
Telephone: [phone] , i: ir
Fax: [phone]
gre g@richardsonadams. com
Attorney for Cassia Wind Farm LLC; Hot Springs Windfarm, LLC;
Bennett Creek Windfarm, LLC; Cassia Gulch Wind Park LLC;
Tuana Springs Energy, LLC; and High Mesa Energy, LLC
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF APPLICATION OF
IDAHO POWER COMPANY TO UPDATE ITS
WIND INTEGRATION RATES AND
CHARGES.
[PC-E-I3-22
AFFIDAVIT OF GREGORY M.
ADAMS IN SUPPORT OF MOTION
TO DISMISS
[, Gregory M. Adams, do declare the following and if called to testiff, would and could
competently testify thereto :
l. I am over the age of 18, and make this affidavit based upon personal knowledge.
2. I am the attomey of record for Cassia Wind Farm LLC; Hot Springs Windfarm,
LLC; Bennett Creek Windfarm, LLC; Cassia Gulch Wind Park LLC; Tuana Springs Energy,
LLC; and High Mesa Energy, LLC in the above-referenced proceeding.
3. I have attached as exhibits to this Affidavit true and correct copy of the Firm
Energy Sales Agreements ("FESA") between the above referenced entities and tdaho Power
Company. My office obtained copies of these FESAs from the online files of the Idaho Public
Utilities Commission ("IPUC"), at http://www.puc.idaho.gov/fileroom/cases/summary
/CELEC.html, in the cases herein referenced.
AFFIDAVIT OF GREGORY M. ADAMS
LPC-E-|3-22
PAGE I
4. Exhibit 1 is a true and correct copy of the FESA between Cassia Wind Farm LLC
and Idaho Power Company, retrieved from the file for IPUC Case No. IPC-E-06-10.
5. Exhibit 2is atrue and correct copy of the FESA between Hot Springs Windfarm,
LLC and Idaho Power Company, retrieved from the file for IPUC Case No. IPC-E-06-34.
6. Exhibit 3 is a true and correct copy of the FESA between Bennett Creek
Windfarm, LLC and Idaho Power Company, retrieved from the file for IPUC Case No. IPC-E-
06-35.
7. Exhibit 4 is a true and correct copy of the FESA between Cassia Gulch Wind Park
LLC and Tuana Springs Energy, LLC and Idaho Power Company, retrieved from the file for
IPUC Case No. IPC-E-09-24.
8. Exhibit 5 is a true and correct copy of the FESA between High Mesa Energy,
LLC and Idatro Power Company, retrieved from the file for IPUC Case No. IPC-E-I1-26.
Further your affiant sayeth naught.
DArED t*rr*yffir+.
AFFIDAVIT OF GREGORY M. ADAMS
LPC-E-L3-22
PAGE 2
STATE OF IDAHO
COUNTY OF ADA
On this %day of January, 2014, before me, a Notary Public in and for the State of
Idaho, personally appeared Gregory M. Adams, personally known to me to be the person who
executed this instrument and acknowledged it to be his free and voluntary act and deed for the
uses and purposes mentioned in the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year
first above written.
C)l.-,-rn O^ros
NOTARY PUBLIC for the State of Idaho
Residing at6pr'c- , ir OEtt-o
My Commission expires 3ll4 t tl
AFFIDAVIT OF GREGORY M. ADAMS
IPC-E-I3-22
PAGE 3
)) ss.
)
aatrlltlllfrr
,r,LL.i7
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on tfr"da ay otJqu"'*r, ,2ol4,a true
and correct copy of the within and foregoing AFFIDAVIT OF GREGORY
M. N)AMS was served as shown to:
Jean Jewell X Hand Delivery
Commission Secretary _ U.S. Mail, postage pre-paid
Idaho Public Utilities Commission _ Facsimile
424 W Washington _ Electronic Mail
Boise lD 83702
Jean j ewell@puc. id. gov
Dean J. Miller _ Hand Delivery
McDevitt & Miller LLP X U.S. Mail, postage pre-paid
PO Box 2564 _ Facsimile
Boise ID 83701 Electronic Mail
j o@mcdevitt-miller. com
Rich Koebbe, President _ Hand Delivery
Idaho Winds LLC X U.S. Mail, postage pre-paid
5420 W Wicher Rd - Facsimile
Glenns Ferry ID 83623 _ Electronic Mail
[e-mail]
Deborah E Nelson _ Hand Delivery
Preston N Carter X U.S. Mail, postage pre-paid
Givens Pursley LLP - Facsimile
PO Box 2720 Electronic Mail
Boise ID 83701-2720
den@qivenspursley. com
pre sto nc arter@give n spursley. com
Donovan E Walker _ Hand Delivery
Idaho Power Company X U.S. Mail, postage pre-paid
PO Box 70 _ Facsimile
Boise lD 83707-0070 Electronic Mail
dwalker@idahopower. com
dockets@idahopower. com
Julia Hilton _ Hand Delivery
Idaho Power Company X U.S. Mail, postage pre-paid
PO Box 70 - Facsimile
Boise lD 83707-0070 Electronic Mail
j hilton@idahopower. com
Teresa A Hill
K&L Gates LLP
One SW Columbia St Ste 19OO
Portland OR 97258
Tere sa. Hill@kleates. com
Dina M Dubson
Renewable Northwest Project
421 SW 6trAve Ste 1125
Portland OR 97204
[e-mail]
Ken Miller
Snake River Alliance
PO Box l73L
Boise ID 83701
kmiller@snakeriveralliance. org
_ Hand DeliveryX U.S. Mail, postage pre-paid
_ Facsimile
_ Electronic Mail
_ Hand DeliveryX U.S. Mail, postage pre-paid
_ Facsimile
_ Electronic Mail
_ Hand DeliveryX U.S. Mail, postage pre-paid
_ Facsimile
Electronic Mail
By:
Nina Curtis
EXHIBIT 1
FIRM ENERGY SALES AGREEMENT
BETWEEN
IDAHO POWER COMPANY
AND
CASSIA WIND FARM LLC
TABLE OF CONTENTS
Article TITLE
I Definitions
2 No Reliance on Idatro Power
3 Warranties
4 Conditions to Acceptance of Energy
5 Term and Operation Date
6 Purchase and Sale of Net Energy
7 Purchase Price and Method of Payment
8 Environmental Attributes
9 Facility and Interconnection
10 Disconnection Equipment
I I Metering and Telemetry
12 Records
13 Protection
14 Operations
15 Indemnification and Insurance
16 Force Majeure
17 Land Rights
18 Liability; Dedication
19 Several Obligations
20 Waiver
2l Choice of Laws and Venue
22 Disputes and Default
23 Governmental Authorization
24 Commission Order
25 Successors andAssigns
26 Modification
27 Taxes
28 Notices
29 Additional Terms and Conditions
30 Severability
3l Counterparts
32 Entire Agreement Signatures
Appendix A
Appendix B
Appendix C
4tsn006
FIRM ENERGY SALES AGREEMENT
(10 aIvIW or Less)
CASSIA WIND FARM LLC
Project Number: 313 18100
7 a^u ot Ap,l 2oo6 betweenTHIS AGREEMENT, entered into on this _ - _._r__
CASSIA WIND FARM, an Idatro limited liability company (Seller), and IDAHO POWER COMPAI.IY,
an Idaho corporation (Idaho Power), hereinafter sometimes referred to collectively as "Parties" or
individually as'?arty."
WTINESSETH:
WIGREAS, Seller will design, construct, own, maintain and operate an electric generation
facility; and
WIIEREAS, Seller wishes to sell, and Idaho Power is willing to purchase, firm electric energy
produced by the Seller's Facility.
THEREFORE, In consideration of the mutual covenants and agreements hereinafter set forth, the
Parties 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 "eommission" - The Idaho Public Utilities Commission.
1.2 "eontlae!--Ye4l" - The priod commencing each calendar year on the same calendar date as the
Operation Date and ending 364 days thereafter.
1.3 "Designated Disoarch Faciliry" - Idaho Power's Systems Operations Group, or any subsequent
group designated by ldaho Power.
1.4 "Disconnection Equipment" - All equipment specified in Schedule 12 and the Generation
Interconnection Process and any additional equipment specified in Appendix B.
1.5 "Facility" - That electric generation facility described in Appendix B of this Agreement.
1-
4t5D0o6
1.6
t.7
1.8
1.9
1.10
"First Energy Date" - The day commencing at 0001 hours, Mountain Time, following the day that
Seller has satisfied the requirements of Article IV and the Seller begins delivering energy to
Idaho Power's system at the Point of Delivery.
"Generation Interconnection hocess" - Idaho Power's generation interconnection application
and engineering review process developed to ensure a safe and reliable generation
interconnection in compliance with all applicable regulatory requirenrcnts, Pmdent Electrical
Practices and national safety standards.
"Inadvertent Energy" - Electric energy Seller does not intend to generate. Inadvertent energy is
more particularly described in paragraph 7.3 of this Agreement.
"Interconnection Facilities" - All equipment specified in Schedule 72 and the Generation
Interconnection Process and any additional equipment specifred in Appendix B.
"Initial Capacity Determination" - The process by which ldaho Power confirms that under
normal or average design conditions the Facility will generate at no more than l0 average MW
per month and is therefore eligible to be paid the published rates in accordance with Commission
Order No. 29632.
"Losses" - The loss of electrical energy expressed in kilowatt hours ftWh) occurring as a result
of the transformation 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 will be as specified in Appendix B of this Agreement.
"MArkgLEnEIEy_eoSI" - Eighty-five percent (85Vo) of the 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. H the Dow Jones Mid-Columbia Index price is discontinued by the reporting agency, both
Parties will mutually agree upon a replacement index, which is similar to the Dow Jones Mid-
Columbia Index. The selected replacement index will be consistent with other similar agreements
and a commonly used index by the electrical industry.
"Ma!9rial_BreAch" - A Default (paragraph 22.2.1) subject to paragraph 22.2.2.
1.1 I
t.t2
-2-
1.13
4tsnoffi
l.l4 "Maximum Capacity Amount" - The maximum capacity (MW) of the Facility will be as
specified in Appendix B of this Agreement.
1.15 "\4etcriug-Egip!09n[ - All equipment specified in Schedule 72,the Generation Interconnection
Process, this Agreement and any additional equipment specified in Appendix B required to
measure, record and telerneter power flows between the Seller's electric generation plant and
Idatro Power's system.
1.16 "NelEnglgy" - All of the electric energy produced by the Facility, less Station Use, less Losses,
expressed in kilowatt hours (kWh). Seller commits 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.
l.l7 "Qpq4iqnlDate" -The day commencing at 0001 hours, Mountain Time, following the day that
all requirements of paragraph 5.2 have been completed.
t.l8 "Point pfDqltvgry" - The location specified in Appendix B, where Idaho Power's and the
Seller's electical facilities are interconnected.
1.19 "Prudent Electrical Practices" - Those practices, methods and equipment that are commonly and
ordinarily used in electrical engineering and operations to operate electric equipment lawfully,
safely, dependably, efficiently and economically.
L.20 "Scheduled Ooerirtion Date" - The date specified in Appendix B when Seller anticipates
achieving the Operation Date.
Lzl "Schedule 7?'- Idaho Power's Tariff No l0l, ScheduleT2 or its successor schedules as
approved by the Commission.
1.22 "Season" - The three periods identified in paragraph 6.2.1 of this Agreement.
1.23 "Special Facilities" - Additions or alterations of transmission and/or distribution lines and
transformers as described in Appendix B, Schedule 72 or the Generation Interconnection Process
required to safely interconnect the Setler's Facility to the Idaho Power system.
1,24 "Slatisu_Use" - Electric energy that is used to operate equipment that is auxiliary or otherwise
related to the production of electricity by the Facility.
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1.25 "SqpluE Energ" - (l) Net Energy produced by the Seller's Facility and delivered to the Idaho
Power electrical system during the month which exceeds llo%o of the monthly Net Energy
Amount for the corresponding month specified in paragraph 6.2. or (2) If the Net Energy
produced by the Seller's Facility and delivered to the Idaho Power electrical system during the
month is less than 90Vo 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) AII Net Energy produced by the Seller's Facility and
delivered by the Facility to the Idaho Power electrical system prior to the Operation Date.
"Total Cost of the Facility" - The total cost of stmctures, equipment and appurtenances.
ARTICLE tr: NO RELIANCE ON IDAHO POWER
Seller Independent Investigation - Seller warrants and represents to Idaho Power that in entering
into this Agreement and the undertaking by Seller of the obligations set forth herein, Seller has
investigated and determined that it is capable of performing hereunder and has not relied upon
the advice, experience or expertise of Idaho Power in connection with the transactions
contemplated by this Agreement.
Seller IndeLendent Experts - All professionals or experts including, but not limited to, engineers,
attorneys or accountants, that Seller may have consulted or relied on in undertaking the
transactions contemplated by this Agreement have been solely those of Seller.
ARTICLE III: WARRANTIES
No Warranty by Idaho Power - Any review, acceptance or failure to review Seller's design,
specifications, equipment or facilities shall not be an endorsement or a confirmation by Idaho
Power and Idaho Power makes no warranties, expressed or implied, regarding any aspect of
Seller's desiga, specifications, equipment or facilities, including, but not limited to, safety,
durability, reliability, strength, capaclty, adequacy or economic feasibility.
Oualifying Facility Status - Seller warrants that the Facility is a "Qualifying Facility," as that term
+-
t.26
2.1
2.2
3.1
3.2
4.1
is used and defined in 18 CFR 9292.207. After initial qualification, Seller will take such steps as
may be required to maintain the Facility's Qualifying Facility status during the term of this
Agreement and Seller's failure to maintain Qualifying Facility status will be a Material Breach of
this Agreement. Idaho Power reserves the right to review the Seller's Qualifying Facility status
and associated support and compliance documents at anytime during the term of this Agreement.
ARTICLE IV: CONDITIONS TO ACCEPTANCE OF ENERGY
Prior to the First Energy Date and as a condition of Idaho Power's acceptance of deliveries of
energy from the Seller, Seller shall:
4-Ll Submit proof to Idaho Power that all licenses, permits or approvals necessary for Seller's
operations have been obtained from applicable federal, state or local authorities,
including, but not limited to, evidence of compliance with Subpart B, 18 CFR 292.2U.
4.1.2 Opinion of Counsel - Submit to Idaho Power an Opinion Letter signed by an attorney
admitted to practice and in good standing in the State of Idaho providing an
opinion that Seller's licenses, permits 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 opinion that Seller is in substantial
compliance with said permits as of the date of the Opinion lrtter. The Opinion Letter
will be in a form accep@ble to ldaho Power and will acknowledge that the attorney
rendering the opinion understands that Idaho Power is relying on said opinion. Idaho
Power's acceptance of the form will not be unreasonably withheld. The Opinion Letter
will be governed by and shall be interprcted in accordance with the legal opinion accord
of the American Bar Association Section of Business Law (1991).
4.I.3 Initial Capacity Determination - Submit to Idaho Power such data as Idaho Power may
reasonably require to perform the Initial Capacity Determination. Such data will include
but not be limited to, equipment specifications, prime mover data, resource
characteristics, normal and/or average operating design conditions and Station Use data.
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5.1
5.2
Upon receipt of this information, Idaho Power will review the provided data and if
necessary, request additional data to complete the Initial Capacity Determination within a
reasonable time.
4.1.4 Engineer's Certifications - Submit an executed Engineer's Certification of Design &
Construction Adequacy and an Engineer's Certification of Operations and Maintenance
(O&M) Policy as described in Commission Order No.21690. These certificates will be
in the form specified in Appendix C but may be modified to the extent necessary to
recognize the different engineering disciplines providing the certificates.
4.1 .5 Insurance - Submit written proof to ldaho Power of all insurance required in Article XV.
4.1.6 Interconnection - Provide written proof to Idaho Power that all Schedule 72 and
Generation Interconnection Process requirements have been completed.
4.1.7 Written Acceptance - Request and obtain written confirmation from Idaho Power that all
conditions to acceptance of energy have been fulfilled. Such written confirmation shall be
provided within a commercially reasonable time following the Seller's request and will
not be unreasonably withheld by Idaho Power.
ARTICLE V: TERM A}.[D OPERATION DATE
Term - Subject to the provisions of paragraph 5.2 below, this Agreement shall become effective
on the date first written and shall continue in full force and effect for a period of twenty (20)
Contract Years from the Operation Date.
Operation Date - The Operation Date may occur only after the Facility has achieved all of the
following:
a) Achieved the First Energy Date.
b) Commission 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 manner.
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5.3
d) Seller has requested an Operation Date from ldaho Power in a written format.
e) Seller has received written confirmation from ldaho Power of the Operation Date.
This confirmation will not be unreasonably withheld by Idaho Power.
Seller's failure to achieve the Operation Date within ten (10) months of the Scheduled Operation
Date will be an event of default.
ARTICLE VI: PURCHASE AND SALE OF NET ENERGY
Delivery and Acceptance of Net Energy - Except when either Party's performance is excused as
provided herein, Idaho Power will purchase and Seller will sell all of the Net Energy to Idaho
Power at the Point of Delivery. All Inadvertent Energy produced by the Facility will also be
delivered by the Seller to Idaho Power at the Point of Delivery. At no time will 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.
Net Energy Amounts - Seller intends to produce and deliver Net Energy in the following monthly
amounts:
6.2.1 Initial Year Monthly Net Energv Amounts:
6.1
6.2
Season I
Season 2
Month
March
April
May
July
August
November
December
June
September
October
January
February
kwh
3,060,000
2,470,W
2,030,000
1,425,000
1,580,000
2,995,000
3,390,000
1,810,000
1,885,000
2,300,000
3,800,000
3,175,000
Season 3
6.2.2 Ongoing Monthly Net Energ Amounts - Seller shall initially provide ldaho Power with
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one year of monthly generation estimates (Initial Year Monthly Net Energy Amounts)
and beginning at the end of month nine and every three months thereafter provide ldaho
Power with an additional three months of forward generation estimates. This information
will be provided to ldaho Power by written notice in accordance with paragraph 28.1, no
later than 5:00 PM of the 56 day following the end of the previous month. If the Seller
does not provide the Ongoing Monthly Net Energy amounts in a timely manner, Idaho
Power will use the most recent 3 months of the Initial Year Monthly Net Energy
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 28.1, the Seller may revise all of the previously
provided Initial Year Monthly Net Energy Amounts.
6.2.3.2 Beginning with the end of the 3'd 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 Idatro Power in accordance with paragraph 28.1, no later than
5:00 PM of the 56 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 will be deemed to be an election of no
change.
6.2.4 Idaho Power Adjustment of Net Energy Amount - H ldaho Power is excused from
accepting the Seller's Net Energy as specified in paragraph 14.2.1 or if the Seller declares
a Suspension of Energy Deliveries as specified in paragraph 14.3.1 and the Seller's
declared Suspension of Energy Deliveries is accepted by Idaho Power, the Net Energy
Amount as specified in paragraph 6.2 for the specific month in which the reduction or
suspension under paragraph 14.2.1 or 14.3.1 occurs will be reduced in accordance with
-8-
the following:
Where:
NEA = Current Month's Net Energy Amount (Paragraph 6.2)
SGU = a.) If ldaho Power is excused from accepting the Seller's Net
Energy as specified in paragraph 14.2.1 this value will be
equal to the percentage of curtailment 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 14.3.1 this value will be the sum of
the individual generation units size ratings as specified in
Appendix B that are impacted by the circumstances
causing the Seller to declare a Suspension of Energy
Deliveries.
TGU =Sum of all of the individual generator ratings of the generation
units at this Facility as specified in Appendix B of this
agreement.
Actual hours the Facility's Net Energy deliveries were either
reduced or suspended under paragraph 14.2.1or 14.3.1
TH = Actual total hours in the current month
Resulting formula beins:
RSH =
Adiusted
Nei Energy = NEA
Amount
sGU x NEA \ x(TGU/\((H))
6.3
This Adjusted Net Energy Amount will be used in applicable Surplus 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.
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 (lOVo) of the sum of the Initial Year Net
Energy Amounts as specified in paragraph 6.2 shall constitute an event of default.
ARTICLE VII: PTIRCHASE PRTCE AND METHOD OF PAYMENT
Net Energy Purchase Price - For all Net Energy, Idaho Power will pay the non-levelized energy7.t
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price in accordance with Commission Order 29&6 with seasonalization factors applied:
Year
2006
2007
2008
2009
2010
201'l
2012
2013
2014
2015
2016
2017
2018
201 9
2020
2021
2022
2023
2024
2025
2026
2027
Season l - (73.50%)
Mills/kwh
37.85
38.73
39.62
40.53
41.46
42.42
43.39
44.39
45.42
46.47
47.54
48.63
49.76
50.91
52.07
53.28
54.51
55.76
57.05
58.37
59.72
61.09
Season2-(120.N%)
Millykwh
61.80
63.23
64.68
66.17
67.69
69.25
70.85
72.48
74.'.!6
75.86
77.62
79.40
81.24
83.11
85.02
86.99
88.99
91.04
93.14
95.29
97.50
99.74
Season3-(100.007o)
Mills/kWh
5't.50
52.69
53.90
55.14
56.41
57-71
59.04
60.40
61.80
63.22
64.68
66.17
67.70
69.26
70.85
72.49
74.16
75.87
77.62
79-41
81.25
83.12
7.2
7.3
Surplus Energy Price - For all Surplus Energy, Idaho Power shall pay to the Seller the current
month's Market Energy Cost or the Net Energy hrrchase Price specified in paragraph 7.1,
whichever is lower.
Inadvertent Energy -
7.3.1 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 January contains 744 hours. 744 hours times 10,000 kW = 7,440,000 kwh.
Energy delivered in January in excess of 7,440,000 kWh in this example would be
Inadvertent Energy.)
7.3.2 Although Seller intends to design and operate the Facility to generate no more than l0
10-
4t5n006
7.4
average MW and therefore does not intend to generate Inadvertent Energy, Idaho Power
will accept Inadvertent Energy that does not exceed the Maximum Capacity Amount but
will not purchase or pay for Inadvertent Energy
Payment Due Date - Energy payments to the Seller will be disbursed within 30 days of the date
which Idaho Power receives and accepts the documentation of the monthly Net Energy and
Inadvertent Energy actually produced by the Seller's Facility and delivered to Idaho Power as
specified in Appendix A.
Continuins Jurisdiction of the Corffnission -This Agreement is a special contract and, as such,
the rates, terms and conditions contained in this Agreement will be constnred in accordance with
Idaho Power Company v. Idaho Public Utilities Commission and Afton Energry. Inc., 107 Idaho
781,693 P.zd 427 (198a); ldaho Power Company v. Idaho Public Utilities Commission, 107
ldaho 1122,695 P.U 1 261 (1985); Afton Energv. Inc. v. Idaho Power CompAny, 11 1 Idaho 925,
729P.2d400 (1986); Section 210 of the Public Utilities Regulatory Policies Act of 1978 and 18
cFR $292.303-308.
ARTICLE VIII ENVIRONMENTAL ATTRIBUTES
Idaho Power waives any claim to ownership of Environmental Attributes. Environnrental
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 D(: FACILITY AND INTERCONNECTION
DesiEn of Facility - Seller will design, construct, install, own, operate and 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 ldaho Power Point of Delivery for the full
term of the Agreement.
Interconnection Facilities - Except as specifically provided for in this Agreement, the required
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7.5
8.1
9.1
9.2
10.1
Interconnection Facilities will be in accordance with Schedule 72,the Generation Interconnection
Process and Appendix B. The Seller is responsible for all costs associated with this equipment as
specified in Schedule 72 and the Generation lnterconnection Process, including but not limited to
initial costs incurred by Idaho Power for equipment costs, installation costs and ongoing monthly
Idaho Power operations and maintenance expenses.
ARTICLE X: DISCONNECTION EQUIPMENT
Except as specifically provided for in this Agreement, the required Disconnection Equipment will
be in accordance with Schedule 72, the Generation Interconnection Process and Appendix B.
The Seller is responsible for all costs associated with this equipment as specified in Schedule 72
and the Generation Interconnection Process, including but not limited to initial costs incurred by
Idaho Power for equipment costs, installation costs and ldaho Power ongoing rnonthly operations
and monthly maintenance expenses.
ARTICLE XI: METERING AND TELEMETRY
ll.1 MeterineandTelemetrv -Idaho Power shall, for the account of Seller, provide, install, and
maintain Metering Equipment to be located at a mutually agreed upon location to record and
measure power flows to ldaho Power in accordance with Schedule 72, Generation
Interconnection Process and Appendix B of this Agreement. The Metering Equipment will 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 ldaho
Power adequate energy measurement data to administer this Agreement and to integrate this
Facility's energy production into the Idaho Power electrical system. All Metering Equipment and
installation costs shall be borne by Seller, including costs incurred by Idatro Power for inspecting
and testing such equipment at reasonable intervals at Idaho Power's actual cost of providing this
Metering Equipment and services. The Metering Equipment shall be at the location described in
Appendix B of this Agreement. All meters used to determine the billing hereunder shall be
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tt.2
sealed and the seals shall be broken only by Idaho Power when the meters are to be inspected,
tested or adjusted.
Meter Inspection - Idaho Power shall inspect installations annually and test meters on the
applicable periodic test schedule relevant to the equipment installed as specified in Appendix B of
this Agreement. If requested by Seller, Idatro Power shall make a special inspection or test of a
meter and Seller shall pay the reasonable costs of such special inspection. Both Parties shall be
notified of the time when any inspection or test shall take place, and each Party may have
representatives present at the test or inspection. Ifa meter is found to be inaccurate or defective,
it shall be adjusted, repaired or replaced, at Idaho Power's expense in order to provide accurate
rnetering. If a meter fails to register, or if the measurement made by a rneter during a test varies
by more than two percent (2 Vo) fuom the rneasurernent made by the standard meter used in the
test, adjustrnent (either upward or downward) to the payrnents Seller has received shall be made
to correct those payments affected by the inaccura0e meter for the actual period during which
inaccurate measurements were made. ff the actual period cannot be determined, corrections to
the payments will be based on the shorter of (l) a period equal to one-half the time from the date
of the last previous test of the meter to the date of the test which established the inaccuracy of the
rneter; or (2) six (6) months.
Telenptry - Idaho Power will install, operate and maintain at Seller's expense rnetering,
communications and telemetry equipment which will be capable of providing Idaho Power with
continuous instantaneous telemetry of Seller's Net Energy and Inadvertent Energy produced and
delivered to the ldaho Power Point of Delivery to Idaho Power's Desigrrated Dispatch Facility.
ARTICLE Xtr - RECORDS
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, lnadvertent Energy
and maximum generation ftW) records in a form and content recommended by Idaho Power.
lnspection - Either Party, after reasonable notice to the other Party, shall have the right, during
_ 13_
11.3
12.1
t2.2
13.1
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.
ARTICLE XIII - PROTECTION
Seller shall construct, operate and maintain the Facility and Seller-furnished lnterconnection
Facilities in accordance with Schedule 72, the Generation Interconnection Process, Appendix B
of this Agreement, Prudent Electrical Practices, the National Electrical Code, the National
Electrical Safety Code and any other applicable local, state and federal codes. Seller
acknowledges receipt of the Generation Interconnection Process. If, in the reasonable opinion of
Idaho Power, Seller's operation of the Facility or Interconnection Facilities is unsafe or may
otherwise adversely affect ldaho Power's equipment, personnel or service to its custonrers, Idaho
Power may physically intemrpt the flow of energy from the Facility as specified within Schedule
72, the Generation Interconnection Process or take such other reasonable steps as Idaho Power
deems appropriate. Except in the case of an emergency, Idaho Power will attempt to notify Seller
of such intemrption prior to its occurrence as provided in paragraph 14.9. Seller shall provide
and maintain adequate protective equipment sufficient to prevent damage to the Facility and
Seller-fumished Interconnection Facilities. In some cases, some of Seller's protective relays will
provide back-up protection for Idaho Power's facilities. In that event, Idaho Power will test such
relays annually and Seller will pay the actual cost of such annual testing.
ARTICLE XIV: OPERATIONS
14 .L Communications - Idaho Power and the Seller shall maintain appropriate operating
communications through Idaho Power's Designated Dispatch Facility in accordance with
Appendix A of this Agreement.
14 .2 Energy Acceptance -
14.2.1 Idaho Power shall be excused from accepting and paying for Net Energy or accepting
- t4-
Inadvertent Energy 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 if Idaho Power
determines that curtailment, interruption or reduction of Net Energy or Inadvertent
Energy deliveries is necessary because of line construction or maintenance requirements,
emergencies, electrical system operating conditions on its system or as otherwise required
by Prudent Electrical hactices. If, for reasons other than an event of Force Majeure,
Idaho Power requires such a curtailment, intemrption or reduction of Net Energy
deliveries for a period that exceeds twenty (20) days, beginning with the twenty-first day
of such intemrption, curtailnrent or reduction, Seller will 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 paragraph 6.2. Idaho Power will notify Seller when the intemrption,
curtailment or reduction is terminated.
14.2.2 lf, in the reasonable opinion of ldaho Power, Seller's operation of the Facility or
Interconnection Facilities is unsafe or may otherwise adversely affect Idaho Power's
equipment, personnel or service to its customers, Idaho Power may physically intemrpt
the flow of energy from the Facility as specified within Schedule 72 or take such other
reasonable steps as Idaho Power deems appropriate.
14.2.3 Under no circumstances will 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
will be a Material Breach of this Agreement.
14.3 Seller Declared Suspension of Energy Deliveries
14.3.1 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 14.3.2 below, temporarily suspend all deliveries of Net Energy to
Idaho Power from the Facility or from individual generation unit(s) within the Facility
_ 15_
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 will begin at the start of the next full hour following the
Seller's telephone notification as specified in paragraph 14.3.2 and will 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 will be adjusted as specified in paragraph 6.2.4.
14.3.2 If the Seller desires to initiate a Declared Suspension of Energy Deliveries as provided in
paragraph 14,3.1, the Seller will notify the Desigrrated Dispatch Facility by telephone.
The beginning hour of the Declared Suspension of Energy Deliveries will be at the
earliest the next full hour after making telephone contact with Idaho Power. The Seller
will, within 24 hours after the telephone contact, provide Idaho Power a written notice in
accordance with Article XXVIII that will contain the beginning 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 will
review the documentation provided by the Seller to determine Idaho Power's acceptance
of the described forced outage as qualifying for a Declared Suspension of Energy
Deliveries as specified in paragraph 14.3.1. Idaho Power's acceptance of the Seller's
forced outage as an acceptable forced outage will 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 Facility.
14.5 Voltage Irvels - Seller, in accordance with Prudent Electrical Practices shall minimize voltage
fluctuations and maintain voltage levels acceptable to Idaho Power. Idaho Power may, in
accordance with Prudent Electrical Practices, upon one hundred eighty (180) days'notice to the
Seller, change its nominal operating voltage level by more than ten p€rcent (107o) at the Point of
Delivery, in which case Seller shall modify, at Idaho Power's expense, Seller's equipment as
necessary to accommodate the modified nominal operating voltage level.
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14.6 Generator Ramping - tdaho Power, in accordance with Prudent Electrical Practices, shall have the
right to limit the rate that generation is changed at startup, during normal operation or following
reconnection to Idaho Power's electrical system. Generation ramping may be required to permit
Idaho Power's voltage regulation equipment time to respond to changes in power flow.
Scheduled Maintenance - On or before January 31 of each calendar year, Seller shall submit a
written proposed maintenance schedule of significant Facility maintenance for that calendar year
and Idaho Power and Seller shall mutually agree as to the acceptability of the proposed schedule.
The Parties determination as to the acceptability of the Seller's timetable for scheduled
maintenance will take into consideration Prudent Electrical Practices, Idaho Power system
requirements and the Seller's preferred schedule. Neither Party shall unreasonably withhold
acceptance of the proposed maintenance schedule.
Maintenance Coordination - The Seller and [daho Power shall, to the extent practical, coordinate
their respective line and Facility maintenance schedules such that t}tey occur simultaneously.
Contact Prior to Curtailment - Idaho Power will make a reasonable attempt to contact the Seller
prior to exercising its rights to curtail, intemrpt or reduce deliveries from the Seller's Facility.
Seller understands that in the case of emergency circumstances, real time operations of the
electrical systenL and/or unplanned events Idaho Power may not be able to provide notice to the
Seller prior to intemrption, curtailment, or reduction of electrical energy deliveries to Idaho
Power.
ARTICLE XV: INDEMNIFICATION AND INSURANCE
15.1 Indemnification - Each Party shall agree to hold harmless and to indemnify the other Party, its
officers, agents, affiliates, subsidiaries, parent company and employees against all loss, damage,
expense and liability to third persons for injury to or death of person or injury to property,
proximately caused by the indemnifying Party's construction, ownership, operation or
maintenance of, or by failure of, any of such Party's works or facilities used in connection with
this Agreement. The indemnifying Party shall, on the other Party's request, defend any suit
- t7-
t4.7
14.8
14.9
t5.2
asserting a claim covered by this indemnity. The indemnifying Party shall pay all costs, including
reasonable attorney fees that may be incurred by the other Party in enforcing this indemnity.
Insurance - During the term of this Agreement, Seller shall secure and continuously carry the
following insurance coverage :
15.2.1 Comprehensive General Liability Insurance for both bodily injury and property damage
with limits equal to $1,000,000, each occurrence, combined single limit. The deductible
for such insurance shall be consistent with current Insurance krdustry Utility practices for
similar property.
15.2.2 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 naming 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 limits of liability
reduced without sixty (60) days' prior written notice to Idaho Power.
Seller to Provide Certificate of Insurance - As required in paragraph 4.1.5 herein and annually
thereafter, Seller shall furnish Idaho Power a certificate of insurance, together with the
endorsements required therein, evidencing the coverage as set forth above.
Seller to Notify Idaho Power of Loss of Coverage - If the insurance coverage required by
paragraph 15.2 shall lapse for any reason, Seller will immediately notify Idaho Power in writing.
The notice will advise Idaho Power of the specific reason for the lapse and the steps Seller is
taking to reinstate the coverage. Failure to provide this notice and to expeditiously reinstate or
replace the coverage will constitute a Malerial Breach of this Agreement.
ARTICLE XVI: FORCE MAJEI.]RE
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 Party is unable to prevent or overcome. Force Majeure includes, but is not limited to, acts of
_ 18_
15.3
t5.4
16.1
God, fire, flood, storms, wars, hostilities, civil strife, strikes and other labor disturbances,
earthquakes, fires, lightning, epidemics, sabotage, or changes in law or regulation occurring after
the Operation Date, which, by the exercise of reasonable foresight such party could not
reasonably have been expected to avoid and by the exercise of due diligence, it shall be unable to
overcome. [f either Party is rendered wholly or in part unable to perform its obligations under
this Agreement because of an event of Force Majeure, both Parties shall be excused from
whatever performance is affected by the event of Force Majeure, provided that:
(1) The non-performing Pany shall, as soon as is reasonably possible after the
occurrence of the Force Majeure, give the other Party written notice describing
the particulars of the occurrence.
(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 Party which arose before the occurrence causing the
suspension of performance and which could and should have been fully
performed before such occurrence shall be excused as a result of such
occurTence.
ARTICLE XVtr: LAND RIGTITS
l7.l Seller to Provide Access - Seller hereby grants to Idaho Power for the term of this Agreement all
necessary rights-of-way and easements to install, operate, maintain, replace, and remove Idaho
Power's Metering Equipment, Interconnection Equipment, Disconnertion Equipment, Protection
Equipment and other Special Facilities necessary or useful to this Agreement, including adequate
and continuing access rights on property of Seller. Seller warrants that it has procured sufficient
easements and rights-of-way from third parties so as to provide Idaho Power with the access
described above. All documents granting such easements or rights-of-way shall be subject to
Idaho Power's approval and in recordable form.
17 .2 Use of Public Rights-of-Way - The Parties agree that it is necessary to avoid the adverse
- 19_
l7.3
environmental and operating impacts that would occur as a result of duplicate electric lines being
constnrcted in close proximity. Therefore, subject to Idaho Power's compliance with paragraph
17.4, Seller agrees that should Seller seek and receive from any local, state or federal
governmental body the right to erect, construct and maintain Seller-furnished Interconnection
Facilities upon, along and over any and all public roads, streets and highways, then the use by
Seller of such public right-of-way shall be subordinate to any future use by Idaho Power of such
public right-of-way for construction and/or maintenance of electric disribution and transmission
facilities and Idaho Power may claim use of such public right-of-way for such purposes at any
time. Except as required by paragraph ll.4,Idaho Power shall not be required to compensate
Seller for exercising its rights under this paragraph 17.2.
Joint Use of Facilities - Subject to ldaho Power's compliance with paragraph 17 . ,Idaho Power
may use and attach its distribution and/or transmission facilities to Sellerb Interconnection
Facilities, may reconstruct Seller's Interconnection Facilities to accommodate Idaho Power's
usage or Idaho Power may construct its own distribution or transmission facilities along, over and
above any public right-of-way acquired from Seller pursuant to paragraph 17.2, attaching Seller's
Interconnection Facilities to such newly constructed facilities. Except as required by paragraph
17.4, Idaho Power shall not be required to compensate Seller for exercising its rights under this
paragraph 17.3.
Conditions of Use - It is the intention of the Parties that the Seller be left in substantially the same
condition, both financially and electrically, as Seller existed prior to Idaho Power's exercising its
rights under this Article XVII. Therefore, the Parties agree that the exercise by Idaho Power of
any of the rights enumerated in paragraphs 17.2 and 17.3 shall: (1) comply with all applicable
laws, codes and Prudent Electrical Practices, (2) equitably share the costs of installing, owning
and operating jointly used facilities and rights-of-way. If the Panies are unable to agree on the
method of apportioning these costs, the dispute will be submitted to the Commission for
resolution and the decision of the Commission will be binding on the Parties, and (3) shall
provide Seller with an interconnection to Idaho Power's system of equal capacity and durability
_20_
t7.4
as existed prior to ldaho Power exercising its rights under this Article XVtr.
ARTICLE XVIII: LIABTLITY: DEDICATION
l8.l Nothing in this Agreement shall be construed to create any duty to, any standard of care with
reference to, or any liability to any person not a Party to this Agreement. No undertaking by one
Party to the other under any provision of this Agreement shall constitute the dedication of that
Party's system or any portion thereof to the other Party or to the public or affect the status of
Idaho Power as an independent public utility corporation or Seller as an independent individual or
entity.
