20230922Application.pdf

MEGAN GOICOECHEA ALLEN
Corporate Counsel
[e-mail]

September 22, 2023

VIA ELECTRONIC MAIL

Jan Noriyuki, Secretary
Idaho Public Utilities Commission
11331 West Chinden Blvd., Building 8
Suite 201-A
Boise, Idaho 83714

Re: Case No. IPC-E-23-22
Hazelton A Hydro Project
Idaho Power Company’s Application re Third Amendment to the Energy
Sales Agreement

Dear Ms. Noriyuki:

Attached for electronic filing is Idaho Power Company’s Application in the above-
entitled matter. If you have any questions about the attached documents, please do not
hesitate to contact me.

Very truly yours,

Megan Goicoechea Allen

MGA:cld
Enclosures
RECEIVED
Friday, September 22, 2023 2:32:17 PM
IDAHO PUBLIC
UTILITIES COMMISSION
APPLICATION – 1
MEGAN GOICOECHEA ALLEN (ISB No. 7623)
DONOVAN E. WALKER (ISB No. 5921)
Idaho Power Company
1221 West Idaho Street (83702)
P.O. Box 70
Boise, Idaho 83707
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

Attorneys for Idaho Power Company

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

IN THE MATTER OF THE APPLICATION
OF IDAHO POWER COMPANY FOR
APPROVAL OF A THIRD AMENDMENT TO
THE ENERGY SALES AGREEMENT WITH
THE HAZELTON A HYDRO PROJECT.
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CASE NO. IPC-E-23-22

APPLICATION FOR APPROVAL
OF THIRD AMENDMENT TO
ENERGY SALES AGREEMENT

Idaho Power Company (“Idaho Power” or “Company”), in accordance with Idaho
Public Utilities Commission Rule of Procedure1 52 and the applicable provisions of the
Public Utility Regulatory Policies Act of 1978 (“PURPA”), hereby respectfully applies to
the Idaho Public Utilities Commission (“Commission”) for an order approving the Third
Amendment (“Third Amendment”) to the Energy Sales Agreement (“ESA” or
“Agreement”) for the sale and purchase of electric energy generated by the Hazelton A
Hydro Project, which is a PURPA Qualifying Facility (“QF” or “Facility”).
In support of this Application, Idaho Power represents as follows:

