20111215Exhibit C, PPA.pdf

Exhibit C
Coyote Hill Project Power Purchase Agreement
Cedar Creek Wind, ILoyfß Hi
POWEPUOIAGREBEI
CEDAR CREEK WIND, LLC
AN
PACICORP
Relati to Coote Hil Prjec an up to 43.4 MW Wind Turbine Genertion Prjec
a non-fuled on-s Intet Reur with Mecca Avaiabil Gu,
Idao Qu Facilty
(i)
SECTION 1.
SECTION 2.
SECTION 3.
SECTION 4.
SECTION 5.
SECTION 6.
SECTION 7.
SECTION 8.
SECTION 9.
SECTION 10.
SECTION 11.
SECTION 12.
SECTION 13.
SECTION 14.
SECTION 15.
SECTION 16.
SECTION 17.
SECTION 18.
SECTION 19.
SECTION 20.
SECTION 21.
SECTION 22.
SECTION 23.
Cedar Creek Wilt IL-CHiD
Table of Cont
DEFINITIONS..............................................................................................1
TERM; COMMRCIA OPERATION DATE........................................... 9
REPRESENATIONS AND WARRNTIES ..........................................13
DELIVRY OF POWER; AVAILABILITY GUARTy..................... 16
PURCHASE PRICES ............. ...................... ....................... ...... ................. 19
OPERATION AND CONlROL................................................................21
MOTIV FORCE .......................................................................................25
GENERATION FORECASTING COSTS................................................. 25
METERIG: REPORTS AND RECORDS ............................................... 26
BILLINGS. COMPUTATIONS AND PAYMNTS............................. 28
SECURy........... ................ ............................. ................. ....................28
DEFAULTS AN REMEDIES .............................................................30
INDEMNIFICATION: LIABILITY...................................................... 32
INSURCE.......................................................................................... 33
FORCE MAURE ................................................................................34
SEVERA OBLIGA TIONS...................................................................35
CHOICE OF LAW................................................................................. 35
PARTIAL INALIDITY .......................................................................35
WAIVER ................................................................................................35
GOVERENTAL JUSDICTION AND AUTHORIATIONS .....35
SUCCESSORS AND ASSIGNS ............................................................ 35
ENTIR AGREEMENT.........................................................................36
NOTICES................................................................................................36
(i)
Cedar Creek Wind, LL~eHúl
POWE PURCH AGREME
TH POWE PURCHASE AGREMET, rela to COYOTE Hl, an up to 43.4 MW wid
tuine geon project, entered into ths _th day of December 2011, is beteen Cedar
Crek Wind, LLC, a Delawar limite liabilit company (the "Seller") and PacifiCorp, an
Oregon corpraton acti in its merchat fucton caity (''PaclfiCorp''). Seller an PacifCoip
ar reet to collectively as the "Parties" and individually as a "Part'';
REAl
A. Seller intends to consct own, opera and mata a win failit, inludg
Seller's Intercnnection Facilties, for the generation of elecc power locatd in Idao, wi an
expe Facilty Capaity Rati of up to 43.4 megawa as fuer describe in Exhibit A and
Exhibit B ("Facilty").
B. Seller ha seur rights to deliver outut frm it Facilty to PacifiCoip across the
interconntion and other facilites as fuer described in Exhbit B.
C Seller inteds to operate the Facilty as a Qualifyg Facilty, as such term is
defed in Secon 1.59 below, and to sell Net Ou1put to PacifiCorp in Idao.
D. Seller es th th aver anua Net Ouut to be deliver by the Facilit to
PacifCoip is apprxily 114,246,446 kilowatt hours (kWh) ("Avere Annua Net Output')
put to the Inal Year Ener Delivery Schedule in Secon 4.3.1, which amount of energ
PacifCoip will include in its resource planning.
E. Seller inds to sell and PacifCoip intends to purhae all the Net Ouut frm the
Facilty in acce with the te and conditions of ths Agrmen
F. PacifCorp intds to designte Seller's Facilty as a Netork Resur for the
purses of serving Network Load.
G. Th Agrent is a "New QF Cont" under the PacifiCoip In-Jurctona
Cost Allocation Revised ProtocoL.
H. Seller has autoried Trasmission Prvider to releae generation data to
PacifiCorp. If yes, the authoriation is attached as Exhibit H.
NOW, lHFORE the Paes mut ag as follows:
SECTION 1.DEFIITIONS
When us in this Agrent, the followi term shall hae the followi meags:
1. i 'lAsbuilt Supplement' shal be a sulement to Exibit A, provided by Seller
following completion of constrction of the Facilty, accurately describing the completed
Facilty.
12 "Availabilty" means, for any Biling Period, the ratio, expressed as a
percentage, of (x) the aggregate sum of the turbine-minutes in which each of the Wind
Cedar Creek Wind LL-- Húl
Turbines at the Facilty was available to generate at the Maxmum Facilty Delivery Rate
durg the Biling Period over (y) the product of the number of Wind Turbines that comprise
the Facilty Capacity Rating as of Commercial Operation multiplied by the number of
minutes in such Biling Period. A Wind Turbine shall be deemed not available to operate
during minutes in which it is (a) in an emergency, stop, service mode or pause state; (b) in
"run" status and faulted; or (c) otherwise not operational or capable of delivering at the
Maximum Facilty Delivery Rate to the Point of Delivery; unless if unavailable due solely to
(i) a default by PacifiCorp; (ii) to the extent not caused by Seller's actions, a curtilment in
accordance with Section 6.3 or (ii) insuffcient wind (including the normal amount of time
required by the generatig equipment to resume operations following a period when wind
speed is below the Cut-In Wind Speed).
13 ''Billing Period" mea the tie period between PacifiCoip' s reding of its
power purhase meter at the Facilty, which for this Agreement shall coincide with calendar
months.
1.4 "CAMD" means the Clean Air Markets Division of the Environmental
Protection Agency or successor administrator, or any state or federal entity given jursdiction
over a progra involving Green Tags or any attibute thereof.
1.5 "Commercil Operation" means that not less than the 90% of the expeced
Facilty Capit Raing is fuy operona and reliable and the Faciity is fully inrcnnec fully
ingr, an synchr wi1h th Sys, all of whch shl be Seller's reponsibili to receive
or obta, and which occur when all of the following events (i) have occurred, and (ii)
rein simultaeously tre and acur as of the da and momen on which Seller gives
PacifiCorp notice that Commercial Operation ha occured:
1.5.1 PacifiCorp has received a cerificate addressed to PacifiCoip from a
Licensed Professional Engineer (a) stating the Facilty Capacity Ratig of the Facilty
at the anticipated time of Commerial Operation and (b) stating that the Facilty is
able to ge elecc powe relily in amoun reuir by th Agrent an in
acrdce with all other terms and conditions of this Agreement.
1.5.2 Start-Up Testig of the Facilty has been completed in accordance
with Exhibit E.
1.5.3 PacifiCorp has received a certificate addressed to PacifiCorp from a
Licensed Professional Engineer, an attorney in good stding in Idao, or a letter
from Trasmission Provider, stating that, in accrdce with the Generation
Interconnection Agreement, all required interconnection facilties have been
constrcted, all required interconnection tests have been completed and the Facilty is
physically interconnected with the System in conformance with the Generation
Interconnection Agreement and able to deliver energy consistent with the terms of
this Agreement, and the Facilty is fully integrted and synchronized with the System.
1.5.4 PacifiCorp has received a certificate addressed to PacifiCorp from a
Licensed Professional Engineer, or an attorney in good stading in Idaho, stating tha
Seller has obtained all Required Facilty Documents and, ifrequested by PacifiCoip
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in writing, Seller shall have provided copies of any or all such requested Required
Facilty Documents.
1.5.5 Seller has complied with the security requirements of Section 11.
1.5.6 Network Resource Designtion and Tranmission Service Reguest.
(i) PacifiCorp has received confirmation from the Transmission Provider that the
Facilty ha be deign as a Netwrk Reur and (ü) PacfiCorp ha reived
confion from the Transmission Provider that the transmission service request has
been granted in suffcient capacity to meet or exceed the Maximum Facilty Delivery
Rate and the Seller ha pad all cost associa with any reuiren of the trmission
seice reues
1.6 "Commercia Opraon Date" mean the dat, as design by PacifiCoip
puruant to Section 2.5, the Facilty first achieves Commercial Opration.
1.7
1.8
Energy.
"Commission" meas the Idao Public Utilties Commission.
"Conforming Energ" means all Net Energy except Non-Conforming
1.9 "Conforming Energ Purchase Price" means the applicable pnce for
Conforming Energy and capacity, specified in Section 5.1.
1.10 "Contract Year" means a twelve (12) month penod commencing at 00:00
hour Pacifc Prvailng Time ("PPT") on Januar 1 and ending on 24:00 hours PPT on
December 31; provided, however, that the first Contract Year shall commence on the
Commercial Operation Date and end on the next succeeding December 31, and the last
Contrct Year shall end on the Expiration Date, unless earlier terminated as provided herein.
1.11 "Cut-in Wind Speed" means the wid speed at which a stationary wind
tubine begins producing Net Energy, as specified by the tubine manufactuer and set fort
in Exhibit A.
1.12 "Default Security" shall have the meaning set fort in Section 11.2 of this
Agreement.