ARTICLE XD(: SEVERAL OBLIGATIONS
19.1 Except where specifically stated in this Agreement to be otherwise, the duties, obligations and
liabilities of the Parties are intended to be several and not joint or collective. Nothing contained
in this Agreement shall ever be construed to create an association, trust, partnership or joint
venture or impose a trust or partnership duty, obligation or liability on or with regard to either
Party. Each Party shall be individually and severally liable for its own obligations under this
Agreement.
ARTICLE XX: WAIVER
20.1 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 arising in connection with this Agreement shall not be
deemed a waiver with respect to any subsequent default or other matter.
ARTICLE XXI: CHOICE OF LAWS AND VENUE
2l.l This Agreement shall be constnred and interpreted in accordance with the laws of the State of
Idaho without reference to its choice of law provisions.
21.2 Venue for any litigation arising out of or related to this Agreement will lie in the District Court of
the Fourth Judicial District of ldaho in and for the County of Ada.
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4t5l2N6
22.1
22.2
ARTICLE XXtr: DISPUTES AND DEFAULT
Disputes - All disputes related to or arising under this Agreement, including, but not limited to,
the interpretation of the terms and conditions of this Agreement, will be submiued to the
Commission for resolution.
Notice of Default -
22.2.1 Defaults. If either Party fails to perform any of the terms or conditions of this
22.2.2
Agteement (an "event of default"), the nondefaulting Party shall cause notice in
writing to be given to the defaulting Party, specifying the rnanner in which such
default occurred. If the defaulting Party shall fail to cure such default within the sixty
(60) days after service of such notice, or if the defaulting Party reasonably
demonstrates to the other Party that the default can be cured within a commercially
reasonable time but not within such sixty (60) day period and then fails to diligently
pursue such cure, then, the nondefaulting Party may, at its option, terminate this
Agreement and/or pursue its legal or equitable remedies.
Material Breaches - The notice and cure provisions in paragraph 22.2.1do 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.
22.3 Securitv for Performance - Prior to the Operation Date and thereafter for the full term of this
Agreement, Seller will provide Idaho Power with the following:
22.3.1 Insurance - Evidence of compliance with the provisions of paragraph 15.2. If Seller
fails to comply, such failure will be a Material Breach and may only be cured by
Seller supplying evidence that the required insurance coverage has been replaced or
reinstated;
22.3.2 Engineer's Certifications - Every three (3) years after the Operation Date, Seller will
supply Idaho Power with a Certification of Ongoing Operations and Maintenance (O
& M) from a Registered Professional Engineer licensed in the State of Idaho, which
Certification of Ongoing O & M shall be in the form specified in Appendix C. Seller's
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failure to supply the required certificate will be an event of default. Such a default
may only be cured by Seller providing the required certificate; and
22.3.3 Licenses and Permits - During the full term of this Agreement, Seller shall maintain
compliance with all permits and licenses described in paragraph 4.1.1 of this
Agreement. In addition, Seller will supply Idaho Power with copies of any new or
additional permits or licenses. At least every fifth Contract Year, Seller will update the
documentation described in Paragraph 4.1.1. H at any time Seller fails to maintain
compliance with the permits and licenses described in paragraph 4.1.1 or to provide
the documentation required by this paragraph, such failure will be an event of default
and may only be cured by Seller submitting to Idaho Power evidence of compliance
from the permitting agency.
ARTICLE XXItr: GOVERNMENTAL AUTHORZATION
23.1 This Agreement is subject to the jurisdiction of those govemmental agencies having control over
either Party of this Agreement.
24.1
ARTICLE XXIV: COMMISSION ORDER
This Agreement shall become finally effective upon the Commission's approval of all terms and
provisions hereof without change or condition and declaration that all payments to be made to
Seller hereunder shall be allowed as prudently incurred expenses for ratemaking purposes.
25.1
ARTICLE XXV : SUCCESSORS AND ASSIGNS
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 Parties hereto, except that no assignment
hereof by either Party shall become effective without the written consent of both Parties being
first obtained. Such consent shall not be unreasonably withheld. Notwithstanding the foregoing,
any party which Idaho Power may consolidate, or into which it may merge, or to which it may
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convey or transfer substantially all of its electric utility assets, shall automatically, without further
act, and without need of consent or approval by the Seller, succeed to all of ldaho Power's rights,
obligations and interests under this Agreement. This anicle 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 financing entity that it is
exercising such rights or remedies.
ARTICLEXXVI MODIFICATION
26.1 No modification to this Agreement shall be valid unless it is in writing and signed by both Parties
and subsequently approved by the Commission.
ARTICLE XXVtr: TAXES
n J Each Party shall pay before delinquency all taxes and other govemmental charges which, if failed
to be paid when due, could result in a lien upon the Facility or the Interconnection Facilities.
ARTICLE XXVItr: NOTICES
28.1 All written notices under this agreement shall be directed as follows and shall be considered
delivered when deposited in the U. S. Mail, first-class postage prepaid, as follows:
To Seller: Original document to:
Cassia Gulch wind park LLC
Attn: Jared Grover
4200 North Cloverdale Rd
Boise,Idaho 83713
Copy of document to:
John Deere Wind Energy
c/o John Deere Credit
6400 NW 866 Street
Johnston, IA 50131
Attn: Assistant Chief Counsel - Wind Energy
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To Idaho Power:
Original document to:
Vice President, Power Supply
Idatro Power Company
POBoxT0
Boise,Idaho 83707
Copy of document to:
Cogeneration and Small Power Production
Idaho Power Company
POBoxT0
Boise, Idaho 83707
ARTICLE XXD(: ADDITIONAL TERMS AND CONDITIONS
29J This Agreement includes the following appendices, which are attached hereto and included by
reference:
Appendix A
Appendix B
Appendix C
Generation Scheduling and Reporting
Facility and Point of Delivery
Engineer' s Certifications
ARTICLE )O(X: SEVERABILITY
30.1 The invalidity or unenforceability of any term or provision of this Agreement shall not affect the
validity or enforceability 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 XXXI: COUNTERPARTS
31.1 This Agreement may be executed in two or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same instrument.
ARTICLE XXXtr: ENTIRE AGREEMENT
32.1 This Agreement constitutes the entire Agreement of the Parties concerning the subject matter
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4t5n006
hereof and supersedes all prior or contemporaneous oral or written agreements between the
Parties concerning the subject rnatter hereof.
IN WINESS WHEREOR The Parties hereto have caused this Agreement to be executed
in their respective nanps on the dates set forth below:
Idaho Power Company CassiaWind FarmL.L.C.
C. Miller, Sr. Yice President, Power Supply
Dated
Nfle-..u -l . z-os <o
Dated t I""'* Ap,,( ? 2oo|
"Seller""Idaho Power"
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4l5t2006
APPENDX A
A _I MONTHLY POWER PRODUCTION AND SWITCHING REPORT
At the end of each month the following required documentation will be submitted to:
Idaho Power Company
Attn: Cogeneration and Small Power Production
P0Box70
Boise, Idaho 83707
The Meter readings required on this report will be the reading on the Idaho Power Meter
Equipment measuring the Facility's total energy production, Station Usage,Inadvertent Energy delivered
to Idaho Power and the maximum generated energy (kW) as recorded on the Meter Equipment and/or any
other required energy measurrements to adequately administer this Agreement.
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41512006
Project Name
Address
City
IdahoPower Company
Cogeneration and Small Power Production
MONTHLY POWER PRODUCTION AND SWITCIIING REPORT
Month Yeer
Project Number:
Phone Number:
State Zip
Facility
Output
Station
Usage
Station
Usage
Meter€d
Maximum Generation
kw
Net Generation
Meter Number:
End of Month kVYh Meter Reading:
Beginning of Month kWh Meter:
Difference:
fimes Meter Constant:
kWh for the Month:
Metered Dernand:
Breaker Opening Record
Date Time Meter rl Reason
Breaker Closing Record
Date Time Meter
rl
1
2
3
4
5
6
7
Breaker Onenins Reason Codes
Lack of Adequatc Prime Mover
Forced Outage of Facility
Disturbance of IPCo System
Scheduled Maintenance
Testing of Protection Systenrs
Cause Unknown
Other (Explain)
I hereby certify that the above meter readings are
true and correct as of Midnight on the last day of the
above month and that the switching record is accurate
and complete as required by the Firm Energr Sdes
Agrcement to which I am a Party.
Signature
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Date
A-2 ROI.TTINE REPORTING
Idaho Power Contact Information
Daily Energy Production Reporting
Call daily by 10 a.m., 1-800-3564328 or 1-800-635-1093 and leave the following
information:
o Project ldentification - Project Name and Project Numbero Current Meter Readingo Estimated Generation for the current dayo Estimated Generation for the next day
Planned and Unplanned Project outages
Call l-80G345-1319 and leave the following information:
o Project Identification - Project Name and Project Number. Approximate time outage occurredo Estimated day and time of project coming back online
Seller' s Contact Information
24-Hour Project Operational Contact
Name: Karl-Heinz Mertins
TelephoneNumber: 5L5-2674250CellPhone: 612-309-8800
hoject On-site Contact information
Jared Grover
Telephone Number: 208-323-6155
Cell Phone:[phone]
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B-l
APPENDX B
FACILMY AND POINT OF DELIVERY
PROJECTNO. 31318100
CASSIA WIND FARM
DESCRIPTION OF FACILTTY
The Facility will consist of 5 Suzlon, model S88 Wind turbines with individual generator ratings
of 2.1 MW for each unit, for a total Facility generator rating of 10.5 MW.
LOCATION OFFACILITY
Near: Hagerman, Idaho - the area known as Bell Rapids
Sections: 2and3 Township: TSouth Range: l2East County: TwinFalls Idaho.
SCIIEDI.]LED FIRST ENERGY AND OPERATION DATE
Seller has selected August 31. 20O6 as the estimated Scheduled First Energy Date.
Seller has selected December 31. 2006 as the estimated Scheduled Operation Date.
kr making these selections, Seller recognizes that adequate testing of the Facility and completion
of all requirements in paragraph 5.2 of this Agreement must be completed prior to the project
being granted an Operation Date. Idaho Power, based on the information supplied by the Seller,
will schedule its constmction in accordance with ScheduleT2 and the Generation Interconnection
Process.
MAXMUM CAPACIY AMOUNT: This value will be 10.5 MW which is consistent with the
value provided by the Seller to Idaho Power in the Generation Interconnection process. This
value is the maximum energy (MW) that potentially could be delivered by the Seller's Facility to
the Idaho Power electrical system at any moment in time.
B-2
B-3
B-4
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4t5t2006
B-5 POINT OF DELIVERY
'?oint of Delivery" means, unless otherwise agreed by both Parties, the point of where the Sellers
Facility's energy is delivered to the Idaho Power electrical system. The Idaho Power Generation
Interconnection process will determine the specific Point of Delivery for this Facility. Upon
completion of the Generation lnterconnection process the Point of Delivery identified by this
process will become an integral part of this Agreement.
LOSSES
If the Idaho Power Metering equipment is capable of measuring the exact energ'y deliveries by the
Seller to the Idaho Power electrical system at the Point of Delivery, no Losses will be calculated
for this Facility. If the ldaho Power Metering is unable to rneasure the exact energy deliveries by
the Seller to the Idaho Power electrical system at the Point of Delivery, a Losses calculation will
be established to measure the energy losses (kWh) between the Seller's Facility and the Idaho
Power Point of Delivery. This loss calculation will be initially set at ZVo 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 electrical equipment between the Facility and the
Idaho Power electrical system, Idaho Power will configure a revised loss calculation formula to
be agreed to by both parties and used to calculate the kWh Losses for the remaining term of the
Agreement. [f at anytime during the term of this Agreement, Idaho Power determines that the
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.
METERING AND TELEMETRY
The Idaho Power Generation Interconnection process will determine the specific metering and
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B-6
B-7
B-7
telemetry requirements for this Facility. At the minimum the Metering 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 administer this Agreement. These specifications
will 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. The entire Generation
Interconnection process, including but not limited to the equipment specifications and
requirements will become an integral part of this Agreenrent. Seller will arrange for and make
available at Seller's cost communication circuit(s) compatible to Idatro Power's communications
equipment and dedicated to Idaho Power's use terminating at the ldaho Power facilities capable of
providing Idaho Power with continuous instantaneous information on the Facilities energy
production. Idaho Power provided equipment will be owned and maintained by Idaho Power,
with total cost of purchase, installation, operation, and maintenance, including administrative cost
to be reimbursed to Idaho Power by the Seller. Payment of these costs will be in accordance with
Schedule 72 and the total metering cost will be included in the calculation of the Monthly
Operation and Maintenance Charges specified in Schedule 72.
SPECIAL FACILITIES
The Idaho Power Generation Interconnection process will determine the Special Facility
requirernents for this Facility. These specifications will 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 ldaho Power provided
equipment. The entire Generation lnterconnection process, including but not limited to the
equipment specifications and requirements will become an integral part of this Agreement. Idaho
Power owned equipment will be maintained by Idaho Power, with total cost of purchase,
installation, operation, and maintenance, including administrative cost to be reimbursed to ldaho
Power by the Seller. Payment of these costs will be in accordance with Schedule 72 and the total
_ 32_
B-8
Special Facility cost will be included in the calculation of the Monthly Operation and
Maintenance Charges specified in Schedule 72.
REACTIVE POWER
The Idaho Power Generation Interconnection process will determine the reactive power required
to be supplied by Idaho Power to the Seller, based upon information provided by the Seller. The
Generation Interconnection process will specify the equipment required on the Idaho Power
system to meet the Facility's reactive power requirements. These specifications will include but
not be limited to equipment specifications, equipment location, Idaho Power provided equiprnent,
Seller provided equipment, and all costs associated with the equipment, design and installation of
the Idaho Power provided equipment. The entire Generation Interconnection process, including
but not limited to the equipment specifications and requirements will become an integral part of
this Agreement. Idaho Power owned equipment will be maintained by Idaho Power, with total
cost of purchase, installation, operation, and maintenance, including administrative cost to be
reimbursed to Idaho Power by the Seller. Payment of these costs will be in accordance with
Schedule 72 and ttre total reactive power cost will be included in the calculation of the Monthly
Operation and Maintenance Charges specified in Schedule 72.
DISCONNECTION EQUIPMENT
Disconnection Equipment is required to insure that the Seller's Facility will be disconnected from
Idaho Power's system in the event of (l) the Sellers delivery of energy exceeds the Maximum
Capacrty Amount or (2) Idaho Power or the Seller require intemrption or curtailment of energy
deliveries to Idaho Power or (3) a disturbance on either Idaho Power's system or the Seller's
Facility. The Idaho Power Generation Interconnection process will determine the Disconnection
Equipment specifications and requirements for this Facility, this equipment is for protection of
the ldaho Power system and equipment only. These specifications will include but not be limited
B-9
- 33-
4t5t2006
to equipment specifications, equipment location, Idaho Power provided equipment, Seller
provided equipment, and all costs associated with the equipment, desigr and installation of the
Idaho Power provided equipment. Seller will install all Seller provided equipment, control wire
and conduit necessary for the operation of the Disconnection Equipment. Through the
Generation Interconnection process, Idaho Power will supply details for the disconnection panel
and will test the equipment prior to any operations of the Facility, Seller will provide &awings of
their interconnection wiring for engineering approval prior to installation. The entire Generation
Interconnection process, including but not limited to the equipment specifications and
requirements will become an integral part of this Agreernent. Idaho Power owned equipment will
be maintained by Idaho Power, with total cost of purchase, installation, operation, and
maintenance, including administrative cost to be reimbursed to Idatro Power by the Seller.
Payment of these costs will be in accordance with Schedule 72 and the total Disconnection
Equipment cost will be included in the calculation of the Monthly Operation and Maintenance
Charges specified in Schedule 72.
B-10 COSTS
The Idaho Power Generation Interconnection process and this Agreement will identify all cost for
this Facility to interconnect to the Idaho Power system, including but not limited to the cost of
Metering equipment, Telemetry equipment, Special Facilities, Reactive Power, Disconnection
equipment, Protection equipment and Interconnection Equipment. As specified in the Generation
Interconnection process and in accordance with ScheduleT2 and this Agreement the Seller will
reimburse Idaho Power for all costs associated with this equipment. In addition to the equipment,
installation and construction charges as specified above, during the term of this Agreement, Seller
will pay Idaho Power the monthly operation and maintenance charge specified in Schedule 72 or
its successor schedules(s). The monthly operations and maintenance charge will begin on the
first day of the msnth following the date which Idaho Power has completed installation of the
Idaho Power provided equipment and the interconnection equipment is available for use by the
-34-
Facility. The monthly operations and maintenance charge will be based upon the initial cost paid
by the Seller in accordance with Schedule 72. Upon reconciliation of the actual costs, in
accordance with Schedule 12 the monthly operations and maintenance charge will be adjusted to
reflect the actual cost incurred by Idaho Power and previously charged monthly operation and
maintenance expense will be revised to reflect the actual cost incurred by Idaho Power. Idaho
Power will refund or Seller will remit any underpayment of the adjusted monthly operations and
maintenance charge within sixty (60) days of the determination of this amount.
B.I I SALVAGE
No later than sixty (6O) days after the termination or expiration of this Agreement, Idaho Power
will prepare and forward to Seller an estimate of the remaining value of those Idaho Power
furnished Interconnection Facilities as required under ScheduleT2,the Generation
Interconnection Process and/or described in this Agreement, less the cost of removal and transfer
to Idaho Power's nearest warehouse, if the Interconnection Facilities will be removed. If Seller
elects not to obtain ownership of the Interconnection Facilities but instead wishes that Idaho
Power reimburse the Seller for said Facilities the Seller may invoice Idaho Power for the net
salvage value as estimated by ldaho Power and Idaho Power shall pay such amount to Seller
within thirty (30) days after receipt of the invoice. Seller shall have the right to offset the invoice
amount against any present or future payments due Idaho Power.
- 35-
q5n006
APPENDD( C
ENGINEER S CERTIFICATION
OF
OPERATIONS & MAINTENANCE POLICY
The undersigned on behalf of himself and
hereinafter collectively referred to as
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 Engineer has reviewed the Energy Sales Agreement, hereinafter "Agreement,"between
datedSeller,
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
Idaho Power as Buyer, and
the "Project."
4. That the Project, which is commonly known as the is located in
Section
-
Township
-,
Range
-,
Boise Meridian,County,Idatro.
5. That Engineer recognizes that the Agteement provides for the Project to furnish electrical energy
to Idaho Power for a twenty (20) year period.
6. That Engineer has substantial experience in the design, construction and operation of electric
power plants of the sarne type as this Project.
7. That Engineer has no economic relationship to the Design Engineer of this Project.
8. That Engineer has reviewed and/or supervised the review of the Policy for Operation 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 will result in the
-36-
415D006
Project's producing at or near the design electical output, efficiency and plant factor for a twenty (20)
year period.
9. That Engineer recogtizes that Idaho Power, in accordance 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 statenrcnts are complete, true and accurate to the best of his
knowledge and therefore sets his hand and seal below.
(P.E. Stamp)
Date
By
- 37-
APPENDX C
ENGINEER' S CERTIFICATION
OF
ONGOING OPERATIONS AND MAINTENANCE
The undersigned on behalf of himself and
hereinafter collectively referred to as "Engineer," hereby
states and certifies to the Seller as follows:
That Engineer is a Licensed Professional Engineer in good standing in the State of Idaho.
That Engineer has reviewed the Energy Sales Agreement, hereinafter "Agreement," betw@n
Idaho Power as Buyer, and as Seller, dated
3. That the cogeneration or small power production project which is the subject of the Agreement
1.
2.
and this Statement is identified as IPCo Facility No.
"Project".
and hereinafter referred to as the
4. That the Project, which is commonly known as the Project,
is located at
5. That Engineer recognizes that the Agreement provides for the Project to furnish electrical energy
to Idaho Power for a twenty (20) 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 maintenance
records since the last previous certified inspection. It is Engineer's professional opinion, 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 will continue producing at or near its design electrical output, efficiency and plant factor for the
remaining
-
years of the Agreement.
- 38-
9. That Engineer recognizes thar Idaho Power, in accordance with paragraph 5.2 of the Agreemenq
is rclying on Engineer's representations and opinions contained in this Statement.
10. That Engineer certifies th* the ahve statements are complete, true and accurate to the best of his
knowledge and therefore sets his hand and seal below.
(P.8. Stamp)
Date
By
-39-
45n006'
APPENDD(C
ENGINEERS CERTIFICATION
OF
DESTGN & CONSTRUCTTON ADEQUACY
The undersigned on behalf of himself and
hereinafter collectively referred to as "Engineer",
hereby states and certifies to Idaho Power as follows:
1. That Engineer is a Licensed Professional Engineer in good standing in the State of Idaho.
2. That Engineer has reviewed the Firm Energy Sales Agreement, hereinafter "Agreement",
between ldaho 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
referred to as the "Project".
and is hereinafter
4. That the Project, which is commonly known as the
Project, is located in Section
-,
Township
-,
Range
-,
Boise Meridian,
-
County,Idatro.
5. That Engineer recognizes that the Agreement provides for the Project to furnish electrical
energy to ldaho 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 and
has made the analysis of the plans and specifications independently.
8. That Engineer has reviewed the engineering design and construction of the hoject,
including the civil work, electrical work, generating equipment, prime mover conveyance system, Seller
furnished Interconnection Facilities and other Project facilities and equipment.
- 40-
4t5t2ffi6
9.
applicable
Agreement.
10.That the desigrr and construction ofthe Project is such that with reasonable and prudent
operation and maintenance practices by Seller, the Project is capable of performing in accordance with the
terms of the Agreenrent and with Prudent Electrical hactices for a _ ( ) year period.
11. That Engineer recognizes that Idaho Power, in accordance with paragraphS.2 of the
Agreement, in interconnecting the Project with its syster& 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.
(P.E. Stamp)
Date
That the Project has been consftucted in accordance with said plans and specifications, all
codes and consistent with Prudent Electrical Practices as that term is described in the
By
- 4t-
EXHIBIT 2
Article
1
2
3
4
5
6
7
8
9
l0
ll
t2
13
t4
15
16
t7
l8
19
20
2t
22
23u
25
26
n
28
29
FIRM ENERGY SALES AGREEMENT
BETWEEN
IDAHO POWER COMPANY
AND
HOT SPRINGS WINDFARM, LLC
TABLE OF CONTENTS
TITLE
Definitions
No Reliance on ldaho Power
Warranties
Conditions to Acceptance of Energy
Term and Operation Date
Purchase and Sale of Net Energy
Purchase Price and Method of Payment
Environmental Attributes
Facility and Interconnection
Metering and Telernetry
Records
Operations
Indemnifi cation and Insurance
Force Majeure
Liabitity; Dedication
Several Obligations
Waiver
Choice of Laws and Venue
Disputes and Default
Governmental Authorization
Commission Order
Successors and Assigrrs
Modification
Taxes
Notices
Additional Terms and Conditions
Severability
Counterparts
Entire Agreenrent Signatures
Appendix A
Appendix B
Appendix C
tutv2c0]6
FIRM ENERGY SALES AGREEMENT
(10 aMW orLess)
HOT SPRINGS WINDFARM. LLC
Project Number: 2161 5L05
THIS AGREEMENT, entered into on tns 20 aay of h.e.l btr 2006 between
Hot Springs Windfarm, LLC, an Idaho limited liability company (Seller), and IDAHO POWER
COMPANY, an Idaho corporation (Idaho Power), hereinafter sonretirnes referred to collectively as
'?arties" or individually as "Party."
WTTNESSETH:
WHEREAS, Seller will design, construct, own, maintain and operate an electric generation
facility; and
WHEREAS, Seller wishes to sell, and Idaho Power is willing to purchase, firm electric energy
produced by the Seller's Facility.
THEREFORE, In consideration of the mutual covenants and agreements hereinafter set forth, the
Parties agree as follows:
ARTICLE I: DEFINITIONS
As used in this Agreement and the appendices attached hereto, the following tenns
shall have the following meanings:
1.1 "EaSe_EngIg" - Monthly Net Energy less than 1107o of the monthly Net Energy Amount as
specified in paragraph 6.2 of this Agreement.
1.2 "eepqlqigfu" - The Idaho Public Utilities Commission.
1.3 "eo4tracgIeAr" - The period commencing each calendar year on the same calendar date as the
Operation Date and ending 364 days thereafter.
t.4 "Delay Liouidated Damages" - Damages payable to Idaho Power as calculated in paragraph 5.3,
5.4,5.5 and 5.6.
1.5 "Dglal_-Period" - All days past the Scheduled Operation Date until the Seller's Facility achieves
the Operation Date. This Delay Period shall not exceed 90 days.
l-
1?/1V2006
1.6 "DglAy_Price" - The current month's Mid-Columbia Market Energy Cost minus the current
month's Base Energy Price specified in paragraph 7.1 of this Agreement. If this calculation
results in a value less than 0, the result of this calculation will be 0.
l.l "Desienated Dispatch Faciliry" - Idaho Power's Systems Operations Group, or any subsequent
group designated by Idatro Power.
1.8 "Eacilily" - That electric generation facility described in Appendix B of this Agreement.
1.9 "First Energy Date" - The day commencing at 0001 hours, Mountain Time, following the day that
Seller has satisfied the requirements of Article [V and the Seller begins delivering energy to
Idaho Power's system at the Point of Delivery.
1.10 "Inad1,e$qnfEngfgy" - Electric energy Seller does not intend to generate. Inadvertent energy is
more particularly described in paragraph 7.6 of this Agreement.
1.11 "Interconnection Facilities" - All equipment specified in Schedule 72.
l.l2 "Initial Capacity Determination'- The process by which Idaho Power confirms that under
normal or average design conditions the Facility will generate at no more than 10 average MW
per month and is therefore eligible to be paid the published rates in accordance with Commission
Order No. 29632.
1.13 "Losses" - The loss of electrical energy expressed in kilowatt hours (kWh) occurring as a result
of the transformation 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 will be as specified in Appendix B of this Agreement.
l.l4 "Market Energy Cost" -Eighty-five percent (85Vo) of the 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 will mutually agree upon a replacement index, which is similar to the Dow Jones Mid-
Columbia Index. The selected replacement index will be consistent with other similar agreements
and a commonly used index by the electrical industry.
1 . 15 "Material Breach" - A Default (paragraph L9 .2.1) subject to paragraph 19 .2.2.
-2-
taltDw6
1.16 "Maximum Capacit!, Amount" - The maximum capacity (MW) of the Facility will be as
specified in Appendix B of this Agreement.
l.l7 "Metgqug_Eglp!0gu{ - All equipment specified in Schedule 72, this Agreement and any
additional equipment specified in Appendix B required to measure, record and telemeter power
flows between the Seller's electric generation plant and Idaho Power's system.
I.18 "Mid- ColumbiaMarket Energy Cost" - The weighted average of the daily on-peak and off-peak
Dow Jones Mid-Columbia lndex (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 will
mutually agree upon a replacement index, which is similar to the Dow Jones Mid-Columbia
Index. The selected replacement index will be consistent with other similar agreements and a
commonly used index by the electrical industry.
1.19 "Ne!_E4qrry" - All of the electric energy produced by the Facility, less Station Use, less Losses,
expressed in kilowatt hours (kWh). Seller commits 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.
1.20 "Qtlefation-@" - The day commencing at 0001 hours, Mountain Time, following the day that
all requirements of paragraph 5.2 have been completed.
l.2l "Pqint ef-Delivery" - The location specified in Appendix B, where Idaho Power's and the
Seller's electrical facilities are interconnected.
1.22 "Prudent Electrical Practi '- Those practices, methods and equipment that are commonly and
ordinarily used in electrical engineering and operations to operate electric equipment lawfully,
safely, dependably, effi ciently and economically.
"Scheduled Operation Date" - The date specified in Appendix B when Seller anticipates
achieving the Operation Date.
"S !g.22] - Idaho Power's Tariff No 101, Schedule 7 2 or its successor schedules as
approved by the Commission.
"S@" - The three periods identified in paragraph 6.2.1 of this Agreement.
t.23
1.24
1.25
-3-
tut1t2006
1.26 "Shortfdlhgtgy" - The method Idaho Power and the Seller have agreed to use to estimate and
liquidate the damages Idaho Power will incur if the Seller fails to provide the monthly Net Energy
Amounts specified in paragraph 6.2 of this Agreement. Computation of the Shortfall Energy is
described in paragraph 7.3 of this Agreement.
1.27 "Special Facilities" - Additions or alterations of transmission and/or distribution lines and
transformers as described in Schedule 72 or Appendix B to safely interconnect the Seller's
Facility to the Idaho Power system.
1.28 "Slatien IJse" - Electric energy that is used to operate equipment that is auxiliary or otherwise
related to the production of electricity by the Facility.
1.29 "Sulp!u!._Energy" - (1) Net Energy produced by the Seller's Facility and delivered to the Idaho
Power electrical system during the month which exceeds llO% of the monthly Net Energy
Amount for the corresponding month specified in paragraph 6.2. or (2) 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.
1.30 "Total Cost of the FaciliB" - The total cost of structures, equipment and appurtenances.
ARTICLE tr: NO RELIANCE ON IDAHO POWER
Seller Independent Investigation - Seller warrants and represents to Idaho Power that in entering
into this Agreement and the undertaking by Seller of the obligations set forth herein, Seller has
investigated and determined that it is capable of performing hereunder and has not relied upon
the advice, experience or expertise of Idaho Power in connection with the transactions
contemplated by this Agreement.
Seller Indeoendent Experts - All professionals or experts including, but not limited to, engineers,
attorneys or accountants, that Seller may have consulted or relied on in undertaking the
transactions contemplated by this Agreement have been solely those of Seller.
2.t
-4-
tatu2w6
3.1
ARTICLE ltr: WARRANTIES
No Wananty by Idaho Power - Any review, acceptance or failure to review Seller's design,
specifications, equipment or facilities shall not be an endorsement or a confirmation by Idaho
Power and Idaho Power makes no warranties, expressed or implied, regarding any aspect of
Seller's design, specifications, equipment or facilities, including, but not limited to, safety,
durability, reliability, strength, capacity, adequacy or economic feasibility.
Oualifying Facility Status - Seller warants that the Facility is a "Qualifying Facility," as that term
is used and defined in 18 CFR 292.201et seq. After initial qualification, Seller will take such
steps as may be required to maintain the Facility's Qualifying Facility status during the term of
this Agreement and Seller's failure to maintain Qualifying Facility status will be a Material
Breach of this Agreement. Idaho Power reserves the right to review the Seller's Qualifying
Facility status and associated support and compliance documents at anytime during the term of
this Agreement.
ARTICLE IV: CONDITIONS TO ACCEPTANCE OF ENERGY
Prior to the First Energy Date and as a condition of ldaho Power's acceptance of deliveries of
energy from the Seller, Seller shall:
4.1.1 Submit proof to Idaho Power that all licenses, permits or approvals necessary for Seller's
operations have been obtained from applicable federal, state or local authorities,
including, but not limited to, evidence of compliance with Subpart B, 18 CFR 292.201 et
seq. and a Qualifying Facility certificate.
4.1.2 Opinion of Counsel - Submit to Idaho Power an Opinion Letter signed by an attorney
admitted to practice and in good standing in the State of Idaho providing an
opinion that Seller's licenses, permits 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 ofthe opinion that Seller is in substantial
compliance with said permits as of the date of the Opinion Letter. The Opinion I*tter
3.2
4.1
-5-
[U1U2006
will be in a form acceptable to Idaho Power and will acknowledge that the attorney
rendering the opinion understands that Idaho Power is relying on said opinion. Idaho
Power's acceptance of the form will not be unreasonably withheld. The Opinion Letter
will be governed by and shall be interpreted in accordance with the legal opinion accord
of the American Bar Association Section of Business Law (1991).
4.1.3 Initial Capacitv Determination - Submit to ldaho Power such data as Idaho Power may
reasonably require to perform the hitial Capacity Determination. Such data will include
but not be limited to, equipment specifications, prime mover data, resource
characteristics, normal and/or average operating design conditions and Station Use data.
Upon receipt of this information, Idaho Power will review the provided data and if
necessary, request additional data to complete the hitial Capacity Determination within a
reasonable time.
4.1.4 Engineer's Certifications - Submit an executed Engineer's Certification of Design &
Conshuction Adequacy and an Engineer's Certification of Operations and Maintenance
(O&M) Policy as described in Commission Order No.21690. These certificates will be
in the form specified in Appendix C but may be modified to the extent necessary to
recognize the different engineering disciplines providing the certificates.
4.1.5 Insurance - Submit written proof to Idaho Power of all insurance required in Article XV.
4.1.6 Interconnection - Provide written confirmation from tdaho Power's Delivery Business
Unit that Seller has satisfied all interconnection requirements.
4.1.7 Written Acceptance - Request and obtain written confirmation from Idaho Power that all
conditions to acceptance of energy have been fulfilled. Such written confirmation shall be
provided within a commercially reasonable time following the Seller's request and will
not be unreasonably withheld by Idaho Power.
ARTICLE V: TERM AND OPERATION DATE
Term - Subject to the provisions of paragraph 5.2 below, this Agreement shall become effective5.1
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tutU2006
on the date first written and shall continue in full force and effect for a period of twenty (20)
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:
a) Achieved the First Energy Date.
b) Commission 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 manner.
d) Seller has requested an Operation Date from Idaho Power in a written format.
e) Seller has received written confirmation from Idaho Power of the Operation Date.
This confirmation will not be unreasonably withheld by Idaho Power.
5.3 Seller shall cause the Facility to achieve the Operation Date on or before the Scheduled Operation
Date. If the Operation Date occurs after the Scheduled Operation Date, Seller shall pay Idaho
Power Delay Liquidated Damages. Delay Liquidated Damages will be calculated monthly as
follows:
Delay Liquidated Damages are equal to ((Cunent month's kritial Year Net Energy
Amount as specified in paragraph 6.2.1 divided by the number of days in the current
month) multiplied by the current months Delay Period) multiplied by the cunent
months Delay Price.
5.4 Delay Liquidated Damages will be calculated for a maximum of ninety (90) days past the
Scheduled Operation Date. If Seller fails to achieve the Operation Date within ninety (90) days of
the Scheduled Operation Date, Idaho Power may terminate 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 billings to the Seller.
Seller's failure to pay these damages within the specified time will be a Material Breach of this
Agreement.
-7-
1211v2ffi6
5.6 The Parties a$ee that the damages Idaho Power would incur due to delay in the Facility
achieving the Operation Date on or before the Scheduled Operation Date would be difficult or
impossible to predict with certainty, and that the Delay Liquidated Damages are an appropriate
approximation of such damages.
ARTICLE VI: PURCHASE AND SALE OF NET ENERGY
Delivery and Acceptance of Net EnergX - Except when either Party's performance is excused as
provided herein, Idaho Power will purchase and Seller will sell all of the Net Energy to Idaho
Power at the Point of Delivery. All Inadvertent Energy produced by the Facility will also be
delivered by the Seller to Idaho Power at the Point of Delivery. At no time will 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.
Net Energy Amounts - Seller intends to produce and deliver Net Energy in the following monthly
amounts:
6.2.1 Initial Year Monthly Net Energy Amounts:
6.1
6.2
Season I
Season 2
Season 3
Month
March
April
May
July
August
November
December
June
September
October
January
February
kwh
5,333,000
5,333,000
4,556,000
4,222,000
4,222,000
3,833,000
4,889,000
5,111,000
4,399,000
4,611,000
3,944,000
5,111,000
-8-
1A11Dm/6
6.2.2 Ongoing Monthly Net Energy Amounts - Seller shall initially provide Idaho Power with
one year of monthly generation estimates (kritial Year Monthly Net Energy Amounts)
and beginning at the end of month nine and every three months thereafter provide Idaho
Power with an additional three months of forward generation estimates. This information
will be provided to Idaho Power by written notice in accordance with paragraph 25.1, no
later than 5:00 PM of the 5h day following the end of the previous month. If the Seller
does not provide the Ongoing Monthly Net Energy Amounts in a timely manner, ldaho
Power will use the most recent 3 months of the Initial Year Monthly Net Energy
Amounts specified in paragraph 6.2.1 fot the next 3 months of monthly Net Energy
amounts.
6.2.3 Seller's Adiustment of Net Energy Amount -
6.2.3.1 No later than the Operation Date, by written notice given to ldatro Power in
accordance with paragraph 25.1, the Seller may revise all of the previously
provided Initial Year Monthly Net Energy Amounts.
6,2.3.2 Beginning with the end of the 3'd month after the Operation Date and at the end
of every third month thereafter: (l) 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 5ft 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 will be deemed to be an election of no
change.
6.2.4 ldaho Power Adiustment of Net Energy Amount - ff Idaho Power is excused from
accepting the Seller's Net Energy as specified in paragraph 12.2.1 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 Idaho Power, the Net Energy
Amount as specified in paragraph 6.2 for the specific month in which the reduction or
-9-
l2ltlnm6
suspension under paragraph 12.2.1 ot 12.3.t occurs will be reduced in accordance with
the following:
Where:
NEA = Current Month's Net Energy Amount (Paragraph 6.2)
SGU = a.)If ldaho Power is excused from accepting the Seller's Net
Energy as specified in paragraph 12.2.I this value will be
equal to the percentage of curtailment as specified by
Idaho Power multiplied by the TGU as defined below.
If the Seller declares a Suspension of Energy Deliveries as
specified in paragraph 12.3.1 this value will be the sum of
the individual generation units size ratings as specified in
Appendix B that are impacted by the circumstances
causing the Seller to declare a Suspension of Energy
Deliveries.
TGU =Sum of all of the individual generator ratings of the generation
units at this Facility as specified in Appendix B of this
agreenrent.
Actual hours the Facility's Net Energy deliveries were either
reduced or suspended under paragraph 12.2.1 or 12.3-l
TH = Actual total hours in the current month
Resulting formula being:
b.)
RSH =
Adiusted
Nei Energy = NEA
Amount
x NEA ) x(H))((ffi
6.3
This Adusted Net Energy Amount will be used in applicable Surplus Energy and Shortfall
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.
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 (l|Vo) of the sum of the hitial Year Net
Energy Amounts as specified in paragraph 6.2 shall constitute an event of default.