1 Hereinafter cited as RP.
APPLICATION – 2
I. INTRODUCTION AND BACKGROUND
1. Idaho Power and SE Hazelton A, L.P. entered into an Energy Sales
Agreement on December 8, 2010, for the purchase and sale of energy from the Hazelton
A Hydro Project (“Project”) located in Jerome County, Idaho. The ESA was approved by
the Commission in Case No. IPC-E-10-45, Order No. 32181, issued on February 11,
2011. The Agreement was subsequently assigned by SE Hazelton A, L.P. to SE Hazelton
A, LLC, which later assigned it to the North Side Energy Company, Inc. (“North Side
Energy”), which is the current Seller under the Agreement.
2. The Agreement was amended on May 1, 2014 (“First Amendment”), to
update the Mid-Columbia Market Energy Cost definition, which was approved by the
Commission in Order No. 33053, and on February 13, 2020 (“Second Amendment”) to
change the notification period for Net Energy Amount monthly adjustments, which was
approved by the Commission in Order No. 34639.
3. The Generator Interconnection Agreement (“GIA”) for the Project was
entered into on December 15, 2010, and lists total net output of the Facility as 7.7 MW,
which represents the Maximum Capacity Amount listed in the Agreement, 8.1 MW,
multiplied by the .95 power factor originally studied to more accurately represent the
amount of generation that would be delivered at the Point of Interconnection.
4. It recently came to the attention of North Side Energy that there exists a
discrepancy in Appendix B to the Agreement as follows: (1) the Nameplate Capacity listed
in Section B-1 “Description of the Facility” for each of the three generating units, 2,700
kW, and the amount listed in the manufacturer’s “nameplate” currently attached to each
of the individual generation units, 2,898 kW (“Revised Nameplate Capacity”), which
appears to be the result of the manufacturer having replaced the original nameplates; and
APPLICATION – 3
(2) the Project’s Maximum Capacity Amount listed in Section B-4 “Maximum Capacity
Amount”, 8.1 MW, the cumulative manufacturer Revised Nameplate Capacity rating of
the three generation units (8.694 MW (2,898 kW x 3)), and the total Project output agreed
to in the GIA (7.7 MW).
5. It is the understanding of North Side Energy that though the generator units
themselves have not been modified or overhauled since they were installed, the
manufacturer’s “nameplates” were replaced with revised nameplates issued by the
manufacturer by a prior owner of the Facility, presumably due to an error in the original
nameplates; regardless, North Side Energy intends to operate the Facility in accordance
with the total Project output agreed to in the GIA dated December 15, 2010, or 7.7 MW,
which is less than the total combined Nameplate Capacity rating for all three generation
units at the Facility.
6. In addition, the Agreement contains a provision, Article XXIII Modification,
that the Commission has identified in other cases as requiring revisions to address
scenarios involving Facility modifications to ensure, inter alia: the modified Facility
operates under a correct and accurate contract that describes the characteristics and
parameters of the modified Facility and the rate paid to the Facility and recovered from
ratepayers, starting from the first operation date after the Facility is modified, reflect the
proper and authorized rate of the modified Facility.
7. As a result of these circumstances, the Parties desire to enter into this Third
Amendment to the Agreement to: (1) revise Appendix B of the Agreement, Section B-1,
Description of Facility, to accurately describe the Facility based on the manufacturer’s
Revised Nameplate Capacity rating for each of the generator units and to remove
APPLICATION – 4
extraneous language; (2) revise Appendix B of the Agreement, Section B-2, Location of
Facility, to remove extraneous language not used or filled in by the parties; (3) revise
Appendix B of the Agreement, Section B-4, Maximum Capacity Amount, consistent with
the GIA; and (4) revise Article XXIII Modification in conformity with the language recently
approved by the Commission.
8. The proposed changes do not impact the Project’s eligibility for published
rates and the modified Maximum Capacity Amount is within the amount contemplated in
the original Agreement, and therefore, these changes do not otherwise impact the
conditions, rates, or other terms of the Agreement, as amended.
9. A copy of the Third Amendment dated September 1, 2023, is attached to
this Application as Attachment 1 and is subject to the Commission’s approval.

II. THE AMENDMENTS
10. The Third Amendment provides for the following revisions to Section B-1,
Description of Facility, of Appendix B of the ESA (new language is underlined, and deleted
language uses strikethrough):
The Sellers’s Facility is described as three generators with nameplate ratings of
2700 2898 kW each at 4160 volts, three phase, 60 hertz, driven by Kaplan S-type
turbines. Though the cumulative Nameplate Capacity of the three generators is
8.694 MW, the Seller has requested that the Maximum Capacity Amount be set at
7.7 MW consistent with the Generator Interconnection Agreement dated
December 15, 2010. See, Section B-4 below.

Var Capability (Both leading and lagging) Leading is_____ Lagging is ______
11. The Third Amendment provides for the following revisions to Section B-2,
Location of Facility, of Appendix B of the ESA (new language is underlined, and deleted
language uses strikethrough):
Description of Interconnection Location: ________________________________
APPLICATION – 5
Nearest Idaho Power Substation: _______________________________
12. The Third Amendment provides for the following revisions to Section B-4,
Maximum Capacity Amount, of Appendix B of the ESA (new language is underlined, and
deleted language uses strikethrough):
This value will be 8.1 MW 7.7 MW which is consistent with the value provided by
the Seller to Idaho Power in accordance with Schedule 72the Generation
Interconnection Agreement (GIA) dated December 15, 2010. 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. represents the total
Project output listed in the GIA, and though the Facility is capable of generating in
excess of this amount as described in Section B-1, above, the Seller will limit
operations to a Maximum Capacity Amount of 7.7 MW to remain consistent with
the existing GIA.