1.13 "Delay Liquidated Damages", "Delay Daily Minimum", "Delay Period",
"Delay Price" and "Delay Volume" shall have the meanings set fort in Section 2.6 of this
Agrement.
1.14 "Delay Securi" shall have the meaning set fort in Section 11.1.1 of this
Agrement.
1.15 "Effective Date" shall have the meaning set fort in Section 2.1 of this
Agreement.
1.16 "Energ Delivery Schedule" shall have the meaning set fort in Section 4.3
of this Agreement.
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Ceda Creek Wind UC-eoy Hi
1.17 "Environmental Attbutes" means any and all claims, credits, emission
reuctions, off, and alowace, howsver entitled asiate wi th generaion of Ouut
frm the Facilty or the avoidan of the emssion of any gas, chemica, or other substce to the
air, soil or water, tht is capable of bein meaurd, verfied, or calculte. Envirnmenta
Attbut includ but ar not lite to: (1) any avoide emissions of pollut to the ai, soil, or
war suh as (subjec to the foregoing sulfu oxides (SOX), nige oxides (NOx), can
monoxide (CO), and other pollut; (2) any avoided emissions of cabon dioxide (C02), mete
(CH4), and other grouse gas (GHGs) that have be deined by the Unit Natons
Ingoverenta Panel on Clim Change to contrbut to the acal or potential threat of alterig
the Ea's cliat by trping hea in the atospher; and, (3) all WRIS Cerca.
Envnmen Attbute do not include (i) Producon Tax Crets or cert other ta incentives
existng now or in the futu associate with the constcton, ownership or opertion of the
Facilty, or (ii) adverse wildlife or environmental impacts.
1.8 "Envinmental Contamination" mean the intructon or presence of
Hazardous Materials at such levels, quantities or location, or of such form or character, as to
cons a violaton offedal, sta or loc laws or reguons, and present a marial risk under
fedra, st or loc laws an reguons th the Preis wi not be avaiable or usle for the
puroses contemplated by this Agreement.
1.9 ''EFad Ca Rating" shall be beteen 13.5 and 43.4 MW but
shall not exceed 43.4 MW in any event, nor shall the sum of the Facilty Capacity Rating of
this Agrement, the facilty capacity rating under the amended and restated power purchase
agreement between PacifiCorp and Ridgeline relating to Nort Point, and the facilty
capacity rating under the amended and restated power purchase agreement between
PacifiCorp and Ridgeline relating to Five Pine exceed 133.4 MW.
1.2 "Expiration Date" shall have the meanng set fort in Section 2.1 of this
Agreement.
1.2 i ''Faciity'' is defined in Recita A of this Agreement.
1.22 "Facilty Capacity Rating" means the sum of the Nameplate Capacity
Ratings for all Wind Turbine generators comprising the Facilty.
1.23 "Force Majeure" has the meaning set fort in Section i 5.1.
1.24 "Forced Outage" means an outage that requires removal of one or more
Wind Turbines from service, another outage state or a reserve shutdown state before the end
of the next weekend. Maintenance Outages and Planed Outages are not Forced Outages.
1.25 "Generation Interconnecton Agrement" means the generation
interconnection agrment entered into separately between Seller and Transmission Provider,
as applicable, specifYing the Point of Delivery and providing for the constrction and
operation of the Interconnection Facilties.
1.26 "Green Tags" means (a) the Environmental Attbutes associated with all
Output, together with (b) the Green Tag Reportng Rights associated with such energy and
Environmental Attributes, however commercially transferred or trded under any or other
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Ceda Creek Wind UC-C Hi
product names, such as "Renewable Energy Credits," "Gren-e Certified," or otherwise. One
Green Tag reresents the Environmental Attibutes made available by the generation of one
MWh of energy from the Facilty.
1.27 "Green Tag Reporting Rights" means the exclusive right of a purhaser of
Environmental Attibutes to report ownership of Environmental Attibutes in compliance
with federal or stte law, if applicable, and to federal or state agencies or other pares at such
purchaser's discretion, and include reporting under Section 1605(b) of the Energy Policy Act
of 1992, or under any present or futu domestic, international, or foreign emissions tring
program or renewable portfolio standard.
1.28 "Governmental Authority" means any supranationa, federal, stte or other
political subdivision thereof, having jursdiction over Seller, PacifiCoip or this Agreement,
including any municipality, township or county, and any entity or body exercising executive,
legislative, judicial, regulatory or administrative functions of or pertning to governent,
including any corporation or other entity owned or contrlled by any of the foregoing.
1.29 "Hazardous Materials" means any waste or other substace that is listed,
defined, designated or classified as or determined to be hazardous under or pursuant to any
environmental law or regulation.
1.30 "Inadvertent Energy" mea ener deliver to the Point of Delivery at a rate
exceeding the Maimum Facilty Delivery Rate on an hour-averaged basis. Inadverent
Energy is not included in Net Energy.
131 "Index Prce", for eah day, sh mea the weighte aver of the aver Pea and
Off.Peak firm energy market prices, as published in the Intercontinental Exchange (ICE)
Da Ahd Power Pric Report for the Palo Ver Hub for suc day. For Suny and NEC
holidays, the 24-Hour Index Prce sha be used uness ICE shl publish a Fir On-Pea and Fir
Of-Pea Prce for such days for Palo Vere, in which even suh ince shall be utli for suh
days. lfthe ICE inex or any replacent of th index ces to be published dung th te of this
Agreement, PacifCoip shall select as a replacement a substantially equivalent index that,
aftr any appropriate or necessar adjustments, provides the most reasonable substitute for
the index in queston. PacifiCorp's selection shal be subject to Seller's consent, which Seller
shall not unreasonably withold, condition or delay.
132 "Initial Year Energ Delivery Schedule" shall have the meaning set forth in
Section 4.3.1.
133 "Intercnnecon Facili" mea al the facilites and ancilar equipment us to
interconnect the Facilty to the System, as defined in the Generation Interconnection
Agrement.
1.3 "Lettr of Creif' mea an irocle stdby lettr of credt in a form
reasonably acceptable to PacifiCorp, naming PacifiCorp as the par entitled to demand
payment and presen draw reuest thereunder. Such letter of cret shall be prvided by an
institution tht is a Uni Stas offce of a commal. ba ortn compay org under the
la of the Uni Sta of America or a politica subvision theref, with a crdit ra on it
long-te senor unecurd debt of at lea "A" from Stada & Poor's and "A2" frm Moody's
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Investr Serice and (unes otherse ag) hag as of at lea $10,000,000,000 (net of
reserves).
135 ~'Lic Prfesional Engieer" mea a pern acle to PacfiCoip in its
reasonable judgment who is licensed to practice engineering in the state of Idaho, who ha
trng and expeence in the engineerig discipline(s) relevant to the mars with respe to which
such persn is caled to prvide a cecaon, evaluaton and/or opinon, who has no ecnomic
relatonship, asiaton or nexus with Seller, and who is not a reresetive of a constig
engiee, contrr, deigner or other individual involved in the development of the Facilty, or of a
manufac or supplier of any equipment inled in the Facilty. Such Licens Prfesiona
Engiee sha be licese in an approat engieeg disciplie for the reuir certficaon being
mae. The engagement and payment of a Liceed Prfessional Engieer solely to provide the
certfications, evaluations and opinions reuied by this Agrement shal not consni a
prhibite ecnomc relatonsp, asiaon or nexus with Seller, so long as such engiee ha no
oder ecnomic relaonp, assoiaon or nex wi the Seller.
1.36 "Mainteance Outae" mea any out of one or more Wind Turines th is not
a Forced Outage or a Planed Outage. A Maintenance Outage is an outage that can be
deferrd until afr the end of the next weekend, but that requires that the Wind Turine(s) be
reoved frm serce before the nex Planed Oue. A Matece Ou may occur any time
during the year and must have a flexible sta date.
1.37 ''Mteri Advers Chang" shall mea with respect to the Seller, if the Seller
has expeenced a change in facts or circumstances related to development or operation of
the Facilty that materially and adverely impact Seller's abilty to fulfill its obligations
under this Agreement.
1.38 "Maximum Facilty Delivery Rate" meas the maximum instataeous rate
(kW) at which the Facilty is capable of deliverig Net Output at the Point of Delivery, as
specified in Exhibit A, and in compliance with the Generation Interconnection Agrement.
1.39 "Maximum GIA Delivery Rate" means the maum ra (kW) at which the
Generatr Interconnecion Agrent allows the Facilty to deliver energy to the Point of
Delivery and is set fort in Exhibit A.
1.40 "Nameplate Capaci Rating" mea the maxum intaeous generg
capacity of any qualifyng small power or cogeneration generaing unit supplying all or par
of the energ sold by the Facilty, express in MW or kW, when ope consit wi the
manufactur's recommended power far and opeti pareters, as set fort in a notice frm
Seller to PacifCo deliver befor the Commerial Opon Dat and, if applicale, updated in
the As-built Supplement.
1.41 "NERC" means the Nort Amenca Electrc Reliabilty Coiporation.
1.42 "Net Energ" meas the energy component, in kWh, of Net Output. Net
Energy does not include Inadvertent Energy.