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7.1
ARTICLE Vtr: PURCHASE PRICE AND METHOD OF PAYMENT
Base Ener&v Purchase Price - For all Base Energy, Idaho Power will pay the nonlevelized
energy price in accordance with Commission Order 29646 with seasonalization factors applied:
Year
2006
2007
2008
2009
2010
2011
2012
201 3
2014
20't5
2016
2017
2018
2019
2020
2021
2022
2023
2024
2025
2026
2027
Season l-(73.50?o)
MillsikWh
37.85
38.73
39.62
40.53
41.46
42.42
43.39
44.39
45.42
46.47
47.54
48.63
49.76
s0.91
52.07
53.28
54.51
55.76
57.05
58.37
59.72
61.09
Season2-(I2O.OO?o)
Mills/kwh
61.80
63.23
64.68
66.17
67.69
69.25
70.85
72.48
74.16
75.86
77.62
79.40
81.24
83.11
85.02
86.99
88.99
91.04
93.14
95.29
97.50
99.74
Season3-(100.007o)
Mills/kwh
s'l.50
52.69
53.90
55.14
56.41
57.71
59.04
60.40
61.80
63.22
64.68
66.17
67.70
69.26
70.85
72.49
74.16
75.87
77.62
79.41
81.25
83.'t2
7.2
7.3
Surplus Ener&v Price - For all Surplus Energy, Idaho Power shall pay to the Seller the current
month's Market Energy Cost or the Base Energy hrrchase Price specified in paragraph 7.1,
whichever is lower.
Shortfall Ener8y - If the month's Net Energy is less than 9O7o of the monthly Net Energy
Amount as specified in paragraph 6.2 of this Agreement for the corresponding month, Shortfall
Energy will be the difference between 9OVo of the monthly Net Energy Amount and the same
month's actual Net Energy delivered to the Point of Delivery.
Shortfall Energy Price - For all Shortfall Energy, if the Market Energy Cost for the month in
which the Shortfall Energy occurs is less than the Base Energy Purchase Price for the same
7.4
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7.5
month, the Shortfall Energy Price will be 0. If the Market Energy Cost for the month in which
the Shortfall Energy occurs is greater than the Base Energy Purchase Frice for the same month,
the Shortfall Energy Price will be the current month's Market Energy Cost less the Base Energy
Purchase Price. If the current month's Market Energy Cost less the Base Energy Purchase Price
is greater than 150 percent of the Base Energy Purchase Price, then the Shortfall Energy'Price
will be 150 percent of the Base Energy Purchase Price.
Shordall Energy Payment - The Shortfall Energy Payment amount is the Shortfall Energy amount
multiplied by the Shortrall Energy Price. The Shortfall Energy Payment will be withheld from
the current month's energy payrnent. ff the current month's energy payment is less than the
Shortfall Energy Payment, the Seller will make payment to Idaho Power of the unpaid balance
within 15 days of being notified of the outstanding balance. Shortfall Energy Payments are
liquidated damages and not penalties. Seller's failure to make payment in full of the Shortfall
Energy Payment within the specified time will be a Material Breach of this Agleement.
Inadvertent Energy -
7.6.1 Inadvertent Energy is electric energy produced by the Facility, expressed in kWh,
which the Seller delivers to tdaho 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 January contains 744 hours. 744 hours times 10,000 kW = 7,440,000
kWh. Energy delivered in January in excess of 7,440,000 kwh in this example
would be Inadvertent Energy.)
7.6.2 Although Seller intends to design and operate the Facility to generate no more than 10
average MW and therefore does not intend to generate Inadvertent Energy, Idaho
Power will accept Inadvertent Energy that does not exceed the Maximum Capacity
Amount but will not purchase or pay for lnadvertent Energy.
Payment Due Date - Energy payments to the Seller will be disbursed 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.
7.6
7.7
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't.8 Continuing Jurisdiction of the Commission .This Agreement is a special contract and, as such, the
rates, terms and conditions contained in this Agreement will be construed in accordance with
Idaho Power Company v. Idaho Rrblic Utilities Commission and Afton Energy.Inc., 107 Idaho
781, 693 P.zd 4n (1984), Idaho Power Company v. Idaho Public Utilities Commission, 107
Idaho 1 122,695 P.2d | 261 (1985), Afton Energy- Inc. v. Idaho Power Company, 111 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 VIU: ENVIRONMENTAL ATTRIBUTES
8.1 Idaho Power waives any claim to ownership of Bnvironmental Attributes. Environmental
Attributes include, but are not limited to, Green Tags, Green Certificates, Renewable Energy
Credits (RECs) and Tradable Renewable Certiflrcates (TRCs) directly associated with the
production of energy from the Seller's Facility.
ARTICLE D(: FACILITY AND INTERCONNECTION
Desigrr of Facilitll - Seller will design, construct, install, own, operate and 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 Agteement.
ARTICLE X: METERING AND TELEMETRY
10.1 Metering and Telemetr.y - Idaho Power shall, for the account of Seller, provide, install, and
maintain Metering Equipment to be located at a mutually agreed upon location to record and
measure power flows to Idaho Power in accordance with Schedule 72. The Metering F4uipment
will 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 administer this Agreement and to
9.1
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1 1.1
tt.2
integrate this Facility's energy production into the Idaho Power electrical system
ARTICLE XI. RECORDS
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 ftW) records in a form and content recommended by Idaho Power.
Inspection - Either Party, after reasonable notice to the other Party, shall have the right, during
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.
ARTICLE Xtr: OPERATIONS
L2.l Communications - Idaho Power and the Seller shall maintain appropriate operating
communications through Idaho Power's Designated Dispatch Facility in accordance with
Appendix A of this Agreement.
12.2 Energy Acceptance -
12.2.1 ldaho Power shall be excused from accepting and paying for Net Energy or accepting
Inadvertent Energy 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 temporary
disconnection of the Facility in accordance with Schedule 72. lf , for reasons other than
an event of Force Majeure, a temporary disconnection under Schedule 72 exceeds twenty
(20) days, beginning with the twenty-first day of such intemrption, curtailment or
reduction, Seller will 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 paragraph 6.2.
Idaho Power will notify Seller when the intemrption, curtailment or reduction is
terminated.
12.2.2 tf, in the reasonable opinion of ldaho Power, Seller's operation of the Facility or
Interconnection Facilities is unsafe or may otherwise adversely affect Idaho Power's
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equipment, personnel or service to its customers, Idaho Power may temporarily
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 will 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
will be a Material Breach of this Agreement.
I2.3 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 Facility or from individual generation unit(s) 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 will begin at the start of the next full hour following the
Seller's telephone notification as specified in paragraph 12.3.2 and will 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 will be adjusted as specified in paragraph 6.2.4.
12.3.2 If the Seller desires to initiate a Declared Suspension of Energy Deliveries as provided in
paragraph 12.3.1, the Seller will notify the Designated Dispatch Facility by telephone.
The beginning hour of the Declared Suspension of Energy Deliveries will be at the
earliest the next full hour after making telephone contact with Idaho Power. The Seller
will, within 24 hours after the telephone contact, provide Idaho Power a written notice in
accordance with Article XXVff that will contain the beginning hour and duration of the
- 15-
12nv2006
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 will
review the documentation provided by the Seller to determine Idaho Power's acceptance
of the described forced outage as qualifying 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 will 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 adeguate preventative maintenance of the Seller's Facility.
12.4 Scheduled Maintenance - On or before January 3l of each calendar year, Seller shall submit a
written proposed maintenance schedule of significant Facility maintenance for that calendar year
and Idaho Power and Seller shall mutually agree as to the acceptability of the proposed schedule.
The Parties determination as to the acceptability of the Seller's timetable for scheduled
maintenance will take into consideration Prudent Electrical Practices, Idaho Power system
requirements and the Seller's preferred schedule. Neither Party shall unreasonably withhold
acceptance of the proposed maintenance schedule.
12.5 Maintenance Coordination - The Seller and Idaho Power shall, to the extent practical, coordinate
their respective line and Facility maintenance schedules such thar they occur simultaneously.
12.6 Contact Prior to Curtailment - Idaho Power will make a reasonable attempt to contact the Seller
prior to exercising its rights to intemrpt interconnection or cunail deliveries from the Seller's
Facility. Seller understands that in the case of emergency circumstances, real time operations of
the electrical system, and/or unplanned events Idaho Power may not be able to provide notice to
the Seller prior to intemrption, curtailment, or reduction of electrical energy deliveries to Idaho
Power.
ARTICLE XTII: INDEMNIFICATION AND INSURANCE
13.1 Indemnification - Each Party shall agree to hold harrnless and to indemnify the other Party, its
officers, agents, affiliates, subsidiaries, parent company and employees against all loss, damage,
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expense and liability to third persons for injury to or death of person or injury to property,
proximately caused by the indemnifying Party's construction, ownership, operation or
maintenance of, or by failure of, any of such Party's works or facilities used in connection with
this Agreement. The indemnifying Party shall, on the other Party's request, defend any suit
asserting a claim covered by this indemnity. The indemnifying Party shall pay all costs, including
reasonable attorney fees that may be incurred by the other Party in enforcing this indemnity.
13.2 Insurance - During the term of this Agreement, Seller shall secure and continuously carry the
following insurance coverage:
13.2.1. Comprehensive General Liability lnsurance for both bodily injury and property damage
with limits equal to $1,000,000, each occurrence, combined single limit. The deductible
for such insurance shall be consistent with current Insurance Industry Utility practices for
similar property.
1.3.2.2 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 naming 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 limits of liability
reduced without sixty (60) days' prior written 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 furnish Idaho Power a certificate of insurance, together with the
endorsements rcquired 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 will immediately notify ldaho Power in writing.
The notice will advise Idaho Power of the specific reason for the lapse and the steps Seller is
taking to reinstate the coverage. Failure to provide this notice and to expeditiously reinstate or
replace the coverage will constitute a Material Breach of this Agreement.
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ARTICLE XIV: FORCE MAJEURE
14.1 As used in this Agreement, "Force Majeure" or "an event of Force Majeure" means any cause
beyond the control of the Seller or of ldaho Power which, despite the exercise of due diligence,
such Party is unable to prevent or overcome. Force Majeure includes, but is not limited to, acts of
God, fire, flood, storms, wars, hostilities, civil strife, strikes and other labor disturbances,
earthquakes, fires, lightning, epidemics, sabotage, or changes in law or regulation occurring after
the Operation Date, which, by the exercise of reasonable foresight such party could not
reasonably have been expected to avoid and by the exercise of due diligence, 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 Parties shall be excused from
whatever performance is affected by the event of Force Majeure, provided that:
(1) The non-performing Party shall, as soon as is reasonably possible after the
occurrence of the Force Majeure, give the other Party written notice describing
the particulars of the occurrence.
(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 Party which arose before the occurrence causing the
suspension of performance and which could and should have been fully
performed before such occurrence shall be excused as a result of such
occurTence.
ARTICLE XV: LIABILITY: DEDICATION
l5.l Nothing in this Agreement shall be construed to create any duty to, any standard of care with
reference to, or any liability to any person not a Pany to this Agreement. No undertaking by one
Party to the other under any provision of this Agreement shall constitute the dedication of that
Party's system or any portion thereof to the other Party or to the public or affect the status of
Idaho Power as an independent public utility colporation or Seller as an independent individual or
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entity.
ARTICLE XVL SEVERAL OBLTGATIONS
16.1 Except where specifically stated in this Agreement to be otherwise, the duties, obligations and
liabilities of the Parties are intended to be several and not joint or collective. Nothing contained
in this Agreement shall ever be construed to create an association, trust, partnership or joint
venture or impose a trust or partnership duty, obligation or liability on or with regard to either
Party. Each Party shall be individually and severally liable for its own obligations under this
Agreement.
ARTICLE XVtr: WAIVER
l7.l 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 rnatters arising in connection with this Agreement shall not be
deerned a waiver with respect to any subsequent default or other matter.
ARTICLE XVItr: CHOICE OF LAWS AND VENI.JE
18.1 This Agreement shall be construed and interpreted in accordance with the laws of the State of
Idatro without reference to its choice of law provisions.
18.2 Venue for any litigation arising out of or related to this Agreement will lie in the District Court of
the Fourth Judicial District of Idaho in and for the County of Ada.
ARTICLE XD(: DISPUTES AND DEFAULT
19.1 Disputes - All disputes related to or arising under this Agrerment, including, but not limited to,
the interpretation of the terms and conditions of this Agreement, will be submitted to the
Commission for resolution.
L9.2 Notice of Default -
19.2.1 Defaults. [f either Party fails to perform any of the terms or conditions of this
Agreement (an "event of default"), the nondefaulting Party shall cause notice in
writing to be given to the defaulting Party, specifying the manner in which such
_ t9_
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19.3 Security for Performance - Prior to the Operation Date and thereafter for the full term of this
Agreement, Seller will provide Idaho Power with the following:
19.3.1 Insurance - Evidence of compliance with the provisions of paragraph l3.2.If Seller
19.2.2
1,9.3.2
19.3.3
default occurred. If the defaulting Party shall fail to cure such default within the sixty
(60) days after service of such notice, or if the defaulting Party reasonably
demonstrates to the other Party that the default can be cured within a commercially
reasonable time but not within such sixty (60) day period and then fails to diligently
pursue such cure, then, the nondefaulting Party may, at its option, terminate this
Agreement and/or pursue its legal or equitable remedies.
Material Breaches - The notice and cure provisions in paragraph 19.2.1do 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.
fails to comply, such failure will be a Material Breach and may only be cured by
Seller supplying evidence that the required insurance coverage has been replaced or
reinstated;
Eneineer's Certifications - Every three (3) years after the Operation Date, Seller will
supply ldaho Power with a Certification of Ongoing Operations and Maintenance (O
& M) from a Registered Professional Engineer licensed in the State of Idaho, which
Certification of Ongoing O & M shall be in the form specified in Appendix C. Seller's
failure to supply the required certificate will be an event of default. Such a default
may only be cured by Seller providing the required certificate; and
Licenses and Permits - During the full term of this Agreement, Seller shall maintain
compliance with all permits and licenses described in paragraph 4.1.1 of this
Agreement. In addition, Seller will supply Idaho Power with copies of any new or
additional permits or licenses. At least every fifth Contract Year, Seller will update the
documentation described in Paragraph 4.1.1. If at any time Seller fails to maintain
compliance with the permits and licenses described in paragraph 4.1.1 or to provide
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2t.t
the documentation required by this paragraph, such failure will be an evert of default
and may only be cured by Seller submitting to ldaho Power evidence of compliance
from the permitting agency.
ARTICLE XX: GOVERNMENTAL AUTHORZATION
20.I This Agreement is subject to the jurisdiction of those governmental agencies having control over
either Party of this Agreement.
ARTICLE XXI: COMMISSION ORDER
This Agreement shall become finally effective upon the Commission's approval of all terms and
provisions hereof without change or condition and declaration that all paynrents to be made to
Seller hereunder shall be allowed as prudently incurred expenses for ratemaking purposes.
22.1
ARTICLE XXII: SUCCESSORS AND ASSIGNS
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 Parties hereto, except that no assignment
hereof by either Party shall become effective without the written consent of both Parties being
first obtained. Such consent shall not be unreasonably withheld. Notwithstanding the foregoing,
any party which Idaho Power may consolidate, or into which it may merge, or to which it may
convey or transfer substantially all of its electric utility assets, shall automatically, without further
act, and without need of consent or approval by the Seller, succeed to all of Idaho 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 financing entity that it is
exercising such rights or remedies.
r2t11t2m,6
23.1
24.1
25.1
ARTICLE XXItr: MODIEICATION
No modification to this Agreement shall be valid unless it is in writing and signed by both Parties
and subsequently approved by the Commission.
ARTICLEXXIV: TAXES
Each Party shall pay before delinquency all taxes and other governmental charges which, if failed
to be paid when due, could result in a lien upon the Facility or the Interconnection Facilities.
ARTICLE XXV: NOTICES
All written notices under this agreement shall be directed as follows and shall be considered
delivered when deposited in the U. S. Mail, first-class postage prepaid, as follows:
To Seller:Hot Springs Windfarm, LLC
Attn: Donald Wong
3155 East Patrick Lane, Suite I
Las Vegas, NV 89120-3481
Courtesy electronic copy to: donw @ surewest.net
To Idaho Power:
Original document to:
Vice President, Power Supply
Idaho Power Company
POBoxT0
Boise,Idaho 83707
Copy of docurnent to:
Cogeneration and Small Power Production
Idaho Power Company
POBoxT0
Boise, Idaho 83707
ARTICLE XXVI ADDITIONAL TERMS AND CONDITIONS
26.1 This Agreement includes the following appendices, which are attached hereto and included by
reference:
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ARTICLE XXVtr: SEVERABILITY
27.1 The invalidity or unenforceability of any tenn or provision of this Agreement shall not affect the
validity or enforceability 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 XXVItr: COI.INTERPARTS
28.1 This Agreement may be executed in two or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same instrument.
ARTICLE XXD(: ENTIRE AGREEMENT
29.1 This Agreement constitutes the entire Agreement of the Parties conceming the subject matter
hereof and supersedes all prior or contemporaneous oral or written agreements between the
Parties conceming the subject matter hereof.
IN WITNESS WHEREOF, The Parties hereto have caused this Agreement to be executed
in their respective names on the dates set forth below:
Idaho Power Comoany Hot Springs Windfarm. L.L.C.
By
Appendix A
Appendix B
Appendix C
\.- Zo,?-g.cl(-,
Generation Scheduling and Reporting
Facility and Point of Delivery
Engineer' s Certifications
/z -,/4 - zodd
"Seller"
s C. Miller, Sr. Vice President, Power Supply
Dated
"Idaho Power"
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Dated
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A-1
APPENDD(A
MONTIILY POWER PRODUCTION AND SWITCHING REPORT
At the end of each month the following required documentation will be submitted to:
Idaho Power Company
Attn: Cogeneration and Small Power Production
P0Box70
Boise, Idaho 83707
The Meter readings required on this report will be the reading on the ldaho Power Meter
Equipment rneasuring the Facility's total energy production, Station Usage, Inadverlent Energy delivered
to Idatro Power and the maximum generated energy (kW) as recorded on the Meter Fquipnent and/or any
other required energy measurements to adequately administer this Agreement.
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Project Name
Address
City
IdahoPower Company
Cogeneration and Small Power Production
MONTHLY POWER PRODUCTION AND SWITCHING REFORT
Month Year
Project Number:
Phone Number:
State zip
Facility
Outout
Station
Usaqe
Station
Usase
Metered
Marimum Generation
kw
Net Generation
Meter Number:
End of Month kWh Meter Reading:
Beginning of Month kWh Meter:
Difference:
fimes Meter Constant:
kVt/h for the Month:
MeteredDemand:
Breaker Opening Record
Date Time Meter
Breaker Openine Reason Codes
Lack of Adequate Prime Mover
Forced Outage of Facility
Disturbance of IPCo System
Scheduled Maintenance
Testing of Protection Systems
Cause Unknown
Other (Explain)
*Reason
Breaker Closing Record
Date Time Meter
*
I
2
3
4
5
6
7
I hereby certify that the above meter readings are
true and correct as of Midnight on the last day of the
above month and that the switching record is accurate
and complete as required by the Firrn Energy Sales
Agreernent to which I am a Party.
Signature Date
A-2 ROUTINE REPORTING
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Idaho Power Contact Information
Daily EnerCry Production Reporting
Call daily by 10 a.m., 1-800-356-4328 or 1-800-635-1093 and leave the followins
information:
r Project ldentification - Project Name and Project Numbero Current Meter Readingo Estimated Generation for the cunent dayo Estimated Generation for the next day
Planned and Unplanned hoject outaees
Call 1-800-345-1319 and leave the following information:
o Project Identification - Project Name and Project Numberr Approximate time outage occurredo Estimated day and time of project coming back online
Seller' s Contact Information
24-Hour Project Operational Contact
Narne: Donald Wong
TelephoneNumber: 916-791-1959
Cell Phone: [phone]
Project On-site Contact information
Telephone Number: John Steiner - 208-869-7300
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lu1y2006
B-1
APPENDX B
FACILITY AND POINT OF DELIVERY
PROJECT NO. 21615105
HOT SPRINGS WINDFARM, LLC
DESCRIPTION OF FACILITY
The Facility will consist of 12 Vestas wind turbines with individual nameplate ratings of 1.65
MW for each unit, for a total Facility nameplate generator rating of 19.8 IvtW. Seller may
substitute at any time prior to the Operation Date, a different manufacturer and/or model wind
turbine provided that the aggregate nameplate rating of the Facility does not exceed 20 MW.
LOCATION OF FACILITY
Near:
Sections: 25. SE Ouarter of 26. 34.35. and 36 Township: 45 Range: 8E County: Elmore
Sections:2and3 Township:SS Range: 8E County: Elmore
SCHEDI.]LED FIRST ENERGY AND OPERATION DATE
Seller has selected March 31. 2007 as the estimated Scheduled First Energy Date.
Seller has selected December 31. 2007 as the estimated Scheduled Operation Date.
In making these selections, Seller recognizes that adequate testing of the Facility and completion
of all requirements in paragraph 5.2 of this Agreement must be completed prior to the project
being granted an Operation Date. Idaho Power, based on the information supplied by the Seller,
will schedule its construction in accordance with Schedule 72.
MAXMLJM CAPACITY AMOUNT: This value will be 20 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 Facility to the Idaho
B-2
ID.
ID.
B-3
B4
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B-5
Power electrical system at any moment in time.
POINT OFDELTVERY
"Point of Delivery" means, unless otherwise agreed by both Parties, the point of where the Sellers
Facility's energy is delivered to the Idaho Power electrical system. Schedule 72 will determine
the specific Point of Delivery for this Facility. The Point of Delivery identified by Schedule 72
will become an integral part of this Agreement.
LOSSES
If the Idaho Power Metering equipment is capable of measuring the exact energy deliveries by the
Seller to the Idaho Power electrical system at the Point of Delivery, no Losses will be calculated
for this Facility. If the Idaho Power Metering is unable to measure the exact energy deliveries by
the Seller to the Idaho Power electrical system at the Point of Delivery, a Losses calculation will
be established to npasure the energy losses (kWh) between the Seller's Facility and the Idaho
Power Point of Delivery. This loss calculation will be initially set at 27o 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 electrical equipment between the Facility and the
Idaho Power electrical system, Idaho Power will configure a revised loss calculation formula to
be agreed to by both parties and used to calculate the kWh Losses for the remaining term of the
Agreement. If at anytime during the term of this Agreement, Idaho Power determines that the
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.
METERING AND TELEMETRY
Schedule 72 will determine the specific metering and telemetry requirements for this Facility. At
B-6
B-7
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t2tltno0tr,
the minimum the Metering 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 administer this Agreement. These specifications will include but not be limited to
equipment specifications, equipment location, Idaho Power provided equipment, Seller provided
equiprnent, and all costs associated with the equipment, design and installation of the Idaho
Power provided equipment. Seller will arrange for and make available at Seller's cost
communication circuit(s) compatible to Idaho Power's communications equipnrcnt and dedicated
to ldaho Power's use terminating at the Idaho Power facilities capable of providing Idaho Power
with continuous instantaneous information on the Facilities energy production. Idaho Power
provided equipment will be owned and maintained by ldaho Power, with total cost of purchase,
installation, operation, and maintenance, including administrative cost to be reimbursed to ldaho
Power by the Seller. Payment of these costs will be in accordance with Schedule 72 and the total
rnetering cost will be included in the calculation of the Monthly Operation and Maintenance
Charges specified in Schedule 72.
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APPENDD( C
ENGINEERS CERTIFICATION
OF
OPERATIONS & MAINTENANCE POLICY
The undersigned on behalf of himself and
hereinafter collectively referred to as "Engineer,"
hereby states and certifies to the Seller as follows:
1. That Engineer is a Licensed Professional Enginecr in good standing in the State of Idaho.
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 Staternent is identified as IPCo Facility No.
the "Project."
and is hereinafter referred to as
4. Thar the Project, which is commonly known as the Project, is located in
Section Township Range
-,
Boise Meridiil,
-
County, Idaho.
5. That Engineer recognizes that the Agreement provides for the Project to furnish electrical energy
to Idatro Power for a twenty (20) 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 reviewed and/or supervised the review of the Policy for Operation and
Maintenance ("O&M') for this Project and it is his professional opinion that, provided said hoject has
been designed and built to appropriate standards, adherence to said O&M Policy will result in the
Project's producing at or near the design electrical output, efficiency and plant factor for a twenty (20)
year period.
- 30- tutt2*6
9. That Engineer recognizes that Idaho Power, in accordance with paragraph 5.2 of the Agreement,
is relying on Engineert representations and opinions contained in this Statement.
10. That Engineer certifies that the above statements are complete, tnre and accurate to the best of his
knowledge and therefore sets his hand and seal below.
By
(P.E. Stamp)
Date
- 31-
talrn0n,6
1.
2.
APPENDX C
ENGINEER'S CERTIFICATION
OF
ONGOING OPERATIONS AND MAINTENANCE
The undersigned on behalf of himself and
to as "Engineer," herebyhereinafter collectively referred
states and certifies to the Seller as follows:
That Engineer is a Licensed Professional Engineer in good standing in the State of ldaho.
That Engineer has reviewed the Energy Sales Agreement, hereinafter 'Agreement," between
ldaho Power as Buyer, and as Seller, dated
That the cogeneration or small power production project which is the subject of the Agreement
and this Statement is identified as IPCo Facility No.
"Project".
and hereinafter referrc.d to as the
4. That the Project, which is commonly known as the Project, is located in
Section Township Range
-,
Boise Meridian, _ County, tdaho.
5. That Engineer recognizes that the Agreement provides for the Project to furnish electrical energy
to Idaho Power for a twenty (20) 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 Desigr Engineer of this Project.
8. That Engineer has made a physical inspection of said Project, its operations and maintenance
records since the last previous certified inspection. It is Engineer's professional opinion, 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 will continue producing at or near its design electrical output, efficiency and plant factor for the
remaining years of the Agreement.
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9. That Engineer recognizes that Idaho Power, in accordance 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 statenents are complete, true and accurate to the best of his
knowledge and therefore sets his hand and seal below.
(P.E. Stamp)
Date
By
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APPENDD(C
ENGINEER S CERTIFICATION
OF
DESIGN & CONSTRUCTION ADEQUACY
The undersigned on behalf of himself and
_, hercinafter collectively refened to as "Engineer",
hereby states and certifies to Idaho Power as follows:
l. That Engineer is a Licensed Professional Engineer in good standing in the State of ldaho.
2. That Engineer has reviewed the Firm Energy Sales Agreement, hereinefter "Agreement",
between Idaho Power as Buyer, and 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 ttre Project, which is commonly known as the Project, is located in
Section-Township-Range-'BoiseMeridian,-County,Idaho.
5. That Engineer rccognizes that the Agreement provides for the Project to furnish electrical
energy to Idaho Power for a ( ) vear oeriod.
6. That Engineer has substantial experience in the design, constnrction 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 of the plans and specifications independently.
8. That Engineer has reviewed the engineering design and construction of the Project,
including the civil work, electrical work, generating equipment, prime mover conveyance system, Seller
furnished Interconnection Facilities and other Project facilities and equipment,
9. That the hoject 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 in the
Agteement.
10. 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 performing in accordance with the
terms of the Agreement and with Prudent Electrical Practices for a _ ( ) year period.
11. That Engineer recognizes that Idaho Power, in accordance with paragraph5,2 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.
(P.E. Stamp)
Date
By
- 35-
1?/1u2006
Idalro Power FacilityNo. 21615105
Project Hot Springs Wind Fann
FIRST AMENDMENT TO
ENERGY SALES AGREEMENT
This First Ameirdment is to that certain Firm Enerry Sales Agreerrent ("Agreonent")
entered into on December 20,2006, between Hot Springs Windfarm, LLC ("Seller") and Idaho
Power Company ("Idaho Power") for the Hot Springs Windfarm electric generation project
("Facili!y').
WITNESSETH:
WHEREAS, the Agreement was approved bythe Idatro Public Utilities Commission
("Commission") on February 20,2007, in OrderNo. 30246; and
WHEREAS, the parties desire to amend the Agreement to (1) allow for the substitution of a
different wind turbine manufacturer and specifications and (2) revise the Scheduled Operation Date
and (3) provide liquid security in the amount of estimated Delay Liquidatd Damages.
NOW THEREFORE, Idaho Power and Seller agree to amend the Agreernent as follows:
l. In the existing Appendix B of the Agreement:
B-1 Description of Facilitv
The sentence that reads "Seller may substitute at any time prior to the Operation
Date, a different manufacturer and/or model wind turbine provided that the aggregate
nameplate rating of the Facility does not exceed 20 MW." is deleted in its entirety
and the following inserted in its place:
Page I of6
2.
........ Seller may substitute at any time prior to the Operation Date, a
dffirent manufacturer and/or model wind turbine provided that the
aggregate nameplate rating of the Facility does not exceed 2I MW.
84 Maximum Capacitv Amount
The stated Maximum Capacity of 20 MW is revised tobe 2l MW.
In the existing Appendix B of the Agreement:
B-3 Scheduled First Enersv and Operation Date
The sentence reading "Seller has selected Decernber 31, 2007 as an estimated
Scheduled Operation Date." is deletd and the following inserted in its place:
Scheduled Operation Date shall be no later than 365 days after the date of
the later of (l) Idaho Public Utilities Commission ("IPUC") final
unappealable order approving this amendment or (2) the IPUC final
unappealable order resolving the current IPUC case IPC-06-21 (Complaint
of Cassia Gulch l(ind Park LLC and Cassia Wind Farm LLC)
The following paragraph is added to Article 5 of the Agreement.
5.7 Within thirty (30) days after the Scheduled Operation Date as
specified in Appendix B, item B-3 has been established; Seller shall post liquid
security ("Delay Security") in aform as described in Appendix D equal to or
exceeding the amount ealculated in paragraph 5.7.1.
5.7.1 ldaho Power shall calculate the amount of Delay Security by
multiplying a good faith forecast of each applicable monthly Mid-
3.
Page 2 of6
Colurnbia Market Energt Costfor each month of the potential9a day
(3 month) delay period, times the applicable month's Initial Year
Monthly Net Energt Amounts as specified in paragraph 6.2.1 of the
Agreement. If the sum of the 3 month's individual values results in a
total of less than $100,000 the Delay Security will be $100,000, if this
calcttlation results in a total of greater than $500,000 the Delay
Seanrity will be $500,000.
5.7.2 ldaho Power shall release all security posted hereunder on the earlier
of (I) within 30 days after any and all Delay Liquidated Damages bt
the Delay Period, as calculated within the Agreement, are paid infull
to Idaho Power Company or (2) 45 days after the Operation Date has
been achieved.
The following Appendix D is added to the Agreement.
Page 3 of6
Appendix D
Forms of Liquid Security
The Seller shall provide Idaho Power with commercially reasonable security instruments
such as Cash Escrow Security, Guarantee or Letter of Credit as those terms are defined
below or other forms of liquidfinancial security that would provide readily available cash
to ldaho Power to satisfy the Delay Security requirement within this Agteement.
For the purpose of this Appendix D, the term "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 ldaho Power, provided that any
guarantee and/or letter of credit issued by John Deere Capital Corporation or John Deere
Renewables, LLC. or any other entity with a short-term or long-term investment grade credit
rating by Standard & Poor's Corporation or Moody's Investor Services, Inc. shall be
deemed to have acceptable financial creditworthiness.
l. Cash Escrow Security - Seller shall deposit funds in an escrow account established by
Idaho Power in a banking institution acceptable to both Parties equal to the Delay
Security. Such sum shall earn interest at the rate applicable to money marl@t deposits at
such banking institutionfrom time to time.
2. Guarantee or Letter of Credit Security - Seller shall post and maintain in an amounl
equal to the Delay Security: (a) a guarantyfrom a party that satis/ies the Credit
Page 4 of6
Requirements, in aforru acceptable to ldaho Power in its discretion, or (b) a Letter of
Credit in aform acceptable to ldaho Power, infavor of Idaho Power. The Letter of
Credit will be issued by afinancial institution acceptable to both parties.
Page 5 of6
IN WITNESS WHEREOF, The Parties hereto have caused this Agreement to be executed in
their respective names on the dates set forth below:
ldatro Power Company Hot Springs Windfarm L.L.C.
Glenn Ikemoto, Authorized Manager
Dated DatedJ.t*. 2 , 2-os?
\'Id"ho power""Seller"
By
C. Miller, Sr. Vice President, Power Supply
Page 6 of5
By
IN WITNESS WHEREOF, The Parties hereto have caused this Agreement to be executed in
tlreir respective names on the dates set forth below:
Idalro Power Cornpany Hot Springs Windfirm L.L.C.
James C. Miller, Sr. Vice President, Power Supply
Dated 7-oz-Zoo7
"ldaho Powen""Seller"
Page 6 of6
EXHIBIT 3
FIRM ENERGY SALES AGREEMENT
BETWEEN
IDAHO POWER COMPANY
AND
BENNETT CREEK WINDFARM, LLC
TABLE OF CONTENTS
Article TITLE
1 Definitions
2 No Reliance on Idaho Power
3 Warranties
4 Conditions to Acceptance of Energy
5 Term and Operation Date
6 Purchase and Sale of Net Energy
7 Purchase Price and Method of Payment
8 Environmental Atributes
9 Facility andlnterconnection
10 Metering and Telemetry
11 Records
L2 Operations
13 Indemnifrcation and Insurance
14 Force Majeure
15 Liability; Dedication
16 Several Obligations
L7 Waiver
18 Choice of Laws and Venue
19 Disputes and Default
20 Governmental Authorization
2L Commission Order
22 Successors andAssigns
23 Modification
24 Taxes
25 Notices
26 Additional Terms and Conditions
27 Severability
28 Counterparts
29 Entire Agreement Signatures
Appendix A
Appendix B
Appendix C
121lrt2006
FIRM ENERGY SALES AGREEMENT
(10 aMW or Less)
BENNETT CREEK WINDFARM. LLC
Project Number: 21 6 15 100
THIS AGREEMEI.IT, entered into on this 2O day ot }ecea ter 2006 between
Bennett Creek Windfarm, LLC, an Idaho limited liability company (Seller), and IDAHO POWER
COMPAI.IY, an Idaho corporation (Idaho Power), hereinafter sometimes referred to collectively as
"Parties" or individually as "Party."
WTINESSETH:
WIIEREAS, Seller will design, construct, own, maintain and operate an electric generation
facility; and
WHEREAS, Seller wishes to sell, and Idaho Power is willing to purchase, firm electric enerry
produced by the Seller's Facility.
TIG,REFORE, In consideration of the mutual covenants and agreements hereinafter set forth, the
Parties 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 Enetgy" - Monthly Net Energy less than ll0Vo of the monthly Net Energy Amount as
specified in paragraph 6.2 of this Agreement.
1.2 "Commissien" - The Idaho Public Utilities Commission.
1.3 "Coqtract 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 and 5.6.
1.5 "DglAaPe1[ed" - All days past the Scheduled Operation Date until the Seller's Facility achieves
the Operation Date. This Delay Period shall not exceed 90 days.
- 1-
12l1v20n6
1.6 "DelAy_Price" - The current month's Mid-Columbia Market Energy Cost minus the current
month's Base Energy Price specified in paragraph 7.1 of this Agreement. If this calculation
results in a value less than 0, the result of this calculation will be 0.
1.7 "Designated Dispatch Facility" - Idaho Power's Systems Operations Group, or any subsequent
group designated by Idaho Power.
1.8 "Faeility" - That electric generation facility described in Appendix B of this Agreement.
1.9 "First Energy Date" - The day commencing at 0001 hours, Mountain Time, following the day that
Seller has satisfied the requirements of Article IV and the Seller begins delivering energy to
Idaho Power's system at the Point of Delivery.
1.10 "hadvertent Engfgy" - Electric energy Seller does not intend to generate. lnadvertent energy is
more particularly described in paragraph 7.6 of this Agreement.
1.11 "Interconnection Facilities" - All equipnrent specified in Schedule 72.
Llz "Initial Capacity Determination" - The process by which ldaho Power confirms that under
normal or average design conditions the Facility will generate at no nrore than l0 average MW
per month and is therefore eligible to be paid the published rates in accordance with Commission
Order No. 29632.
"Losses" - The loss of electrical energy expressed in kilowatt hours (kWh) occurring as a result
of the transformation 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 will be as specified in Appendix B of this Agreement.
"Market_Eggfg_eog!" - Eighty-five percent (857o) of the 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 will mutually agree upon a replacement index, which is similar to the Dow Jones Mid-
Columbia Index. The selected replacement index will be consistent with other similar agreements
and a commonly used index by the electrical industry.
"MateridBreagh" - A Default (paragraph 19.2.1) subject to paragraph 19 .2.2.
1.13
Ll4
1.15
a
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I .16 "Maximum Capacity Amount" - The maximum capacity (MW) of the Facility will be as
specified in Appendix B of this Agreement.
l.l7 "Mglq1iag_Eqglpment". - All equipment specified in Schedule 72, this Agreement and any
additional equipment specified in Appendix B required to measure, record and telemeter power
flows between the Seller's electric generation plant and Idaho Power's system.
1.18 "Mid- Columbia Market Enerp " -The 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 will
mutually agree upon a replacement index, which is similar to the Dow Jones Mid-Columbia
Index. The selected replacement index will be consistent with other similar agreements and a
commonly used index by the electrical industry.
1.19 "Ng!_Englgy" - All of the electric energy produced by the Facility, less Station Use, less Losses,
expressed in kilowatt hours (kWh). Seller commits to deliver all Net Energy to ldaho Power at
the Point of Delivery for the full term of the Agreement. Net Energy does not include Inadvertent
Energy.
1.20 "Operation Date" -The day commencing at 0001 hours, Mountain Time, following the day that
all requirements of paragraph 5.2 have been completed.
l.2l "Pqid_of Deliyety" -The location specified in Appendix B, where Idaho Power's and the
Seller's electrical facilities are interconnected.
I.22 "Prudent Electrical Practices" - Those practices, methods and equipnrcnt that are commonly and
ordinarily used in electrical engineering and operations to operate electric equipment lawfully,
safely, dependably, efficiently and economically.
1.23 "Scheduled Operation Darc" - The date specified in Appendix B when Seller anticipates
achieving the Operation Date.
1.24 "SghedulelZ - Idaho Power's Tariff No l0l, ScheduleTZ or its successor schedules as
approved by the Commission.
1.25 "S@[" -The three periods identified in paragraph 6.2.1 of this Agreement.
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ra1u2006
1.26 "Shortfal_Euqry" - The method ldaho Power and the Seller have agreed to use to estimate and
liquidate the damages Idaho Power will incur if the Seller fails to provide the monthly Net Energy
Amounts specifred in paragraph 6.2 of this Agreement. Computation of the Shortfall Energy is
described in paragraph 7.3 of this Agreement.