13. The Third Amendment provides for the deletion of Article XXIII of the ESA
in its entirety and replacement with the following:
ARTICLE XXIII: MODIFICATIONS
23.1 No later than the First Energy Date, the Seller will provide Idaho
Power with an “as-built” description of the Facility in the form set forth
in Appendix B.
23.2 The Seller will not modify the Facility from the description set forth in
Appendix B without prior notification to Idaho Power. A proposed
modification to the Facility that would change the Facility as
described in Appendix B is referred to herein as a “Proposed Facility
Modification.” Proposed Facility Modification does not include
additions or expansions to the Facility that result in an increase to
the Maximum Capacity Amount, which are addressed in paragraph
23.6. The Seller may not begin construction of any Proposed Facility
Modification(s) unless and until the following requirements have
been met:
(i) Seller has promptly notified Idaho Power of the Proposed
Facility Modification(s) prior to initiating the modification
design, specification, purchasing and construction process;
(ii) Seller has provided Idaho Power with detailed plans regarding
the Proposed Facility Modification(s), including proposed
revisions to the as-built description of the Facility set forth in
Appendix B; and
APPLICATION – 6
(iii) The Proposed Facility Modification has been reviewed by
Idaho Power and a determination made to either pursue
amendment as a Proposed Facility Modification pursuant to
paragraphs 23.3 and 23.4 or as an expansion or additional
project pursuant to paragraph 23.6.
23.3 Idaho Power will review any Proposed Facility Modification(s) and
“as-built” descriptions to determine whether amendment of the
Agreement is appropriate as set forth in paragraph 23.4. In reviewing
any Proposed Facility Modification(s) or actual modifications
reflected in the as-built description, Idaho Power shall consider the
following information: (i) The nature, scope, and extent of the
proposed or actual modification(s); (ii) The impact, if any, on the
applicable avoided cost rates or other relevant terms and conditions;
and (iii) Such other information as may reasonably be necessary
including the effect on any other provisions hereof which may be
impacted by the proposed or actual modification. Proposed
modifications could result in several possible actions including but
not limited to: no change to Appendix B, and thus no further action;
an amendment to conform Appendix B to the modified Facility; an
amendment to adjust the pricing and other relevant terms and
conditions; or a termination and new Agreement.
23.4 Based on its review, Idaho Power, at its sole determination in accord
with the provisions of the Public Utility Regulatory Policies Act of
1978 and any amendments thereto (“PURPA”) and subject to
Commission approval, may choose to enter into an amendment of
the Agreement to adjust the pricing or other relevant terms and
conditions as necessary, including Appendix B;
23.4.1 If Idaho Power determines that it is appropriate to revise the
Agreement, the Parties will enter into a written amendment to
the Agreement revising the relevant terms, conditions,
description in Appendix B, and, if necessary, pricing, referred
to herein as the “Facility Modification Amendment”. The
Facility Modification Amendment will be submitted to the
Commission for approval. If the pricing is adjusted, the
Parties will agree on and include in the amendment a pricing
true-up mechanism to ensure that the correct rates apply to
the modified Facility from the completion date of the
modification.
23.4.2 If the Commission determines that the Proposed Facility
Modification would require termination of the Agreement, the
Seller may abandon the Proposed Facility Modification or
accept the termination. If the Seller accepts the termination,
Seller will be responsible for Termination Damages, if any,
APPLICATION – 7
and the Parties may negotiate a new agreement based on the
Facility as modified.
23.5 In addition to prior notification of any modifications to the Facility from
the description set forth in Appendix B, no later than thirty (30) days
following the date of substantial completion of such modification, and
prior to the first Operation Date of such modification, Seller must
provide Idaho Power with an “as-built” description of the modified
Facility in the form set forth in Appendix B of this Agreement;
provided that the Facility, as reflected in the “as-built” description to
be provided under this paragraph, may not deviate from the Facility
Modification Amendment, except, in each case, to the extent such
further modification(s) are authorized under a subsequent written
amendment to this Agreement that is executed by the Parties and
approved by the Commission. If the “as-built” description deviates
from the then-approved Appendix B, Idaho Power will review it and
follow the process described in paragraphs 23.3 and 23.4.
23.6 Idaho Power is not required to purchase any Net Energy above the
Maximum Capacity Amount. If Seller builds an expansion or
additional project such that the expansion, or additional project would
be deemed a single Qualified Facility or the same site under FERC
regulations, Seller may not require Idaho Power (and Idaho Power
will have no obligation to purchase pursuant to this Agreement) the
output of any such expansion, or additional facility under the terms,
conditions and prices in this Agreement. Instead, Seller may
exercise any rights to enter into a new agreement for the sale of such
incremental energy from such additional facility that is a Qualified
Facility under then-applicable laws and regulations.
23.7 Idaho Power is not obligated to and shall not make any incremental
payment to Seller as a result of any modification, addition, or
expansion of the Facility if such modification was not authorized and
approved by the Commission pursuant to the provisions of this Article
23. Should the Seller modify, construct additions, and/or expand the
Facility without notification to Idaho Power nor the authorization and
approval of the Commission pursuant to the provisions of this Article
23, any incremental payments to Seller resulting from and
subsequent to the modification, addition, and/or expansion of the
Facility that deviate from the description in Appendix B shall be
unauthorized and immediately due and owing back to Idaho Power.
Failure to repay, or reasonably offset future payments made to Seller
designed to repay and recoup any unauthorized payment amounts
will be deemed a material breach of this Agreement. For purposes
of this section 23.7 only, the addition of the third generator shall be
considered a modification, addition, and/or expansion of the Facility,
such that if the Commission does not authorize and approve such
APPLICATION – 8
change, any incremental payments to the Seller resulting from and
subsequent to the modification, addition, and/or expansion of the
Facility that deviate from the description in Appendix B shall be
unauthorized and immediately due and owing back to Idaho Power.
23.8 No modification to this Agreement shall be valid unless it is in writing
and signed by both Parties and subsequently approved by the
Commission.