1.43 ''Net Output' mea all en an cait pr by the Facil, les sttion use
and less transformation and transmission losses and other adjustments, if any. Net Ouut
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Cedar Creek Wind, UC-Coy Húl
do not inlude Invert Ener. In no event shall the sum of the Net Output in any
calendar year under the Agreement, the power purchae agrement between PacifiCoip and
Ridgeline relating to Nort Point, and the power purhase agrement between PacifiCorp
and Ridgeline relating to Five Pine (the "Aggregate Net Output Sum") exceeds 438,000
megawatt hours (the "Aggregate Net Output Cap").
1.44 "Network Resurc" shall have the meaning set fort in the Tarff.
1.45 "Network Service Provider" mea PacifiCorp Trasmission, as a provider
of network service toPacifiCoip under the Tarif.
1.46 "Non-Conforming Energy" meas Net Output produced by the Facilty prior to
the Commercial Operation Date.
1.47 "Non-Conforming Energy Purchase Price" means the applicable price for
Non-Conforming Energy and capacity, specified in Section 5.1.
1.48 "Off-Peak Hours" meas all hours of the week that are not On-Peak Hours.
1.49 "On-Peak Hours" means hours from 6:00 a.m. to 10:00 p.m. Pacific
Prevailing Time, Monday through Satuday, excluding Western Electricity Coordinatig
Council (WECC) and Nort American Electrc Reliabilty Corporation (NRC) holidays.
1.50 "Output Shortall" and "Output Shortfall Damages" shall have the
meanings set forth in Section 4.5 of this Agreement.
1.51 "PacifiCorp" is derined in the first pargraph of this Agreement, and
excludes PacifiCorp Transmission.
1.52 f'PacifiCorp Transmission" means PacifiCorp, an Oregon corpration,
acting in its interconnection and trsmission fuction capacity.
1.53 "Planned Outage" means an outage of predetermined duration that is
scheduled in Seller's Energy Delivery Schedule. Boiler overhauls, turbine overhauls or
inspections are tyical plaed outes. Matenace Ou and Forc Ouge ar not Plaed
Oues.
1.54 "Point of Delivery" means the point of interconnection between the Facilty
and the System, as specified in the Generation Intercnnection Agreement and in Exhibit B.
155 "Premises" means the real propert on which the Facilty is or wil be
located, as more fully described on Exhibit A.
1.56 "Prime Rate" means the rate per anum equal to the publicly anounced
pre rate or reference fate for commercial loan to large businesses in effect from time to
time quoted by JPMorgan Chase & Co. If a JPMorgan Chase & Co. prime ra is not available,
the applicable Pre Rate shal be the anounce prme rate or refece ra for commerial loan
in effect frm time to time quote by a ba with $10 bilion or more in assets in New Yoik City,
N.Y., selected by the Par to whom interest based on the prime rate is being paid.
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1.5 "Pructn Tax Creit" mea prcton ta crts unde Seon 45 of the
Internal Revenue Code as in effect from time to time during the term hereof or any successor
or other provision providing for a federal ta credit determined by referece to renewable
electric energ produced from wind resours and any corrlative sta ta credit detrmined by
refece to reewle elecc ener prouce frm wi reur for whch th Facilty is eligible.
Producton Tax Creits do not include any ta creit deined by reference to investment.
1.58 "Prudent Elecrical Practce" means any of the pratices, methods and acts
engage in or approved by a significant porton of the eleccal utiity industi or any of the
practices, methods or acts, which, in the exercise of reasonable judgment in the light of the
fact known at the tie a deision is mae, could hae bee expe to acplish the desir
relt at the lowest reasonable cost consistent with reliabilty, safety and expedition. Prudent
Electrical Prces is not inteed to be limit to the optiwn prace, metod or ac to the
exclusion of all oter. bu mt to be a spct of poible prces, metod or ac.
1.59 "QF' meas "Qualiing Facty", as th te is defined in the verion of
PERC Regulations (codified at 18 CFR Par 292) in effect on the date of this Agreement.
1.60 "Required Facilty Documents" means all deeds, titles, leases (iric1uding
Wind Les), lice, pets auorions, and agen demonstg tht Seller cotrls
the necessa prpey rights and goveren autorions to consct ope, and mai the
Facilty, including without limtation those set fort in Exhibit C.
1.61 "Requirents ofLa mea any applicale and matory (but not merly
advisory) federal, state and local law, statute, regulation, rule, code or ordinance enacted,
adopt issue or prmulga by any feder, stte, loc or oter Goverenta Authority or
reguatry bo (including those pe to elecca, building, zoing, envinmen and
occupational safety and health reuirements).
1.62 "Scheduled Commercial Operation Date" means the date by which Seller
prmies to achieve Coeria Operaon, as speifed in Section 2.3.8.
1.63 "Scbedul Monthly Ener Deliery" mea the Net Energy scheduled to be
delivered durg a given calenda month, as specified by Seller in the Energy Delivery
Schedule.
1.64 "Shared Interconnection Facilities" means that portion of the
Interconnection Facilties use by the Facilty and one or more other Qualifying Facilties as
fuer described in Exhibit B.
1.65 "Seller's Forecast-Cost Share" and "Seller's Capped Forecast-Cost
Share" shall have the meanings set forth in Sections 8.2 and 8.3 respectively.
1.66 "Subsequent Energy Delivery Schedule" shall have the meaning set fort in
Section 4.3.3.
1.67 "System" means the electrc transmission substation and transmission or
distribution facilities owned, operated or maintained by Transmission Provider, which shall
include, after constrction and installation of the Facilty, the circuit reinforcements,
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extensions, and associated termina facilty reinforcements or additions required to
interconnèct the Facilty, all as set fort in the Generation Interconnection Agreement.
1.68 "Tarif' meas the PacifiCorp Transmission FERC Electric Tarif Seventh
Revised Volume No. 11 Pro Forma Open Access Transmission Tariff or the Transmission
Provider's corrsponding FERC taiff or both, as revised frm time to time.
1.69 ''Transmission Provider" means PacifiCorp Transmission or a successor,
incIuding any regional transmission orgaizaton ("RTO").
1.70 "Wind Leas" means the memoranda of wind lease and redacted wind
leases recorded in the county in which the Facilty is located in connection with the
development of the Facilit, as the sae may be supplemen amended exended rest or
rela frm tie to time.
1.7 i "Wind Turbine" me the tye of wind turbine specified and more fully
described in Exhibit A as such Exhibit A may be updated pursuant to Section 2.3.5.
i .72 lIWRGIS li means the Western Renewable Energy Generation Information
System.
1.73 "WRGIS Certficate" mean "Certificatell as defined by WRGIS in the
WREGIS Operating Rules.
i.74 "WREGIS Operating Rules" means the opertig rules and requiments
adopted by WRGIS.
SECTION 2.TERM; COMMRCIA OPERATION DATE
2.1 This Agreement shall become effective aftr execution by both Pares and
after aprova by the Commission pursuant to a final and non-appealable order (''Effece
Date"), that the prces to be paid for energy and capacity ar just and renable, in the public
intest, and tht the cost incurd by PacifCoip for purhas of caity and ener from Seller
ar legitimate expenses, all of which the Commission will allow PacifiCorp to reover in
rates in Idaho in the event other jurisdictions deny recovery of their proportionate share of
said expenses. Unless ealier teiminat as prvided herin this Agrent shal reai in effect
until the twentiet (20t) aniversar of the Commercial Operation Date ("Expiration
Date").
2.2 This Agreement shall be subject to an automatic, early termination without"
any fuer obligation or liabilty of the Paries to the other upon the occurence of any of thefollowing:
2.2. i Seller does not exercise the assignment right provided for in Section
21.2 of the power purchase agrement between the Paries relating to North Point
prior to the expiration of such right;
2.2.2 Seller (i) exercises the assignent right provided for in Section 21.2 of
the power purchase agreement between the Paries relating to Five Pine and (ii)
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Ridgeline provides to PacifiCorp a single expected facilty capacity rating of 40 MW
under the amended and restated power purhase agreement relating to Five Pine (as
such term is defined thereunder); or
2.2.3 Seller (i) exercises the assignent right provided for in Section 2 1.2 of
the power purchase agreement between the Paries relating to Five Pine; (ii)
Ridgeline provides to PacifiCorp a single expected facilty capacity rating of less than
40 MW under the amended and restated power purchase agrement relatig to Five
Pine (as such term is defined thereunder); and (ii) Seller provides writtn notice to
PacifiCorp of Seller's intent to terminate the Agreement under this Section 2.2.3 on
or before Marh 30, 2012.
Upon the occurrence of any event contained in this section Seller shall provide
PacifiCoip with notice identifying the event of the occurence within ten (10) days of
the occurnce.
2.3 Time is of the esnce of ths Agment, and Seller's abilty to meet ce
requirements prior to the Commercial Opertion Date and to achieve Commercial Operation
by the Scheed Commerial Option Date is criticaly important. Therfore,
23.1 By the date that is four (4) months prior to the Scheduled Commercial
Operation Date, Seller shall obtain and provide to PacifiCorp copies of all goverenta
peit an autonzon li in Exbit C.
2.32 By the date that is 270 days prior to the Scheduled Commercial
Operation Date, Seller shall provide one hundred percent (100%) of the Delay
Security required under Section 1 i .1.1, as applicable.