I.27 "Special Facilities" - Additions or alterations of transmission and/or distribution lines and
transforrners as described in Schedule 72 or Appendix B to safely interconnect the Seller's
Facility to the Idaho Power system.
1.28 "SI3g|on![5e" - Electric energy that is used to operate equipment that is auxiliary or otherwise
related to the production of electricity by the Facility.
1.29 "Surplug_Eagryy" - (1) Net Energy produced by the Seller's Facility and delivered to the Idaho
Power electrical system during the month which exceeds IIO?o of the monthly Net Energy
Amount for the corresponding month specified in paragraph 6.2. or (2) All Net Energy produced
by the Seller's Facility and delivered by the Facility to the Idatro Power electrical system prior to
the Operation Date.
1.30 "Total Cost of the FacilB" - The total cost of structures, equipment and appurtenances.
ARTICLE ft NO RELIANCE ON IDAHO POWER
Seller Independent Investigation - Seller warrants and represents to ldaho Power that in entering
into this Agreement and the undertaking by Seller of the obligations set forth herein, Seller has
investigated and determined that it is capable of performing hereunder and has not relied upon
the advice, experience or expertise of Idaho Power in connection with the transactions
contemplated by this Agreement.
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 undertaking the
transactions contemplated by this Agreement have been solely those of Seller.
2.1
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12ny20M
3.1
3.2
ARTICLE trI: WARRANTIES
No Warranty by ldaho Power - Any review, acceptance or failure to review Seller's design,
specifications, equipment or facilities shall not be an endorsement or a confirmation by Idaho
Power and Idaho Power makes no warranties, expressed or implied, regarding any aspect of
Seller's design, specifications, equipment or facilities, including, but not limited to, safety,
durability, reliability, strength, capacity, adequacy or economic feasibility.
Oualifying Facility Status - Seller warrants that the Facility is a "Qualifying Facility," as that term
is used and defined in 18 CFR 292.201et seq. After initial qualification, Seller will take such
steps as may be required to maintain the Facility's Qualifying Facility status during the term of
this Agreement and Seller's failure to maintain Qualifying Facility status will be a Material
Breach of this Agreement. Idaho Power reserves the right to review the Seller's Qualifying
Facility status and associated support and compliance documents at anytinre during the term of
this Agreement.
ARTICLE IV: CONDITIONS TO ACCEPTANCE OF ENERGY
Prior to the First Energy Date and as a condition of Idaho Power's acceptance of deliveries of
energy from the Seller, Seller shall:
4. 1 . I Submit proof to Idaho Power that all licenses, permits or approvals necessary for Seller's
operations have been obtained from applicable federal, state or local authorities,
including, but not limited to, evidence of compliance with Subpart B, 18 CFR 292.201et
seq. and a Qualifying Facility certificate.
4.1.2 Opinion of Counsel - Submit to Idaho Power an Opinion Letter signed by an attorney
admined b practice and in good standing in the State of Idaho providing an
opinion that Seller's licenses, permits 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 opinion that Seller is in substantial
compliance with said permits as of the date of the Opinion Letter. The Opinion lrtter
4.1
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12fiv2006
will be in a form acceptable to Idaho Power and will acknowledge that the attomey
rendering the opinion understands that Idaho Power is relying on said opinion. Idaho
Power's acceptance of the form will not be unreasonably withheld. The Opinion lrtter
will be governed by and shall be interpreted in accordance with the legal opinion accord
of the American Bar Association Section of Business Law (1991).
4.1.3 Initial Capacity Determination - Submit to Idaho Power such data as Idaho Power may
reasonably require to perform the Initial Capacity Determination. Such data will include
but not be limited to, equipment specifications, prime mover data, resource
characteristics, normal and/or average operating desigr conditions and Station Use data.
Upon receipt of this information, Idaho Power will review the provided data and if
necessary, request additional data to complete the Initial Capacity Determination within a
reasonable time.
4.1.4 Engineer's Certifications - Submit an executed Engineer's Certification of Design &
Constnrction Adequacy and an Engineer's Certification of Operations and Maintenance
(O&M) Policy as described in Commission Order No. 21690. These certificates will be
in the form specified in Appendix C but may be modified to the extent necessary to
recognize the different engineering disciplines providing the certificates.
4.1.5 Insurance - Submit written proof to Idaho Power of all insurance required in Article XV.
4.1.6 Interconnection - Provide written confirmation from Idaho Power's Delivery Business
Unit that Seller has satisfied all interconnection requirements.
4.1.7 Written Acceptance - Request and obtain written confirmation from Idaho Power that all
conditions to acceptance of energy have been fulfilled. Such written confirmation shall be
provided within a commercially reasonable time following the Seller's request and will
not be unreasonably withheld by ldaho Power.
ARTICLE V: TERM AND OPERATION DATE
Term - Subject to the provisions of paragraph 5.2 below, this Agreement shall become effective5.1
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tulLt2006
5.2
on the date frst written and shall continue in full force and effect for a period of twenty (20)
Contract Years from the Operation Date.
Operation Date - The Operation Date may occur only after the Facility has achieved all of the
following:
a) Achieved the First Energy Date.
b) Commission approval of this Agreernent 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 rnnner.
d) Seller has requested an Operation Date from Idaho Power in a written format.
e) Seller has received written confirmation from Idaho Power of the Operation Date.
This confirmation will not be unreasonably withheld by Idaho Power.
Seller shall cause the Facility to achieve the Operation Date on or before the Scheduled Operation
Date. If the Operation Date occurs after the Scheduled Operation Date, Seller shall pay ldaho
Power Delay Liquidated Damages. Delay Liquidated Damages will be calculated monthly as
follows:
Delay Liquidated Damages are equal to ((Current month's Initial Year Net Energy
Amount as specified in paragraph 6.2.1 divided by the number of days in the current
month) multiplied by the current months Delay Period) multiplied by the current
months Delay Price.
Delay Liquidated Damages will be calculated for a maximum of ninety (90) days past the
Scheduled Operation Date. If Seller fails to achieve the Operation Date within ninety (90) days of
the Scheduled Operation Date, Idaho Power may terminate this Agreement.
Seller shall pay Idaho Power any calculated Delay Liquidated Damages within 7 days of when
Idaho Power calculates and presenm any Delay Liquidated Damages billings to the Seller.
Seller's failure to pay these damages within the specified time will be a Material Breach of this
Agreement.
5.3
5.4
5.5
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tutu200r,
5.6 The Parties agree that the damages Idaho Power would incur due to delay in the Facility
achieving the Operation Date on or before the Scheduled Operation Date would be difficutt or
impossible to predict with certainty, and that the Delay Liquidated Damages are an appropriate
approximation of such damages.
ARTICLE VI: PURCHASE AND SALE OF NET ENERGY
Delivery and Acceptance of Net Energy - Except when either Party's performance is excused as
provided herein, Idaho Power will purchase and Seller will sell all of the Net Energy to Idaho
Power at the Point of Delivery. All Inadvertent Energy produced by the Facility will also be
delivered by the Seller to Idaho Power at the Point of Delivery. At no time will 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.
Net Energy Amounts - Seller intends to produce and deliver Net Energy in the following monthly
amounts:
6.2.1 Initial Year Monthly Net Energy Amounts:
Month
6.1
6.2
Season I
Season 2
Season 3
July
August
November
December
June
September
October
January
February
kwh
5,333,000
5,333,000
4,556,000
4,222,OOO
4,222,0W
3,833,000
4,889,000
5,111,000
4,389,000
4,611,000
3.944,000
5,111,000
March
April
May
-8-
tulLt2006
6.2.2 Ongoing Monthly Net Energv Amounts - Seller shall initially provide Idaho Power with
one year of monthly generation estimates (Initial Year Monthly Net Energy Amounts)
and beginning at the end of month nine and every three months thereafter provide ldaho
Power with an additional three months of forward generation estimates. This information
will be provided to Idaho Power by written notice in accordance with paragraph 25.1, no
later than 5:00 PM of the 5e day following the end of the previous month. If the Seller
does not provide the Ongoing Monthly Net Energy Amounts in a timely manner, ldaho
Power will use the most recent 3 months of the. Initial Year Monthly Net Energy
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 Initial Year Monthly Net Energy Amounts.
6.2.3.2 Beginning with the end of the 3'd month after the Operation Date and at the end
of every third month thereafter: (l) 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 5h 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 will 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 12.2.1 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 Idaho Power, the Net Energy
Amount as specified in paragraph 6.2 for the specific month in which the reduction or
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suspension under paragraph 12.2.1 ot 12.3.1occurs will be reduced in accordance with
the following:
Where:
NEA = Current Month's Net Energy Amount (Paragraph 6.2)
SGU = a.) If Idaho Power is excused from accepting the Seller's Net
Energy as specified in paragraph 12.2.1this value will be
equal to the percentage of curtailment 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 pmagraph 12.3.1 this value will be the sum of
the individual generation units size ratings as specified in
Appendix B that are impacted by the circumstances
causing the Seller to declare a Suspension of Energy
Deliveries.
TGU =Sum of all of the individual generator ratings of the generation
units at this Facility as specified in Appendix B of this
agreement.
Actual hours the Facility's Net Energy deliveries were either
reduced or suspended under paragraph 12.2.1 or 12.3.1RSH =
TH = Actual total hours in the current month
Resultine formula being:
Adiusted
Nei Energy = NEA
Amount
x NEA ) x(H))((ffi
6.3
This Adjusted Net Energy Amount will be used in applicable Surplus Energy and Shortfall
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.
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 (l0Vo) of the sum of the Initial Year Net
Energy Amounts as specified in paragraph 6.2 shall constitute an event of default.
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7.1
ARTICLE VII PI.]RCHASE PRICE A}.[D METHOD OF PAYMENT
Base Energ.v Purchase Price - For all Base Energy, ldaho Power will pay the non-levelized
energy price in accordance with Commission Order 29646 with seasonalization factors applied:
Year
2006
2007
2008
2009
2010
20'11
2012
2013
2014
201 5
2016
2017
2018
201 I
2020
2021
2022
2023
2024
2025
2026
2027
Season I - (73.507o)
Mills/kWh
37.85
38.73
39.62
40.53
41.46
42.42
43.39
4.39
45.42
46.47
47.54
48.63
49.76
50.91
52.07
53.28
54.51
55.76
57.05
s8.37
59.72
61.09
Season2-(t20.0oEo)
Millykwh
61.80
63.23
64.68
66.17
67.69
69.25
70.85
72.48
74.16
75.86
77.62
79.40
81.24
83.11
85.02
86.99
88.99
91.04
93.14
95.29
97.50
99.74
Season3-(100.007o)
Mills/kWh
51.50
52.69
53.90
55.14
56.41
57.71
59.04
60.40
61.80
63.22
&r.68
66.17
67.70
69.26
70.85
72.49
74.16
75.87
77.62
79.41
81.25
83.12
7.2
7.3
Sumlus Energy Price - For all Surplus Energy, ldaho Power shall pay to the Seller the current
month's Market Energy Cost or the Base Energy Purchase Price specified in paragraph 7.1,
whichever is lower.
Shortfall Energy - If the month's Net Energy is less than 90Vo of the monthly Net Energy
Amount as specified in paragraph 6.2 of this Agreement for the corresponding month, Shortfall
Energy will be the difference between 907o of the monthly Net Energy Amount and the same
month's actual Net Energy delivered to the Point of Delivery.
Shortfall Energy Price - For all Shortfall Energy, if the Market Energy Cost for the month in
which the Shortfall Energy occurs is less than the Base Energy Purchase Price for the same
7.4
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7.5
month, the Shortfall Energy Price will be 0. If the Market Energy Cost for the month in which
the Shortfall Energy occurs is greater than the Base Energy Purchase Price for the same month,
the Shortfall Energy Price will be the current month's Market Energy Cost less the Base Energy
Purchase Price. If the current month's Market Energy Cost less the Base Energy Purchase Price
is greater than 150 percent of the Base Energy Purchase Price, then the Shortfall Energy Price
will be 150 percent of the Base Energy Purchase Price.
Shortfall Energy Payment - The Shortfall Energy Payment amount is the Shortfall Energy amount
multiplied by the Shortfall Energy Price. The Shortfall Energy Payment will be withheld from
the current month's energy payment. If the current month's energy payment is less than the
Shortfall Energy Payment, the Seller will make payment to ldaho Power of the unpaid balance
within 15 days of being notified of the outstanding balance. Sho(fall Energy Payments are
liquidated damages and not penalties. Seller's failure to make payment in full of the Shortfall
Energy Payment within the specified time will be a Material Breach of this Agreement.
Inadvertent Energy -
7.6.1 lnadvertent 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 January contains 744 hours. 744 hours times 10,000 kW = 7,440,000
kWh. Energy delivered in January in excess of 7,44O,000 kwh in this example
would be lnadvertent Energy.)
7.6.2 Although Seller intends to design and operate the Facility to generate no mone than l0
average MW and therefore does not intend to generate Inadvertent Energy, Idaho
Power will accept Inadvertent Energy that does not exceed the Maximum Capacity
Amount but will not purchase or pay for Inadvertent Energy.
Payment Due Date - Energy payments to the Seller will be disbursed 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.
7.6
7.7
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7.8 Continuing Jurisdiction of the Commission .This Agreement is a special contract and, as such, the
rates, terms and conditions contained in this Agreement will be construed in accordance with
Idaho Power Companv v. Idaho hrblic Utilities Commission and Afton Energy. Inc., 107 Idaho
781, 693 P.zd 4n (1984), Idaho Power Company v. Idaho Public Utilities Commission, 107
Idaho I 722, 695 P.2t 1261 (1985), Afton Energy. Inc. v. Idaho Power Company, 111 Idaho 925,
729 P.2d 400 (1986), Section 210 of the Public Utilities Regulatory Policies Act of 1978 and l8
cFR $292.303-308
ARTICLE VIII: ENVIRONMENTAL ATTRIBUTES
Idaho Power waives any claim to ownership of Environmental Attributes. 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 D(: FACILITY AND INTERCONNECTION
Design of FaciliW - Seller will design, construct, install, own, operate and maintain the Facility
and any Seller-owned Interconnection Facilities so zrs to allow safe and reliable generation and
delivery of Net Energy and Inadvertent Energy to the [daho Power Point of Delivery for the full
term of the Agreement.
ARTICLE X: METERING AND TELEMETRY
Metering and Telemetr.v - Idaho Power shall, for the account of Seller, provide, install, and
maintain Metering Equipment to be located at a mutually agreed upon location to record and
measure power flows to Idaho Power in accordance with Schedule 72. The Metering Equipment
will 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 administer this Agreement and to
8.1
9.1
10.1
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t t.l
tt.2
integrate this Facility's energy production into the Idaho Powerelectrical system
ARTICLE XI - RECORDS
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 recommended by tdaho Power.
Inspection - Either Party, after reasonable notice to the other Party, shall have the right, during
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.
ARTICLE Xtr: OPERATIONS
l2.l Communications - Idaho Power and the Seller shall maintain appropriate operating
communications through Idaho Power's Designated Dispatch Facility in accordarce with
Appendix A of this Agreement.
12 .2 Energ.v Acceptance -
12.2.1 Idaho Power shall be excused from accepting and paying for Net Energy or accepting
Inadvertent Energy 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 temporary
disconnection of the Facility in accordance with Schedule 72. lf, for reasons other than
an event of Force Majeure, a temporary disconnection under Schedule 72 exceeds twenty
(20) days, beginning with the twenty-first day of such intemrption, curtailment or
reduction, Seller will 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 paragraph 6.2.
ldaho Power will notify Seller when the intemrption, curtailment or reduction is
terminated.
12.2.2 lf, in the reasonable opinion of Idaho Power, Seller's operation of the Facility or
Interconnection Facilities is unsafe or may otherwise adversely affect Idaho Power's
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equipment, personnel or service to its customers, Idaho Power may temporarily
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 will the Seller deliver Net Energy and/or Inadvertent Energy
from the Facility to the Point of Delivery in an amount that exceeds the Maximum
Capacrty Amount. Seller's failure to limit deliveries to the Maximum Capacity Amount
will be a Material Breach of this Agreenrent.
12.3 Seller Declared Suspension of Energv Deliveries
12.3.I 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 Facility or from individual generation unit(s) 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 will begin at the start of the next full hour following the
Seller's telephone notification as specified in paragraph 12.3.2 and will continue for the
tirre 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 will be adjusted as specified in paragraph 6.2.4.
12.3.2 If the Seller desires to initiate a Declared Suspension of Energy Deliveries as provided in
paragraph 12.3.1, the Seller will notify the Designated Dispatch Facility by telephone.
The beginning hour of the Declared Suspension of Energy Deliveries will be at the
earliest the next full hour after making telephone contact with Idaho Power. The Seller
will, within 24 hours after the telephone contact, provide Idaho Power a written notice in
accordance with Article XXVIII that will contain the beginning hour and duration of the
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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 will
review the documentation provided by the Seller to determine Idaho Power's acceptance
of the described forced outage as qualifying for a Declared Suspension of Energy
Deliveries as specified in paragraph 12.3.1. Idatro Power's acceptance of the Seller's
forced outage as an acceptable forced outage will 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 Facility.
12.4 Scheduled Maintenance - On or before January 3l of each calendar year, Seller shall submit a
written proposed maintenance schedule of significant Facility nnintenance for that calendar year
and Idaho Power and Seller shall mutually agree as to the acceptability of the proposed schedule.
The Parties determination as to the acceptability of the Seller's timetable for scheduled
maintenance will take into consideration Prudent Electrical Practices, Idaho Power system
requirements and the Seller's preferred schedule. Neither Party shall unreasonably withhold
acceptance of the proposed maintenance schedule.
I2.5 Maintenance Coordination - The Seller and Idaho Power shall, to the extent practical, coordinate
their respective line and Facility maintenance schedules such that they occur simultaneously.
12.6 Contact Prior to Curtailment - Idatro Power will make a reasonable attempt to contact the Seller
prior to exercising its rights to intemrpt interconnection or curtail deliveries from the Seller's
Facility. Seller understands that in the case of emergency circumstances, real time operations of
the electrical systern, and/or unplanned events Idaho Power may not be able to provide notice to
the Seller prior to intemrption, curtailment, or reduction of electrical energy deliveries to Idaho
Power.
ARTICLE XIII: INDEMNIFTCATION AND INSURANCE
13.1 Indemnification - Each Party shall agree to hold harmless and to indemnify the other Party, its
officers, agents, affiliates, subsidiaries, parent company and employees against all loss, damage,
- 16-
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expense and liability to third persons for injury to or death of person or injury to property,
proximately caused by the indemnifying Party's construction, ownership, operation or
maintenance of, or by failure of, any of such Party's works or facilities used in connection with
this Agreement. The indemnifying Party shall, on the other Party's request, defend any suit
asserting a claim covered by this indemnity. The indemnifying Party shall pay all costs, including
reasonable attorney fees that may be incurred by the other Pany in enforcing this indemnity.
13.2 Insurance - During the term of this Agreement, Seller shall secune and continuously carry the
following insurance coverage:
13.2.1 Comprehensive General Liability lnsurance for both bodily injury and property damage
with limits equal to $1,000,000, each occurrence, combined single limit. The deductible
for such insurance shall be consistent with current Insurance Industry Utility 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 naming ldaho Power as an additional insured and loss payee as
applicable; and
O) A provision stating that such policy shall not be canceled or the limits of liability
reduced without sixty (60) days' prior written 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 furnish 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 will immediately notify ldaho Power in writing.
The notice will advise Idaho Power of the specific reason for the lapse and the steps Seller is
taking to reinstate t}te coverage. Failure to provide this notice and to expeditiously reinstate or
replace the coverage will constitute a Material Breach of this Agreement.
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t4.t
ARTICLE XIV: FORCE MAJEURE
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 Party is unable to prevent or overcome. Force Majeure includes, but is not limited to, acts of
God, fire, flood, storms, wzus, hostilities, civil strife, strikes and other labor disturbances,
earthquakes, fires, lightning, epidemics, sabotage, or changes in law or regulation occurring after
the Operation Date, which, by the exercise of reasonable foresight such party could not
reasonably have been expected to avoid and by the exercise of due diligence, it shall be unable to
overconre. 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 Parties shall be excused from
whatever performance is affected by the event of Force Majeure, provided that:
(1) The non-performing Party shall, as soon as is reasonably possible after the
occurrence of the Force Majeure, give the other Party written notice describing
the particulars of the occunence.
The suspension of performance shall be of no greater scope and of no longer
duration than is required by the event of Force Majeure.
No obligations of either Party which arose before the occurrence causing the
suspension of performance and which could and should have been fully
performed before such occurrence shall be excused as a result of such
occulTence.
ARTICLE XV: LIABILITY: DEDICATION
Nothing in this Agreement shall be construed to create any duty to, any standard of care with
reference to, or any liability to any person not a Party to this Agreement. No undertaking by one
Party to the other under any provision of this Agreement shall constitute the dedication of that
Party's system or any portion thereof to the other Party or to the public or affect the status of
Idaho Power as an independent public utility corporation or Seller as an independent individual or
(2)
(3)
15.1
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entity.
ARTICLE XVL SEVERAL OBLIGATIONS
16.1 Except where specifically stated in this Agreement to be otherwise, the duties, obligations and
liabilities of the Parties are intended to be several and not joint or collective. Nothing contained
in this Agreement shall ever be constnred to create an association, trust, partrrership or joint
venture or impose a trust or partnership duty, obligation or liability on or with regard to either
Party. Each Party shall be individually and severally liable for its own obligations under this
Agreement.
ARTICLE XVtr: WAIVER
17.l 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 arising in connection with this Agreement shall not be
deemed a waiver with respect to any subsequent default or other matter.
ARTICLE XVItr: CHOICE OF LAWS AND VENUE
l8.l 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 arising out of or related to this Agreement will lie in the District Court of
the Fourth Judicial District of Idaho in and for the County of Ada.
ARTICLEXD(: DISPUTES AND DEFAULT
19.1 Disputes - All disputes related to or arising under this Agreement, including, but not limited to,
the interpretation of the terms and conditions of this Agreement, will be submitted to the
Commission for resolution.
19.2 Notice of Default -
19.2.1 Defaults. If either Party fails to perform any of the terms or conditions of this
- 19-
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Agreement (an "event of default"), the nondefaulting Party shall cause notice in
writing to be given to the defaulting Party, specifying the manner in which such
default occurred. If the defaulting Party shall fail to cure such default within the sixty
(60) days after service of such notice, or if the defaulting Party reasonably
demonstrates to the other Party that the default can be cured within a commercially
reasonable time but not within such sixty (60) day period and then fails to diligently
pursue such cure, then, the nondefaulting Party may, at its option, terminate this
Agreement and/or pursue its legal or equitable remedies.
19.2.2 Material Breaches - The notice and cure provisions in paragraph 19.2.1 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 Security for Performance - Prior to the Operation Date and thereafter for the full term of this
Agreement, Seller will provide Idaho Power with the following:
19.3.1 Insurance - Evidence of compliance with the provisions of paragraph l3.2.If Seller
fails to comply, such failure will be a Material Breach and may only be cured by
Seller supplying evidence that the required insurance coverage has been replaced or
reinstated;
1,9.3.2 Engineer's Certifications - Every three (3) years after the Operation Date, Seller will
supply Idaho Power with a Certification of Ongoing Operations and Maintenance (O
& M) from a Registered Professional Engineer licensed in the State of ldaho, which
Certification of Ongoing O & M shall be in the form specified in Appendix C. Seller's
failure to supply the required certificate will be an event of default. Such a default
may only be cured by Seller providing the required certificate; and
19.3.3 Licenses and Permits - During the full term of this Agreement, Seller shall maintain
compliance with all permits and licenses described in paragraph 4.1.1 of this
Agreement. In addition, Seller will supply Idaho Power with copies of any new or
additional permits or licenses. At least every fifth Contract Year, Seller will update the
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21.1
documentation described in Paragraph 4.1.1. If at any time Seller fails to maintain
compliance with the permits and licenses described in paragraph 4.1.1 or to provide
the documentation required by this paragraph, such failure will be an event of default
and may only be cured by Seller submitting to Idaho Power evidence of compliance
from the permitting agency.
ARTICLE XX: GOVERNMENTAL AUTHORZATION
2AJ This Agreement is subject to the jurisdiction of those governmental agencies having control over
either Party of this Agreement.
ARTICLE X)il: COMMISSION ORDER
This Agreement shall become finally effective upon the Commission's approval of all terms and
provisions hereof without change or condition and declaration that all payments to be made to
Seller hereunder shall be allowed as prudently incurred expenses for ratemaking purposes.
ARTICLE XXII: SUCCESSORS AND ASSIGNS
2Z.l 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 Parties hereto, except that no assignment
hereof by either Party shall become effective without the written consent of both Parties being
first obtained. Such consent shall not be unreasonably withheld. Notwithstanding the foregoing,
any party which Idaho Power may consolidate, or into which it may merge, or to which it may
convey or transfer substantially all of its electric utility assets, shall automatically, without further
act, and without need ofconsent or approval by the Seller, succeed to all ofldaho 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. ldaho Power shall have the right to be notified by the financing entity that it is
exercising such rights or remedies.
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ARTICLE XXItr: MODIFICATION
23.1 No modification to this Agreement shall be valid unless it is in writing and signed by both Parties
and subsequently approved by the Commission.
ARTICLEXXIV: TAXES
24.1 Each Party shall pay before delinquency all taxes and other governmental charges which, if failed
to be paid when due, could result in a lien upon the Facility or the Interconnection Facilities.
ARTICLEXXV: NOTICES
25.1 All written notices under this agreement shall be directed as follows and shall be considered
delivered when deposited in the U. S. Mail, first-class postage prepaid, as follows:
To Seller: Bennefi Creek Windfarm, LLC
Attn: Donald Wong
3155 East Patrick Lane, Suite I
Las Vegas, NV 8912G.3481
Courtesy electronic copy to: [e-mail]
To Idaho Power:
Original document to:
Vice President, Power Supply
Idaho Power Company
POBoxT0
Boise, Idaho 83707
Copy of document to:
Cogeneration and Small Power hoduction
Idaho Power Company
POBoxT0
Boise,Idaho 83707
ARTICLE XXVI: ADDITIONAL TERMS AND CONDITIONS
26.I This Agreement includes the following appendices, which are attached hereto and included by
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reference:
Appendix A
Appendix B
Appendix C
Generation Scheduling and Reporting
Facility and Point of Delivery
Engineer' s Certifi cations
28.1
ARTICLE XXVII: SEVERABILITY
21 .l The invalidity or unenforceability of any term or provision of this Agrcement shall not affect the
validity or enforceability 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
This Agreement may be executed in two or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same instrument.
ARTICLE )OO(: ENTIRE AGREEMENT
29.1 This Agreement constitutes the entire Agrcement of the Parties concerning the subject matter
hereof and supersedes all prior or contemporaneous oral or written agreements between the
Parties concerning the subject matter hereof.
IN WITNESS WHEREOF, The Parties hereto have caused this Agreement to be executed
in their respective names on the dates set forth below:
Idaho Power Company Bennett Creek Windfarm. L.L.C.
\r€i Zo.?**b /z-ft*zaa{
C. Miller, Sr. Vice President, Power Supply Glenn Ikemoto, Authorized Manager
Dated
"ldaho Power"
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Dated
"Seller"
l2ltu2m6
APPENDD( A
A-l MONTHLY POWER PRODUCTION AND SWITCHING REPORT
At the end of each month the following required documentation will be submitted to:
Idalro Power Company
Attn: Cogeneration and Small Power Production
P0Box70
Boise,Idaho 83707
The Meter readings requircd on this report will be the reading on the Idatro Power Meter
F4uipnent rneasuring the Facility's total errrgy production, Station Usage, Inadvertent Energy delivered
to Idatro Power and the maxinurm generated enerry GW) as recorded on the Meter Equipnrent and/or any
other required energ/ rneazurements to adequately administer this Agreement.
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Project Name
Address
City
Idaho Power Company
Cogeneration and Small Power Production
MONTIILY POWER PRODUCTION AND SWITCHING REPORT
Mont}Year
hoject Number:
Phone Number:
State zip
Facility
Outout
Station
Usaqe
Station
Usaee
Metered
Maximum Gcneration
kw
Net Generation
Meter Number:
End of Month kWh Meter Reading:
Beglnning of Month kWh Meter:
Difference:
Times Meter Constant:
kV[h for the Month:
Metered Demand:
Breaker Opening Record
Date Time Meter *Reason
Breaker Closing Record
Date Time Meter
*
I
2
3
4
5
6
7
Breaker Ooenine Reason Codes
Lack of Adequate Prime Mover
f,'orced Outage of Facility
Disturbance of IPCo System
Scheduled Maintenance
Testing of Protection Systenrs
Cause Unknown
Other (Explain)
I hereby certify that the above rneter readings are
true and correct as of Midnight on the last day of the
above rronth and that the switching record is accurate
and complete as required by the Firm EnerEy Sales
Agreement to which I am a Parf.
Signature Date
A-2 ROT.IIINE REPORTING
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ldaho Power Contact Information
Daily Energy Production Reporting
Call daily by 10 a.m., l-800-356-4328 or 1-800-635-1093 and leave the following
information:
r Project Identification - Project Name and Project Numbero Current Meter Reading
o Estimated Generation for the current dayo Estimated Generation for the next day
Planned and Unplanned Project outages
Call 1-800-345-1319 and leave the following information:
o Project Identification - Project Name and Project Numbero Approximate time outage occurredo Estimated day and tinre of project corning back online
Seller' s Contact lnformation
24-Hour Proj ect Operational Contact
Nanp: Donald Wong
Telephone Number: 916-791-1959
Cell Phone: [phone]
Project On-site Contact information
Telephone Number: John Steiner - 208-869-7300
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B-1
APPENDX B
FACILITY AND POINT OF DELTVERY
PROJECT NO. 21615r00
BENNETT CREEK WINDFARM, LLC
DESCRIPTION OF FACILITY
The Facility will consist of 12 Vestas wind turbines with individual nameplate ratings of 1.65
MW for each unit, for a total Facility nameplate generator rating of 19.8 MW. Seller may
substitute at any time prior to the Operation Date, a different manufacturer and/or model wind
turbine provided that the aggregate nameplate rating of the Facility does not exceed 20 MW.
LOCATION OFFACILTIY
Near:
Sections: 22.23. 26 (Lsss SE Qrart€r). 27 Township: 45 Range: 8E County: Elmore ID.
SCHEDI.'LED FIRST ENERGY AND OPERATION DATE
Seller has selected March 31. 2007 as the estimated Scheduled First Energy Date.
Seller has selected December 31. 2007 as the estimated Scheduled Operation Date.
In making these selections, Seller recognizes that adequate testing of the Facility and completion
of all requirements in paragraph 5.2 of this Agreement must be completed prior to the project
being granted an Operation Date. Idaho Power, based on the information supplied by the Seller,
will schedule its construction in accordance with Schedule 72.
MAXMLIM CAPACITY AMOUNT: This value will be 20 MW which is consistent with the
value provided by the Seller to ldaho Power in accordance with Schedule 72. This value is the
maximum energy (MW) that potentially could be delivered by the Seller's Facility to the Idaho
Power electrical system at any moment in time.
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B-5 POINT OF DELTVERY
"Point of Delivery" means, unless otherwise agreed by both Parties, the point of where the Sellers
Facility's energy is delivered to the Idaho Power electrical system. Schedule 72 will determine
the specific Point of Delivery for this Facility. The Point of Delivery identified by Schedule 72
will become an integral part of this Agreement.
LOSSES
If the Idaho Power Metering equipment is capable of measuring the exact energy deliveries by the
Seller to the ldaho Power electrical system at the Point of Delivery, no Losses will be calculated
for this Facility. If the Idaho Power Metering is unable to measure the exact energy deliveries by
the Seller to the Idaho Power electrical system at the Point of Delivery, a Losses calculation will
be established to measure the energy losses (kWh) between the Seller's Facility and the Idaho
Power Point of Delivery. This loss calculation will be initially set at 2?o 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 electrical equipment between the Facility and the
Idaho Power electrical system, Idaho Power will configure a revised loss calculation formula to
be agreed to by both parties and used to calculate the kWh Losses for the remaining term of the
Agreement. If at anytime during the term of this Agreement, Idaho Power determines that the
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.
METERING AND TELEMETRY
Schedule 72 wlll determine the specific metering and telemetry requirements for this Facility. At
the minimum the Metering Equipment and Telemetry equipment must be able to provide and
B-6
B-7
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record hourly energy deliveries to the Point of Delivery and any other energy measurements
required to administer this Agreenrent. These specifications will 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 will arrange for and make available at Seller's cost
communication circuit(s) compatible to Idatro Power's communications equipment and dedicated
to Idaho Power's use terminating at the Idaho Power facilities capable of providing Idaho Power
with continuous instantaneous information on the Facilities energy production. Idaho Power
provided equipment will be owned and maintained by Idaho Power, with total cost of purchase,
installation, operation, and maintenance, including administrative cost to be reimbursed to ldatro
Power by the Seller. Payment of these costs will be in accordance with Schedule 72 and, the total
metering cost will be included in the calculation of the Monthly Operation and Maintenance
Charges specified in Schedule 72.
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1ArU200,6
APPENDX C
ENGINEER S CERTIFICATION
OF
OPERATIONS & MAINTENANCE POLICY
The undersigned on behalf of himself and
hereinafter collectively referred to as "Engineer,"
hereby states and certifies to the Seller as follows:
l. That Engineer is a Licensed Professional Engineer in good standing in the State of ldaho.
2. That Engineer has reviewed the Energy Sales Agreement, hereinafter "Agreement," between
ldaho Power as Buyeq and 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.
the "Project."
and is hereinafter referred to as
4. That the Project, which is commonly known as the Project, is located in
SectionTownshipRange-'BoiseMeridi8tr,-County,Idaho.
5. That Engineer recognizes that the Agreement provides for the Project to furnish electrical energy
to Idaho Power for a twenty (20) 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 reviewed and/or supervised tlre review of the Policy for Operation 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 will result in the
Project's producing at or near the design electrical output, efficiency and plant factor for a twenty (20)
year period.
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tut1t2006
9. That Engineer recognizes that ldatro Power, in accordance 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 hand and seal below.
(P.8. Stamp)
Date
By
- 31-
t?/1u2006
APPENDD( C
ENGINEER'S CERTIFTCATION
OF
ONGOING OPERATIONS AI{D MAINTENANCE
The undersigned on behalf of himself and
to as "Engineer," herebyhereinafter collectively referred
states and certifies to the Seller as follows:
L That Engineer is a Licensed Professional Engineer in good standing in the State of Idaho.
2. That Engineer has reviewed the Energy Sales Agreement, hereinafter "Agreement," between
ldaho 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
SectionTownshipRange-,BoiseMeridian,-County,Idaho.
5. That Engineer recognizes that the Agreement provides for the Project to furnish electrical energy
to Idaho Power for a twenty (20) 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 maintenance
records since the last previous certified inspection. It is Engineer's professional opinion, 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 will continue producing at or near its design electrical output, efficiency and plant factor for the
remaining years of the Agreement.
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1,/1u2006
9. That Engineer recognizes that Idaho Power, in accordance with paragraph 5.2 of the Agreement"
is relying on Engineer's representations and opinions contained in this Statenpnt.
10. That Engineer certifies that the above staternents are complete, tnre and acqnate to the best of his
lmowledge and therefore sets his hand and seal below.
(P.8. Stamp)
Date
By
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APPENDX C
ENGINEER S CERTIFICATION
OF
DESIGN & CONSTRUCTION ADEQUACY
The undersigned on behalf of himself and
hereinafter collectively referred to as "Engineer",
hereby states and certifies to Idaho Power as follows:
1. That Engineer is a Licensed Professional Engineer in good standing in the State of Idaho.
2. That Engineer has reviewed the Firm 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. Thu the Project, which is commonly known as the Project, is located in
SectionTownshipRange-'BoiseMeridian,-County,Idaho'
5. That Engineer recognizes that the Agreement provides for the Project to furnish 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 Desigrr Engineer of this Project and
has made the analysis of the plans and specifications independently.
8. That Engineer has reviewed the engineering design and construction of the Project,
including the civil work, electrical work, generating equipment, prime mover conveyance system, Seller
furnished Interconnection Facilities and other Project facilities 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 in the
Agreement.
10. 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 performing in accordance with the
terms of the Agreement and with kudent Electrical Practices for a _ (_) year period.
11. That Engineer recognizes that Idaho Power, in accordance with paragraph5.2 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.
(P.8. Stamp)
Date
By
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Idaho Power Facility No. 21 6l 5 101
Project Bennett Creek Wind Farm
FIRST AMENDMENT TO
ENERGY SALES AGREEMENT
This First Amendment is to that certain Firm Enerry Sales Agreernent ("Agreement")
entered into on December 20,2006, between Bennett Creek Windfarm, LLC ("Seller") and tdaho
Power Company ("Idaho Power") for the Bennett Creek Windfarm electric generation project
("Facility'').
WITNESSETH:
WHEREAS, the Agreernent was approved by the ldaho Public Utilities Commission
("Commission') on February 20,2007, in Order No. 30245; and
WHEREAS, the parties desire to amend the Agreement to (1) allow for the substitution of a
different wind turbine manufacturer and specifications and (2) revise the Scheduled Operation Date
and (3) provide liquid security in the amount of estimated Delay Liquidated Damages.
NOW THEREFORE, lda]ro Power and Seller agree to amend the Agreement as follows:
l. In the existing Appendix B of the Agreement:
B-1 Deseription of Facilitv
The sentence that reads "Seller may substitute at any time prior to the Operation
Date, a different manufacturer and/or model wind turbine provided that the aggregate
nameplate rating of the Facility does not exceed 20 MW." is deleted in its entirety
and the following inserted in its place:
Page I of6
2.
........ Seller may substitute at any time prior to the Operation Date, a
dffirent manufacturer and/or model wind turbine provided that the
aggregate nameplate rating of the Facility does not exceed 2l MW.
B-4 Maximum Capacitv Amount
The stated Maximum Capacity of 20 MW is revised tobe 2l MW.