14. The Third Amendment is intended to correct and update information in the
ESA and does not otherwise change any of the obligations of the Parties.

III. MODIFIED PROCEDURE
15. Idaho Power believes that a technical hearing is not necessary to consider
the issues presented herein and respectfully requests that this Application be processed
under Modified Procedure, i.e., by written submissions rather than by hearing. RP 201,
et seq. If, however, the Commission determines that a technical hearing is required, the
Company stands ready to prepare and present its testimony in such hearing.

IV. COMMUNICATIONS AND SERVICE OF PLEADINGS
16. Communications and service of pleadings, exhibits, orders, and other
documents relating to this proceeding should be sent to the following:

Donovan E. Walker Energy Contracts
Megan Goicoechea Allen Idaho Power Company
IPC Dockets 1221 West Idaho Street (83702)
1221 West Idaho Street (83702) P.O. Box 70
P.O. Box 70 Boise, Idaho 83707
Boise, Idaho 83707 [e-mail]
[e-mail]
[e-mail]
[e-mail]

APPLICATION – 9
V. REQUEST FOR RELIEF
17. Idaho Power respectfully requests that the Commission issue an order
approving the Third Amendment to the Energy Sales Agreement for the submitted
herewith without change or condition.
Respectfully submitted this 22nd day of September 2023.