2.33 The Paries acknowledge and agre that prior to the Effective Date,
Seller: (i) ha provided all inormation and paid all fees the Transmission Provider
requires to designate the Facilty as a Network Resource in accrdance with the Tar
(OA TI; and (li) ha prvide all inormation reonaly required by PacifiCorp to
submit a transmission service request for the Facilty to the Transmission Provider
puruant to the Tariff. Within 10 days of Seller providing notice definitively
establishing a single Capacity Rating for the Facilty within the range contemplated
in the Expected Facilty Capacity/Ratig, PacifiCorp shall amend the currnt
Network Resource designation request for the Facilty as required to reflect the
Facilty as described in the Agrement.
23.4 At lea te (10) busines days pror to deliery of any ener fr the
Facilty to PacifiCorp, Seller shall provide PacifiCorp with an executed Generation
Interconnection Agrement.
2.3.5 Within one hundrd eighty (180) days prior to the Scheduled
Commercial Operation Datel Seller shaH provide PacifCorp with amended Exhibits,
which may include the designation of alternative Wind Turbines for the Facilty, and
such other updates to the information contained therein.
io
Ceda Creek Wind U£HD
2..6 Prior to the Commercial Operation Date, Seller shall provide Default
Security required under Section 11.2, if applicable.
2.3.7 Prior to the Commercial Operation Date, Seller shall provide
PacifiCorp with an As-built Supplement reasonably acceptable to PacifiCorp.
2.3.8 Seller shall use commercially reasonable effort to achieve
Commercial Operation by 00:00 PPT December 31, 2012, but in no event shall
Commercial Operation occur later than 00:00 PPT March 1,2014. For the avoidace
of doubt, Seller shall have no liability for Delay Liquidated Damages or be liable for
other penalties if Commercial Operation taes place by Marh 1,2014. Seller shall
provide PacifiCoip with notice of the Scheduled Commercial Operation Date no less
than ten (10) months prior to such date.
2.3.9 Seller shall provide written confirmation of the expected Facilty
Capacity Rating for the Facilty on or before Marh 30, 2012. This notice shall
definitively establish a single Capacity Rating for the Facilty within the range
contemplated in the Expected Facilty Capacity Rating.
24 Beginning on January 6,2012 and on the fift (5th) business day of each
month thereafter until the Commercial Operation Date, Seller shall provide PacifiCorp a one.
page monthly update bye-mail on the progress of the milestones in Section 2.3.
25 Esblishing Commercial Operation. Seller shall provide wrttn notice to
PacifiCoip stain when Seller believes th the Facilty has achieved Commercial Option.
PacifiCorp shall have ten (10) business days after reipt either to confrm to Seller that all
of the conditions to Commercial Operon have been satified or have occur, or to state with
speifcity wha PacifiCoip reonaly believes has not be sasfied I: with such te (i 0)
business da perod, PacifiCoip eiter does not repond or else conf th the Facilty ha
achieved Commercial Opration, the ongial da of receipt of Seller's notice shl be the
Commercial Option Date. IfPacifiCorp notifies Seller wiin such te (10) business day period
that PacifiCorp reasonably believes the Facilty has not achieved Commercial Operation,
Seller may, if it has a god faith belief th Comerial Operaon ha be achieved, submit a
Technca Dispute Notice, or else Seller shall addr the conce stte in PacifCorp's notice to
the mut satisfaon of both Pares. If Seller submits a Technca Disput Notce and the
Techncal Exper determines that Commercial Operation has been achieved, then the
Conuerial Operon Da shal be the da, as determed by the Techncal Exp th the Facilty
fi met all the requen of Commerial Opraon; otheise the da upon which Seller has
addrssed the concern st in PacifiCoip's notice to PacifiCoip's reonable satisfaction, as
specified in a notice frm PacifiCorp to Seller, shal be the Commerial Opon Dat. If
Commerial Opon is achieved at less th one hundr pet (l00%) of the expe Facilty
Capaity Rating and Seller infonns PacifiCoip that Seller inteds to br th Faclity to one
hundr pe (100%) of th expec Facilty Caity Rag, Seller shal prvide PacifCorp with
a list of all items to be complet in orer to achieve th expe Facilty Capacity Rating.
2.5.1 Technical Expert. If, and only if, a dispute regards (i) whether or not
Commercial Operation has bee achieved, and/or (ii) the date when Commercial
Operation was achieved, the Paries may have such dispute, and only such disput,
resolved puruant to this Secon 2.5.1. Any such disput wil be detined by an
11
Cedar Creek Win UC-CHill
indent tehnca ex who shal be a mutally acepble th pa wi tring and
experence in the disciplines relevant to the matrs with respct to which such pen is
called upon to prvide a cercation, evaluation or opinon (the ''Technkl Expert"),
which determination shall be (X) made (subject to the terms in this Section 2.5) in
acrdace wi the Conscton Indust Ari1on Ru1es and Mediaon Proceures
(Icludg Prur for Lage, Complex Consction Disputes) of the AA, as
amended and effective on October 1,2009 (the "Technical Dispute Proure"),
notwthstding any dollar amounts or dollar limitations contained therein, and (Y
binding upon the Paries.
(a) Either Par may commence the dispute process as to the
mattrs set fort in pargraph 2.5. i, above, with the American Arbitration Association
("AA") by notig AA and the other Par in wrti (''Technica Dispute Notice") of such
Par's desire that the dispute be resolved thugh a determination by a Technical Expert.
(b) The detinon sh be conduct by a sole Technca Expe.
The Pares may selec any mutly actale Tecca Expe If the Pares caot agr on a
Technica Exert withn five (5) days afr the da of the Technica Disput Notice, then th AA's
Arittion Admsttor sha sed a li and rees of th (3) avale tehnca expe mee
the quacaons se fort in Secon 2.5.1 to the Pares, each of whom shl ste one nae, and the
reainig pern shall be appointe as the Technical Exper. If more than one nae re,
eit beus one or both Pares have fàled to respnd to th AA's Ariton Admistto
within five (5) days afr reiving the list or beuse one or both Pares have fàled to st a nae
frm th li or beus both Pares stke the same nae, the AA's Arbitron Adminstto
wil choose the Techcal Exrt frm the remai naes. If the designated Technca Expe
shll die, become incapable or, unwillin to, or unle to see or proceed with the determination,
a substitute Technical Expert shal be apin in acce with the selecton pr
decrbe above, an su substtu Technca Ex sh have al such powers as ifhe or she ha
be originally appointed herein.
(c) Witin th (30) days of the apinen of the Technca Expert
purt to the foregoing sub-seion, eah Par shal submit to the Technica Ex (an copy the
other Par) a wrtten rert containing its positon with respet to the dispute, and arguments
therefor togeter with supportg docentaon and caculatons. Discver shal be limte to
Facilty documentaon relag to the disput ma. With six (60) days from reipt of suh
submissions, the Technical Expert shall select one or the other Par's position with respect to the
dispute arbitrtele issues se fort in Section 2.5.1 abve, whereupon such selection shall be a
binding detrminaton upn the Pares for al puises herf. The cost of the Technca Exrt
inludg his or her fe and exp shl be borne by th Par whos poiton was no selec by
the Tecica Ex; each Par shal othse be its own expses. If the Tecca Exrt fas
to rede a decision with niet (90) days frm reipt of each Par's submissions, eiter Par
may, pror to th Technca Exer's fi decision, intiat litigaon, in which cae the Technica
Expe's fial decision shall not be binding on the Paries unless otherwise agreed.
2.52 All verba and wr communcaons beee the Pares an is or
prepared in connection with this Section 2.5.1 shall be deemed prepared and
communicated in furtherace, and in the context of dispute settlement, and shall be
exempt frm disover and producton, and shl not be adssible in evdece (whether as
12
Cedar Creek Wind UC-eO) Hi
adsion or oter) in any litgaon or other prngs for the resoluton of the
dispute.
2.5.3 All deadlines specified in this Section 2.5 may be extended by mutual
agreement of the Parties.
2.6 Delay Damages. Seller shall cause the Facilty to achieve Commercial
Operation on or before the Scheded Commerial Opon Date. If Commeria Opraon occur
af the Scheduled Commercial Operation Date, Seller shall be liable to pay PacifiCorp
delay da for the numbe of da ("Dela Peri'') tht the Commerial Opon Dat occur
afthe Scheduled Coercial Option Dat, unti the earlier occuce of the Coercial
Opeon Dat or th termon of ths Agemen ("De Liquidte Daes''), pr that
Seller shl not acroe any Delay Liquida Damages afr: (i) Seller ha tiely achieved the
milestone in Section 2.3.3; and (ii) Seller ha satsfied al requireents of Commerial Operation
except for one or more reuirents in Section 1.5.6. Bill and payments for Delay Liquidate
Dam shl be ma in acrdce with Secon 11.1.
2.6.1 Delay Liquidate Damages. Delay Liquidate Damages equas the sum of:
for each day in the Delay Period, the grater of (1) the Delay Daily Minimum or (2)
the Delay Price times the Delay Volume,
Where:
"Delay Dai Miimum" equa (a) for the fir for-five (45) calenda days
following the Scheduled Commeria Opeon Date: onenietet (1 /9) of fort-
five dollar ($45) multiplied by the Maximum Facilty Delivery Rate with the
Maimum Facilit Deliver Rate be meaur in kW; (b) af the for-fi
(45~ caenda day followi the Scheded Coeria Opon Da: the Delay
Price times the Delay Volume.