In the existing Appendix B of the Agreement:
B-3 Scheduled First Enersv and Operation Date
The sentence reading "Seller has selected December 31, 2007 as an estimated
Scheduled Operation Date." is deleted and the following inserted in its place:
Scheduled Operation Date shall be no later than 365 days after the date of
the later of (1) Idaho Public Utilities Commission ("IPUC") final
unappealable order approving this amendrnent or (2) the IPUC final
unappealable order resolving the cr,rrent IPUC case IPC-06-21 (Complaint
of Cassia Gulch Wind Park LLC and Cassia Wind Farm LLC)
The following paragraph is added to Article 5 of the Agreement.
5.7 Within thirty (30) days afier the Scheduled Operation Date as
specified in Append* B, item B-i has been established; Seller shall post liquid
security ("Delay Security") in a form as described in Appendix D equal to or
exceeding the amount calculated in paragraph 5.7.1.
5.7.1 ldaho Power shall calculate the amount of Delay Security by
multiplying a good faith forecast of each applicable monthly Mid-
3.
Page 2 of6
Columbia Market Energt Costfor each month of the potential 90 day
(j month) delay period, times the applicable month's Initial Year
Monthly Net Energt Amounts as specified in paragraph 6.2.1 of the
Agreement. If the sum of the 3 month's individual values results in a
total of less than $100,000 the Delay Security will be $100,000, if this
calculation results in a total of greater than $500,000 the Delay
Security will be $500,000.
5.7.2 ldaho Power shall release all security posted hereunder on the earlier
of (l) within 30 days afte:r any and all Delay Liquidated Damages fut
the Delay Period, as calculated within the Agreement, are paid infull
to ldaho Power Company or (2) 45 days after the Operation Date has
been achieved.
The following Appendix D is added to the Agreement.
Page 3 of6
Appendix D
Forms of Liquid Security
The Seller shall provide ldaho Power with commercially reasonable security instrurnents
such as Cash Escrow Security, Guarantee or Letter of Credit as those terms are defined
below or otherforms of liquidfinancial security that would provide readily available cash
to ldaho Power to satisfy the Delay Security requirement within this Agreement.
For the purpose of this Append* D, the term "Credit Requirements" shall rnean 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 John Deere Capilal Corporation or John Deere
Renewables, LLC. or any other entity with a short-term or long-term investment grade credit
rating by Standard & Poor's Corporation or Moody's Investor Services, Inc. shall be
deemed to have acceptable financial creditworthiness.
l. Cash Escrow Secarity - Seller shall depositfunds in an escrow account established by
Idaho Power in a banking institution acceptable to both Parties equal to the Delay
Security. Such sum shall earn interest at the rate applicable to money market deposits at
such banking institutionfrom time to time.
2. Guarantee or Letter of Credit Security - Seller shall post and maintain in an amount
equal to the Delay Security: (a) a guarantyfrom a party that satisfies the Credit
Page 4 of6
IN WITNESS WHEREOF, The Parties hereto have caused this Agreement to be executed in
their respective names on the dates set forth below:
Idaho Power Company Bennett Creek Windfarm L.L.C.
Glenn Ikemoto, Authorized Manager
Dated
*Idaho Powef'"Seller"
By
C. Miller, Sr. Vice President, Power Supply
Page 6 of6
By
IN MTNESS WHEREOF, The Parties hereto have caused this Agreement to be executed in
their respective names onthe dates set forth below:
Idatro Power Cornpany Bennett Creek Windfarm L.L.C.
James C. Miller, Sr. Vice President, Power Supply
Datod Dated 7-az- ZaoT
"Idaho Power"
Glenn lkemoto, Authorized Manager
Page 6 of6
Requirements, in aform acceptable to Idaho Power in its discretion, or (b) a Letter of
Credit in aform acceptable to ldaho Power, infavor of ldaho Power. The Letter of
Credit will be issued by afinancial irctitution accepnble to both parties.
Page 5 of6
IDAHO POWER COMPANY
FIRM ENERGY SALES AGREEMENT
(Quali8/ing Facility larger than l0 average MW)
Between
IDAHO POWERCOMPANY
AND
CASSIA GULCH WIND PARK, LLC
AND
TUANA SPRINGS ENERGY, LLC
Article
I
2
3
4
)
6
7
8
9
10
11
t2
13
t4
15
l6
17
l8
l9
20
2t
22
23
24
25
26
27
28
29
TABLE OF CONTENTS
TITLE
Definitions
No Reliance on Idaho Power
Warranties
Conditions to Acceptance of Energy
Term and Operation Date
Purchase and Sale of Net Energy
Purchase Price and Method of Payrreot
Environmeirtal Attributes
Facility and Interconnection
Metering and Telemetry
Records
Operations
Indemnification and Insurance
Force Majeure
Liability; Dedication
Several Obligations
Waiver
Choice of Laws and Veirue
Disputes and Default
Governmental Authorization
Commission Order
Successors and Assigns
Modification
Taxes
Notices
Additional Terns and Conditions
Severability
Counterparts
Entire Agreement Signatuxes
Appendix A
AppendixB
Appendix C
AppendixD
Ap,pendix E
-1-
IDAHO POWER COMPAI.IY
FIRM ENERGY SALES AGREEMENT
(Qulifying Facility larger than l0 average MW)
Project Name: Tuana Sprines Expansion and the Cassia Gulch Wind Park
Project Number: 3 I 3 15 1 50
THIS AGREEMENT, e,ntered into on Ar5tt^ d^y ,f A%. 2009 between Cassia Gulch
Wind Parh LLC an Idaho limited liability company ("Cassia Gulch"), Tuana Springs Energy, LLC an
Idaho limited liability company ("Tuana")(Cassia Gulch and Tuana are referred to collectively as the
"Selled'), and IDAHO POWER COMPAI\IY, an ldaho corporation ('Idatro Powed). Cassia Gulctl
Tuana and Idaho Power are hereinafter sometimes referred to collectively as'?arties" or individually as
*Party."
WTINESSETH:
WHEREAS, Cassia Gulch currently owns, maintains and operates an existing 18,900 Kw eloctric
facility approximately 4.3 miles west of Idaho Power's Lower Malad Substation along its
Lower Malad to Mountain Home Junction 138 KV line ("Cassia Facility"); and
WHEREAS, Tuana intends to design, construct, own, operate and maintain a new 16,800 Kw
electric ge,neration facility adjacent to and as an expansion of the Cassia Facility ("Tuana Springs
Expansion"); and
WHEREAS, Seller expects to sell all of the Net Energy from the Cassia Facility and the Tuana
Springs Expansion to ldaho Power under this Agreement as a single Qualiffing Facility with a nameplate
rating of 35,700 Kw; and
WHEREAS, the existing Firm Enerry Sales agreeme,nt for the Cassia Gulch Wind Park facility
between Cassia Gulch and Idalro Power datd April 7,2N6, shall remain in full force and effect until
such time as the Tuana Springs Expansion has achieved its Operation Date as specified within this
Agreeinent. At such time, the Cassia Gulch agreemerf shall automatically terminate and shall be replaced
by this Agreement; and
-2-
1.2
1.3
WHEREAS, Seller and ldaho Power have agreed all of the Net Energy from the Tuana Springs
Expansion prior to the Tuana SprinS Expansion achieving the Operation Date, shall be sold to Idaho
Power as Surplus Energy and priced in accordance with this Agreement; and
TIIEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the
Parties agree as follows:
ARTICLE I: DEFINTIIONS
As used in this Agreement and the appendices attached hereto, the following terrns
shall have the following meanings:
1.1 "Availability Shortfall Price" - The current month's Mid{olumbia Market Energy Cost minus
the current month's All Hours Energy Price specified in paragraph 7.3 of this Agreement. If this
calculation results in a value lsss rhan 15.00 Mills/Kwh the rezult shall be 15.00 Mills/Kwh.
"Business_Dgys" - means any calendar day that is not a Saturday, a Sunday, or a NERC
recognized holiday.
"Calculated Net EnerErv Amount" - A monthly estimate, prepared and documented after the fact
by Seller, reviewed and accepted by the Buyer that is the calculatd monthly rnaximum en€rgy
deliveries (measured in Kwh) for each individual wind turbine, totaled for the Facility to
determine the total elrergy that the Facility could have deliverd to Idaho Power during that
month based upon: (l) each wind turbines Name,plate Capacity, (2) Sufficient Prime Mover
available for use by each wind turbine during the month, (3) incidents of Force Majeure, (4)
scheduled maintenance, or (5) incidents of Forced Outages and less losses and Station Use. If the
duration of an event characterized as item 3, 4 or 5 above (measured on each individual
occrure,rrce and individual wind turbine) lasts for less than 15 minutes, then the event will not be
considerpd in this calculation. The Seller shall collect and maintain actual data to support this
calculation and shall keep this data for a minimum of 2 years.
"eomlorssion" - The Idaho Public Utilities Commission.t.4
-3-
1.5 "Contras[-Year" - The p€riod commencing each calendar year on the same calendar date as the
Operation Date and ending 364 days thereafter.
1.6 "Delay Liquidated Damases" - rcs payable to Idaho Power as calculated in paragraph 5.3,
5.4, 5.5 and 5.6.
1.7 "Delgy-Eeriod" - All days past the Scheduled Operation Date until the earlier of the date (a)
Seller's entire Facility achieves the Operation Date or (b) this Agreeurelrt is terminated in
accordance with Section 5.4.
1.8 "DglALPrige" - The curreirt month's Mid{olumbia Market Energy Cost minus the curreirt
month's All Hours Energy Price specified in paragraph 7.3 of this Agreement. If this calculation
restrlts in a value less than 0, the result of this calculation will be 0.
1.9 "Designated Dispatch Facilft/'- Idaho Power's Systems Operations Group, or any subsequent
group designated by Idaho Power.
1.10 "E[[ect!ve.D4[9" - The date this Agree,ment becomes effective as specified in paragraphs 5.1 and
21.1.
1.11 "Eagiliry" - That elocfric generation facility resulting from the combination of the Cassia Facility
and the Tuana Springs Expansion as further described in Appendix B of this Agreement.
l.l2 "First Egerg Daten - The day commeircing at 00:01 hours, Mountain Time, following the day
that Seller has satisfied the requirements of Article IV and the Seller begins delivering en€rry to
Idaho Power's systern at the Point of Delivery.
I . I 3 *Forced Outage" - a partial or total roduction of a) the Facility's capacity to produce and/or
deliver Net Energy to the Point of Delivery, or b) Idatro Powe's ability to accept Net Energy at
the Point of Delivery for non-economic reasons, as a result of ldaho Power or Facility: l)
equipment failure which was not the result of negligance or lack of prevelrtative maintenance or
2) responding to a transmission provider curtaihnent order or 3) unplanned preventative
mainteirance to repair equipme,nt that left unrepaired, would result in failure of equipment prior
-4-
to the planned mainte'nance p€riod. The Parties shall rnake commercially reasonable efforts to
perform such unplamred preventative maintenance during periods of low wind availability.
I .14 "Ilgalry_l,oad_llou6 ' - The daily hours beginning at 07:00 an1 ending at I I :00 pm Mountain
Time, (16 hours) excluding all hours on all Sundays, New Years Day, Memorial Dan Fourth of
July, Labor Day, Thanksgving and Christnras.
1.15 "Intercorurection Facilities" - All equipment specified in ldaho Powe/s Schedule 72 on file at the
Commission.
1.16 "LigbJ,oad Hours" - The daily hours beginning at 11:00 pm, ending at 07:00 am Mountain
Time (8 hours), plus all other hours on all Sundays, New Years Day, Menoorial Day, Fourth of
July, LaborDay, Thanksgiving and Christmas.
1..1.7 "Losses" - The loss of electrical energy expressed in kilowatt hours (kWh) occurring as a result
of the fransforrnation and transmission of energy between the Facility's Metering Point and the
Point of Delivery. The loss calculation formula will be as specified inAppendix B of this
Agreement.
1.18 "Market Enerey Reference Price" - Eighty-five perc€ril (85"A of the Mid{olumbia Marka
Energy Cost.
l.l9 "MaterialBreach"-ADefault(paragraph 19.2.L) subjecttoparagraph 19.2.2.
1.20 '@" - The maximum capaclty (Kw) of the Facility will be as specified
in Appendix B of this Agreeme,nt aod shall not exceed the sum of individual generation unit
Nameplate Capacrty ratings.
l.2l "Meshanical Availability" - The percentage amount calculated by Seller within 5 Business Days
after the end of each month of the Facility's monthly actual Net Energy dividd by the Facility's
Calculated Net Energy Amormt for the applicable month. Any damages due as a result of Seller
falling strort of the Mechanical Availability Guarantee for each month shall be deterlnind in
accordance with paragraph 6.4.4.
1.22 "Mechanical Availabilitlr Gu tee" shall be as defined in paragraph 6.4.
-5-
t.23 "Metering-Eqgiplqem!1 - All equipment specified in Schodule 72, this Agreement and any
additional equipment specified in Appendix B required to measure, record and telemeter bi-
directional power flows at the Metering Point.
L.24 "Meterins Point" - The physical point at which the Metering Equipment is located that enables
accurate measurement of the Net Enerry deliveries to ldaho Power at the Point of Delivery for
each of the Seller's facilities..
I .25 "Mid- Columbia Market Enercy Cof' - The monttrly weighted average of the daily on-peak and
off-peak Dow Jones Mid-Columbia Index @ow Jones Mid{ Index) prices for non-firm €nergy.
If the Dow Jones Mid-Columbia Index price is discontinued by the reporting agency, both Parties
will mutually agr.er upon a replacemeirt index, which is similar to the Dow Jones Mid{olumbia
Index. The selected replacement index will be consistent with other similar agreernents and a
commonly used index by the electrical industry.
1.26 'tlaqqlglg ta@!t''-The full-load electrical quantities assigned by the designer to a generator
and its prime mover or other piece of electrical equipment, zuch as hansformers and circuit
breakers, under standardized conditions, expressed in amperes, kilovolt-amperes, kilowatts, volts
or other appropriate units. Usually indicatod on a nameplate attached to the individual machine
or device.
t.27 'MEEerSd'- All of the electric energy produced by the Facilitn less Station Use, less Losses,
expressed in kilowaft hours (kWh) delivered to Idaho Power at the Point of Delivery based upon
the measured values at the Metering Point (s) less any required calculations to roconcile the
energy measured at the Metering Point (s) to the actual Net Energy delivered to Idalro Power at
the Point of Delivery. Subject to the terms of this Agreernent, Seller commits to deliver all Net
Energy to Idaho Power at the Point of Delivery for the full tErm of the Agreement.
1.28 "Qpera gg_Date" - The day commencing at 00:01 hours, Mountain Time, following the day that
all requirements of paragraph 5.2 have been completod.
-6-
1.29 "Point_ofDglivggC'- The location specified in Appeirdix B, where the Seller delivers the
Facility's Net Energy to the Idaho Power electrical system.
1.30 "Prudent Electrical Practices" - Those practices, methods and equipment that are cornmonly and
ordinarily used in electrical engineering and operations to operate electic equipment lawfully,
safely, dependably, efficielrtly and economically.
l.3l "Scheduled Operation Date" - The later of the date specified in Appendix B when Seller
anticipates achieving the Operation Date, or ninety days (90) after the Idaho Power provided
interconnection is completed and energized as specifiod within the generation interconnection
agreement for the Tuana Springs Expansion. In establishing this date it is expected that the Seller
reasonably daermines this date based upon the best known information in regards to equipment
availability and construction schedules.
1.32 "Schedule 72, - Idaho Power's Tariff No 101, Schedule72 or its successor schedules as
approved by the Commission. The Seller shall be responsible to pay all costs of intercormection
and integration of this Facility into the Idaho Power electrical system as specified in the
interconnection agreements for both the Cassia Facility and the Tuana Springs Expansion.
1.33 "S,g@" - The three periods identified in paragraph 6.2.1 of this Agreement.
1.34 "Special Facilities" - Additions or alterations of transmission and/or distribution lines and
transformers as described in Schedule 72.
1.35 "station Use" - Electric energy which is consumed by Facility losses and equipment that is
auxiliary or othenrise related to the production of electricity by the Facility.
1.36 "Sufficient Prime Mover" means wind speed that is (l) equal to or greater than the generation
unit's manufacturer-specified minimum levels required for the geireration unit to produce €nergy
and (2) equal to or less than the generation unit's rnanufacturer-specified maximum levels at
which the generation unit can safely produce en€rgy.
-7-
1.37
1.38
2.1
2.2
3.1
"Su{p!us EnefgC'- All Net Energy produced by the Seller's Tuana Springs Expansion and
delivered by the Seller to the ldaho Power Point of Delivery prior to the Operation Date of this
Agree,ment.
"Wind Energy Production Forecasf'- A forecast of eirergy deliveries from this Facility provided
by an ldaho Power administered wind forecasting model. The Facility shall be responsible for an
allocated portion of the total costs of the forecasting model as specified in Appendix E.
ARTICLE II: NO RELIANCE ON IDATIO POWER
Seller Inde,pendeirt Investication - Seller wanants and represents to Idaho Power that in entering
into this Agreernent and the urdertaking by Seller of the obligations set forth herein, Seller has
investigated and d€termined that it is capable of performing hereunder and has not relied upon
the advice, experience or expertise of tdaho Power in connection with the transactions
contemplated by this Agreernent.
Seller Independent Experts - All professionals or exp€rts including but not limitd to, engineers,
attomeys or accountants, that Seller may have consultod or relied on in undertaking the
hansactions contemplated by this Agreerneirt have been solely those of Seller.
ARTICLE III: WARRANTIES
No Wananty by Idaho Power - Any review, acc€ptancc or failure to review Seller's design,
specifications, equipment or facilities shall not be an endorsement or a confirmation by Idaho
Power and ldatro Power makes no warranties, expressed or implied, regarding any aspect of
Seller's desigrr, specifications, equrpm€nt or facilities, including, but not limited to, safety,
durability, reliability, strengttr" capacity, adequacy or economic feasibility.
Quali&ing Facility Status - Seller warrants that the Facility is a "Qualiffig Facility," as that term
is used and defined in 18 CFR 292.201et seq. After initial qualification, Seller will take such
3.2
-8-
4.t
steps as may be required to maintain the Facility's Qualiffig Facility status during the term of
this Agreement and Seller's failure to maintain Quali&ing Facility status will be a Material
Breach of this Agreernent. Idaho Power reserves the right to review the Facility's Qualiffing
Facility status and associated support and compliance docume,nts at anytime dtring the term of
this Agreenrent
ARTICLE IV: CONDITIONS TO ACCEPTANCE OF ENERGY
The Cassia Facility phase of this eirtire Facility has already been granted a First Energy Date as
that phase of this Facility completed the First Enerry Date requirernents under the Firm Energ5r
Sales Agreement for just that phase datd April 7 , 2006. Prior to the First Energy Date for the
Tuana Springs Expansion and as a condition of ldaho Power's acce,ptance of deliveries of energy
from the Seller's Tuana Springs Expansion, Seller shall:
4.1.1 Submit proof to Idaho Power that all licemses, permits or approvals necessary for Seller's
operations of the Cassia Facility continue to be in good standing and that those for the
Tuana Springs Expansion have begn obtained from applicable federal, state or local
authorities, including, but not limited to, evidence of compliance with Subpart B, 18 CFR
292.201et seq. as a certified Qualifyine Facility.
4.1.2 Opinion of Counsel - Submit to Idaho Power an Opinion Letter signed by an attomey
admitted to practice and in good standing in the State of Idaho providing an
opinion ttrat Seller's lice,nses, pennits and approvals as set forth in paragraph 4. I . I
above are legally and validly issued, are held in the nanre of the Seller an( based on
a reasonable independent rwiew, counsel is of the opinion that Seller is in substantial
ssmpliance with said permits as of the date ofthe Opinion Letter. The Opinion Letter
will be in a form acceptable to ldaho Power and will acknowledge that the attomey
rendering the opinion understands that ldaho Power is relying on said opinion. Idaho
Power's acceptance of the form will not be unreasonably withheld. The Opinion l,fiter
-9-
will be governed by and shall be interpreted in accordance with the legal opinion accord
of the American Bar Association Section of Business Law (1991).
4.1.3 Nameplate Caoacity - Submit to Idaho Power rnanufacturer's and engineering
docurnentation that establishes the Nameplate Capacity of each individual generation unit
that is included within this entire Facility. Upon receipt of this data ldaho Power shall
review the provided data and detenrrine if the Nameplate Capacity specified is reasonable
based upon the manufacturer's specified generation ratings for the specific generation
units.
4.1.4 Engineer's Certifications - Submit an executed Engineeds Certification of Design&
Constnrction Adequacy and an Engineer's Certification of Operations and Mainteirance
(O&M) Policy as described in Commission Order No.21690. These certificates will be
in the form specified in Appendix C but may be modified to the ext€Nrt necessary to
recognize the different engineering disciplines providing the certificates.
4.1.5 lnsurance - Submit written proof to Idaho Power of all insurance required in Article XItr.
4.1.6 Interconnection - Provide writte,n confirmation from Idaho Power's delivery business
unit that Seller has satisfied all interconnection requirements.
4.1.7 NetworkResource Desienation-
4.1.7.1 Provide aU data required by the Idaho Power delivery business unit to enable the
Seller's entire Facility to be designated as a network resource.
4.1.7.2 Receive confinnation from the Idatro Power delivery business unit that the
Seller's entire Facility has been designated as a network resource.
4.1 .8 Written Acceptance - Request and obtain written confirmation from Idaho Power that all
conditions to acc€ptance of energy have becn fulfilled. Such written confirmation shall be
provided within a commercially reasonable time following the Seller's request and will
not be unreasonably withheld by Idaho Power.
- 10-
5.1
5.2
ARTICLE V: TERM AND OPERATION DATE
Term - Subject to the provisions of paragraph 5.2 below, this Agreernent shall become effective
on the date first written and shall continue in full force and effect for a period of twenty (20)
Contract Years from the Operation Date.
Operation Date - The Cassia Facility of this Facility has already been granted an Operation Date
prior to the execution of this Agreernent as that phase of this Facility completed the Operation
Date requirements under the Firm Energy Sales Agree,ment for just that phase dated April 7,
2006. Upon completion of the Operation Date requirements for the Tuana Springs Expansion, the
Operation Date for the entire Facility shall be the Operation Date granted to the Tuana Springs
Expansion. Notwithstanding the above, nothing in this Agreement shall effect the terrs and
conditions of the Cassia Gulch Facility Firm Energy Sales Agreemeirt until it terminates at the
time the Tuana Springs Expansion achieves the Operation Date in accordance with this
Agreement. The Operation Date for the Tuana Springs Expansion may oocur only after all of the
following have occurred and bee,n documented in writing:
a) Achieved the Fint Energ5r Date.
b) Commission ipproval of this Agree,ment with a non-appealable order in a form
acceptable to Idaho Power has been received.
c) Seller has demonstrated to ldaho Power's satisfaction that the Facility is complete and
able to provide enerry in a consistelrt, reliable and safe nunner.
d) Seller has requested an Operation Date from Idaho Power in a writteir format.
e) Seller has received written confirmation from Idaho Power of the Operation Date.
This confirmation will not be unreasonably wittrtreld by Idaho Power.
Operation Date Delay - Seller shall cause the Tuana Springs Expansion to ac,hieve the Operation
Date on or before the Scheduled Operation Date.
5.3.1 If the Operation Date occurs after the Scheduled Operation Date but on or prior to the
date ninety (90) days following the Scheduled Operation Date, Seller shall pay Idaho
5.3
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5.4
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 Initial Year Net
Energy Amount as specified in paragraph 6.2.1 dividd by the number of days in
the curreirt month) multiplied by the number of days in the Delay Period in the
current month) multiplied by the cunent 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 strall pay Idalro Power Delay Liquidated Darnages, in addition
to those provided in paragraph 5.3.1, calculated as follows:
Twenty dollars ($20) multiplied by the portion of the Maximum Capacity
Amor.rnt attributed to the Tuana Springs Expansion with the Maximum Capacrty
Amount being meastred in KW.
5.3.3 If the Operation Date does not occur within ninety (90) days following the Schoduled
Operation Date, in addition to the Delay Liquidatd damages specified above, Seller sball
provide ldaho Power with a written report documenting the then curent status of the
Tuana Springs Expansion. The Seller shall then provide Idaho Power with monthly
reports on or before the end of each subsequent month of the Delay Period validating that
the Seller continues to make commercially reasonable efforts to achieve the Operation
Date.
Notice of Ooeration Date Delay without progress - tn the eveirt Idaho Power reasonably
determines that the Seller is not rnaking commercially reasonable efforts to achiwe the Operation
Date, as evidenced by Seller's (1) initial report of the status of the Tuana Springs Expansion
and/or (2) failure to submit timely progress reports as required by Section 5.3.3. and/or (3) any
such progress report indicates that Seller is not making commercially reasonable efforts to
achieve the Operation Date, Idaho Power shall provide written notice to the Seller of this
determination and the Seller shall have 30 days to provide additional information that
- t2-
5.5
demonstrates to Idaho Power's reasonable satisfaction that the Seller is making cornrnercially
reasonable efforts to achieve an Operation Date within a reasonable period of time.
5.4.1 Idaho Power may terminate this Agree,rnent due to delay in the Operation Date with
written notice to Seller provided: (l) Idaho Power has provided the prior writteir notice as
provided in 5.4 above to Seller of its intent and right under this Agreement to tenninate
this Agreement 30 days from the date of such notice; and (2) Seller has not rectifie4
within 30 days of such notice, the conditions necessaqr to defer Idatro Powe/s right to
teNrminate this Agreement; and (3) Tuana Springs Expansion has not achieved a First
Energy Date.
5.4.2 In the event that Idaho Power does not exercise the termination rights provided for in
Section 5.5 abovg then for all days in the Delay Period beyond ninety (90) days
following the Scheduled Operation Date, in addition to all previously calculatod and paid
Delay Liquidated Damages specified in paragraph 5.3.1 and 5.3.2, the Seller shall pay
Idaho Power additional Delay Liquidated Damages calculated at the end of each calendar
month as follows:
Delay Liquidated Darrages are equal to (Current month's Initial Year Net
Enerry Amount as spocified in paragraph 6.2.1 divided by the nunber of
days in the curent month) multiplied by the number of dap of the Delay
P€riod in the current month) multiplied by the currqrt month's Delay Price;
orovided. however, no additional Delay Liquidated Damages shall be due
and payable pursuant to this Section 5.4.1 unless and until such delay
damages exceed the Delay Liquidated Darnages provided for in Section
5.3.2.
Seller shall pay Idaho Power any calculatod Delay Liquidated Damages within seven (7) days of
when ldaho Power calculates and presents any Delay Liquidated Damages billings to the Seller.
Seller's failure to pay these damages within the specified time will be a Material Breach of this
- 13-
5.6
Agreement, and provided Seller has not diqputed in writing the applicability or calculation of
such Delay Liquidated Damages, and such dispute is found to be reasonable, Idaho Power may
draw funds from the Delay Security provided by the Seller in an amount equal to the calculated
Delay Liquidated Darnages.
The Parties agree that the damages Idaho Power would incur due to delay in the Tuana Springs
Expansion achiwing the Operation Date on or before the Scheduled Operation Date would be
difficult or impossible to predict with certainty, and that the Delay Liquidated Danrages are an
appropriate approxirnation of such damages.
Within thirty (30) days of the date of a Commission Order as specified in Article )Oil approving
this Agreeme,nt; Seller shall post liquid security ('Delay Security'') in a forrr as describod in
Appendix D eqoal to or exceeding the arnount caloulated in paragraph 5.8.1.
5.7.1 Twenty dollars ($20) multiplied by the portion of the Maximum Capacity Amount
athibuted to the Tuana Springs Expansion with the Maximum Capacrty Amount being
measured in KW.
5.7.1.1 In the went (a) Seller provides Idaho Power with certification that (1) a
generation interconnection agree,meirt speciffing a schedule that will enable the
Tuana Springs Expansion to achieve the Operation Date no later than the
Scheduled Operation Date has been completed and the Seller has paid all
requircd interconnection costs or (2) a generation interconnoction agreernent is
substantially complae and all material costs of interconnection have been
identified and agreed upon and O) the Seller is in compliance with all terrrs and
conditions of the ge,lreration interconnection agreement, the Delay Security
calculated in accordance with paragraph 5.8.1 will be reduced by ten percent
(10%).
5 .7 .l .2 If the Seller has received a reduction in the calculated Delay Security as specified
in paragraph 5.8.1.1 and subseque,ntly (l) at Seller's rcquest, the generation
5.7
- t4-
6.1
interconnection agreernent specified in paragraph 5.7.1.1 is revised and as a
result the Tuana Springs Expansion will not achieve its Operation Date by the
Scheduled Operation Date or (2) if the Seller does not maintain compliance with
the generation interconnection agreeinent, the full arnount of the Delay Security
as calculated in paragraph 5.7.1 will be subject to reinstatement and will be due
and owing within ten (10) business days from the date Idaho Power requests
reinstatement. Failure to timely reinstate the Delay Security will be a Material
Breach of this Agreement.
5.7.2 Idaho Power shall release any remaining security posted hereunder after all calculated
Delay Liquidated Damages are paid in full to Idaho Power and the earlier of (l) 30 days
after the Operation Date achieved or (2) 30 days after the termination of this Agreement.
5.7.3 The Parties agree that at 12:00 midrdght MST on the Operation Date established for the
Tuana Springs Expansion project, the Firm Energy Sales Agreement dated April 7, 2006
between Cassia Gulch and ldaho Power shall automatically temrinate and any amounts
accrued and payable by one of the parties to the other up through such Tuana Springs
Expansion Operation Date shall be paid in accordance with such Finn Energy Sales
Agreement. All energy and capacrty generated by the Cassia Facility subsequeirt to the
Operation Date for the Tuana Springs Expansion shall be sold to Idaho Power in
accordance with this Agreement.
ARTICLE VI: PURCHASE AND SALE OF NET ENERGY
Delivery and Acceptance of Net Enerey - Except when either Party's perforrrance is excusod as
provided herein, Idaho Power will purchase and Seller will sell all of the Net Energy to Idaho
Power at the Point of Delivery. At no time will the total amount of Net Energy produced by the
Facility and delivered by the Seller to the Point of Delivery exceed the Maximum Capacity
Amount.
- 15-
6.2 Net Energy Amounts - Seller intends to produce and deliver Net Energy in the following monthly
amounts. These arlounts shall be consistent with the Mechanical Availability Guarantee.
6.2.1 Initial Year Monthly Net Energv Amounts:
Season I
Season 2
Month
March
April
May
July
August
Nove'mber
Decerrber
June
Septe,nnber
October
January
February
kwh
6,876,543
6,526,42
5,553,874
3,967,053
4,363,759
7,663,617
8,384,014
4,798,885
4,990,809
6,148,932
9,512,832
8,076,701
6.3
6.4
Season 3
Unless excused by an event of Force Majare, Seller's failure to deliver Net Energy in any
Contract Year in an amount equal to at least ten pocent (10%) of the sum of the Initial Year Net
Energy Amounts as specified in paragraph 6.2 shall constitute an weirt of default.
Mechanical Availability Guarantee - Afterthe Operational Date has been establishe{ the Facility
shall achieve a minimum monthly Mechanical Availability of 85% for the Facility for each month
during the full term of this Agreement (the Mechanical Availability Cuarantee). Failure to
achieve the Mechanical Availability C*r*t"" shall result in Idaho Power calculating damages as
speified in paragraph 6.4.4.
6.4.1 At the same time the Seller provides the Monttrly Power Production and Switching
Report (Appeirdix A), the Seller shall provide and certifu the calculation of the Facility's
current month's Mechanical Availability. The Seller shall include a summary of: (a)
Forced Outages, (b) Force Majeure events, (c) schoduled mainte,nance and Station Use
information that was used to calculate the current month's Meebanical Availability.
l6-
7.t
6.4.2 Seller shall rnaintain and retain for three years daailed documentatioo supporting the
monthly calculation of the Facility's Mechanical Availability.
6.4,3 ldaho Power shall have the right to review and audit the documeirtation supporting the
calculation of the Facility's Mechanical Availability at reasonable times at the Seller's
offices.
6.4.4 If the current month's Mechanical Availability is less than the Mechanical Availability
Guarantee, darnages shall be equal to:
The month's Calculated Net Energy Amount minus the month's actual Net
Energy deliveries multipli€d by the Availability Shortfall Price.
6.4.5 Any damages calculated in paragraph 6.4.4 will be offset against the current month's
energy paymerfi. If an unpaid balance remains after the damages are offset against the
energy payment, the Seller shall pay in full the remaining balance within 15 days of the
date of the invoice.
ARTICLE VII PURCIIASE PRICE A]TID METHOD OF PAYMENT
Heav.v Load Purchase Price - For all Net Energy received during Heavy Load Hours, Idaho
Power will pay the non-levelized energy price adjusted in accordance with Commission Order
30415 for Heavy Load Hour Energy deliveries, and adjusted in accordance with Commission
Order 3M88 for the wind integration charge and with seasonalization factors applied:
Season 1 - (73.50oA Season 2 - (120.00oA Season3 -(100.00 %)
Year
2009
2010
201 1
2012
2013
2014
2015
20t6
Mills/kwh
40.28
44.35
50.85
46.94
43.28
43.07
s1.59
5r.32
Mills/kWh
65.75
72.42
83.74
76.79
70.66
70.32
85.07
84.56
Mills/k$/h
54.80
60.35
69.18
63.86
58.88
58.59
70.20
69.82
- t7-
7.2 Light Ioad Purchase Price - For all Ne Enerry received during Light l"oad Hours, Idaho Power
will pay the non-levelized energy price adjusted in accordance with Commission Order 30415
for Light Load Hour Energy deliveries, and adjusted in accordance with Commission Order
30488 for the wind integration charge and with seasonalization factors applied:
2017
2018
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
Year
2009
2010
20tt
2012
2013
2014
2015
20t6
2017
2018
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
50.13
56.06
62.23
62.31
70.04
53.59
63.39
65.00
75.04
6t.12
72.22
75.00
Season l -(7350Yo)
Mills/kwh
35.36
39.43
45.93
42.01
38.35
38.14
46.67
46.40
45.20
51.14
57.31
57.39
65.12
48.67
58.46
60.08
70.09
56.19
67.30
70.06
82.46
92.99
103.93
r04.09
117.79
88.60
105.98
108.84
126.63
101.96
121.66
t26.s6
Season 2 - (120.00%)
Mills/kwh
57.72
64.38
75.01
68.s9
62.62
62.27
76.33
75.83
73.80
84.26
95.19
95.35
109.05
79.86
97.2s
100.11
117.89
93.23
t12.92
117.82
68.20
76.41
85.52
85.66
97.07
72.91
87.24
89.62
r04.4
83.89
100.30
104.38
Season3-(100.007o)
Mills/kWh
48.10
53.6s
62.49
57.16
52.18
51.90
63.s0
63.t2
61.50
69.58
78.24
78.38
89.79
66.2t
79.96
82.34
97.16
76.6t
93.02'97.10
- 18-
7.3 All Hours Energv Price - The price to be used in the calculation of the Surplus Enerry Price and
Delay Darnage Price shall be the non-levelized e'nergy price adjusted in accordance with
Commission Order 30488 for the wind integration charge and with seasonalization factors
applied:
Year
2009
2010
201 I
2012
2013
2014
201s
20t6
2017
2018
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
Season 1-(73.50%)
Mills/kWh
38.09
42.16
48.66
44.74
41.09
40.88
49.40
49.13
47.93
53.88
60.04
60.12
67.85
51.40
61.19
62.81
72.83
58.93
70.02
72.79
Season 2 - (120.00Y4
Mills&Wh
62.t8
68.84
79.86
73.05
67.08
66.74
81.r8
80.68
78.57
89.11
100.04
100.20
113.90
84.71
102.10
104.96
122.74
98.08
117.77
122.67
Season3 - (100.00 %)
Mills/kwh
51.81
57.37
66.20
60.88
s5.90
55.61
67.22
66.84
65.22
73.30
82.28
82.42
93.83
69.93
84.00
86.38
r01.20
80.65
97.06
101.14
7.4
7.5
Sumlus Enerqv Price - For all Surplus Enerry, Idaho Power shall pay to the Seller the currelrt
month's Marka Energy Reference Price orthe All Hours Enerry Price specified in paragraph 7.3,
whichever is lower.
Pament Due Date - Energy payments, less the Wind Energy Production Forecasting Monthly
Cost Allocation (MCA) described in Appemdix E, will be disbursed to the Seller within 30 days
of the date which ldaho Power receives and accepts the documentation of the monthly Net
Energy actually delivered to Idaho Power as specified in Appendix A.
Continuine Jtrisdiction of the Cornmission - This Agreement is a special contract and, as sucl1
the rates, terms and conditions contained in this Agreernent will be constnred in accordance with
- 19-
7.6
Idaho Power Conpany v. Idaho Public Utilities Commission and Afton Energlr. Inc., 107 Idaho
781,693P.2d427 (1984),Idatro Power Cornpany v. Idaho Public Utilities Cornmission, 107
Idaho I 122, 695 P.2d I 261 (1985), Afton Energy. Inc. v. Idaho Power Cornpan},, I I I ldatro 925,
729P.2d 400 (1986), Soction 210 of the Public Utilities Regulatory Policies Act of 1978 and 18
cFR $292.303-308
ARTICLE VItr: ENVIRONMENTAL ATTRIBI.IIES
8.1 Idaho Power waives any claim to ownership of Environmental Attributes. Environmental
Attributes include, but are not limited to, Green Tags, Green Certificates, Renewable Enerry
Credits (REC$ and Tradable Renewable Certificates (IRCs) directly associated with the
production of energy from the Seller's Facility.
ARTICLE D(: FACILITY AND INTERCONNECTION
Desien of Facilitv - Seller will design, construct, furstall, own" operate and rnaintain the Facility
and any Seller-owned Interconnection Facilities so as to allow safe and reliable generation and
delivery of Net Energy to the Idalro Power Point of Delivery for the full term of the Agreement.
Interconnection Facilities - Seller shall be responsible for all interconnection costs for both the
Cassia Facility and the Tuana Springs Expansion as specified in Schedule 72 afr the generation
interconnection agreements applicable to the Cassia Facility, the Tuana Springs Expansion and
the combined Facility.
Idaho Power shall make commercially reasonable efforts to establish the Facility as a designated
network resorrce with a capacity of the Maximum Capacrty Amount on or before the Operation
Date.