MEGAN GOICOECHEA ALLEN
Attorney for Idaho Power Company
APPLICATION – 10
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 22nd day of September 2023, I served a true and
correct copy of the within and foregoing APPLICATION upon the following named parties
by the method indicated below, and addressed to the following:

Commission Staff
Dayn Hardie
Deputy Attorney General
Idaho Public Utilities Commission
11331 W. Chinden Blvd., Bldg No. 8
Suite 201-A (83714)
PO Box 83720
Boise, ID 83720-0074

Hand Delivered
U.S. Mail
Overnight Mail
FAX
FTP Site
X Email [e-mail]

Courtesy Copy Sent to:

Alan Hansten
North Side Energy Company Inc.
Manager
921 North Lincoln
Jerome, ID 83338
email: [e-mail]
________________________________
Christy Davenport, Legal Assistant

BEFORE THE

IDAHO PUBLIC UTILITIES COMMISSION

CASE NO. IPC-E-23-22

IDAHO POWER COMPANY

ATTACHMENT 1

Energy Sales Agreement
Project: 31715128 Hazelton A
Third Amendment - Page 1 of 6
THIRD AMENDMENT
TO THE
FIRM ENERGY SALES AGREEMENT
FOR THE HAZELTON A HYDRO PROJECT
This Third Amendment of the Firm Energy Sales Agreement (“Third Amendment”) is
effective as of this ____ day of ________ 2023 (“Effective Date”), and is entered into by and
between Idaho Power Company, an Idaho corporation (“Idaho Power”), and North Side Energy
Company, Inc., an Idaho corporation (“Seller”) (individually a “Party” and collectively the
“Parties”).
WHEREAS, Idaho Power and SE Hazelton A, L.P. entered into a Firm Energy Sales
Agreement on December 8, 2010 (“Agreement”) for the purchase and sale of energy from the
Hazelton A Hydroelectric Project (“Project”) located in Jerome County, Idaho (the “Facility”),
which is a Qualifying Facility under Public Utility Regulatory Policies Act of 1978 (“PURPA”).
The Agreement was approved by the Idaho Public Utilities Commission’s (“the Commission”) in
Order No. 32181;
WHEREAS, Appendix B of the Agreement indicates in Section B-1, Description of the
Facility, that the Facility consists of three generating units with nameplate ratings of 2,700
kilowatts (“kW”) each and lists the Maximum Capacity Amount in Section B-4 as 8.1 megawatts
(“MW”);
WHEREAS, the Generator Interconnection Agreement (“GIA”) for the Project dated
December 15, 2010, lists total net output of the Facility as 7.7 MW, which represents the Maximum
Capacity Amount listed in the Agreement, 8.1 MW, multiplied by the .95 power factor originally
studied to more accurately represent the amount of generation that would be delivered at the Point
of Interconnection;
WHEREAS, Idaho Power and SE Hazelton A, L.P. entered into a First Amendment to the
Agreement on May 1, 2014, to update the Mid-Columbia Market Energy Cost definition, which
was approved by the Commission in Order No. 33053;
WHEREAS, SE Hazelton A, L.P. assigned the Agreement, as amended, to SE Hazelton A,
LLC on April 20, 2017, which assigned the Agreement, as amended, to the North Side Energy
Company, Inc. (“North Side Energy”) on March 1, 2018;
WHEREAS, Idaho Power and North Side Energy entered into a Second Amendment to the
Agreement on February 13, 2020, to change the notification period for Net Energy Amount
monthly adjustments, which was approved by the Commission in Order No. 34639;
WHEREAS, it recently came to the attention of North Side Energy that there exists a
discrepancy between: (1) the Nameplate Capacity listed in Appendix B to the Agreement for each
of the three generating units, 2,700 kW, and the amount listed in the manufacturer’s “nameplate”
currently attached to each of the individual generation units, 2,898 kW (“Revised Nameplate
Capacity”), which appears to be the result of the manufacturer having replaced the original
nameplates; and (2) the Project’s Maximum Capacity Amount listed in Appendix B to the
Energy Sales Agreement
Project: 31715128 Hazelton A
Third Amendment - Page 2 of 6
Agreement (8.1 MW), the cumulative manufacturer Revised Nameplate Capacity rating of the
three generation units (8.694 MW (2,898 kW x 3)), and the total Project output agreed to in the
GIA (7.7 MW);
WHEREAS, North Side Energy was not the original owner of the Facility but has been
advised that though the generator units themselves have not been modified or overhauled, the
manufacturer’s “nameplates” were replaced with revised nameplates issued by the manufacturer