''Delay Prce" equa the poitve differce, if any, of the Index Prce minus the
weighte averge of the On-Pea an Of-Pea montly Coormg Ener
Purchase Prices; and
"Delay Volume" equas th applicable Scheded Monthly Energy Deliver
divided by the number of days in that month.
2.6.2 Appropriateness of Damages. The Paries agre that the damages
PacifiCoip would incur due to delay in the Facilty achieving Commercial Opraon on or
before the Scheduled Commercial Operation Date would be diffcult or impossible to
prict with ceinty, and th the Delay Liquida Damge ar an approprat
approximtion of such damages.
SECTON 3.REPRESENTATIONS AN WARS
3.1 PacifiCorp represents, covenants, and warants to Seller that:
3.1. PacifiCorp is duly organized and validly existng under the laws of the
State of Oregon.
13
Cedar Creek Wind UC-- Hi
3.1.2 PacifiCorp has the requisite coiporate power and authority to enter
into ths Agent and to peorm acrdg to th te of ths Agremen
3.1.3 PacifiCoip has taen all coiporate actions require to be taken by it to
authorize the execution, deliver and performance of this Agrement and the
consummation of the trsactions contemplated hereby.
3.1.4 Subject to Commission approval, the execution and delivery of this
Agrement does not contravene any provision of, or constitute a default under, any
indenture, mortgage, or other materal agrment binding on PacifiCorp or any valid
order of any court, or any regulatory agency or other body having authority to which
PacifiCorp is subject.
3.1.5 Subject to Commission approval, this Agreement is a valid and legally
binding obligation ofPacifCoip, enforceable against PacifiCorp in accordance with
its ters (except as the enforcabilty of this Agrement may be limite by bany,
insolvency, ban moratorium or sim laws afecti crditors' rights generaly and laws
retrct th availabilty of equitale reedes an exce as the enforcilit of ths
Agrmen may be subjec to gene priciples of eqity, wheter or not suh
enforceabilty is considered in a proceeding at equity or in law).
3.2 Seller represents, covenants, and warants to PacifiCorp that:
3.2.1 Seller is a limited liabilty company duly organized and validly
existig under the laws of Delaware.
3.2.2 Seller has the requisite power and authority to enter into this
Agreement and has, or will have at the date of Commercial Operation of the Facilty,
all reuisite power and authority to perform according to the terms hereof, including
all required regulatory authority to make wholesale sales from the Facilty.
3.2.3 Seller's sharholders, directors, and offcers have taken all actons
required to authorize the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby.
3.2,4 The execution and delivery of this Agreement does not contravene any
provision of, or constitute a default under, any indentur, mortgage, or other material
agreement binding on Seller or any valid order of any cour, or any regulatory agency
or other body having authority to which Seller is subjec.
3.2.5 This Agreement is a valid and legally binding obligation of Seller.
enforceable against Seller in accordance with its terms (except as the enforceabilty
of this Agrement may be limited by bankrptcy, insolvency, bank moratorium or
similar laws affecting creditors' rights generally and laws restricting the availabilty
of equitable remedies and except as the enforceability of this Agreement may be
subject to general principles of equity, whether or not such enforceabilty is
considered in a proceeding at equity or in law).
14
Cedar Creek Wind LL-QHúl
32.6 The Facilty is and shl for the te of ths Agrement continue to be a
QF. Within thirt (30) days after the Effective Date, Seller shall provide the
appropriate QF certification, which may include a Federal Energ Reguato
Commision self-cfication to PacifCoip. At any time thereaf that PacifiCoip has
ren to believe durg the te of this Agrment tht Seller's st as a QF is in
queson, PacifCorp ma reui Seller to provide PacifiCoip with a wrtt legal opinion
from an attrney in good st in the st ofIdao an who ha no ecnomic
relaonhi, assoiaon or nex with the Seller or the Facilty (other than in a capacity
as counsel providing such requested legal opinion), stating that the Facilty is a QF
and providing suffcient proof (including copies of all documents and data as
PacifiCoip may request) demonstrting that Seller has maintained the Facilty as a
QF.
3.2.7 Neither the Seller nor any of its pricipal equity owners is or has
within the past two (2) year been the debtor in any banptcy proceeding, is unble
to pay its bils in the ordinar course of its business, or is the subjec;t of any legal or
regulatory action, the result of which could reasonably be expected to impair Seller's
abilty to own and operate the Facilty in accordance with the terms of this
Agreement.
3.2.8 Seller has not at any time defaulted in any of its payment obligations
for electricity purhased from PacifiCoip.
3.2.9 Seller is not in default under any of its other materìal agreements that
would result in Seller's failur to perform its material obligations hereunder.
3.2.10 Seller owns all right, title and interest in and to the Facilty, fre and
clear of all liens and encumbrances other than liens and encumbrances created by or
through Seller related to third-pary financing of the Facilty, and Seller (or its
successor in interest) wil continue to own for the term of this Agreement, all right,
title and interest in and to the Facilty, free and clear of all liens and encumbrances
other th liens and encumbrances relate to third-pary financing of the Facilty.
3.2.11 In entering into this Agreement and the underting by Seller of the
çbligations set fort herein, Seller has investigated and determined that it is capable
of performing hereunder and has not relied upon the advice, experience or expertise
of PacifiCorp in connection with the transactions contemplated by this Agreement.
3.2.12 All professionals or expert including, but not limited to, enginee,
attorneys or accountats, that Seller may have consulted or relied on in underting
the transactions contemplated by this Agreement have been solely those of Seller.
3.2.13 All leases of real propert requird for the operation of the Facilty or
the performance of any obligations of Seller hereunder are set forth and accurately
described in Exhibit C. Upon request by PacifiCoip, Seller shall provide copies of
the Wind Leases to PacifiCoip.
3.2.14 All inomionabut the Facilty set fort in Exhibit A, Exhibit B, and
Exhibit C has been verified by Seller and is accurate to the best of its knowledge.
15
Cedar Creek Wind UC~fßHin
3.3 Notige. If at any tie durg this Agrent, any Par obtins act knowledge
of any event or information which would have caused any of the representations and
warranties in th Secon 3 to have bee mately une or misleadg when mae, such Par
sha provide the other Par with wrtten notice of the event or information, the
representations and waities afecd, and the acon, if any, whch such Par inteds to tae to
mae the reresentaon and waties tre and correc. The notce reire pursu to ths
Section sh be given as son as prcale af the occurce of ea such even
SECTION 4.DELIVERY OF POWER; AVAILABILITY GUARTY
4.1 Deliver an Accce of Net Oyut. Exce for any curilment speifed in
Section 6.3, unless othel'ise provided herein, PacifCoip wil purchase and Seller wil sell
all Net Output from the Facilty. In the event the Aggrgate Net Output Sum exceeds the
Aggregate Net Output Cap in any given calendar year, PacifiCorp shall determine the
number of megawatt hour that exceeded the Aggregate Net Output Cap by subtrting the
Aggregate Net Output Cap from the Aggrgate Net Output Sum (the "Cap Inadvertent
Energy"). The Cap Inadvertnt Energy shall be subtracted from the Net Output under this
Agreement for the given calendar year, prior to calculating payment under this Agrement
for the December biling period of the relevant calenda year. In the event the Cap
Inadvertent Energy exceds the Net Output under this Agreement for the December biling
perod, the Net Outut under this Agreement for billng puroses for December shall be zero
and the remaining Cap Inadverent Energ shall carover to subsequent months. A similar
calculation wil then be performed in however many subsequent month are required until
such time as the Cap Indvertent Energy for such calenda year equals zero.
42 No Sales to Third Paries. Durig the term of this Agreement, Seller shall not
sell any Net Output from the Facilty to any entity other than PacifiCorp.
4.3 Ener Deliver Schede. Seller sh prpa and provide to PacifiCoip, on an
ongoing basis, a written schedule of Net Energy expected to be delivered by the Facilty
("Energ Delivery Schedule"), in accordance with the following:
4.3.1 Dug the fi twelve full caenda months followig th Commercial
Operation Date, at a Facilty Capacity Raing of 41.4 MW, Seller predicts that the
Faci1ty will produce and deliver the following monthy amounts ("Initial Year
Energy Delivery Schedule"):
Month
Januar
Februar
March
April
May
June
July
Augut
Energy Delivery (kWh)
9,924,026
9,581,746
10,916,978
9,874,950
9,142,779
8,728,225
7,590,710
7,951,901
16
AveragekW
13,339
14,259
14,673
13,715
12,289
12,123
10,203
10,688
Cedar Creek Wind, UC-Q Hill
September
October
November
December
TOTAL:
8,285,631
9,672,700
11,143,200
11,433,599
I 14,246,446
11,508
13,001
15,447
15,368
13,053
43.2 Seller may revise the Initial Year Energy Delivery Schedule any time
prior to the Commercial Opration Date.