9.1
9.2
9.3
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l0.l
ARTICLE X: METERING AND TELEMETRY
Meterine and Telemetry - Idaho Power shall, for the account of Seller, provide, install, and
rnaintain Met€ring Equipment to be located at a mutually agreed upon location to record and
measure pow€r flows to ldaho Power in accordance with Schedule72 fromthe entire Facility at
the Point of Delivery. The Metering Equipment will be at the location and the tlpe required to
measure, record and report the entire Facility's Net Energy, Station Use and rnaximum energy
deliveries (k\{D in a rnarmer to provide ldaho Power adequate energy measurement data to
administer this Agreemeirt and to integrate this Facility's energy production into the Idaho Power
electrical syste,ln- In addition, it will be required that the Seller provide at the Seller's expe,nse,
Metering and Telemetry acceptable to ldaho Power installed by the Seller to record the enerry
production from the Cassia Facility and the Tuana Springs Expansion separately. This metering
and telernetry equipment will include a communication circuit and all equipment required to
integrate the Seller's meter data into the Idaho Power electronic meter reading process. Idaho
Power will produce only a single energy payment for the Seller's eirtire Facility that will include
the energy and associated energy pricing for all phases ofthis Facility. The Seller provided
metering and telemetry equipment will meet Idaho Power standards for revenue class metering
and the Seller will provide Idaho Power electronic acoess to this meter information.
ARTICLE XI - RECORDS
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 and maximum
ge,neration (kW) records for the entire Facility and the individual phases of this Facility in a form
and content recommended by ldaho Power.
krspection - Either Party, after reasonable notice to the other Party, shall have the right, during
normal business hours, to inspect and audit any or all generatioq Net Energy, Station Use and
maximum generation (kW) records pertaining to the Seller's Facility.
I l.l
tt.2
-21-
ARTICLE XII: OPERATIONS
l2.l Communications - Idaho Power and the Seller shall maintain appropriate operating
commtrrications through Idaho Power's Designated Dispatch Facility in accordance with
Appendix A of this Agreement.
12.2 EnergyAcceptance-
12.2.1 ldaho Power shall be excused from accepting and paying for Net Energy which would
have otherwise beeir 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 temporary
disconnection of the Facility in accordance with Schedule 72. lf, for reasons other than
an event of Force Majeure, a temporary disconnection under Schedule 72 exceeds twenty
(20) days, beghning with the twenty-first day of such internrptio& curtailment or
reduction, Seller shall 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 paragraph 6.2
and Seller shall be entitled to be compensated in accordance with Article MI. Idaho
Power will notiff Seller when the intemrption, curtailment or reduction is terminated.
12.2.2 If, in the reasonable opinion of Idaho Power, Selleds operation of the Facility or
lnterconnection Facilities is unsafe or may otherwise adversely affect Idalrc Power's
equipment, personnel or senrice to its custom€trs, Idaho Power may temporarily
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 will the Seller deliver Net 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 Capacrty Amount will be a Material Breach of this
Agreement.
-22-
12.3 Schduled Maintenance - On or before January 3l of each calendar year, Seller shall submit a
written proposed maintenance schedule of significant Facility maintenance for that calendar year
and Idaho Power and Seller shall mutually agree as to the acceptability of the proposed schedule.
The Parties deterrrination as to the acceptability of the Seller's timetable for scheduled
maintenance will take into consideration Prudent Electrical Practices, Idaho Power system
requirerre,nts and the Seller's preferred schedule. Neither Party shall unreasonably withhold
acceptance of the proposed maintenance schedule.
Maintenance Coordination - The Seller and Idaho Power shall, to the extent practical, coordinate
their respective line and Facility maintenance schedules such that they occtu simultaneously.
Contact Prior to C\rtailment - Idatro Power will make a reasonable atte(ryt to contact the Seller
prior to exercising its rights to intemrpt interconnection or curtail deliveries from the Seller's
Facility. Seller understands that in the case of emergency circumstances, real time operations of
the electrical systern, and/or unplanned events Idaho Power may not be able to provide notice to
the Seller prior to intemrptioq curtailment, or reduction of electrical energ5l deliveries to Idaho
Power.
ARTICLE XIu: INDEMNIFICATION AND INSURANCE
Indernnification - Each Party agrees to hold harmless and to indemni$/ the other Party, its
officers, agents, afftliates, subsidiaries, parcnt company and employees against all loss, damage,
expense and liability to third persons for injtrry to or death of person or injury to property,
proximately caused by the inderrnifying Party's (a) constnrctio4 ownership, operation or
maintenance of, or by failure of, any of such Party's works or facilities used in connection with
this Agreement or (b) negligent or intentional acts, errors or omissions. The indemniffing Party
shall, on the other Party's request, defend any suit asserting a claim covered by this inderrrity.
The indemni$nng Party shall pay all documented costs, including reasonable attomey fees that
t2.4
12.5
l3.l
-23-
may be incurred by the other Party in enforcing this indemnity.
13.2 Insurance - During the term of this Agreement, Seller shall secure and continuously carry the
following insurance coverage:
13.2.1 Comprehensive General Liability Insurance for both bodily injury and property damage
with limits equal to $1,000,000, each occurence, combined single limit. The deductible
for such insurance shall be consistent with current Insurance hdustry Utility 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) Naming Idaho Power as an additional insured and loss payee as applicable; and
(b) A provision stating that such pollcy shall not be canceled or the limits of liability
reduced without sixg (60) days' prior wriften notice to ldaho Power.
Seller to Provide Certificate of Insurance - As required in paragraph 4.1.5 herein and arnually
thereafter, Seller shall furnish ldatro Power a certificate of insurance, together with the
endorsements required therein, evideircing the coverage as set forth above.
Seller to Notiff Idatro Power of [.oss of Coverage - If the insurance coverage required by
paragraph 13.2 shall lapse for any reason, Seller will irnmediately notifr Idaho Power in writing.
The notice will advise Idaho Power of the specific reason for the lapse and the steps Seller is
taking to reinstate the coverage. Failure to provide this notice and to expeditiously reinstate or
replace the coverage will constitute a Material Breach of this Agreement.
ARTICLE XTV: FORCE MAIEURE
As used in this Agreement, "Force Majeure" or "an event of Force Majeure" meam any cawe
beyond the control of the Seller or of Idaho Power which, despite the exercise of due dilige,nce,
such Party was unable to prevent or ov€trcome. Force Majeure includes, but is not limited to, acts
of God, fire, flood, stortrls, wars, hostilities, civil strife, strikes and other labor disturbances,
13.3
13.4
t4.t
-24-
l5.l
earthquakes, fires, lightning epidemics, sabotage, or changes in law or regulation occurring after
the Effective Date, which, by the exercise of reasonable foresight such party could not reasonably
have been expected to avoid, and by the exercise ofdue diligence, it shall be unable to overcome.
If either Party is rendered wholly or in part unable to perfonn its obligations under this
Agreement because of an eve,nt of Force Majeure, both Parties shall be excused from whatwer
perforrrance is affected by the eve,lrt of Force Majeure, provided that:
(l) The non-performing Party shall, as soon as is reasonably possible after the
occlurence of the Force Majeure, grve the other Party written notice describing
the particulars ofthe occurrence.
(2) The suspension ofperforrnance 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 Party which arose before the occurrence causing the
suspension of performance and which could and should have been fully
performed before such occurrence shall be excused as a result of such
occruT€nce.
ARTICLE XV: LIABILITY: DEDICATION
Nothing in this Agreement shall be constnred to create any duty to, any standard of care with
refereirce to, or any liability to any person not a Party to this Agreement. No undertaking by one
Party to the other under any provision of this Agreement shall constitute the dedication of that
Party's system or any portion thereof to the other Party or to the public or affect the status of
Idatro Power as an independent public utility corporation or Seller as an independent individual or
entity.
ARTICLE XVI: SEVERAL OBLIGATIONS
Except where specifically stated in this Agreement to be othenvise, the duties, obligations and
liabilities of the Parties are intended to be several and not joint or collwtive. Nothing contained
25-
16.1
t7.l
in this Agreement shall ever be construed to create an association, trust, partrership orjoint
venture or impose a hust or partnership duty, obligation or liability on or with regard to either
Party. Each Party shall be individually and severally liable for its owu obligations under this
Agreement.
ARTICLE XVIT WAIVER
Any waiver at any time by either Party of its rights with respect to a default under this Agreeinent
or with r€spect to any other matters arising in connection with this Agreernent shall not be
deemed a waiver with respect to any subsequent default or other matter.
ARTICLE XVIII: CHOICE OF LAWS AND VENT.JE
This Agreernent shall be construed and interpreted in accordance with the laws of the State of
Idatro without reference to its choice of law provisions.
Venue for any litigation arising out of or related to this Agree,rnent will lie in the Dishict Corut of
the Fourth Judicial Dishict of ldaho in and for the County of Ada.
ARTICLE XD(: DISPUTES AND DEFAULT
l9.l Disoutes - All disputes related to or arising under this Agree,me,nt, including but not limited to,
the interpretation of the terms and conditions of this Agree,rnent, will be first addresscd by written
notice to the managem€xrts of both Parities which will negotiate, or appoint representatives to
negotiate, in good faith to seek a resolution of the dispute. In the event a Party refuses to
negotiate, or no resolution is reached, or no mutual agreemeot bdween the Parties to continue
discussions is reached within 60 days of being submitted to the managemeirt of each Party, either
Party may present the dispute in a cornplaint proceeding before the Commission for resolution.
19.2 Notice of Default -
19.2.1 Defaults. Except as provided in Article 5 for delay in achieving the Operation Date,
in the event either Party fails to perform any of the terms or conditions of this
18.1
18.2
-26-
19.3 Security for Performance - Prior to the Operation Date and thereafter for the full tenn of this
Agreement, Seller will provide Idaho Power with the following:
19.3.1 Insurance - Evidence of compliance with the provisions of paragraph 13.2. If Seller
19.2.2
19.3.2
19.3.3
Agreement (an "event of default"), the non defaulting Party shall cause noticc in
writing to be given to the defaulting Party, speciffing the manner in which such
default occurred. If the defrulting Parly shall fail to cure such default within the sixty
(60) days after service of such notice, or if the defaulting Party reasonably
demonsfates to the other Party that the default can be cured within a cornmercially
reasonable time but not within such sixty (60) day p€riod and then fails to diligently
pursue such cure, then, the nondefaulting Party may, at its option, terminate this
Agreeineirt and/or pursue its legal or equitable re,rnedies.
Material Breaches - The notice and curc provisions in paragraph 19.2.1 do not apply
to defaults identified in this Agreemeirt as Material Breaches. Material Breaches must
be cured as ex@itiously as possible following occrurence of the breach.
fails to comply, such failure will be a Material Breach and may only be cured by
Seller supplying evidence that the required insurance coverage has been replaced or
reinstatod;
Eneine€r's Certifications - Every three (3) years after the Operation Date, Seller will
supply Idaho Power with a Certification of Ongoing Operations and Maintenance
(O&M) from a Registered Professional Engineer licensed in the State of ldaho, which
Certification of Ongoing O & M shall be in the form specified in Appendix C. Seller's
failure to supply the required certificate will be an event of default. Such a default
may only be cured by Seller providing the required certificate; and
Liceirses and Pennits - During the full term of this Agreernent, Seller shall maintair
corrpliance with all permits and licenses described in paragraph 4.1.1 of this
Agreernent. In addition, Seller will supply Idaho Power with copies of any new or
-27-
20.1
additional permits or licenses. At least every fifth Contract Year, Seller will update the
documentation described in Paragraph 4.1.1. If at any time Seller fails to maintain
compliance with the permits and liceirses described in paragraph 4.1.1 or to provide
the documentation required by this paragaph, such failure will be an event of default
and may only be cured by Seller submitting to ldatro Power evidence of compliance
from the permitting agency.
ARTICLE XX: GOVERNMENTAL AUTHORZATION
This Agreenrent is subject to the jurisdiction of those govemmental agencies having confol over
either Party of this Agreement.
ARTICLE XXI: COMMISSION ORDER
This Agreement shall become finally effective upon the Commission's approval of all terms and
provisions hereof without change or condition and declaration that all payments to be made to
Seller heretmder shall be allowed as prudently inctrred expenses for raterraking purposes.
ARTICLE XXII: SUCCESSORS A}.ID ASSIGNS
This Agreement and all of the terms and provisions hereof shall be binding upon and inure to the
benefit ofthe r€spective successom and assigns ofthe Parties hereto, except that no assignment
hereof by either Party shall bocome effective without the written consent of both Parties being
fixst obtained. Such consent shall not be unreasonably withheld. Notwithstanding the foregoing,
any party which Idaho Power may consolidatg or into which it may merge, or to which it rnay
convey or transfq substantially all of its electric utility assets, shall automatically, without firther
act, and without need of conseNrt or apprcval by the Seller, succeed to all of Idaho 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 rerredies available to it under law
2t.l
22.1
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23.1
24.1
or contract. Idaho Power shall have the right to be notified by the financing entity that it is
exercising such rights or reinedies.
ARTICLE XXIII: MODIFICATION
No modification to this Agreernent shall be valid unless it is in writing and signed by both Parties
and subsequently approved by the Commission.
ARTICLEXXTV: TAXES
Each Party shall pay before delinquency all taxes and other governmeirtal charges which, if failed
to be paid when due, could result in a lien upon the Facility or the Interconnection Facilities.
ARTICLE XXV: NOTICES
All uritten notices under this Agree,ment shall be directed as follows and shall be
considered delivered when faxed, e-mailed and confirmed with deposit in the U.S. Mail,
first-class, postage pre,paid, as follows:
To Cassia Gulch:
Original document to:
Richard A Cummings
412 E Parkce,lrter Blvd, Suite 325
PO Box 1545
Boise,Idaho 83701
email: [e-mail]
Copy of document to:
John Deere Renewables, LLC
Assistant Chief Counsel.
6400 NW 866 Sreet
Johnstor; LA 50131
email: [e-mail]
25.1
-29-
To Idaho Power:
Orieinal document to:
Vice President, Power Supply
Idaho Power Company
POBoxT0
Boise, Idaho 83707
Ernailj immiller@idahopower. com
Coey of document to:
Cogeneration and Small Power Production
Idaho PowerCornpany
POBoxT0
Boise, Idaho 83707
E-rnail : [e-mail]
ARTICLE )OC\II: ADDITIONAL TERMS A}.[D CONDITIONS
26.1 This Agree,ment includes the following appendices, which are attached hereto and included by
reference:
Appendix A - Power Production and Avaitability Report
Appendix B - Facility and Point of Delivery
Ap,pendix C Engineer's Certifications
Appendix D - Forms of Liquid Sectuity
Appendix E Wind Energy Production Forecasting
ARTICLE XXVII SEVERABILITY
27.1 The invalidity or unenforceability of any tefin or provision of this Agpeement shall not affect the
validity or enforceability of any other tenns or provisions and this Agreernent shall be constnred
in all other respects as if the invalid or unenforceable term or provision were omitted.
ARTICLE XXVItr: COUNTEMARTS
28.1 This Agreement may be executed in two or mone counterparts, each of which shall be deerned an
original but all of which together shall constitute one and the same instrument.
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ARTICLE XXD(: ENTIRE AGREEMENT
29.1 This Agreerrent constitutes the entire Agreement of the Parties concerning the subject matter
hereof and supersedes all prior or contemporaneous oral or written agreements between the
Parties conceming the subject rnatter hermf.
IN WTINESS WHEREOF, The Parties hereto have caused this Agreernent to be executed in their
respective names on the dates set forth below:
Idalro PowerComoanv Cassia Gulch Wind Park LLC
Dated /' ./ qf
Sr. Vice Presidenl Delivery
sl blDq
"Idaho Powed'
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Tuana Springs Energy. LLC
APPENDD( A
A -1 MONTHLY POWER PRODUCTION A}.ID AVAILABILITY REPORT
At the end of each month the following required documentation for the Cassia Facility and the
Tuana Springs Expansion will be submitted to:
Idaho PowerCompany
Attn: Cogeneration and Small Power Production
P0Box70
Boise, Idaho 83707
The meter radings requirod on this report will be the readings on the Idaho Power Meter
Equipment meazuring the Facility's total enerry production and Station Usage delivered to Idabo Power
and the maximum geirerated energy (kW) as recorded on the Metering Equipment and/or any other
required energy measurements to adequately administer this Agreement. And the meter readings from the
Seller provided Metering Equipment that measures the energy from the Cassia Facility and the Tuana
Springs Expansion separately. This document shall be the document to enable Idaho Power to begin the
energy paym€,lrt calculation and payrr.ent process. The meter readings on this report shall not be usod to
calculate the actual paSrment, but instead will be a check of the automated meter reading information that
will be gathered as described in itemA-2 below:
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Prdect Neme
Address
City
Idaho Power Company
Cogeneration and Small Power Production
MONTM,Y POWER PRODUCTION AI\D AVAILABILITY REPIORT
Month Year
Project Number:
Phone Number:
Stete zip
Net Facility
Outout
Meter Number:
Steffon
Ucrqe
Station
Usrse
Metered
Ilflrrlmrn Gencredon
kw
Net Generedon
End of Month kWh Meter Reading:
Beginntng of Month kWh Meter:
Difference:
Tlmes Metcr Constant:
kWh for the Month:
Metered Demend:
Mechanical Availabilitv Guerantee
Seller Celculated Mechanicel Avelleblltty
As specilied in this fureement, the Seller shell include wlth thts monthly report a summary statement of tte
Mechanical Availability 6f rhir tr'acllity for the calender month. Thir summary shall include detalls es to how
the Seller crlculated thls value end summary of the Fecillty date used in the celculation. Idaho Power end
the Seller shell work together to mutually develop s summrry report that provides the requlred deta. Idaho
Power recervec the right to review the dctailed date us€d ltr this cilculrdon es ellowed withtn the Agreemenl
Signeture
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Date
A-2 AUTOMATED METER READING COLLECTION PROCESS
Monttrly, Idaho Power will use the provided Metering and Telerretry equipment and processes to
collect l) the meter reading information from the Idaho Power provided Metering Equipment that
measures the Net Energy and energy delivered to supply Station Use for the entire Facility recorded at
12:00 AM (Midnigh$ of the last day of the month and 2) the meter reading information from the Seller
provided Metering Equipment that measures the energy production and Station Use for the Cassia Facility
and the Tuana Springs Expansion separately recorded at 12:00 AM (Midnight) of the last day ofthe
month.
The meter infonnation collected will include but not be limited to €,lrergy production, Station Usq the
maximum generated power (kW) and any other required energy measureineirts to adequately administer
this Agreernent.
A.3 ROI,NINE REPORTING
Once the Tuana Springs Expansion has achieved its Operation Date and has operated in a reliable
and consistent nunner for a rcasonable period of time, the Parties may mutually agree to modiff
this Routine Reporting for this entire Facility.
Idaho Power Contact Infonnation
Daily Energy Production Reporting
Call daily by l0 a.m., 1-800-3564328 or 1-800-635-1093 and leave the following
information:
o Project ldentification - Project Name and Project Numbero Current Meter Readingo Estirnated Generation for the current dayo Estimated Geireration forthe next day
Planned and Unplanned Proiect outages
Call 1-800-345-1319 and leave the following information:
o Project ldentification - Project Name and Project Number
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a
a
Approximate time outage occurred
Estimatd day and time ofproject coming back online
Seller's Contact lnformation
24-Hou Project Operational Contact
Name: JDRoperations
TelephoneNumber: 877-5394631
Cell Phone: [phone]email: [e-mail]
Project On-site Contact information
Telephone Number: 515-3064480
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B-1
APPENDX B
FACILITY AND POINT OF DELTVERY
Project Number: 3 I 3 I 5 I 50
Tuana Sprinss Exoansion and Cassia Gulch Wird Park
DESCRIPTION OF FACILITY
(Must include the nameplate rating and YAR capability (both leading Nd lagging) of all generation units
to be included in the Facility.)
The Cassia Gulch Wind Park consists of a single 34.5 kV collector circuit connecting nine (9) 2.1
MW Sudon S-88 wind turbine gen€f,ators and their pad mount stepup transformers to a 34.5/138
kV substation owned by the project to interconnect to an Idatro Power owned 138 kV circuit
breaker and tap of their 138 kV transmission line from lnwer Malad substation to Mountain
Home Junction 4.3 miles west of l,ower Malad. The project is designed and.constnrc{ed to
operate with a power factor at the Point of Delivery in the range of .95 leading to .95 lagging
when producing rated powor using switched capacitors in each turbine which attempt to keep the
power factor at unity at the terminals of each wind turbine generator.
The Tuana Springs Expaosion will add a single 34.5 kV collector circuit connecting eight more
(8) 2.1 MW Suzlon S-88 wind turbine generators and their pad mount st€p-up transformers to an
expansion of existing 34.5/138 kV Cassia substation to add a second 34.5/138 kV transformer.
The expansion will interconnect the higb voltage side of the new ffansformer to the 138 kV bus
on the project side of Idatro Poweds existing 138 kV circuit breaker. The Tuana Springs
Expansion is also designed and constnrcted to operate with a power factor at the Point of Delivery
in the range of .95 leading to .95 lagging when producing rated power using switched capacitors
in each turbine which attempt to keep the power factor at unity at the terminals of each wind
turbine generator.
LOCATION OF FACILITY
Near: 4.3 miles west of lowerMalad substation
Sections: 15 &22 Township:6SouthRange: l2East County: TwinFalls, ID.
Description of Interconnection [ocation: 4.3 miles east of Lower Malad Substation on IPCo 138
kV Lower Malad to Mountain Home 138 kV line
B-2
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B-3
Nearest Idaho Power Subsation:
SCIIEDULED FIRST ENERGY AND OPERATION DATE
Cassia Gulch Wind Park
The Cassia Gulch Wind Park has already attained its First Energy Date and Operation Date under
a previous Firrn Enerry Sales Agreement berween Cassia Gulch Wind Park LLC and Idaho
Power dated April 7,2006. At the time the Tuana Springs Expansion achieves its Operation
Date, the Operation Date for this entire Facility (including the Cassia Gulch Wind Park) will be
the Operation Date of the Tuana Springs Expansion.
Tuana Sprines Expansion
For the Tuana Springs Expansion phase of this Facility:
Seller has selectod Novernber 1,2m9 as the Scheduld First Energy Date.
Seller has selected Jtme 30, 2010 as the Scheduled Operation Date.
h making these selections, Seller recognizes that adequate testing of the Facility and cornpletion
of all requirements in paxag4ph 5.2 of this Agreement must be completed prior to the project
being granted an Operation Date.
MAXIMLJM CAPACITY AMOUNT: This value will be 35.700 kW which is consiste,nt with the
value provided by the Seller to Idaho Power in accordance with Schedule 72 and less than or
equal to the sum of the Nameplate Capacity rating of all the individual generation units at this
Facility. This value is the maximum €nergy (kW) that potentially could be delivered by the
Seller's Facility to the ldaho Power electrical system at any moment in time.
B-4
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B-5 POINT OF DELIVERY
'?oint of Delivery''means, unless otherr*,ise agreed by both Parties, the point of where the Sellers
Facility's energy is delivered to the Idaho Power electrical syste,m. Schedule 72 wlll deterrrine
the specific Point of Delivery for this Facility. The Point of Delivery idelrtified by Schedule 72
will become an integral part of this Agreement and is defined as the same location for both the
Tuana Springs Expansion and the Cassia Gulch Wind Park.
LOSSES
If the Idatro Power Metering equipment is capable of measuring the exact elr€rgy deliveries by the
Seller to the Idaho Power electrical system at the Point of Delivery, no Losses will be calculated
for this Facility. If the Idaho Power Metering Equipment is unable to measure the exact frer:gy
deliveries by the Seller to the ldaho Power electrical system at the Point of Delivery, a Losses
calculation will be established to meastre the energy losses (kWh) between the Seller's Facility
and the Idaho Power Point of Delivery. This loss calculation will be initially set at 2o/o of the
kWh eirergy production recorded on the Facility generation Metoing Equipment. At such time as
Seller provides Idaho Power with the electrical equipment specifications (hansformer loss
specifications, conductor sizes, etc) of all of the electrical equipment between the Facility and the
Idaho Power elecfrical system, Idalro Powq will configure a revised loss calculation formula to
be agroed to by both parties and used to calculate the kWh Losses for the remaining tenn of the
Agreement. If at any time during the term of this Agreemeirt, Idatro Power determines that the
loss calculation does not correctly reflect the actual kWh losses attributed to the elec'trical
equipment baween the Facility and the ldaho Power electrical system, Idaho Power may adjust
the calculation and rehoactively adjust the previous months kWh loss calculations.
- 38-
B-7 METERING AI.ID TELEMETRY
Schedule 72 will determine the specific metering and telemetry requireinents for this Facility. At
a minimum, the Metering Equipment and Telemetry equipment must be able to provide and
rword hourly en€rgy deliveries to the Point of Delivery and any other energy measurements
rquired to administer this Agreerneirt. These specifications will include but not be limited to
equipment specifications, equipment locatiorq Idaho Power provided equipment, Seller provided
equipment, and all costs associated with the equipment, design and installation of the Idaho
Power provided equipment. Seller will arrange for and rnake available at Seller's cost
communication circuit(s) compatible with Idaho Power's comnunications equipment and
dedicated to ldaho Power's use terminating at the ldatro Power facilities capable of providing
Idaho Power with continuous instantaneous information on the entire Facility's energy production
and the separate Tuana Springs Expansion and the Cassia Gulch Wind Park energy
and Station Use as required to administer this Agreeinent. Idaho Power provided equipment will
be ownd and maintained by Idaho Power, with total cost of purchase, installation, operatiorl and
maintenance, including adrninistrative cost to be reimbursed to ldaho Power by the Seller.
Payrrent of these costs will be in accordance with Schedul e72 ardthe total metering cost will be
included in the calculation of the Monthly Operation and Maintenance Charges specified in
Schedule 72.
- 39-
APPENDD( C
ENGINEER'S CERTIFICATION
OF
OPERATIONS & MA.INTENANCE POLICY
The undersigned on behalf of himself and
, hereinafter collectively referred to as "Engineer,"
hereby states and certifies to the Seller as follows:
l. That Engineer is a Licensod Professional Engineer in good standing in the State of Idaho.
2. That Engineer has reviewed the Enerry Sales Agreerrent, hereinafter "Agreement" betwoen
Idaho Power as Buyer, and as Seller, dated
3. That the Tuana Springs Expansion portion of this Facility which is the subject of the Agreement
and this Statement is ideirtified as a portion of IPCo Facility No.and is hereinafter
referred to as the uProject."
4. That the Project, which is commonly known as the Cassia Gulch Wiod Park and the Tuana
Springs Expansion , is located in Soction Township Range , Boise Meridian,
County,Idaho.
5. That Engineer recognizes that the Agreement provides for the Projec't to fiunish electrical energy
to Idaho Power for a five (5) year period.
6. That Engineer has substantial experieirce in the design, constnrction and operation of elecric
power plants of the sarne t5pe as this Project.
7. That Engineer has no economic relationship to the Design Engineer of this Project.
8. That Engineer has rwiewed and/or supervised the review of the Policy for Operation and
Maintenance ('O&M") forthis Project and it is his professional opinion that, providod said Project has
been designed and built to appropriate standards, adherence to said O&M Policy will result in the
- 40-
Project's producing at or near the design electrical output, efficiency aod plant frctor for a twenty (20)
year period.
9. That Engineer recognizes that Idatro Power, in accordance with paragaph 5.2 of the Agreeme,nt,
is relying on Engineer's represeirtations 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 hand and seal below.
By
(P.E. Stanp)
Date
- 41-
APPENDX C
ENGINEER'S CERTIFICATION
OF
ONGOING OPERATIONS AND MAINTENA}'ICE
The undersigned on behalf of himself and
hereinafter collectively referred to as "Engineer," hereby
states and certilies to the Seller as follows:
1. That Enginwr is a Licensed Pnofessional Engineer in good standing in the State of ldalro.
2. That Engineer has reviewed the Enerry Sales Agreenrent hereinafter "Agreenrent," betwo€rl
Idaho Power as Buyer, and as Seller, dated
3. That the coge,neration or small pow€r production Facility which is the zubject of the Agreemant
and this Stateinent is identified as IPCo Facility No.and hereinafter refbrred to as the
'?roject".
4. That the Project, which is commonly known as the Cassia Gulch Wind Park and the Tuana
Springs Expansion_Project, is located in Section Township Range . Boise
Meridian, County ldaho.
5. That Engineer recognizes that the Agreernent provides for the Project to fumish electrical energy
to Idatro Power for a five (5) year period.
6. That Engineer has substantial experience in the design, construction and operation of electric
power plants of the saure 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 operatiors and maintenance
rmords since the last previous c€rtified inspection. It is Fngineer's professional opinion, 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
- 42-
Projoct will continue producing at or near its design electrical output, efficiency and plant factor for the
rernaining _ years of the Agreement.
9. That Engine€r recognizes that Idatro Power, in accordance with pamgaph 5.2 of the Agreement,
is relying on Engineer's represeirtations and opinions contained in this State,me,nt.
10. That Engineer certifies that the above state,ments are cornplete, tnre and accurate to the best of his
knowledge and therefore sets his hand and seal below.
(P.E. Stamp)
APPENDD( C
ENGINEER'S CERTIFICATION
OF
DESIGN & CONSTRUCTION ADEQUACY
The undersigned on behalf of himself and
hereinafter collectively referred to as "Engine€,r",
hereby states and certifies to Idaho Power as follows:
l. That Eogineer is a Licemsed Professional Engineer in good standing in the State of Idaho.
2. That Engineer has reviewed the Firm Energy Sales Agre€m€Nil, hereinafter "Agre€ment",
betwesr Idaho Power as Buyer, and as Seller, dated ,
3. That the Tr.rana Springs Expansion portion of this Facility which is the zubject of the Agreement
and this Statemeirt is idemtified as a portion of IPCo Facility No.and is hereinafter
referred to as the "Project."
4. That the Project, which is commonly known as the Cassia Gulch Wind Park and the Tuana
Springs Expansiorq is located in Section Township Range , Boise Meridiaq
County, Idaho.
5. That Engineer recognizes that the Agreement provides for the Project to firrnish electrical
e,nergy to Idaho Power for a five (5) year period.
6. That Engineer has substantial experie,nce in the desigrr, constnrction and operation of
electric power plants of the sarne type as this Project.
7. That Engineer has no economic relationship to the Design Engineer of this Pr,oject and
has made the analysis of the plans and specifications independently.
8. That Engineer has reviewed the engineering design and construction of the Projoct,
including the civil worlg electrical worlg generating equipment, prime mover conve)rance system, Seller
fumished lnterconnection Facilities and other Project facilities and equipment.
-4-
9.
applicable
Agreement.
10.That the desigu and constnrction of the Project is such that with reasonable and pntdent
operation and rnaintenance practices by Seller, the Project is capable of perforrring in accordance withthe
terms of the Agreement and with Pnrdent Electrical Practices for a twenty (20) year period.
11. That Engineer recognizes that Idaho Power, in accordance with paragraphS.2 of the
Agreement, in interconnecting the Project with its systenq 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.
(P.E. Stamp)
Date
That the Project has been construc'ted in accordance with said plans and specifications, all
codes and consistent with Prudent Electrical Practices as that term is described in the
By
- 45-
APPENDX D
FORMS OF LIQT.JTD SECT.JRTTY
The Seller shall provide ldaho Power with commercially reasonable security instn:ments such as
Cash Escrow Security, Guarantee or Letter of Credit as those terrrs are defined below or other
forrrs of liquid financial security that would provide readily available cash to Idaho Power to
satisfr the Delay Security requirement within this Agreement.
For the purpose of this Appendix D, the term "Credit Requirements" shall mean acceptable
financial creditworthiness of the entity providing the socurity instnrmcnt in relation to the term of
the obligation in the reasonable judgment of ldatro Power, provided that any guarantee and/or
letter of credit issued by any other entity with a short-term or long-term investnent grade crodit
rating by Standard & Poor's Corporation or Moody's Investor Services, Inc. shall be deerned to
have acceptable financial creditworthiness.
l. Cash Escrow Seurity - Seller shall deposit funds in an escrow account establislred by the
Seller in a banking institution acceptable to both Parties equd to the Delay Security.
2. Guarantee or [rtter of Credit Secuity - Seller shall post and mahtain in an amount equal to
the Delay Security: (a) a guaranty from a party that satisfies the Credit Require,ments, in a
form acceptable to Idaho Power at its discretion, or (b) a trtter of Credit in a form acceptable
to ldaho Power, in favor of ldaho Power. The Letter of Credit will be issued by a financial
institution acceptable to both parties.
- 46-
APPENDD( E
WIND ENERGY PRODUCTION FORECASTING
As specified in Comnission Order 30488, Idatro Power shall make use of a Wind Energy Production
Forecasting model to forecast the e,nergy production from this Facility and other Qualiffing Facility wind
generation resources. Seller and ldaho Power will share the cost of Wind Energy Production Forecasting.
The Facility's share of Wind Energy hoduction Forecasting is determined as specified below. Sellers
share will not be greater than 0. I % of the total enerry payments made to Seller by Idaho Power during the
previous Contract Year.
a. For every month of this Agreement beginning with the fifft full month after
Commission approval of this Agreenrent as specified in Article XXI, the Wind
Energy Production Forecasting Monthly Cost Allocation (MCA) will be due and
payable by the Seller. Any Wind Energy Production Forecasting Monthly Cost
Allocations (MCA) that are not reimbursed to Idaho Power shall be deducted
from energlr payments to the Seller.
o As the value of the 0.1% cap of the Facilities total energy pa)rrn€Nrts will not
be known until the first Contract Year is complete, at the end of the first
Contract Year any prior allocations that exceeded the 0.1% cap shall be
adjusted to reflect the 0.1% cap and if the Facility has paid the monthly
allocations a refund will be included in equal monthly anrounts over the
ensuing Conhact Year. If the Facility has not paid the monthly allocations
the amount due ldaho Power will be adjusted accordingly and the unpaid
balance will be deducted from the ersuing Contract Year's energy payments.
b. During the first Contract Year, as the value of the 0.1% cap of the Facilities total
- 47-
ercrgypayments will not be known until the first Contract Year is complete,
Idaho Power will deduct the Facility's calculated share of the Wind Energy
Production Forecasting costs specified in item d of this section each month
during the first Contract Year and subsequently refirnd any overpaymrent
(payments that exceed the cap) in equal monthly amounts over the eosuing
Contract Year.
The cost allocation fonnula described below will be reviewed and rcvised if
necessary on the last day of any month in which the cumulative MW nanreplato
of wind projects harring Commission approved agreerneirts to deliver energy to
Idaho Power has been revised by an action of the Commission.
d. The monthly cost allocation will be based upon the following formula :
Where: Totel MW ffM\il) is equal to the total nameplate rating of all wind
projects ttrat are under contract to provide €n€rgy to Idatro Power
Cornpany.
Facilitv MW OM\f,) is equal to the nameplate rating of this Facility as
specified in App€ndix B.
Annud lYind Enerw Production Forecasdns Cost (AFCost) is equal
to the total annual cost Idaho Power incurs to provide Wind Energy
Production Forecasting Idaho Power will estimate the AFCost for the
current year based upon the previous y@r's cost and expected costs for
the current year. At year-eird, Idaho Power will compare the actual costs
to the estimated costs and any differeoces between the estimatd AFCost
and the actual AFCost will be included in the next year's AFCost.
Annual Cost Allocation (ACA) = AFCost X (fMW / TMW)
And
Monthly Cost Nlocatton (MCA) = ACA / 12
- 48-
e. The Wind Energy Production Forecasting Monthly Cost Allocation (MCA) is
due and payable to Idaho Power. The MCA will first be nettod against any
monthly energy palm.ents owed to the Seller. If the netting of the MCA against
the monthly energy payments results in a balance being due ldaho Power, the
Facility shall pay this amount within 15 days of the date of the payrneirt invoice.
- 49-
EXHIBIT 5
Article
I
2
3
4
5
6
7
8
9
10
ll
t2
l3
t4
l5
l6
t7
t8
l9
20
2t
22
23
24
25
26
27
28
29
FIRM ENERGY SALES AGREEMENT
BETWEEN
IDAHO POWER COMPA}.IY
AND
'':H:'*ffiXHJ"
TMLE
Definitions
No Reliance on Idaho Power
Warranties
Conditions to Acccptance of Energy
Term and Operation Date
Purchase and Sale of Na Energy
Puchase Price and M€thod of Payment
Environmental Attributes
Facility and Interconnection
Metering and Telemetry
Records
Operations
Indemnifi cation and Insurance
Force Majeure
Liability; Dedication
Several Obligations
Waiver
Choice of Laws and Venue
Disputes and Default
Governmeirtal Authorization
Commissisa Ordef
Successors and Assigns
Modification
Taxes
Notices
Additional Terms and Conditions
Severability
Counterparts
Entire Agreerrent Signatures
ApperdixA
Appendix B
Appendix C
Appendix D
Appcndix E
AppendixF
FIRM ENERGY SALES AGREEMENT
(Greaterthan 100 kW)
Project Name: High Mesa Wind Project
Proiect Number: 3 I 3 I 5 160
THIS AGREEMENT entered into on tni, --.1|(IOuv ot Nooe^ber 2011 between
HIGH MESA ENERGY, LLC ("Selled'), and IDAHO POWER COMPANY, an ldaho corporation
('Idaho Powed'), hereinafter sometimes referred to collectively as "Parties" or individually as "Party."
WITNESSETH:
WHEREAS, Seller will design, construct, own, maintain and operate an electric generation
facility;and
WHEREAS, Seller wishes to sell, and Idaho Power is willing to purchase, frm electric eNrergy
produced by the Seller's Facility (as defined below).
THEREFORE, In consideration of the mutual covenants and agreements hereinafter set forth, the
Parties agree as follows:
ARTICLE I: DEFINTTIONS
As used in this Agreement and the appendices attached hereto, the following terms
shall have the following meanings:
1.1 "Availability Shortfall Pri@" - The current month's Market Energy Reference Price.
I.2 "Busine9g-Dgys" - means any calendar day that is not Saturday, Sunday, New Years Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving, Christmas or any other NERC
recognized holiday.
1.3 "Calculated Net Energ.v Amount" - A monthly estimate, prepared and documented after the fact
by Seller, reviewed and accepted by Idaho Power, that is the calculated monthly maximum
energy deliveries (measured in kWh) for each individud wind turbine, totaled for the Facility to
determine the total energy that the Facility could have delivered to Idaho Power during that
month based upon: (1) each wind turbine's Nameplate Capacity, (2) Sufficient Prime Mover
available for use by each wind turbine during the month, and (3) reductions for: (a) incidents of
Force Majeure, (b) scheduled maintenance, (c) incidents of Forced Outages, (d) my Losses, and
(e) Station Use concurrcnt with generation of Net Energy. If the duration of an event
characterized as item (3) (a), (b) or (c) above (measured on each individual occurrence and
individual wind turbine) lasts for less +han 15 minutes, their the event will not be considered in
this calculation. The Seller shall collect and maintain actual data to support this calculation and
shall keep this data for aminimum of 3 years.