by a prior owner of the Facility, presumably due to an error in the original nameplates; regardless,
North Side Energy intends to operate the Facility in accordance with the total Project output agreed
to in the GIA dated December 15, 2010, or 7.7 MW, which is less than the total combined
Nameplate Capacity rating for all three generation units at the Facility;
WHEREAS, the Agreement contains a provision, Article XXIII Modification, that the
Commission has identified in other cases as requiring revisions to address scenarios involving
Facility modifications to ensure, inter alia: the modified Facility operates under a correct and
accurate contract that describes the characteristics and parameters of the modified Facility and the
rate paid to the Facility and recovered from ratepayers, starting from the first operation date after
the Facility is modified, reflect the proper and authorized rate of the modified Facility;
WHEREAS, the Parties desire to enter into this Third Amendment to the Agreement to:
(1) revise Appendix B of the Agreement, Section B-1, Description of Facility, to accurately
describe the Facility based on the manufacturer’s Revised Nameplate Capacity rating for each of
the generator units and to remove extraneous language; (2) revise Appendix B of the Agreement,
Section B-2, Location of Facility, to remove extraneous language not used or filled in by the
parties; (3) revise Appendix B of the Agreement, Section B-4, Maximum Capacity Amount,
consistent with the GIA; and (4) revise Article XXIII Modification in conformity with the language
recently approved by the Commission; and
WHEREAS, these changes do not impact the Project’s eligibility for published rates and
the modified Maximum Capacity Amount is within the amount contemplated in the original
Agreement, and therefore, these changes do not otherwise impact the conditions, rates, or other
terms of the Agreement, as amended.
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be
legally bound, the Parties hereto agree as follows:
1. Incorporation of Recitals. The above-stated recitals are incorporated into and made a part of
this Agreement, as amended, by this reference to the same extent as if these recitals were set forth
in full at this point.
2. Amendments.
A. Revised Nameplate Capacity - Section B-1 “DESCRIPTION OF FACILITY” of
Appendix B of the Agreement shall be amended as follows (new language is underlined, and
deleted language uses strikethrough):
Energy Sales Agreement
Project: 31715128 Hazelton A
Third Amendment - Page 3 of 6
The Sellers’s Facility is described as three generators with nameplate ratings of 2700 2898
kW each at 4160 volts, three phase, 60 hertz, driven by Kaplan S-type turbines. Though
the cumulative Nameplate Capacity of the three generators is 8.694 MW, the Seller has
requested that the Maximum Capacity Amount be set at 7.7 MW consistent with the
Generator Interconnection Agreement dated December 15, 2010. See, Section B-4 below.
Var Capability (Both leading and lagging) Leading is_____ Lagging is ______
B. Location of Facility - Section B-2 “LOCATION OF FACILITY” of Appendix B
of the Agreement shall be amended as follows (new language is underlined, and deleted language
uses strikethrough):
Description of Interconnection Location: _________________________________
Nearest Idaho Power Substation: _______________________________
C. Revised Maximum Capacity Amount - Section B-4 “MAXIMUM CAPACITY
AMOUNT” of Appendix B of the Agreement shall be amended as follows (new language is
underlined, and deleted language uses strikethrough):
This value will be 8.1 MW 7.7 MW which is consistent with the value provided by the
Seller to Idaho Power in accordance with Schedule 72the Generation Interconnection
Agreement (GIA) dated December 15, 2010. 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. represents the total Project output listed in the GIA, and
though the Facility is capable of generating in excess of this amount as described in Section
B-1, above, the Seller will limit operations to a Maximum Capacity Amount of 7.7 MW to
remain consistent with the existing GIA.
D.Modifications of Facility and Agreement - ARTICLE XXIII: MODIFICATION
of the Agreement is hereby deleted in its entirety and replaced with the following provisions:
ARTICLE XXIII: MODIFICATIONS