43.3 Begig at the end of the nith full caenda month of opraon and at the
end of ever th month thereaf, Seller shal supplement the Ener Delivery Schedule
with thee additional months of forward estimates (which shall be appended to this
Agt using the fonn speifed in Exhibit D) ("Subsuent Energ Delery
Schedule'') such th the Ener Delier Schede will provide at lea th mont of
scheduled energy estimates at all times. Seller shall provide Subsequent Energy
Delivery Scheles no lat th 5:00 pm PPT of the 5th day af the due da. If Seller
does not prvide a Subse Ener Delier Scedule by the abve dein, scheed
ener for the omi peod shal equa the anoimts scheduled by Seller for the sae th-
month period durig the previous year.
4.3.4 Upon and aftr the Commerial Operation Date, Seller may no longer
rese th Ener Delivery Schedule for the firs six ful caenda month of Commeral
Operation. After 5:00 p.m. PPT of the fi business day following the end of the third
:f caenda mont of Commerial Opon an the end of each thir caenda mont
threr, Seller may no longe rese the Energy Deliver Schede for th six caen
month imedatly followig suc th mont. Subject to the foregoin rectons in th
Seon 4.3.4, Seller may re th Ener Deliver Schedule for any unct mont by
prvidig wrtt notice to PacifCoip. Failur to prvide tiely wrtten notce of chaed
amoimts wil be deed to be an elecon of no chage.
4.4 Minimum Availabilty Obligation. Seller shall cause the Facilty to achieve an
Avalabil of at leat 85% dur eah mon ("Guate Avabilty').
4.5 Liquidated Damages for Output ShortalL. If the Availabilty in any given
month falls below the Guaranteed Availabilty, the resulting shortall shall be expressed in
kWh as the "Output Shortall." The Output Shortfall shall be calculated in acordance with
the followig formula:
Output Shortl = (Guteed Availabilty - Availabilit) *
Sceduled Monty Ener Deliver
Seller shl pay PacifiCoip for any Ouut Short at the lower of (1 ) the poitive differce, if any,
of the Index Prce minus the weighte averge of the On-Pea and Of-Pea monthy Confrmg
Ener Pu Prces; or (2) the weighte averge of the On-Pea and Of-Pea monty
Confonn Ener Purha Prce (''Otput Short Daag'').
Output Shortl Daes = Outut Shortl * Ouut Shortl Prce
Wh:
17
Cedar Creek Wind, UC-eoy Hill
Output Shortall Price ='(Index Prce - Weighted Averae CEPP), except
that if Output Shortfall Price .( 0, then Output
Shortall Price == 0, and except that if Output
Shortall Price;; Weighted Average CEPP, then
Output Shortall Prce = Weighted Average
CEPP
Weighted Average CEPP = the Weighted Average On-Peak and Off-Peak
Conforming Energy Purhase Prices for the
month of Output Shortal
If an Output Shortall occur in any given month, Seller may owe PacifiCorp liquidated
daages. Eah Pary agrees and acknowledges that (a) the daages that PacifiCorp would
incur due to the Facilty's failure to achieve the Guaranteed Availabilty would be diffcult or
impossible to predict with certinty, and (b) the liquidated damages contemplated in this
Section 4.5 are a fair and reasonable calculation of such damages.
4.6 Audit Rights. In addition to data provided under Sections 9.3 and 9.4,
PacifiCorp shall have the right, but not the obligation, to audit the Facilty's compliance with
its Guarteed Availabilty using any reasonable metods. Seller agrees to retain all
performance relate data for the Facilty for a minimum of the years, and to cooperate with
PacifiCoip in the event PacifiCoip decides to audit such data.
4.7 Transfer of Title to Green Tags; Documentation of Gren Tags Transfers. For
a perod often (l0) years frm the Commercial Operation Date, Seller shall have title to the
Green Tags immediately upon the ¡eneration of the Output at the Facilty that gives rise to
such Green Tags. On the tenth (10 ) anniversar of the Commercial Operation Date though
and including the Expiration Date, PacifiCorp shall have title to the Green Tags immediately
upon the generation of the Output at the Facilty that gives rise to such Gren Tags. Each
Par shall execute all additional documents and instrments reasonably requested by the
ather Par in order to fuer document the ownership of the Green Tags during the
respective Party's ownership. Without limiting the generality of the foregoing, Seller shall,
on or before the 10th day of each month durg which PacifiCorp has ownership rights to the
Green Tags, deliver to PacifiCoip a Green Tags Attstation and Bil of Sale (in the form
attched as Exhibit 4.7(A)) for all Gren Tags deliverd to PacifCoip hereunder in the
preceding month, along with any verification that is in conformnce with the then-current
Center for Resoure Solution's Gren-e program, or any successor program. The Par
having ownership of the Gren Tags at the time (the "Green Tag Owner"), at its own cost
and expense, shall register with, pay all fees required by, and comply with, all reporting and
other requirements of WREGIS relating to the Facilty or Gren Tags. The Seller shall
ensure that the Facilty wil paricipate in and comply with, during the Term, all aspects of
WREGIS. The Green Tag Owner shall be responsible for any costs charged by the qualified
reporting entity for the Facilty to paricipate in and comply with, during the Ter, all
aspects ofWREGIS. The Green Tag Owner shall, at its sole expense, use WREGIS as
required pursuant to the WREGIS Operating Rules, including but not limited to those rules
related to effectuatig the trsfer ofWRGIS Certificates and transferrng such WREGIS
Certificates in accordance with WREGIS reporting protocols and WREGIS Operting Rules
and as required under this Agreement. Seller may either elect to enter into a Qualified
18
Cedar Creek Wind UC-- Húl
Reportng Entity Services Agreement with PacifiCoip in a form similar to that in
Exhibit 4.7(B) or elect to act as its own WREGIS-defined Qualified Reportng Entity. Seller
shall upon writtn request from PacifiCoip provide copies of all documentation submitted to
WRGIS in connection with the Facilty. Furer, upon notification by WREGIS or CAM
that any transfers of Gren Tags contemplated by this Agreement have not been recorded,
the Paries shall promptly cooperate in taing all reasonable acions necessar so that such
transfers can be recorded. Seller shall at its expense cause the Facilty to maintain its
registration in good stding with the Center for Resource Solution's Green.e program, or
any successor progr, thoughout the Term; provided, however that each Pary shall (a) not
tae any action (other than the. provision of trthful information) to impair the Facilty's
good stading with such progr and (b) shall provide such information as is reasonably
requested to maintain such registation. The Pares shall reasonably cooperate in any
registration of the Facilty in the renewable portolio stdard or equivalent program in all
such fuer states and programs in which the Paries may wish to register or maintaied
registered the Facilty by providig copies of all such information as reasonably required for
such registration. Neither Part represents or warrants that the Green Tags can be used for
any purpse. The Parties acknowledge tht the Gren Tags may be subject to action by
Governental Authority and neither Par is liable to the other Pary for action taen by a
Governental Authority in connection with the Green Tags that is not a result of a breach of
this Agreement.
SECTIONS.PURCHASE PRICES
5.1 Energy Puchase Price. Except as provided in Section 5.3, PacifiCorp wil pay
Seller Conforming Energy Purchase Prices or Non-Conforming Energy Purhase Prices, as
applicable, for Net Output adjusted for the month and On-Peak Hour or Off.Peak Hours and
the wind integrtion cost using the following formulae:
Conforming Energ Purchas Price "" (AR * MPM) - WIC
Non-Conforming Energ Purchase Price = (ARnce * MPM) . WIC
Where:
AR '"Conforming Energy anual rate from Table 1, below, for the
year of the Net Output.
the lower oj
85% of the Conforming Energy anual rate frm Table
i below, for the year of Net Output
AR =
or
MPM =
85% of average of the daily Index Price for each day of
the month, or porton of month, of Net Output.
monthly On-Peak or Off-Pea multiplier from Table 2 below,
that corrsponds to the month of the Net Output and wheter
the Net Output occured during On-Peak Hour or Off.Peak
Hours.
19
Ceda Creek Wind, UC-- Húl
WIC =:$6.50IMh, the wind integration cost prescribed in
Commission Order NO.3 1 021.
Exple cacuatons ar prvided in Exibit G.
Table 1: Coforming Energ Annual Rate
Year Conforming Energ
Annual Rate (AR")S/Mh
2012 63.97
2013 67.51
2014 71.32
2015 75.40
2016 77.76
2017 80.07
2018 82.58
2019 85.05
2020 87.61
2021 90.~3
2022 93.78
2023 Q705
2024 100.44
2025 103.98
2026 106.98
2027 110.07
2028 113.26
2029 116.56
2030 119.95
2031 124.51
2032 128.50
2033 132.64
2034 136.92
Month On-Peak Off-Peak
Hours Hnuni
JanuarY 103%94%
Februar 105%97%
March 95%80%
Anril 95%76%
Mav 92%63%
June 94%65%
Julv 121%92%
Auiiust 121%106%
Sentemher 109%99%
October 115%105%
November 110%96%
December 129%120%
Table 2: Montl On-Pe8OO-Pea Mulli
20
Ceda Creek Wind, LL-CHi
5.2 Payment.
For eah Bilin Period in eah Cont Yea, PacifCoip sh pay Seller as follows:
For deliver ofConfnn En
PJt = (CFier(ì.Pea * CEPice/loo) +(CF-P * CEPr-P1 i 00)
For deliver ofNon-onng Ener:
Payent = (NCFierOn.Pca * NCEPrce-pe 1100) +(N~ca*NCEir.Pc/100)
Wh:
CF =
CEPrce =
NCF =
NCEPPice =
On-Pea
Of-Pea =
Corm En in kWh
Coon Ener Pu Price in $I
Non-Confon Ener Pu Prce in kWh
Non-Conform Ener Pu Prce in $I
the corrndi value for On.Pea Hour
the corrndig value for Of.Pea Hour
5.3 Invert Ener. So long as actace of Invert Energ doe not ca
PacifiCoip to violate the terms of its Netork Trasmission Serice and is consistent with
Prt Elecca Prce, PacifCoip wi ac Iner Engy, but will not puha or pay
for Inadvertnt Energy.