1.4 "C,ogqmiggion" - The Idaho Public Utilities Commission.
1.5 "Contract Yest'' - The period commenci.g each calendar year on the same calendar date as the
Operation Date and ending 364 days thereafter.
1.6 "Delay Liquidated Damages" - Damages payable to Idaho Power as calculated in paragraph 5.3,
5.4, 5.5 and 5.6.
1.7 "Delay_Period" - All days past the Scheduled Operation Date until the earlier of the date (a)
Seller's Facility achieves the Operation Date and (b) this Agreement is terminated in accordance
with paragraph 5.4.
1.8 "Dglgy-Price" - The crrrrent month's Market Energy Reference Price
1.9 "Designated Dispatch FacilW'- Idaho Power's Systems Operations Group, or any subsequent
group designated by ldaho Power.
1.10 "Effective Date" - The date stated in the opening paragraph of this Agreement representing the
date upon which this Agreerneirt was fully executed by both Parties.
l.l I "Environmental Atfributes" means any and all credits, benefits, Ernissions reductions, offsets, and
allowances, howsoever entitled, attributable to the generation from the Facility, and its avoided
emission of pollutants. EnvironmEntal Attributes include but are not limited to: (l) any avoided
emission of pollutants to the air, soil or water such as sulfur oxides (SOx), nitrogen oxides (NOx),
carbon monoxide (CO) and other pollutants; (2) any avoided emissions of carbon dioxide (CO2),
methane (CH4), nihous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride and
-2-
other greenhouse gases (GHGs) that have been determined by the United Nations
Intergovernmental Panel on Climate Change, or otherwise by law, to conhibute to the actual or
potential threat of altering the Earth's climate by trapping heat in the atmosphere; (3) the
reporting rights to these avoided emissions, such as REC Reportrng Rights. REC Reporting
Rights are the right of a REC purchaser to r€,port the ownership of accumulatod RECs in
compliance with federal or state law, if applicable, and to a federal or state agency or any other
party at the REC purchaser's discrction, and include without limitation those REC Reporting
Rights accruing under Section 1605(b) of The Energy Policy Act of 1992 and any preseirt or
future federal, state, or local law, regulation or bill, and intenrational or foreign emissions trading
program. RECs are accumulated on a MWh basis and one REC re,presents the Environmental
Attributes associated with one (1) MWh of Energy. Environmental Attributes do not include o
any energy, capacrty, reliability or other power attributes from the Facility or (ii) Other
Attributes.
l.l2 "Environmeirtd Attribute Replacement Value" - means a) for the first 120 full calendar months
after the First Energy Date the lesser of $ I 5 per MWh or the documented value of the affected
Party's lost RECs, expressed in dollars per MWh or b) for all other months during the Term of
this Agreement the lesser of $ I 5 escalated by 2o/o for each Contract Year beginning with the I I 6
Contract Year or the docume'nted value of the affected Party's lost RECs, expressed in dollars per
MWh.
l.l3 ((@" - That electric generation facility described in Appendix B of this Agreement.
l.14 "First Eners.v Date" - The day commencing at 00:01 hours, Mountain Time, following the day
that Seller has satisfied the requirements of Article IV and the Seller begins delivering eoergy to
the ldaho Power electrical system at the Point of Delivery.
l.l5 "Eorcgd-Qutagg" - a partial or total reduction of a) the Facility's capacity to produce and/or
deliver Net Energy to the Point of Delivery, or b) Idaho Power's ability to acc€pt Net Energy at
the Point of Delivery for non-economic reasons, as a result of ldaho Power or Facility: l)
equipment failure which was gg! the result of negligence or lack of preventative maintenance, or
-3-
2) responding to a tansmission provider curtailment ord€r, or 3) unplanned preventative
maintenance to repair equipment that left unrepaird, would result in failure of equipment prior
to the planned maintenance period, or 4) planned maintenance or construction of the Facility or
electrical lines required to serve this Facility or 5) if ldatro Power determines that curtailment,
intemrption or reduction of Net Energy deliveries is necessary because of line construction,
electrical system maintenance requirEments, or electrical slntem reliability emergencies on its
systern, as allowed within the GIA. The Parties shall make commercially reasonable efforts to
perform "nplanned preventative maint€nance during perids of low wind availability.
1.16 "Generator Interconnection Agreement" or GIA" - The Generator Interconnection Agreement is
the intersonnection agreement completed and executed by the Parties.
l.l7 "Generator Interconnection Process" - Idaho Power's generation interconnection application and
engineering review process developed to ensure a safe and reliable generation interconnection in
compliance with all applicable regulatory requirenre'nts, Pnrdent Electrical Practices and national
safety standards. Completion of this process results in a Generator Interconnection Agreernent.
l.l8 "Hggtry,J,od_@" - The daily hours beginning at 7:00 am, ending at I l:00 pm Mountain
Time, (16 hours) excluding all hours on all Sundays, New Years Day, Meinorial Day,
Independence Day, LaborDay, Thanksgiving and Christmas.
I .1 9 "Licht Load Hours" - The daily houn trginning at I I :00 pm, ending at 7:00 am Mountain Time
(8 hours), plus all otherhours on all Sundays, New Years Day, Memorial Day, Indepe,ndence
Day, Labor Day, Thanksglving and Christmas.
1.20 "Losses" - The loss of electrical energy expressed in kilowatt hours ftWh) occurring as a result
of the transformation and transmission of energy between the Metering Point and the Point of
Delivery. The calculation formula for such Losses will be as specified in Appendix B of this
Agreement.
l.2l "Market Enersy Reference Price" - Eighty-five perce,nt (85olo) of the Mid4olumbia Market
Energy Cost.
l-22 "Material Breach" - A Default (paragraph 19.2.1) subject to paragraph 19.2.2.
1.23 "Ma{mum Capacity Amount" - The maximum capacity (MW) of the Facility will be as
specified in Appendix B of this Agreement.
1.24 "Mechanical Availability" - The percentage amount calculated by Seller within 5 days after the
end of each month of the Facility's monthly actual Net Energy divided by the Facility's
Calculated Net Energy Amount for the applicable month. Any damages due as a result of the
Seller falling short of the Mechanical Availability Guarantee for each month shall be determined
in accordance with paragraph 6.4.4.
1.25 "Mechanical Availability Guarantee" shall be as defined in paragraph 6.4.
l-26 "Metering lqglpsqen!" - That equipment specified in the GLA required to measure, record and
telemeter bi-directional power flows between the Sellels Facility and Idaho Power's system at
the Point of Delivery.
1.27 "Metefigq Point'- The physical point at which certain Metering Equipment is locatedto cnable
accurate measurement of bidirectional power flows required to determine Net Energy and
Surplus Energy for this Facility that provides all necessary data to administ€r this Agreement.
1.28 "Mid- Columbia Market Enqry ' - The monthly weighted average of the daily on-peak and
off-peak Dow Jones Mid{olumbia lodex (Dow Jones Mid-C Index) prices for actual occurring
non-firm energy transactions as reported by Dow Jones. If the Dow Jones Mid{olumbia Index
price is discontinued by the reporting agency, both Parties will mutually agroe upon a
replacement index, which is similar to the Dow Jones Mid{olumbia Index. The selected
replacernent index will be consistent with other similar agreements and a commonly used index
by the electrical industry.
1.29 "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 transformers and circuit
breakers, under standardized conditions, expressed in amperes, kilovolt-amperes, kilowatts, volts
or otler appropriate units. Usually indicated on a na:neplate attached to the individual machine
or device.
-5-
1.30
1.31
1.32
"Net Egerg" - All of the electric €nergy produced by the Facility, less Station Use, less Losses,
expressed in kilowatt hours (kWh) delivered to ldaho Power at the Point of Delivery.
"Ooeration Date" - The day commencing at 00:01 hours, Mountain Time, following the day that
all requirements of paragraph 5.2 have been complaed.
"Qlber_Attribglgg" - means (i) production tar credits associated with the construction or
operation of the Facility and other financial incentives in the form of credits, reductions, or
allowances associated with the Facility that arc applicable to a stat€ or federal income taxation
obligation, (ii) the cash grant in lieu of the investment tax credit pursuant to Section 1603 of the
American Recovery and Reinvestment Act of 2009, and/or (iii) emission reduction credits
encumbered or used by the Facility for compliance with local, state, or fede,ral operating and/or
air quality permits.
1.33 *Point of Delive(y''- The point on the Idaho Power electrical system where the Facility delivers
the Net Energy to Idaho Power. This point is defind within the GIA and further described in
Appendix B of this Agreement.
1.34 "Prudent Electrical Practices" * Those practices, methods and equipment that are commonly and
ordinarily usod in electrical engineering and operations to op€rate electric quipment lawfully,
safely, dependably, effrciently and economically.
1.35 *gfg'- The Production Tax Cr€dits applicable to electricity produced from certain renewable
resources pursuant to 26 U.S.C. $ 45, or replacement or substitute tax benefits based on energy
production from the Facility.
I .36 "Efe_Value" - If the Seller elects to receive PTCs for the Facility, ao amount equal to: (a) the
PTCs to which Seller would have been entitled with respect to renewable energy (i) it is unable to
deliver because of an Idaho Power event of default, or (ii) that ldaho Power fails to receive and
such failure is not excused by the terrrs of this Agreement; plus (b) a "gross up" amount to take
into account the federal, state and local income tax to Seller on such pa)rments in lieu of PTCs, so
that the net amount retained by Seller, after payment of Heral, state and local income taxes, is
equal to the amount set forth in clause (a) of this definition. For purposes 6f detemrining the
foregoing, Seller shall deliver a certificate from an offrcer of Seller stating the corporate income
tax rates (federal, state or local, as applicable) that arre in effect for the Seller during the tax year
in which the receipt of such PTC Value is taxed, and such income tax rates shall be used in the
calculation of the PTC Value. If the Seller does not elect to receive PTC's for this Facility, the
PTC Value shall be zero (0).
1.37 "Oualiffing Facilitt''has the_meaning assigned such term in l8 CFR 292.201et seq, on the
Effective Date of this Agreement.
1.38 "Renewable Energrv Certificate" or "RE" means a certificate, q€dit, allowance, gleen tag, or
other transferable indicia, howsoever entitled, indicating generation of renewable energy by the
Facility, and includes all Environmental Attributes arising as a result of the generation of
electricity associated with the REC. One REC represents the Environmental Attributes associated
with the generation of one thousand (1,000) kWh of Net Energy.
1.39 "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.
1.40 ".Sta!io|ruse''- Electric energy that is used to operate equipment that is auxiliary or otherwise
related to the production of electricrty by the Facility.
l.4l "Sufficient Prime Mover" means wind speed that is (l) equal to or greater than the generation
unit's manufacturer-specified minimum levels required for the generation unit to produce en€trgy,
and (2) equal to or less than the generation unit's manufacturer-specified maximum levels at
which the generation unit can safely produce energy.
1.42 "Surplus Eoergy" - 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.
I.43 "Total Cost of the Facility" - The total cost of structures, equipment and appurte,nances.
-7-
2.t
2.2
3.1
3.2
1.44 "Wind Energv Production Forc " - A forecast of energy deliveries from this Facility provided
by an ldaho Power administered wind forecasting model. The Facility shall be responsible for an
allocated portion of the total costs of the forecasting model as specified in Appendix E.
ARTICLE II: NO RELIANCE ON IDAHO POWER
Seller Independent Investieation - Seller warrants and represents to Idaho Power that in entering
into this Agreement and the undertaking by Seller of the obligations set forth herein, Seller has
investigated and determined that it is capable of performing hereunder and has not relied upon
the advice, experience or expertise of Idaho Power, other than in accordance with the Genef,ator
Interconnection Process.
Seller Indeoendent Experts - All professionals or experts including but not limited to, engineers,
attorneys or accountants, that Seller may have consulted or relied on in undertaking the
transactions contemplated by this Agreement have been solely those of Seller, other than in
accordance with the Generator Interconnection hocess.
ARTICLE III WARRANTIES
No Warranty by ldaho Power - Any review, acceptance or failue to review Seller's design,
specifications, equipment or facilities shall not be an endorsement or a confirmation by Idaho
Power and ldaho Power makes no warranties, expressed s1 implie{ regarding any aspect of
Seller's design, specifications, equipment or facilities, including, but not limited to, safety,
durability, reliability, strength, capacity, adequacy or economic feasibility.
Ouali&ing Facility Status - Seller warrants that the Facility will self-certiff itself to the Federal
Energy Regulatory Commission as a Qualiffing Facility prior to the First Energy Date. After
initial qualification, Seller will take such steps as may be required to maintain the Facility's
Quali&ing Facility status during the term of this Agreement and Seller's failure to maintain
Qualiffing Facility status will be a Material Breach of this Agreement. ldaho Power reserves the
right to review the Facility's Qualifuing Facility status and associated support and compliance
documents at anytime during the term of this Agreement. Seller responses to any such review
4.1
requests may substitute citations to available public records forphysical copies.
ARTICLE IV: CONDITIONS TO ACCEPTANCE OF ENERGY
Prior to the First Energy Date and as a condition of Idaho Power's acceptance of deliveries of
energy from the Seller under this Agreement, Seller shall:
4.1.1 Submit proof to ldaho Power that all licenses, permits or approvals nocessary for Seller's
operations have been obtained from applicable federal, state or local authorities,
including, but not limited to, evidence of compliance with Subpart B, 18 CFR 292.201 et
seq. as a ceftified or self-certified Qualiffing Facility.
4.1.2 Opinion of Counsel - Submit to Idaho Power an Opinion lrtter signed by an attonrey
admitted to practice and in good standing in the State of ldaho providing an opinion that
Seller's licenses, permits and apprcvals as set forth in paragraph 4.1.1 above are legally
and validly issue{ are held in the name of the Seller and, based on a reasonable
independent review, counsel is of the opinion that Seller is in substantial compliance with
said permits as of the date of the Opinion Letter. The Opinion lrtter will be in a form
acceptable to Idaho Power and will acknowledge that the attorney rendering the opinion
understands that ldaho Power is relying on said opinion. Idaho Power's acceptance of the
form will not be unreasonably withheld. The Opinion lrtter will be governed by and
shall be interpreted in accordance with the legal opinion accord of the American Bar
Association Section of Business Law (1991).
4.1.3 Name,plate Caoacity - Submit to Idaho Power the wind turbine manufacturer's
documentation that establishes the Nameplate Capacity of each individual generation unit
that is included within the entire Facility and the aggregate total of all individual
Nameplate ratings to establish the Facility Nameplate Capacity rating. Upon receipt of
this data, Idaho Power shall review the provided data and determine if the Nameplate
Capacity specified is reasonable based upon the manufacturer's specified generation
ratings for the specific generation units.
-9-
5.1
5.2
4.1.4 Mechanical Completion Certificate - Submit to ldaho Power a copy of the Mechanical
Completion Certificate provided by the wind turbine manufacturer or conffactor for the
Facility for each wind turbine prior to the start of commissioning for such wind ttrbine.
4.1.5 Insurance - Submit written proof to Idaho Power of all insurance required in Article XItr.
4.1.6 Interconnection - Provide written confirmation from ldaho Pow€r's delivery business
unit that Seller has satisfied all interconnection requirements as specified within the GIA.
4.1.7 Written Accelrtance - Request and obtain written confirmation from Idaho Power that all
conditions to acc€ptance of energy have been fulfilled. Such written confirmation shall be
provided within a commercially reasonable time following the Seller's r€quest and will
not be unreasonably witbheld by Idaho Power.
ARTICLE V: TERM AND OPERATION DATE
Term - Subject to the provisions of paragraph 5.2 below, this Agreement shall become effective
on the date first written and shall continue in full force and effect for a period of twenty (20)
Contract Years.
Operation Date - The Operation Date may occur only after the Facility has achieved all of the
following:
a) Achieved the First Energy Date.
b) Commission ap,proval of this Agreernent in a fonn acceptable to Idaho Power and
Seller has been received, such acceptances not to be unreasonably withheld.
c) Seller has submitted an acceptable executed Engineer's Certification of Design &
Construstion Adequacy and an Engineet's Certification of Operations and
Maintenance (O&M) Policy as described in Commission Order No.21690. These
certificates will be in the form specified in Appendix C but may be modified to the
ext€xrt necessary to recognize the different engineering disciplines providing the
certificates.
-10-
5.3
d) Seller shall provide evidence that a Nameplate Capacity for the Facility of not less
than thirty-six (36) MW has been installed and all testing has been completed and is
available for commercial operations.
e) Seller has demonstrated to Idaho Power's satisfaction that the Facility is complete and
able to provide energy in a consistent, reliable and safe manner.
f) Seller has requested an Operation Date from Idaho Power in a written format.
g) Seller has received written confirmation from ldaho Power of the Operation Date.
This confirmation will not be unreasonably withheld by Idaho Power. Upon wriuen
confirmation being delivered from ldaho Power, the Facility may not revise the
Facility Nameplate Capacity without mutual agreement by both parties.
Operation Date Delay - Seller shall cause the Facility to achieve the Operation Date on or before
the Scheduled Operation Date. Delays in the interconnection and transmission network upgrade
study, design and construction process that are not Force Majeure events accepted by both
Parties, shall not prevent Delay Liquidated Damages from being due and owing as calculated in
accordance with this Agreernent. Seller shall not be responsible or liable for a delay in
perfomtance of its obligation to achieve the Operation Date by the Scheduled Operation Date due
to Force Majeure events.
5.3.1 If the Operation Date o€curs after the Scheduled Operation Date but on or prior to ninety
(90) days following the Scheduled Operation Date, Seller shall pay Idaho Power any
Delay Liquidated Damages calculated at the end of each calendar month after the
Scheduled Operation Date as follows:
Delay Liquidatd Darnages are equal to ((Initial Year Monthly Net Energy
Amount as specified in paragraph 6.2.1 divided by the number of days in the
currcnt month) multiplied by the number of days of the Delay Period occurring in
the current month), minus any Net Energy delivered during the portion of Delay
Period occurring in such month, multiplied by the current month's Delay Price.
-t l-
5.4
5.5
5.6
5.7
5.3.2 If the Operation Date does not occur withln ninety (90) days following the Scheduled
Operation Date, the Seller shall pay Idaho Power Delay Liquidated Damages, in addition
to those provided in paragraph 5.3.1, calculated as follows:
Forty five dollars ($45) multiplied by the Maximum Capacity with the Maximum
Capacrty being measured in kW.
Idaho Power may provide written notice to Seller of an event of Default under paragraph 19.2.1
of this Agreement, provided Seller fails to achieve the Operation Date within ninety (90) days
following the Scheduled Operation Date. Additional Delay Liquidated Damages beyond those
calculated in 5.3.1 and 5.3.2 will be calculated using the flelay Liquidated Damage calculation
described in 5.3.1 above for all days exceeding 90 days past the Scheduled Operation Date.
Seller shall pay Idaho Power any calculated due and payable Delay Liquidated Damages within 7
days of when Idaho Power calculates and presents such Delay Liquidated Damages billings to the
Seller. Seller's failure to pay these damages within the specified time will be a Material Breach
of this Agreement and Idaho Power shall draw funds from the Delay Security provided by the
Seller in an amount equal to the calculated Delay Liquidated Damages.
The Parties agree that the damages ldaho Power would incur due to delay in the Facility
achieving the Operation Date on or before the Scheduled Operation Date would be difficult or
impossible to predict with certainty, and that the Delay Liquidated Damages ar€ an appropriate
approximation of such damages.
By executing this Agreement, the Parties acknowledge and agree:
a) Seller has applied for Network Resource Interconnection Service as defined in the Idaho
Power Generation lnterrconnection Process and the associated firm transmission service
that will result in the Facility having a Network Resource Designation (*NRD") and
Seller accepts responsibility to maintain compliance with all payments and requirerne,nts
of the ldaho Power Generator Interconnection Process.
b) Seller is responsible for the actual costs to establislr, operate, and maintain the Facility's
interconnection in accordance with the GIA.
-12-
5.8
c) Upon execution of this Agreement, and with Seller's commorcially reasonable
cooperation, Idaho Power shall rcquest and maintain the Facility's Network Resource
Designation, as defined in Idaho Power's Open Access Transmission Tariff, for the
Nameplate Capacity of the Facility.
d) Seller shall be responsible to pay to tdaho Power one hundred percent (100%) of the
actual cost of the nawork transmission upgrades required to establish the Facility as a
Network Resource with firrn transmission service in accordance with the GLA.
Within thirty (30) days of the date of a final non-appealable Commission Order as specified in
Article XXI approving this Agreement; the Seller shall post liquid security ("Delay Security'') in
a form as described in Appendix D equal to or exceeding the amount calculated in paragraph
5.8.1. Failure to post this Delay Security in the time specified above will be a Material Breach of
this Agreement and Idaho Power may terminate this Agreement if Seller does not cure such
Material Breach within five (5) business days of receipt from Idaho Power of written notice of its
intent to terminate this Agreement.
5.8.1 Delay Security - Forty five dollars ($45) multiplied by the Maximum Capacity with the
Maximum Capacity being measured in kW.
5.8.1.1 In the event Seller provides ldaho Power with certification that (l) a generation
interconnertion agreement specifring a schedule that will enable this Facility to
achieve the Operation Date no later than 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 ofinterconnection 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 5.8.1 will
be reduced by ten perceot (l0o/o).
5.8.1.2 If the Seller has received a reduction in the calculated Delay Security as specified
in paragraph 5.8.1.1 and subsequently, (l) at Seller's request, the generation
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interconnection agreement specified in paragraph 5.8.1.1 is revised and as a
result the Facility will 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 Security as calculated in
paragraph 5.8.1 will be subject to reinstatement and will be due and owing within
five (5) Business Days from the date ldaho Power requests reinstatement.
Faihue to timely reinstate the Delay Security will be a Material Breach of this
Agreement.
5.8.2 Idaho Power shall release any remaining secudty posted hereunder after all calculated
Delay Liquidated Damages are paid in full to ldaho Power and the earlier of, 1) thirty
(30) days after the Operation Date has been achievd or 2) sixty (60) days after the
Agreement has been terminatod.
5.9 Proeress Reports - Within ten (10) Business Days after the end of each calendar month following
the Effective Date until the Operation Date is achieved, Seller shall submit progr€ss r€ports to
Idaho Power on the development and construction of the Facility.
5.10 Partial Completion Damages - If, within twelve calendar months following the Operation Date,
the Nameplate Capacity established pursuant to paragraph 5.2(d) is less than thirry-six (36) MW,
then daqages of $10,000 for each whole MW less than thirty-six (36) will be calculated and paid
to Idaho Power.
ARTICLE VT: PURCHASE AND SALE OF NET ENERGY
Delivery and Acceptance of Net Enerey - Except when either Party's performance is excused as
provided herein, ldaho Power will purchase and Seller will sell all of the Net Energy to Idaho
Power at the Point of Delivery. Net Energy produced by the Facility and delivered by the Seller
at any moment in time to the Point of Delivery that exceeds the Maximum Capacity Amount will
constitute a Material Breach of this Agreement.
Net EnErgv Amounts - Seller intends to produce and deliver Net Energy in the following monthly
amounts. These amounts shall be consistent with the Mechanical Availability Guarantee.
-t4-
6.1
6.2.1 lnitial Year Monthly Net Energy Amounts:
Month kwh
6.3
Ig"rs 7,434,580
February
March-Adi 9,446,410
May
7!7.ilJ_
June-J.V"_**.-?",719,911
Unless excused by an event of Force Majeure, Seller's failtre to deliver Net Energy in any
Contract Year in an amount equal to at least ten percent (l0o/o) of the sum of the tnitial Year
Monthly Net Energy Amounts as specified in paragraph 6.2.1 shall constitute an event of default.
Mechanical Availabilitv Guarantee - After the Operational Date has been establishe4 the Facility
shall achieve a minimum monthly Mechanical Availability of 85Yo for the Facility for each month
during the full terrn of this Agreement (the *Mechanical Availability Guarantee"). Failure to
achieve the Mechanical Availabillty Guarantee shall result in Idaho Power calculating damages as
specified in paragraph 6.4.4.
6.4.L Seller shall provide, within five (5) business days following any full calendar month
during the Term of this Agreement, a Monthly Power Production and Availability Report
(Appendix A) and Seller shall provide and certiff with such report the calculatiou of the
Facility's curr€,rt month's Mechanical Availability. The Seller shall include a summary of
all information used to calculate the Calculated Net Energy Amount including but not
limited to: (a) Forced Outages, (b) Force Majeure events, (c) wind speeds and the impact
on generation output, and (c) scheduled maintenance and Shtion Use information.
6.4.2 The Seller shall maintain and retain for three years detailed documEntation supporting the
monthly calculation of the Facility's Mechanical Availability.
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7.1
6.4.3 Idaho Power shall have the right to review and audit the documentation supporting the
calculation of the Facility's Mechanical Availability at reasonable times at the Seller's
offices.
6-4.4 If the current month's Mechanical Availability is less than the Mechanical Availability
Guarantee, damages shall be equal to:
a. During the first 120 calendar months after the First EnerEy Date - (85
percent of the month's Calculated Net Energy Amount) minus the month's
actual Net Energy deliveries) multiplied by the Availability Shortfall Price.
b. After the end of l20h calendar month after the First Energy Date - (85
percent of the month's Calculated Net Energy Amoun| minus the month's
actual Net Energy deliveries) multiplied by the Availability Shortfall hice
plus ((85 percent of the month's Calculated Net Energy Amount) minus the
month's actual Net Energy deliveries) multiplied by the Environmental
Athibute Replacement Value.
6.4.5 Any damages calculated in paragraph 6.4.4 will be offset against the current monthos
energy payment. If an unpaid balance remains after the damages are offset against the
energy palment, the Seller shall pay in full the remaining balance within thirty (30) days
of the date of the invoice.
ARTICLE Vtr: PI.JRCHASE PRTCE AND METHOD OF PAYMENT
Heaw load Purchase Price - For all Net Energy received during Heavy [,oad Hours,
Idaho Power will pay the non-levelized Heavy load Purchase Price as specified in Appendix F.
Lisht Load tbrchase Price - For all Net Energy received during Ligbt toad Hours, Idaho Power
will pay the non-levelized Light Load Purchase Price as specified in Appendix F.
Sumlus Energy Price - For all Surplus Energy, Idatro Power shall pay to the Seller the current
month's Market Energy Reference Price or Light Ioad Purchase Price, whichever is lower.
Pavmsnt Due Date - Undisputed payments for Net Energy, less the Wind Energy Production
Forecasting Monthly Cost Allocation (MCA) described in Appendix E, and any other payments
-16-
7.2
7.3
7.4
7.5
due ld,ho Power, will be disbursed to the Seller within thirty (30) days of the date which Idaho
Power receives and accepts the Monthly Power Production and Availability Report required by
paragraph 6.4.1.
Continuine Jurisdiction of the Commission.This Agreement is a special contract and, as such, the
rates, terms and conditions contained in this Agreernent will be construed in accordance with
Idaho Power Company v. Idaho Public Utilities Commission and Afton Energy.Inc., 107 tdaho
781, 693 P.zd 427 (1984), Idaho Power Company v. Idaho Public Utilities Commissioq 107
Idaho I122,695 P.2d I 261 (1985), Afton Energy. Inc. v. Idaho Power Company. l l l Idaho 925,
729 P.zd 400 (1986), Section 210 of the Public Utility Regulatory Policies Act of 1978 and 18
cFR $292.303-308.
ARTICLE VItr: ENVIRONMENTAL ATTRIBUTES
The Parties agree that Seller owns the RECs and other Environmental Atfiibutes directly
associated with the production of energy from the Seller's Facility sold to ldaho Power, or
otherwise associated with the Facility, for 120 calendar months following the month in which the
First Energy Date occurs.
The Parties agree that ldaho Power owns the RECs and other Environmental Athibutes directly
associated with the production of energy from the Sellet's Facility sold to ldaho Power, or
otherwise associated with the Facility, for the balance of the Term of this Agreement following
the end of the l20th calendar month following the month in which the First Energy Date occurs.
Title of Environmental Attributes shall pass to Idaho Power at the same time that hansfer of title
of the associated Net Energy to [daho Power occurs.
If after the Effective Date any additional Environmental Attributes or similar environmental value
is created by legislation, regulation, or any other action, insluding but not limited to, carbon
credits and carbon offsets, the parties shall retain ownership of these additional items in the same
ownership manner as Environmental Attributes as specified in paragraphs 8.1 and 8.2.
8.1
8.2
8.3
-t7-
8.4
8.5
Seller shall use prudent and commercially reasonable efforts to ensure that any operations of the
Facility do not jeopardize the current or future Environmental Attribute status of the Facility.
The Parties shall cooperate to ensure that all Environmental Attribute certifications, rights and
reporting requirements are completed by the responsible Parties.
8.5.1 No later than the end of the 10ft Contract Year, the Parties shall mutually cooperate to
enable Idaho Power's Environmental Attributes from this Facility to be placed into Idaho
Power's WREGIS account or any other Environment Attribute accormting and tracking
system selected by Idaho Power. The Seller at the Seller's sole expense will be
responsible to establish and maintain the Seller's WREGIS or other Environmental
Attribute account and/or system that enables the creation of the Environmental Attribute
certificates associated with the Facility and the transfer of the Environmental Attributes
to ldaho Power as specified within this Agreement. If the Environmental Attribute
accounting and tracking system initially selected by Idaho Power is materially altered or
discontinud during the Term of this Agreement, the Parties shall coope,rate to identift an
appropriate altemative Environmental Attribute accounting and tracking process and
enable the Environmental Attributes be processed through this alternative method.
8.5.2 Each Party shall only report under Section 16050) of the Energy Policy Act of 1992 or
under any applicable program the Environmental Attributes that such party owns and
shall refrain ftom reporting the Environmental Attributes owned by the other Party.
8.5.3 If tdaho Power requests additional Environmental Athibute certifications beyond what is
provided by the WRECIS pnocess the Seller shall obtain any Environmental Attribute
certifications required by Idaho Power for those Environmental Attributes delivered to Idaho
Power from the Seller. [f the Seller incurs cost, as a result of ldaho Power's request, Seller shall
invoice Idaho Power for the reasonable costs of providing such certification. If Idaho Power
elec.ts to obtain its own certifications, Seller shall fully cooperate with Idaho Power in obtaining
such certification.
-18-
9.1
9.2
ARTICLE D(: FACILTTY AND INTERCONNECTION
Desien of Facili8 - Seller will design, construc! install, own, operate and maintain the Facility
and any Seller-owned interconnection facilities so as to allow safe and reliable generation and
delivery of Net Energy to the Idaho Power Point of Delivery for the full term of the Agreement.
Winddata
9.2.1 Historical wind data - Within sixty (60) days after Commission approval of this
Agreement, the Seller shall provide Idaho Power with the following:
a) Historical wind data in an electronic format from the proposed Facility site or for
a location within two miles of the Facility site.
b) A third party wind assessment study report used by Seller to value inveshnent in
the Facility.
9.2.2 No later than 30 days prior to the First Energy Date, the Seller shall have either:
a) Erected at the site at least one (l) high gualrty, approximate hub-height (plus or
minus 20 meters), permanent, meteorological wind measurement tower(s) at
location(s) on the site equipped with:
(i) Two (2) anemometers per tower;
(ii) Two (2) air temperature sensors per tower;
(iii) One (l ) barometric pr€ssure sensor (with DCP sensor); and
(iv) Two (2) wind vanes per tower, or
b) Arranged to provide ldaho Power approximate hub-height wind speed, wind
direction, air temperature, barometric pressure, and data from a meteorological
wind measurement tower within two miles of the Facility site.
9.2.3 The wind sensors and air temperature sensors n 9.3.2 (a) above shall be set at two (2)
height locations from ground level with one as close to hub height as is reasonable. All
equipment shall provide reasonably accurate m@surem€nt of wind data. The Seller will
install at its expense the nocessary equipment to a) make this meteorological data
electronically accessible or b) electronically transmittd along with the total Facility
-19-
l0.l
capacity available to run, refreshed a minimum of once per hour, to Idaho Power or a
designee of Idaho Power in a method and form reasonably acceptable to Idaho Power and
in accordance with Prudent Electrical Fractices. Facility availability status shall be
provided as described above beginning no later than with the calendar month following
the month of the Operation Date. Failure by the Seller to operate and maintain this
equipment to provide such meteorological and turbine availability data in a mannerto
provide reasonably accurate and dependable data for the full term of this Agreement shall
be an event of Default under paragraph 19.2.1 .
9.2.4 Seller shall submit to ldaho Power Seller's technical specifications for such meteorological
tower(s) along with a site plan showing the location of the towe(s), project layout with turbine
locations, and the wind rose for the site.
ARTICLE X: METERING AND TELEMETRY
Meterine - Idaho Power shall, forthe account of Seller, provide, install, and maintain Metering
Equipment in accordance with the GIA. The Metering Equipment will be at the location and the
tlpe required to measure, record and rcport the Facility's Net Energy, Station Use, and ma:rimum
energy deliveries (kW) at the Point of Delivery in a manner to provide ldaho Power adequate
energy measurement data to administer this Agreement and to integrate this Facility's energy
production into the ldaho Power electrical system.
Telemetry - Idaho Power will install, operate and maintain at Seller's expense communications
and telemetry equipment which will be capable of providing Idaho Power with continuous
instantaneous telemetry of Selleds Net Energy produced and delivered to the ldaho Power Point
of Delivery to ldaho Powe/s Designated Dispatch Facility.
ARTICLE XI - RECORDS
Maintenance of Records - Seller shall maintain at the Facility or such other location mutually
acc€ptable to the Parties adequate total generation, Net Energy, Station Use, and maximum
t0.2
I l.l
a0-
generation (kW) records in a form and content acceptable to Idaho Power, such acceptance not to
be unreasonably withheld.
ll.2 Inspection - Either Party, after reasonable notice to the other Party, shall have the right, during
nomnl business hours, to inspect and audit any of the records specified in paragraph I l.l.
ARTICLE Xtr: OPERATIONS
l2.l Communications - Idaho Power and the Seller
communications through Idaho Power's Designated
Appendix A of this Agreement.
12 .2 Enerry Acceotance -
shall maintain appropriate operating
Dispatch Facility in accordance with
12.2.1 Idaho Power shall be excused from accepting and payrng for Net 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, Forced Outage or
temporary disconnection of the Facility in accordance with the GLA. If, for reasons other
than an event of Force Majeure or a Forced Outage initiated by or at the request of tdaho
Power, a temporary disconnection as specified within the GIA exceeds twenty (20) days,
beginning with the twenty-first day of such interruption, curtailment or reduction, Seller
will be deemed to be delivering the Net Energy the Facility would have delivered based
on the Facility availability, wind turbine manufacturer's power cuwe, and wind speeds
during such intemrption, curtailment or reduction, as determined and documented by
Seller and acce,pted by Idaho Power as a reasonable calculation of lost energy production.
Idaho Power will pay Seller the sum of the applicable energy price in paragraph 7.1 or
7.2, plus the Environrnental Attribute Replacement Value (if such curtaiLnent occurs
prior to the end of the 120h calendar month after the First Energy Date), plus the PTC
Value for each MWh of deemed delivered Net Energy. Idaho Power will notiff Seller
when the intemrption, curtailment or reduction is terminated.
12.2.2 If, in the reasonable opinion of ldaho Power, Seller's operation of the Facility is unsafe or
may othenvise adversely affect Idaho Power's equipment, personnel or senrice to its
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12.3
customers, Idaho Power may ternporarily disconnect the Facility from Idaho Powerns
transmission/distribution system as specified within the GIA or take such other
reasonable st€,ps as Idaho Power deems ap,propriate.
12.2.3 Under no circumstances will the Seller deliver Net Energy from the Facility to the Point
of Delivery in an amount that exceeds the Maximum Capacrty Amount at any moment in
time. Seller's failure to limit deliveries to the Maximum Capacity Amount will be a
Material Breach of this Agreement.
12.2.4 If Idaho Power is unable to accept the energy from this Facility and is not excused from
accepting the Facility's energy, r'nless otherwise provided in this Agreement, Idaho
Power's damages shall be limitd to the value of the estimated Net Energy,
Environmental Attribute Re,place,ment Value, and PTC Value all values being determinod
based on the pricing in this Agreernent. In this calculation, the estimated Net Energy
during the period that ldaho Power was unable to accept the Net Energy, is dee,med to be
the Net Energy the Facility would have delivered based on the Facility's available
capacity, wind turbine manufacfirer's power cunr'e, and actual wind speeds. Idaho
Power will have no responsibility to pay for any other costs, lost revenue or
consequential damages the Facility may incur.
Scheduled Maintenance - On or before January 31st of each calendar year, Seller shall submit a
written proposed maintenance schedule of significant Facility maintenance for that calendar year
and Idaho Power and Seller shall mutually agree as to the acceptability of the proposed schedule.
The Parties determination as to the acceptability of the Seller's timetable for scheduled
maintenance will take into consideration Pnrdent Electrical Practices, Idaho Power system
requirements and the Seller's preferred schedule. Neither Party shall unreasonably withhold
acceptance of the proposed maintenance schedule.
Maintenance Coordination - The Seller and ldaho Power shall, to the extent practical, coordinate
their respective line and Facility maintenance schedules such that they occur simultaneously.
t2.4
-22-
12.5 Contact Prior to Curtailment - Idaho Power will make a reasonable att€mpt to contact the Seller
prior to exercising its rights to intemrpt interconnection or curtail deliveries from the Seller's
Facility. Seller understands that in the case of emergency circumstances, real time operations of
the electrical system, and/or unplanned events, Idaho Power may not be able to provide notice to
the Seller prior to interruption, curtailment, or reduction of electrical energy deliveries to
Idaho Power.
ARTICLE XItr: INDEMNIFICATION AND INSI.]RANCE
l3.l Indemnification - Each Party shall agree to hold harmless and to indemniry the other Party, its
officets, agents, affiliates, subsidiaries, parcnt company and employees against all loss, damage,
expense and liability to third persons for rqiury to or death of person or injury to property,
proximately caused by the indemniffing Party's (a) constnrction, ownership, operation or
mainterrance of, or by failure of, any of such Party's works or facilities used in connection with
this Agreement, or (b) negligent or intentional acts, errors or omissions. The indenmifinng Party
shall, on the other Party's request, defend any suit asserting a claim covered by this indemnity.