23.1 No later than the First Energy Date, the Seller will provide Idaho Power
with an “as-built” description of the Facility in the form set forth in
Appendix B.
23.2 The Seller will not modify the Facility from the description set forth in
Appendix B without prior notification to Idaho Power. A proposed
modification to the Facility that would change the Facility as described in
Appendix B is referred to herein as a “Proposed Facility Modification.”
Proposed Facility Modification does not include additions or expansions to
the Facility that result in an increase to the Maximum Capacity Amount,
which are addressed in paragraph 23.6. The Seller may not begin
construction of any Proposed Facility Modification(s) unless and until the
following requirements have been met:
Energy Sales Agreement
Project: 31715128 Hazelton A
Third Amendment - Page 4 of 6
(i) Seller has promptly notified Idaho Power of the Proposed Facility
Modification(s) prior to initiating the modification design,
specification, purchasing and construction process;
(ii) Seller has provided Idaho Power with detailed plans regarding the
Proposed Facility Modification(s), including proposed revisions to
the as-built description of the Facility set forth in Appendix B; and
(iii) The Proposed Facility Modification has been reviewed by Idaho
Power and a determination made to either pursue amendment as a
Proposed Facility Modification pursuant to paragraphs 23.3 and
23.4 or as an expansion or additional project pursuant to paragraph
23.6.
23.3 Idaho Power will review any Proposed Facility Modification(s) and “as-
built” descriptions to determine whether amendment of the Agreement is
appropriate as set forth in paragraph 23.4. In reviewing any Proposed
Facility Modification(s) or actual modifications reflected in the as-built
description, Idaho Power shall consider the following information: (i) The
nature, scope, and extent of the proposed or actual modification(s); (ii) The
impact, if any, on the applicable avoided cost rates or other relevant terms
and conditions; and (iii) Such other information as may reasonably be
necessary including the effect on any other provisions hereof which may be
impacted by the proposed or actual modification. Proposed modifications
could result in several possible actions including but not limited to: no
change to Appendix B, and thus no further action; an amendment to
conform Appendix B to the modified Facility; an amendment to adjust the
pricing and other relevant terms and conditions; or a termination and new
Agreement.
23.4 Based on its review, Idaho Power, at its sole determination in accord with
the provisions of the Public Utility Regulatory Policies Act of 1978 and any
amendments thereto (“PURPA”) and subject to Commission approval, may
choose to enter into an amendment of the Agreement to adjust the pricing
or other relevant terms and conditions as necessary, including Appendix B;
23.4.1 If Idaho Power determines that it is appropriate to revise the
Agreement, the Parties will enter into a written amendment to the
Agreement revising the relevant terms, conditions, description in
Appendix B, and, if necessary, pricing, referred to herein as the
“Facility Modification Amendment”. The Facility Modification
Amendment will be submitted to the Commission for approval. If
the pricing is adjusted, the Parties will agree on and include in the
amendment a pricing true-up mechanism to ensure that the correct
rates apply to the modified Facility from the completion date of the
modification.
Energy Sales Agreement
Project: 31715128 Hazelton A
Third Amendment - Page 5 of 6
23.4.2 If the Commission determines that the Proposed Facility
Modification would require termination of the Agreement, the Seller
may abandon the Proposed Facility Modification or accept the
termination. If the Seller accepts the termination, Seller will be
responsible for Termination Damages, if any, and the Parties may
negotiate a new agreement based on the Facility as modified.
23.5 In addition to prior notification of any modifications to the Facility from the
description set forth in Appendix B, no later than thirty (30) days following
the date of substantial completion of such modification, and prior to the first
Operation Date of such modification, Seller must provide Idaho Power with