5.4 Additional Compensation. Seller shall not be entitled to any compensation
over and above the Conforming Energy Puhase Prices or Non-Conforming Energy
Puchase Prices, as the case may be, for the Gren Tags associated therewith.
SECTION 6.OPERATION AND CONTROL
6.1 As-Built Supplement. Upon completion of any constction affecting the
Facility, Seller shal prvide PacifiCoip an As.built Supplement beg the stp of a Licen
Professional Engineer that accurtely depicts the Facilty as built. The As-built Supplement
must be reviewed and approved by PacifiCorp, which approval shall not unreasonably be
witheld, conditioned or delayed.
62 Operation. Seller shll operte and maintain the Facilty in a safe maner in
acrdce wi the Geeron Inteecon Agrent, Pmdent Elecca Prces and in
acrdce with the reuiments of al aplicable fe, st and loc laws and the Natona
Elecc Saf Co as such laws and code may be amened frm tie to tie. PacifCoip shll have
no obligaon to purha Net Output frm the Facilty to the extent the intonnecon beteen the
Facilit and PacifCoip's eleetc sys is discnnec, suspended or intepte in whole or in
par, pursuant to the Generation Interconnection Agrement, or to the extent generon
curlment is reir as a resul of Seller's non-cmpliance with the Geertion Internnecon
Agrement. PacifiCoip shal have the right to inpect the Facilty to confrm that Seller is
21
Cedar Creek Wind UC--Hi
operating the Facilty in accordance with the provisions of this Section 6 upon renale
notice to Seller. Sener is solely responsible for the operation an maice of the Facilty.
PacifiCorp shal not, by reon of its deion to inpe or not to inpe th Facilty, or by any
action or inaction taen with respect to any such inspecton, assume or be held rensible for
any liabilty or ocúice arin frm the opeon and maice by Seller of the Facilty.
63 Curlment. PacifCoip shan not be obligated to purhase, receive, pay for, or
pay any daages associated with, Net Output (or assoiate Pruction Tax Crets or
Envirnmenta Attibuts) if such Net Outut (or associat Producton Tax Creits or
Envienta Attbut) is not delivere to the Sys or Poin of Delivery due to any of the
followig: (a) the inteonnection between the Facilty and the Systm is disconnected,
susd or intept in whole or in pa consist wi the tenu of th Generon
Inrcnnecon Agrent, (b) the Trasmsion Prvide or Netork Sece Provide dits a
gene culment, reucon, or reisptch of generation in the ar (which would includ the Net
Output) for any ren, even if such curlmen or reh die is caed out by PacifiCorp,
which may fulfill such directive by acting in its sole discretion; or if PacifiCorp curls or
oterse reuces the Net Ouut in order to meet it obligaons to the Trasmision Provider or
Network Serice Provider to operate within system limitations, (c) the Facilty's Output is not
reived beause the Facilty is not fully integr or synchrnied with the Syst, or (d) an
event of Force Majeur prents eiter Par frm delierg or revig Net Ou Seller shall
renaly deeie th MW amW1t of Net Ouut curled pu to th Section 6.3 af the
fac bas on the amoun of energy th could have be gener at the Facilty and deliverd to
PacifCoip as Net Ouut but th was not gener and deliver beuse of the curent Seller
sh dete th quatity of suh culed ener baed on (x) the tie and duron of the
curilment period and (y) wid conditions recordd at the Facilit dug the perod of curlment
and the power cure spcifed for the Wind Tuines as shown in Exhibit A. Sener shall prmptly
provide PacifiCoip with acss to such information and data as PacifiCorp may reasonably
require to confirm to its reasonable saon th amount of ener th wa not gener or
delivere becase of a curlment described in this Section 6.3.
6.4 PacifiColJ as Merchant. Seller acknwledges that PacifiCoip, actig in its
merchant capacity fuction as purhaer under ths Agrement, ha no responsibilty for or contrl
over PacifCo Trassion or any succesor Traion Provider.
6.5 Outages.
6.5.1 Planed Outages. Except as otherse provided herein Seller sha not
schedule Planned Outage durng any portion of the months of November, December,
Januar, Februar, June, July, and August, except to the extent a Planed Outage is
resonably require to enble a vendor to sasfy a gu rement in a siton in
which the venor is not otlei able to peonn th gu wor at a tie oter th
dtg one of the months spifed abve or to the ext suc Planed Ouge is required in
accordance with Prudent Electrcal Practices. Seller shal, in Exhibit D, prvide
PacifCorp wi an anua for of Plaed Outes for ea Cont Yea at lea one (1)
month, but no more that the (3) months, before the first day of that Contract Year,
and shall prompty update such schedule, or otherse change it only, to the extnt
that Seller is renably reui to chae it in order to comply with Prdet Eleccal
Price. Seller sh not scede more th one hudr fi (150) hour of Plaed
22
Cedar Creek Wind UC-Q Hi
Oues for each calendar year. Seller shall notify PacifiCorp of any deviation to the
anual Planned Outage schedule, above, on the Monday preceding the scheduling
week in which the sooner of the following wil occur: (a) the outage as predicted in
the Planed Outage schedule; or (b) the outage per Seller's revised plans. Such notice
shall consist of a Mondy-Sunday, houry spreshee showi the reise tota Facilty
culmen (M for that scheduling week. Sener shall not schedule any maintenance of
Shad Internnon Facilties durg Novembe, Decbe, Januar, Febru, Jun. July,
or Augut, without the prior wrttn approval ofPacifiCoip, which approval may be
reasonably withheld by PacifiCorp.
6.52 Maice Ouges. If Seller reonaly detines that it is neces to
schedule a Manace Outge, Seller shal noti PacifiCoi of the propose
Maintenance Outage as soon as practicable but in any event at least five (5) days
before the outge begi (or such short period to wluch PacifCoip may rely const
in light of then existig wid conditions). Upon such notice, the Pares shl plan the
Mace Ouge to mutly acmmoda th renable remen of Seller an the
service obligations of PacifiCorp. Seller shall tae all reasonable measures and use
commercially reasonable effort consistent with Prudent Electrcal Praices to not
schedule any Maienance Ou durg the followi peod: June 15 thug June 30,
July, August, and September 1 though September 15. Seller shall include in such
notice of a propose Maiteance Ou the excte st da and tie of the outage, the
amoun of generon caity of the Facilit th will not be avaiable, and the expe
completion dae an tie of th oute. Seller may provide notices under ths Secon 6.5.2
orally. Seller shall conf any such ora notification in wrting as soon as praticable.
PacifiCoip shall promptly respond to such notice and may request renable
modifcaton in the schedule for the outge. Seller shall use all renable effort to comply
with PacifiCoip's reuest to modfy the schedule for a Maitenace Outge if such
modifcaton has no substial impact on Seller. Seller shl notify PacifiCoip of any
subsequent changes in generation capacity of the Facilty during such Maintenance
Outage and any changes in the Maintenance Outage completion date and tie. Seller
shal ta al renable meaur and exerise its commerialy renable effort coistet
wi Prdent Electical Prctce to minimiz the fruency and duration of Matenace
Outages.
6.5.3 Forced Outaes. Seller shal promptly provide to PacifiCoip an oral
report, via telephone to a number specified by PacifiCorp, of any Forced Outage of
the Facili. Such reort sh include the amoun of geeron caacit of the Facilit th
wil not be available because of the Forced Outage and the expected ret date and
time of such generation capaity. Seller shall promptly update the report as necessa to
advise PacifiCoip of changed circumstances. If the Forced Outage resulted in more
than 15% of th Facilty Cait Ra of th Facity being unailable, Seller shl conf
the oral rert in wrtig as son as pracable. Seller shall tae all renale meas and
exerise its commerially reanale effrt consistent with Prudent Elecca Prtices to
avoid Forced Outages and to minimize their duration.
6.5.4 Notice of De ratings and Outages. Without limiting other notice
requirements, Seller shall notify PacifiCoip, via telephone or via electronic mail, to a
number or email addrss specified by PacifiCoip, of any limitation, restriction,
23
Ceda Creek Wind UC-C Hi
derating or out mown to Seller th afects th generon capait of the Facilit in an
amount grter th five perent (5%) of the Facilty Capacity Rating for the following
day. Seller shall promptly update such notice to reflect any material changes to the
information in such notice.
6.5.5 Effect of Outages on Estimated Output. Seller shall factor Planed
Ouge and Maitenace Outge th Seller renably ex to encounter in the
ord coure of opra th Facilty into the Scheduled Monty Ener Deliver
amounts in the Energy Delivery Schedule set forth in Exhibit D.