The indemni$ing Party shall pay all documented costs, including reasonable attomey fees that
may be incurred by the other Party in enforcing this indemnity.
13.2 lnsurance - During the term of this Agreement, Seller shall secure and continuously carry the
following insurance coverage:
13.2.1 Comprehensive general liability insurance for both bodily injury and property damage
with limits equal to $1,000,000, each occurrence, combined single limit. The deductible
for such insurance shall be consistent with current insurance industry utility 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 naming 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 limits of liability
-23-
13.3
13.4
reduced without ten (10) days' prior written notice to Idatro Power.
Seller to Provide Certificate of Insurance - As required in paragraph 4.1.5 herein and annually
thereafter, Seller shall fumish ldaho Power a certificate of insurance, together with the
endorsements requircd therein, evidencing the coverage as set forth above.
Seller to Notifr ldaho Power of Ioss of Coveraee - If the insurance coverage required by
paragraph 13.2 shall lapse for any reason, Seller will immediately notiff ldaho Power in writing.
The notice will advise Idaho Power of the specific reason for the lapse and the steps Seller is
taking to reinstate the coverage. Failure to provide this notice and to expeditiously reinstate or
replace the coverage will constitute a Material Breach of this Agreement.
ARTICLE XIV: FORCE MA.IEURE
As used in this Agreement, "Force Majeure' or "an event of Force Majeure" means any cause
beyond the control of the declaring Party which, despite the exercise of due diligence, such Party
is rmable to prevent or overcome. Force Majeure includes, but is not limited to, acts of Go4 fire,
flood, storms, wars, hostilities, civil strife, strikes and other labor disturbances, earthquakes, fires,
lightning, epidemics, sabotage, or changes in law or regulation occurring after the Effective Date,
which, by the exercise of reasonable foresight such party could not reasonably have been
expected to avoid and by the exercise of due diligence, it shall be unable to overcome. [f either
Party is rendered wholly or in part unable to perform its obligations under this Agreement
because of an event of Force Majeure, both Parties shall be excused from whatever performance
is affected by the event of Force Majetre, provided that:
(l) The non-perforrring Party shall, as soon as is reasonably possible after the
occurence of the Force Majeure, give the other Party written notice describing
the particulars of the occurrence.
(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 Party which arose before the occurrence ssusing the
suspersion of performance and which could and should have been fully
-24-
l4.l
15.1
performed before such occurence shall be excused as a result of such
occrurence.
ARTICLE XV: LIABILITY: DEDICATION
Limitation of Liabilitv - |rfsthing in this Agreernent shall be constnred to create any duty to, any
standard of care with reference to, or any liability to any person not a Party to this Agree,ment.
Neither Party shall be liable to the other for any indircct, spocial, consequential, nor punitive
damages, except as expressly authorized by this Agreement.
Dedication - No undertaking by one Party to the other under any provision of this Agreement
shall constitute the dedication ofthat Party'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 entrty.
ARTICLE XVI: SEVERAL OBLIGATIONS
Except where specifically stated in this Agreement to be otherwise, the duties, obligations and
liabilities of the Parties are intEnded to be several and not joint or collective. |rf6{hing contained
in this Agreement shall ever be construed to crcate an associatiom, trust, partnership or joint
venture or impose a tnrst or partnership duty, obligation or liability on or with regard to either
Pafiy. Each Party shall be individually and severally liable for its own obligations under this
Agreement.
ARTICLE XVII: WAIVER
Any waiver at any time by either Party of its rights with respect to a default under this Agree,ment
or with respect to any other matters arising in connection with this Agreement shall not be
deemed a waiver with respect to any subsequent default or other matter.
ARTICLE XVItr: CHOICE OF LAWS AND VENI,JE
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.
-25-
t5.2
16.1
t7.t
18.1
r9.l
18.2 Venue for any litigation arising out of or related to this Agree'rrent will lie in the District Court of
the Fourth Judicial District of ldaho in and for the County of Ada.
ARTICLE XDC DISPUTES AND DEFAULT
Disputes - All disputes related to or arising under this Agreement, including, but not limited to,
the interpretation of the terms and conditions of this Agroement, will be sub,mitted to the
Commission for resolution.
19.2 Notice ofDefault
19.2.1 Defaults - If either Party fails to perform any of the terms or conditions of this
t9.2.2
Agreement (an "event of default"), the nondefaulting Party shall cause notice in
writing to be given to the defaulting Party, speciffing the manner in which such
default occuned. If the defaulting Party shall fail to cure such default within the sixty
(60) days after service of such notice, or if the defaulting Party reasonably
demonstrates to the other Party that the default can be cured within a commercially
reasonable time but not within such sixty (60) day period and then fails to diligently
pursue such cure, then, the non-defaulting Party may, at its option, terminate this
Agreernent and/or pursue its legal or equitable remedies.
Material Breaches - The notice and cure provisions in paragraph 19.2.1 do not apply
to defaults identifred iu this Agreement as Material Breaches. Material Breaches must
be cured as expeditiously as possible following occwrence of the breach, but shall not
in any event give rise to any rights or remedies pursuant to an ev€,nt of Default as set
forth in paragraph 19.2.1 on the part of the nondefaulting Party prior to the sixty (60)
day period specified in paragraph 19.2.1 unless the defaulting Paxty ceases to pursue
curing such Material Breach. Material Braches shall also be zubject to any notice and
cure provisions expressly provided for in this Agree'ment with respect to such Material
Breaches.
19.3 Security for Perforrnance - Prior to the Operation Date and thereafter for the full term of this
Agreement, Seller will provide ldaho Power with the following:
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20.t
19.3.1 lnsurance - Evidence of compliance with the provisions of paragraph 13.2. If Seller
fails to comply, such failure will be a Material Breach and may only be cured by
Seller supplying evidence that the required insurance coverage has been replaced or
reinstated;
Eneineer's Certifications - Every thr€e (3) years after the Operation Date, Seller will
supply Idaho Power with a Certification of Ongoing Operations and Maintenance
(O&M) from a Registered Professional Engineer licensed in the State of Idaho, which
Certification of Ongoing O & M shall be in the form specified in Appendix C. Seller's
failure to supply the required certificate will be an event of default. Such a default
may only be cured by Seller providing the required certificate.
Licenses and Pennits - During the full term of this Agreement, Seller shall maintain
gomFliance with all permits and licenses described in paragraph 4.1.1 of this
Agreement. In additioq Seller will supply ldaho Power with copies of any new or
additional permits or licenses. At least every fifth Contract Year, Seller will update the
documentation described in Paragraph 4.1.1. If at any time Seller fails to maintain
compliance with the permits and liceirses described in paragraph 4.1.1 or to provide
the documentation required by this paragraph, such failure will be an event of default
and may only be cured by Seller submitting to Idaho Power evidence of compliance
from the permitting agency.
ARTICLE XX: GOVERNMENTAL AUTHORZATION
19.3.2
19.3.3
This Agreement is subject to the jurisdiction of those governmental agencies having control over
either Party of this Agreement.
ARTICLE XXL COMMISSION ORDER
This Agreement shall become finally effective upon the Commission's approval of all terms and
provisions hereof, in a fonn acc€ptable to Idaho Power and Seller, such acceptances not to be
2t.r
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22.1
23.1
24.1
unreasonably withheld, and declaration that all payments to be made to Seller hereunder shall be
allowed as prudently incurred expenses for ratemaking purposes.
ARTICLE XXII SUCCESSORS AND ASSIGNS
This Agreement and all of the terms and provisions hereof shall be binding upon and inure to the
benefit ofthe respective successors and assigns ofthe Parties hereto, except that no assignment
hereof by either Party shall become effective without the written consent of both Parties being
first obtained. Such consent shall not be unreasonably withheld. Notwithstanding the foregoing,
any party which Idaho Power may consolidate, or into which it may merge, or to which it may
convey or fiansfer substantially all of its electric utility assets, shall automatically, without further
act, and without need of consent or approval by the Seller, succeed to all of Idaho 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 financing entity that it is
exercising such rights or remedies.
ARTICLE XXtrL MODIFICATION
No modification to this Agreement shall be valid unless it is in writing and signed by both Parties
and subsequortly approved by the Commission.
ARTICLEXXIV: TAXES
Each Party shall pay before delinquency all taxes and other governmental charges which, if failed
to be paid when due, could result in a lien upon the Facility or the Interconnection Facilities.
ARTICLE XXV: NOTICES
All written notices under this Agreernent shall be directed as follows and shall be considered
delivered when faxed, e-mailed and confirmed with deposit in the U.S. Mail, first-class, postage
prepaid, as follows:
25.1
a8-
To Seller:
Orisioal document to:
High Mesa, LLC
c/o Exelon Wind
4601 Westown Parkway, Suite 300
West Des Moines,IA 50266
E-mail : [e-mail]
CoP), of document to:
Richard A. Cummings, Counsel for Seller
4128. Parkcenter Blvd, Suite 325
PO Box 1545
Boise,Idaho 83701
E-mail: lsummings@cummingslawidahocom
To ldaho Power:
Orieiml docume'nt to:
Vice President, Power Sup,ply
Idaho Power Company
PO Box 70
Boise, Idaho 83707
Email : [e-mail]
Copy of document to:
Cogeneration and Small Power Production
Idaho Power Company
PO Box 70
Boise, Idaho 83707
E-mail: [e-mail]
Either Party may change the contact percon and/or address information listed above, by providing written
notice from an authorized person representing the Party.
ARTICLE XXVI: ADDITIONAL TERMS A}'{D CONDITIONS
26.1 Equal Emplolrrrent. During performance pursuant to this Agreerne,nt, Seller agrees to comply
with all applicable equal employment opportunity, small business, and affrmative action laws
and regulations. All Equal Employment Oppornrnity and affrmative action laws and regulations
are hereby incorporated by this reference, including provisions of 38 U.S.C. S 4212, Executive
-29-
Order 11246, as amended, and any subsequent executive orders or other laws or regulations
relating to equal opportunity for employment on government contracts. To the extent this
Agreement is covered by Executive Order I1246, the Equal Opportunity Clauses contained in 4l
C.F.R. 60-1.4, 4l C.F.R. 60-250.5, and 4l CFR 60-741.5 are incorporated herein by reference.
26.2 This Agreement includes the following appendices, which are attached hereto and included by
refere,nce:
Appendix A - Monthly Power Production and Availability Report
Appendix B - Facilrty and Point of Delivery
Appendixc - Engineer'sCertifications
Appendix D - Forrrs of Liquid Security
Appendix E - Wind Energy Production Forecasting
AppendixF - EtrergyPricing
ARTICLE XXVtr: SEVERABILITY
27.1 The invalidity or unenforceability of any terrr or provision of this Agreement shall not affect the
validity or enforceability 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 )O(VIft COUNTERPARTS
28.1 This Agreement may be executed in two or more counterparts, each of which shall be deerred an
original but all of which together shall constitute one and the same instnlnent.
ARTICLE XXD(: ENTIRE AGREEMENT
29.1 This Agreemeirt constitutes the entire Agreement of the Parties conceming the subject matter
hereof and supersedes all prior or contemporaneous oral or written agreements between the
Parties concerning the subject matter hereof.
-30-
IN WITNESS WHEREOF, The Parties hereto have caud this Agreernent to be executed
in their respective names on the dates set forth below:
Idaho PowerCompanv I i/'///
Dated ll . lb I I
'oldaho Powet''
t/-/42t/
Sr. Vice Presidenl Power Supply
-31-
APPENDX A
A _1 MONTHLY POWER PRODUCTION AND AVAILABILITY REPORT
At the end of each month the following required documentation will be submitted to:
Idaho Power Company
Attn: Cogeneration and Small Power Production
PO Box 70
Boise, Idaho 83707
The meter readings required on this r€,port will be the readings on the ldaho Power Metering Equipmelrt
measuring the Facility's total energy production delivered to ldaho Power and Station Usage and the
maximum generated energy ftW) as recorded on the Metering Equipment and/or any otherrequired
energy measureme,nts to adequately administer this Agree,ment. 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 will be a check of the
automated meter reading information that will be gathered as described in item A-2 below:
This report shall also include the Seller's calculation of the Mechanical Availability.
-32-
Project Neme
Addregs
City
Idaho Power Company
Cogeneration and Smell Power Production
MONTIILY POWER PRODUCTION AI\ID AVAILABILMY REPORT
Month Yeer
Projcct Number:
Phone Number:
Stete Ztp
Net Facility Sttdon Stetion
Outout Usrqe Usase
MeterNumbcr:
Metered
MrrlmumGcnendon
kw
Net Generedon
End of Month k\ilh Meter Reading:
Beginning of Month k\ilh Meter:
Difference:
Times Meter Constant:
klVh for the Month:
Metered Demand:
Mechanicel Avallabilltv Guarentee
Seller Calculated Mechanlcal Availebtlity
As specified ln this Agreement, the Seller shell lncludc with thls mont'hly rcport I sunmary stetement of the
Mechenical Aveilability of this Fecility for the calendar month. Thls summery shell lnclude deteils es to how
the Seller crlculrted this vdue and summary of the Fecllity data used in the celculetion. Idrho Power end
the Seller shall work together to mutuolly develop I summrry report that provides the requircd data. Ideho
Power reserves the right to revlew the detalled dats uoed ln thts celculadon as eltowed wtthtn the Agreement.
Sigpeture Dete
-33-
A-2 AUTOMATED METER READING COLLECTION PROCESS
Monthly, Idaho Power will use the provided Metering and Telemetry equipment and processes to collect
the meter reading information from the Idaho Power provided Metering Equipment that measures the Net
Energy and energy delivered to supply Station Use for the Facility recorded at 12:00 AId (Midnight) of
the last day of the month..
The meter information collected will include but not be limited to energy production, Station Use, the
maximum geirerated power (tW) ana any other required en€rg,y measuremelrts to adequately administer
this Agreement.
A.3 ROUTINE REPORTING
Once the Facility has achieved its Operation Date and has operated in a reliable and consistent
marmer for a reasonable period of time, the Parties may mutually agree to modiry this Routine
Reporting requirement.
Idaho Power Contact Information
Daily Energy Production Reporting
Call daily by l0 a.m., 1-800-3564328 or 1-800{35-1093 and leave the following
inforrration:
o Pnrject Identification - Project Name and Project Numbero Current Meter Reading
:E:llffi ::1ffi::::::::::::::::Hlill[:H:;ffi ,f '
Planned and Unplanned hoject outages
Call 1-800-345-1319 and leave the following information:
o Project Identification - Project Name and Project Number. Approximatetime outage occurred
Estimated day and time of project coming back online
Seller's Contact Information
24-Hour Project Operational Contact
Name:
Telephone Number:
Cell Phone:
-34-
Proiect On-site Contact information
Telephone Number:
APPENDX B
FACILITY A}.ID POINT OF DELTVERY
Project Name: High Mesa Wind Project
Projoct Number: 3 1 3 I 5 I 60
B.I DESCRIPTION OF FACILITY
(Must include the Naneplate Capacity rating and YAR capability (both leading and laging) of all
generation unils to be included in the Facility.)
The Facility is a PLJRPA QF wind generation project with an interconnection capacity of 40 MW,
which includes: a 138134.5 kV substation at the Point of Delivery, 34.5 kV circuit breakers and
collection feeder circuits, and utility class wind turbine generatorc, such that the Maximum
Capacrty delivered at the Point of Delivery does not exceed 40 MW. Seller currently expocts to
install nineteen (19) Suzlon S97 wind turbine generators with a nameplate rating of 2.1 MW
pending negotiations of the turbine supply agreement and project engineering. In the event it
becomes necessary to change the turbine to be installe( Seller will promptly notiff Idaho Power
of the change to another utility class turbines comparable in their capabilities, and seek approval
of the change from the Idaho Power delivery business unit.
8.2 LOCATION OF FACILITY
Near: 5 miles southwest ofBliss,Idaho
County: Twin Falls and Elmore Counties
GPS Coordinates:
Description of Interconnection Location: Point of Delivery along the Idaho Power [ower Malad
to Mountain Home Jct 138 kV transmission line.
Nearest Idaho Power Substation: Approximately 5 miles west of l,owerMalad
B.3 SCHEDULED FIRST ENERGY AND OPERATION DATb,
Seller has selected November 1.2012 as the Scheduled First Energy Date.
Seller has selected Decenrber 28. 2012 as the Scheduled Operation Date.
-36-
B4
B-5
B.6
In making these selections, Seller recognizes that adequate testing of the Facility and completion
of all requirements in paragaph 5.2 of this Agreement must be completed prior to the project
being granted an Operation Date.
MAXIMI.JM CAPACITY AMOUNT:
This value will be 40 MW which is consistent with the value provided by the Seller to Idaho
Power in the GIA. This value is the maximum energy (M!V) that potentially could be delivered
by the Seller's Facility to the ldaho Power electrical system at any moment in time.
POINT OF DELTVERY
"Point of Delivery" is the location defined as the "Interconnection Point" in the GIA.
LOSSES
If the ldaho Power Metering equipment is capable of measuring the exact energy deliveries by the
Seller to the ldaho Power electrical system at the Point of Delivery no Losses will be calculated
for this Facility. If the Idaho Power Metering Equipment is unable to measure the exact energy
deliveries by the Seller to the ldaho Power electrical system at the Point of Delivery, a l,osses
calculation will be established to measure the energy losses (kWh) betweeir the Seller's Facility
and the ldaho Power Point of t),elivery. Such loss calculatior" if applicable, will be initially set at
2Yo of the kWh energy production recorded on the Facility generation metering equipment. At
such time as Seller provides ldaho Power with the electrical equipment specifications
(transformer loss specifications, conductor sizes, etc.) of all of the electrical equipment between
the Facility and the Idaho Power elechical syston, Idaho Power will configure a revised loss
calculation formula to be agreed to by both parties and used to calculate the kWh Losses for the
remaining terrn of the Agreement. If at any time during the term of this Agreement, Idatro Power
determines that the loss calculation does not correctly reflect the actual kWh losses afiributed to
the electrical equipment between the Facility and the ldaho Power electrical system, Idaho Power
may adjust the calculation and retroactively adjust the previous months kWh loss calculations.
-37-
B-7 METERING AND TELEMETRY
The GIA will detennine the specific metering and telernetry requirements for this Facility. At the
minimum, the Metering Equipment and Telemetry equipment must be able to provide and record
hourly energy deliveries to and from the Facility through the Point of Delivery and any other
energy measurements required to administer this Agreement. These specifications will 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 [daho Power provided equipment. Seller will arrdnge for and make available at
Sellet's cost communication circui(s) compatible with ldaho Power's communications equipment
and dedicated to Idaho Powe/s use terminating at the Idaho Power facilities capable of providing
Idaho Power with continuous instantaneous information on the Facility's €nergy production.
Idaho Power provided equipment will be owned and maintained by Idaho Power, with total cost
of purchase, installation, operation, and maintenance, including administrative cost to be
reimbursed to Idaho Power by the Seller. Payment of these costs will be in accordance with the
GLA and the total metering cost will be included in the calculation of the Monthly Operation and
Maintenance Charges specifred in the GIA.
NETWORK RESOURCE DES IGNATION
Idatro Power cannot accept or pay for generation from this Facility until a Netrrork Resource
Designation (*NRD') application has beeNr accepted by ldaho Power's delivery busines unit.
Federal Energy Regulatory Commission ("FERC") rules roquire Idaho Power to prepare and
submit the NRD. Because much of the inforrration Idaho Power needs to prepare the NRD is
specific to the Seller's Facility, Idaho Power's ability to file the NRD in a timely manner is
contingent upon timely receip of the required information from the Seller. Prior to ldaho Power
beginning the process to enable ldaho Power to submit a request for NRD status for this Facility,
the Seller shall have completed all requirements of Seller as specified in Paragraph 5.7 of this
Agreement. Seller's failure to provide complete and accurate information in a timely
manner cen signilicently impact Idaho Power's ability end cost to attaln the NRI)
-38-
designetion for the Seller's Facility and the Seller shell beer the costs of any of thece deleys
that are a result of any action or lnaction by the Sellen
-39-
APPENDD( C
ENGTNEER'S CERTIFICATION
OF
OPERATIONS & MAINTENANCE POLICY
The undersigned on behalf of himselflherself and
, hereinafter collectively reM to as "Engineer," hereby states and certifies to the Seller
as follows:
I . That Engineer is a Licensed Professional Engineer in good standing in the State of Idaho.
2. That Engineer has reviewed the Energy Sales Agreement, hereinafter "Agrcement," betweon
Idaho Power as Buyer, aod as Seller, dated
3. That the cogeneration or small power production project which is the subject of the Agreement
and this Statement is ideirtified as IPCo Facility No.and is hereinafter refened to as
the "Project."
4. That the Project, which is commonly known as the Project, is located in
Section Township _ Range Boise Meridiil, _ County, Idaho.
5. That Engineer recognizes that the Agreement provides for the Project to furnish electrical energy
to ldaho Power for a _ year period.
6. That Engineer has substantial experience in the design, constnrction and operation of elechic
power plants of the same type as this Project.
7. That Engineer has no economic relationship to the Design Fngineer of this Project.
8. That Engineer has reviewed and/or supervised the review of the Policy for Operation and
Maintenance ("O&M") for this Project and it is his p,rofessional opinion that, provided said Project has
been designed and built to appropriate standards, adherence to said O&M Policy will result in the
Project's producing at or near the design electrical output, efficiency and plant factor for a _ year
period.
_40_
9. That Engineer recognizes that Idatro Power, in accordance with paragraph 5.2 of the Agreeme,nt,
is relying on Engineer's r€,pres€,ntations and opinions contained in this Statement.
10. That Engineer certifies that the above statements are complete, tnre and accurate to the best of
his/her knowledge and therefore sets his/her hand and seal below.
(P.8. Stamp)
Date
By
4t-
APPENDX C
ENGINEER'S CERTIFICATION
OF
ONGOING OPERATIONS AND MAINTENANCE
The undersigned on behalf of himselflherself
and hereinafter colloctively referred to as "Engineer," heteby states and
certifies to the Seller as follows:
l. That Engineer is a Licensed Professional Engineer in good standing in the State of Idaho.
2. That Engineer has reviewed the Energy Sales Agreement, hereinafter "Agree,ment," 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 idemtified 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, Idaho.
5. That Engineer recoqnizes that the Agreement provides for the Project to fumish electrical €nergy
to ldaho Power fora year period.
6. That Engineer has substantial experience in the desrgn, construction and operation of electric
power plants of the same tlpe as this Project.
7. That Engineer has no economic relationship to the Design Engineer of this Project.
42-
8. That Engineer has made a physical inspection of said Project, its operations and maintenance
records since the last previous certified inspection. It is Engineer's professional opinion, 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 will continue producing at or near its design electrical output, efficiency and plant factor for the
remaining _ years of the Agreement.
9. That Enginoer recognizes that ldaho Power, in accordance with paragraph 5.2 ofthe Agreeme,lrt,
is relying on Engineer's rqresentations and opinions contained in this Statement.
10. That Engineer certifies that the above statements are complete, true and accurate to the best of
his/her knowledge and therefore sets his/her hand and seal below.
(P.E. Stamp)
APPENDD( C
ENGINEER'S CERTIFICATION
OF
DESTGN & CONSTRUCTTON ADEQUACY
The undersigned on behalf of himself/herself and
hereinafter collectively referred to as "Engineer", hereby states and
certifies to Idaho Power as follows:
That Engineer is a Licensed Professional Engineer in good standing in the State of Idaho.
That Engineer has reviewed the Firm Energy Sales Agreement, hereinafter "Agnoement",
l.
2.
between Idaho Power as Buyer, and as Seller, dated ,
3. That the cogeneration or small pow€r production project,which is the zubject of the
and is hereinafterAgreement and this Statement, is identified as IPCo Facility No
referred to as the "Project".
4. That the Project, which is commonly known as the Prcject, is located in
Section Township Range Boise Meridian, _ County, Idaho.
5. That Engineer recognizes that the Agreement provides for the Project to furnish electrical
energy to ldaho Power for a year period.
6. That Engineer has substantial experie,nce in the design, construction and operation of
electric power plants of the same tlpe as this Project.
7. That Engineer has no economic relationship to the Design Engineer of this Project and
has made the analysis of the plans and specifications independently.
8. That Engineer has reviewed the engineering design and construction of the Project,
including the civil work, electrical work, generating equipment, prime mover conveyance system, Seller
fumished lnterconnection Facilities and other Project facilities and equipment.
9. That the Project has been constructed in accordance with said plans and specifications, all
44-
applicable codes and consistent with Prudent Electrical Practices as that term is described in the
Agreemeirt.
10. That the design and constnrction of the Prroject is such that with reasonable and prudent
operation aod maintenance practices by Seller, the Pr,oject is capable of performing in accordance with the
terms of the Agreement and with Prudetrt Electrical Practices for a _ year period.
ll. That Engineer recognizes that ldaho Power, in accordance with paragaph5.2 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 hiVher knowledge and therefore sets his/her hand and seal below.
@.E. Stnmp)
Date
By
45-
APPENDD( D
FORMS OF LTQUID SECURTTY
The Seller shall provide ldaho Power with cornmercially reasonable security instnaments such as
Cash Escrow Security, Guarantee or [rtter of Credit as those terms are defined below or other
forms of liquid financial security that would provide readily available cash to Idaho Power to
satisfr the Delay Security requirement and any other security requirement within this Agreement.
For the purpose of this Appendix D, the term "Credit Requirements' shall mean acc€ptable
financial creditworthiness of the entity providing the security instrument in relation to the term of
the obligation in the reasonable judgment of tdaho Pow€r, provided that any guarantee and/or
letter of credit issued by any other entity with a short-tenn or long-temr investmeirt grade cnodit
rating by Standard & Poor's Corporation or Moody's Investor Services, Inc. shall be deemed to
have acceptable financial credirworthiness.
Cash Escrow Security - Seller shall deposit funds in an escrow account established by the
Seller in a banking institution acceptable to both Parties equal to the Delay Security or
any other rcquired security amount(s). The Seller shall be responsible for all costs, and
receive any interest eamed associated with establishing and maintaining the escn)w
account(s).
Gua rtee or lrtter of Crcdit Security - Seller shall post and maintain in an amount equal
to the Delay Security or other required security amount(s), (a) a guaranty from a party
that satisfies the Credit Requirements, in a form acceptable to tdaho Power at its
discretion, or b) an irrevocable ldter of Credit in a fonn acceptable to ldaho Power, in
favor of ldaho Power. The lrttEr of Credit will be issued by a financial institution
acceptable to both parties. The Seller shall be responsible for all costs associated with
establishing and maintaining the Guarantee(s) or lrtter(s) of Credit.
l.)
2.)
46-
APPENDD( E
WIND ENERGY PRODUCTION FORECASTING
As specified in Commission @er 30488, Idaho Power shall make use of a Wind Energy Production
Forecasting model to forecast the energy production from this Facility and other Qualiffing Facility wind
generation resources. Seller and Idaho Power will share the cost of Wind Energy Produstion Forecasting.
The Facility's share of Wind Energy Production Forecasting is determined as specified below. Sellers
share will not be greater than 0.1% of the total energy payments made to Seller by ldatro Power during the
previous Contract Year.
a. For every month of this Agreement beginning with the first full month after the
First Energy Date as specified in Appendix B of this Agreement, the Wind
Energy Production Forccasting Monthly Cost Allocation (MCA) will be due and
payable by the Seller. Any Wind Energy Production Forecasting Monthly Cost
Allocations (MCA) that are not reimbursed to ldaho Power shall be deducted
from energy payments to the Seller.
o As the value of the 0.1% cap of the Facilities total energy payments will not
be known until the first Contract Year is complete, at the end of the first
Contract Year any prior allocations that exceeded the 0.1% cap shall be
adjusted to reflect the0.lo/o cap and if the Facility has paid the mouthly
allocations a refund will be included in equal monthly amounts over the
ensuing Contract Year. If the Facility has not paid the monthly allocations,
the amount due Idaho Power will be adjusted accordingly and the unpaid
balance will be deducted fiom the ensuing Contract Year's energy payments.
b. During the first Contract Year, as the value of the 0.1% cap of the Facilities total
energy payments will not be known until the first Contract Year is complete,
47-
Idaho Power will deduct the Facility's calculated share of the Wind Energa
Production Forecasting costs specified in item d each month during the first
Contract Year and subsequently refund any overpa)4r.eot (paynents tlat exceed
the cap) in equal monthly amounts over the ensuing Contract Year.
c. The cost allocation formula described below will be rsviewed and revised if
necessary on the last day of any month in which the cumulative MW nameplate
of wind projects having Commission approved agreerneirts to deliver energy to
Idaho Power has been revised by an action of the Commission.
d. The monthly cost allocation will be basd upon the following formula :
Where: Total MTY (TMIV) is equal to the total nameplate rating of all QF wind
projects that are under contract to provide energy to Idaho Power
Company.
Facilltv MW GMW) is equal to the nameplate rating of this Facility as
specified in Appendix B.
Annual Wind Enerw Production Forecrstins Cost (Af,'Cost) is equal
to the total annual cost ldaho Power incurs to provide Wind Energy
Production Forecasting. Idaho Power will estimate the AFCost for the
current year based upon the previous year's cost and expected costs for
the current year. At year+n( Idaho Power will compare the actual costs
to the estimated costs and any differences betrneen the estimated AFCost
and the actual AFCost will be included in the next year's AFCost.
Annual Cost Allocation (ACA) = AFCost X (FMVY / TMW)
And
Monthly Cost Allocstion (MCA) - AClt I 12
e. The Wind Energy Production Forecasting Monthly Cost Allocation (MCA) is
due and payable to ldaho Power. The MCA will first be netted against any
monthly energy payments owed to the Seller. If the netting of the MCA against
48-
the monthly energy payments results in a balance being due Idaho Power, the
Facility shall pay this amount within 15 days of the date ofthe payme,nt invoice.
49-
APPENDX F
MONTHLY PURCIIASE PRICES
Mllls osr Kwh
tonth/Year
Jan-12
Heaw Load Purchase Prlce Lloht Load Purchase Price
$39.13
$54.31 $39.33
$49.77 $33.02
Feb.12
Mar-12
_ -Aprl2-.
_...._.May-12 __$38.71 $21.50
Jun-12 .-"___- $41.02
Jul-12
_-... "-$21.e3
$40.11
Au+12
__ . $s2.90
$57.08 $43.'a
"- Sep-12."
Oct-12
$s9.00 . "*_$@__
$37.51$53.16
Nov-12 $s6.62 $38.77
Dec-12 $s5.55 $42.93
Jan-'13 $r4.89
FeF13 $s6.15
Mar-13 $51.61 $5.9-_ _
*-" Apr:19 $47.s4
Jun-13 $42.68
Jul-13 $54.90
$34.15
$22.90
_MJT-
$41.33
_ Aug-13,_$59.13 $45.53
Oct-13 $52.56 $36.50
Nov-13
Dec-13 $57.72 $45.63
Jan-14 $56.'10
Feb-14
$41.26
$41.44-.$_a7-!?---*-__
$54.01Mar-l4 $36.71
- "--APrll $49.67 $35.82
$23.94
__ _-J-ut:11._"._"" .____" _$45Z:L-__,"*.". .-"".""-* $?6.07 -Jul-14 $56.35 $42.67
Oct-l4 $54.,t6 $37.18
Nov-14 $58.32 $39.00
_* Dec-14* -
Jan-15
$s8.99 $46.12
$57.14
-50-
$42.86
Feb-l5
_ Mar-15,"
-- .Aprlf
$59.13
-_$19,_21
$48.87
$42.51
$37.61
$_3-I.99_
- .Uev:1!*
-*. _J--u_n-:"1-5-_".-
Jul-15
$41.68 ,"_*$2!,2_O_
$45.70 $25.23
s56.93 s49.,-01
Assls---$61.39 $47.8e
_ S_ep:l5_$67.68 $45.56
Nov-l5 $61.27 $41.37
Oct-15
__9*:.ls_
Jan-16
Feb-16
$59.s1 $47.16
$s6.97 $43.20
$54.e9 $37.45
$35.45
Mar-16
_ Apr:l-Q
--M-av:I9 - *
Jun-16
$25.43
$26.e0
Jul-16 $56.65 $43.61
$48.08
Oct-16 $56.27 $38.60
l)!pv-l-Q- Epl.ag $40.96
Dec-16 $59.90 $47.05
Jan-l7 $59.32 $45.41
Feb-1 7
Mar-17 $56.72 $39.76
Apr:l_Z__
""" "Mav--17 ."$45.13 $25.83
Jun-1 7
. .,J-uhl7---
$64.82 $49.86
- --s.pp:l"Z $67.20 $46.48
Oct-17
Nov-17
Dec-17
Jan-18
FeFl_8- *
-,_[aq1"Q_
Apr:'tB
- _Uev::t8-
Jun-18
Jul-18
__lss:l_9."-..-
$57.98 $40.03
$60.38 $47.06
$62.01 $45.44
$52,90 _$49.99-_$51.83 $38.04
$44.49 $26.73
$s9.86 $46.96
$oo,_a_B_
$69.00
$s?,?e
$49.22_ ssp:l-8-
-51-
Oct-18 $61.68 $42.71
Dec-l8
Jan-19
Feb-l9 $63.96
Mar-l9
May-19 $45.76
$64.53 $43.88Nov-18
$46.50
$39.86
$27.80
Jun-19
Jul-19 s61.22 $48.74
_ Aug-19 .-$67.45 $53.91
Oct-l9 $60.40 $42.37
Nov-19 $64.s9 $4s.97
Dec-l9 $64.29
Jan-20 $64.16 $51.85
-lp!:*20
Mar-20
$65.29 $49.90
$59.s9
" -.. Apr:?o $s+,qs $42.94
$31.29
.- Aqgiao_$68.,t4 $56.18
99p:?-o-- _,
Oct-20
97?,-31 * $s2.e9-.
$60.76 $44.64
Nov-20 $66.44 $49.24
$64.0s $53.81
$51.05
Jan-21
_$gl,-8t9
$59.95Mar-21 $4s.91
$43.23
Jun-21 $51.71 $31.70
Jul-21 $62.72 $*5_:t",9_q
u13'-99"
Oct-21 $65.12 $48,71
Nov-21 $68.80 $51.60
Dec-21 _$65,40 _
$6.4.88
$56.74
Jan-22 $5s.05
Mar-22 $60.68 $47.ss
-.."......V?y:2-2 $49.06
-52-
$32.23
Jun-22 $52.01 $32.92
$52.51Jul-22 $63.55
- Asg:24-_- -se?r --_ __.
*o--c!-:e-
$70.01 .*__"-$pz,gz
$73.63 $55.03
$63.12 $46.77
Nov-22 $69.54 $"pagQ
Jan-23 s68.72
$70.05
__ __$1q.51
$5s.99
Mar-23 $64.37 $50.38
__ Apr-23 -
---Mer-z*3-
$s8.73 $48.07
$52.98 $34.10
Jun-23 _ _"- _. $Qp,S_
$68.04
$36.96
$57.28
$61.69
__99tr"?-3-'. _$80,50 $s8.86
Nov-23 $74.61 $56.91
Dec-23
$61.17
Feb-24 $72.24 $57.56
$66.08 ___$93*1J__
$47.50
"_- Aue?4 $76.25 $62.96
---9eP:"?t-
Oct-24
$82.6s $60.15
$71.80
$75.08 $s8.59
$72.12 _-*q99.9!__
Jan-25 $72.14 $62.27
$74.22 * -* $58.94
$53.91Mar-25 $67.23
Nov-24
Dgc-24
-- AprS_I
$65.83
-*9eP?-5- __9ct-as_ _ $_70.28,$53.76
_$99J1$73.17
-53-
Feb-26 $75.49 _$91,9-3_
Mar-26 $68.53 $s5.07
$62.83 $s1.06
$56.43 $,40.27
*_ _Apr-26 ,,,_
Jun-26
Jul-26
- " -A9s:-2i
$69.q_7 _${:!..9-Z
$60.92$72.O2
$78.8s $66.40
- S--ep-:-20
$78.12 $59.52
$75.38 $67.87
$7s.88 $62.75
Oct-26
Nov-26
Jan-27
Feb27
Mar-27
--N-r:?7
-\tv-?LJut-?.2_"."
"- .lvl"?7
-Ass*I-
__ _q21ff_-.
$80.45
$63.42
$56.50 $,10.88
$42.37
--*-sgp:-27
$7s.67 $59.05
$82.43 $62.23
* _$J_6,09 '$4p.91
$76.57 $68.69
$77.51 _qat'2.J
$57.74$70.71
_Q-c.!;27
Nov-27
Jan-28
$s3.32
$s8.80 ___ - $42.56-"
Jul-28 $7s.53 $6s.26
$69.92
$86.34 $65.84
Oct-28 $74.56 $58.55
$82.94 $63.89
$77.38
$78.26 $70.35
Fets29 $79.45
$13,02 *
$66.38
$s9.84
$55.0s
$64.00 $47.02
$86.35 $72.10
$88.00 $67.06
Oct-29
___ _ _$!_9.9q
$58.78
Dec-29 $80.06
Jan-30 $80.68
$73.45
$72.il
Feb-.30 $81.91 $67.86
Mar-30 $75.29 $61.71
-4P::3o-
$68.46 $56.78
Jun-30 $66.00
$45.75
$48.51
_ __ $-7_s-Qq $68.47
----sep:90 $90.72 $69.15
Jul-30
_ QsL3i* __ AZqE? _ $68-6?Nov-30 $84.38 $65.96
Dec-30 ___$L2.sl_$75.73
$74.80
Feb-31 $84.4s $69.97
$47.20
Jun-31 $68.06 _ $50.05
Jul-31 $81.45 $70.61
$76.65
_ - Sep-31__$93.52 $71,31
gct-gl .- *_. $z8.ep , $62,52
$86.99 $68.01
Dec-31 $8s.10 $78.08
Feb-32 $p7.05_$72.13
_ _l4ar-3?__ $pQ.oa_ -**_qAIAa
$60.38
_ M_ry3e_$65.07 __ ___$!9-A9_ ____
$s1.61
Jul-32 - _. - _.- $89_,96_$72.7s
$73.51
$81.33 $64.46
NottQ2* _ _$_89".40 $70.12
-55-