an “as-built” description of the modified Facility in the form set forth in
Appendix B of this Agreement; provided that the Facility, as reflected in the
“as-built” description to be provided under this paragraph, may not deviate
from the Facility Modification Amendment, except, in each case, to the
extent such further modification(s) are authorized under a subsequent
written amendment to this Agreement that is executed by the Parties and
approved by the Commission. If the “as-built” description deviates from
the then-approved Appendix B, Idaho Power will review it and follow the
process described in paragraphs 23.3 and 23.4.
23.6 Idaho Power is not required to purchase any Net Energy above the
Maximum Capacity Amount. If Seller builds an expansion or additional
project such that the expansion, or additional project would be deemed a
single Qualified Facility or the same site under FERC regulations, Seller
may not require Idaho Power (and Idaho Power will have no obligation to
purchase pursuant to this Agreement) the output of any such expansion, or
additional facility under the terms, conditions and prices in this Agreement.
Instead, Seller may exercise any rights to enter into a new agreement for the
sale of such incremental energy from such additional facility that is a
Qualified Facility under then-applicable laws and regulations.
23.7 Idaho Power is not obligated to and shall not make any incremental payment
to Seller as a result of any modification, addition, or expansion of the
Facility if such modification was not authorized and approved by the
Commission pursuant to the provisions of this Article 23. Should the Seller
modify, construct additions, and/or expand the Facility without notification
to Idaho Power nor the authorization and approval of the Commission
pursuant to the provisions of this Article 23, any incremental payments to
Seller resulting from and subsequent to the modification, addition, and/or
expansion of the Facility that deviate from the description in Appendix B
shall be unauthorized and immediately due and owing back to Idaho Power.
Failure to repay, or reasonably offset future payments made to Seller
designed to repay and recoup any unauthorized payment amounts will be
deemed a material breach of this Agreement.
Energy Sales Agreement
Project: 31715128 Hazelton A
Third Amendment - Page 6 of 6
23.8 No modification to this Agreement shall be valid unless it is in writing and
signed by both Parties and subsequently approved by the Commission.
3. Commission Approval. The obligations of the Parties under this Third Amendment are
subject to the Commission’s approval of this Third Amendment, and such approval being upheld
on appeal, if any, by a court of competent jurisdiction.
4. Effect of Amendment. Except as expressly amended by this Third Amendment, the
Agreement, as amended, shall remain in full force and effect.
5. Capitalized Terms. All capitalized terms used in this Third Amendment and not defined
herein shall have the same meaning as used in the Agreement, as amended.
6. Scope of Amendment. This Third Amendment shall be binding upon and inure to the benefit
of the Parties hereto, and their respective heirs, executors, administrators, successors, and assigns,
who are obligated to take any action which may be necessary or proper to carry out the purpose
and intent thereof.
7. Authority. Each Party represents and warrants that as of the Effective Date: (i) it is validly
existing and in good standing in the state in which it is organized, (ii) it is the proper party to
amend the Agreement, and (iii) it has the requisite authority to execute this Third Amendment.
8. Counterparts. This Third Amendment may be executed in any number of counterparts, each
of which shall be deemed an original and all of which taken together shall constitute a single
instrument.
IN WITNESS WHEREOF, the Parties hereto have caused this Third Amendment to be
duly executed as of the date above written.
NORTH SIDE ENERGY COMPANY, INC
By: _________________________________
Name: _______________________________
Title: ________________________________
Date: ________________________________
IDAHO POWER COMPANY
By: _________________________________
Name: _______________________________
Title: ________________________________
Date: ________________________________