6.6 Scheduling.
6.6.1 Coopetion and Stadas. With respect to any and all scheduling
requirements in this Agrement, (a) Seller shall cooperate with PacifiCoip with
respect to schedin Net Ou and (b) eah Par shal deignte auori
reresentves to communicate with regard to scheduling and related mattrs arising
hereunder.
6.62 Schedule Coordination. If, as a result of this Agrement, PacifiCorp is
deemed by an RTO to be financially responsible for Seller's performance under the
Geeration Intercnnecon Agrmen due to Seller's lack of stdig as a "sched
cordt' or oter RTO regn designon quaificaon or otherse, then (a) Seller
shall acquire such RTO recognized stading (or shall contrt with a third par wh
ha such RTO regn stadig) such that PacifiCoip is no loner responsible for Seller's
peormce under the Generaton Interconnecton Agrement, and (b) Seller shal deend,
indefy and hold PacifCoip haess aga any liabil ansing due to Seller's
performance or failur to perform under the Geeration Interconnection Agrement or
RTO requirement.
6.7 Delivery Exceeding the Maximum GIA Deliver Rate. Seller shall not deliver
energ from the Facilty to the Point of Deliver at a rate that exceeds the Maxum GIA
Delivery Rate. Seller's failur to limit such deliveries to the Maximum GIA Deliver Rate
shall be a breach of a material obligation subject to Section 12.1.8.
6.8 Accss Rights. Upon reasonale prior notice and sujec to the pnen safet
requirements of Seller, and Requirements of Law relating to workplace health and safety,
Seller shall provide PacifiCorp and its authorized agents, employees and inspectors
("PacifiCorp Repretaties") with rele acess to the Facilty: (a) for the puse of reg
or teg meterig equipment, (b) as necessa to witness any acceptce test, (c) for purses of
implementing Section 4.6, and (d) for other reasonable purpses at the reasonable request of
PacifCoip. PacifiCoip sh releae Seller agait and frm any and all any and all loss, fies,
pena.lties, claims, actions or suits, including costs and attorney's fees, both at tral and on
appeal re frm actions or omissions by any of the PacifiCoip Reresetaes in connecon
wi their access to the Facilty, except to the extent that such damages are caused or by the
intentional or grossly negligent act or omission of Seller.
24
Cedar Creek Wind UC-Q HiD
SECTION 7.MOTIVE FORCE
Prior to the execution of ths Agreement, Seller provided to PacifiCorp Wind Leases and a
motive force plan including an hourly wind profile acceptable to PacifiCoip in its reasonable
discretion and attched hereto as Exhibit F-I. With three (3) months afr the Effective
Date, Seller will provide a wind report from any of Wind Logics, GL Garrad Hassa, A WS
Truepower, LLC, or DNV Global Energy Concepts, Inc. certifying that the implementation
of the fuel or motive force plan can reasonably be expecte to provide fuel or motive force to
the Facilty for the duration of this Agreeent adequate to generate power and energy in
quantities necessar to deliver the Average Anual Net Output. Seller will provide an
updated estimate of Average Anual NetOutput at the time it provides an amended Exhibit
A pursuat to Section 2.3.5 if Seller has selected different Wind Turbines.
SECTION 8.GENERATION FORECASTING COSTS
8.1 Fore Seivice Election. PacifiCoip may, in its discretion, add foresting
services for Seller's Facilty to PacifiCorp's existing contract with a qualified wind-energy-
prcton forg vendor, wlch cont and vendor may chage durg the te of th
Agreement.
82 Seller's Forecast-Cost Shae. Pu to Commission Order No. 30497,
Seller sha be repoible for 500Ai ofPacifiCorp's co of ad suh fore serces
("Seller's Foreast-Cost Share") up to Seller's Capped Forecast-Cost Share.
8.3 Cap on Seller's Fore-Cost Sha. Seller's For-Cost Sha for a given
Contract Year is capped at 0.1 % of total payments made by PacifiCorp to Seller for Net
Output durg the prevous Contrct Year ("Seller's Capped Forest-Cost Share"). If the last
Contract Year of this Agrement is shorter than a full calenda year, the cap wil be prorated
for that shortned year. For the years) prior to the secnd Contrt Yea of th agrement tht
equa a full caenda ye, Seller's Fore-Cst Sha is caed at 0.1 % of estatd payments for
Net Output based on the Energy Delivery Schedule.
8.4 Payment. Seller shall pay to PacifCorp Seller's Forecast-Cost Share
uncapped by Section 8.3 for each Contract Year in equal payments for each month of such
year except the last month of such year. (For exaple, in a Contract Year equaling a full
calendar year, Seller would pay 1I11th of Seller's Fore-Cost Sha durg eah of the firs 11
mont) In the las month of eac Cont Yea, PacifCoip shl refud to Seller the amount pad
by Seller unde ths Section in excess, if any, of Seller's Capped Forect-Cost Share. For a
Contr Year encompase by jus one calenda month Seller's payment to PacifiCorp and
PacifiCoip's refund to Seller shall be calculated and paid simultaeously. To the extent
practicable, payments and refuds unde ths Seon shl be included in monthly paymen and
inoice under Seon 10.
2S
Cedar Creek Wind LL-G Hi
SECTON 9.METERIG: REPORTS AN RECORDS
9.1 Meg Adjustment. Metrig will be performed at the location specified in
Exhibit B and in the maner specified in the Generator Interconnection Agreement. 1
92 Metrig Errrs. If any inecon or te mae pu to the Geeraor
Intercnnection Agreement discloses an errr exceeding two percent (2%), either fast or
slow, proper corrction, based upon the inaccuracy found~ shall be made of previous readings
for the actual period during which the meterig equipment renderd inaccurate
measurements if that period ca be asrted If the ac peod caot be asrt, the
prper coirtion shl be mae to the meaur taen durg the tie the metg equipment
wa in serce since last tested, but not exceeding thee Biling Periods, in the amount the
metering equipment shall have be shown to be in eror by such test. Any corron in bilings
or payments resultig frm a corron in the met rerd shl be made in the next monthy
biling or payment rendered.
93 Telemetrig. In accrdce with the Geeraon Intennecon Agrent,
Seller shall provide telemeterig equipment and facilties capable of trnsmitting to
Trasmission Prvider (who wil shar it with PacifiCoip as authoried by Exhibit H, ;'Seller
Autrion to Relea Geeron Da to PacifiCoip'') the followig inonnation concer the
Facilty on a re-tie basis, and wil ope such eqpmen when reues by PacifiCorp to
indicate:
(a) instataeous M W output at the Point of Delivery;
(b) Net Output;
(c) the Facilty's total instataneous generation capacity; and
(d) wind velocity at tuine hub height.
SeHer shall also transmit to PacifiCoip any other data frm the Facilty that Seller receives
on a rel-time basis, including meteorological data, wind speed data, wind dirction data and
gross output data. Seller shall provide such real-time data to PacifiCoip in the same detail
that Seller receives the data (e.g., if Seller receives the data in four second intervals,
PacifiCorp shaU also receive the data in four second intervals). PacifiCorp shall have the
right from time to time to reir Seller to provide adona telemetg equipment and facilties
to the ext nec and reasonable.
9.4 Monthly Reports and Logs and Other Information.
9.4.1 Reprt. With th (30) calenda days afr the end of each Biling
Period~ Seller shall provide to PacifiCoip a report in electronic format, which report
shall include (a) sumaries of the Facilty's wid and outut da for the Billig Perod in
inteal not to exce one hour (or such shorr peod as is renaly possible with
If sttion servce is sulied vi se falities PaifCoi will deuct ston servce frm th met
fail output to calculate Net Output.
26
Cedar Creek Wind LL--HiD
commercially available technology), including information from the Facilty's
computer monitoring system; (b) summares of any other signficant events related to
the consion or operation of the Facilty for the Bilin Perod; (c) dels of Availability
of the Facilty for the Biling Perod sufcient to calculate Avaabilty and includig
hourly average wind velocity measured at tubine hub height and ambient air
tempe; and (d) any surt inonnon th PacifCoip may frm tie to tie
renaly re (mclud histca wid da for the Facilty).
9.4.2 Electronic Fault Log. Seller shall maintain an electronic fault log of
operaons of the Facilty durg each hour of the te of ths Agrent commencing on the
Commercial Operation Date. Seller shall provide PacifiCorp with a copy of the
electtic fat log withn thir (30) caenda days afr th end of the Bilin Perod to
which the fault log applies.
9.43 Upon the reue ofPacifiCoip, Seller shal prvide PacifiCoip the
manufacturer'. guidelines and recommendations for maintenance of the Facilty
equipment.
9.4.4 By eah Janua 10 followig the Commercial Opertion Date, Seller shl
provide to PacifCorp wrn ceficaon tht Seller ha completed all the
manufacturs' guidelines and recommendations for maintenance of the Facilty
equipment applicable to the previous calendar year.
9.4.5 At anytime from the Effective Date, one (1) year's advance notice of
the tennination or expiron of any agrent, including Wind Lees, puruat to which
the Facilty or any equipment relating thereto is upon the Facilty site; provided that
the foregoing does no autorie any ealy teon of any land leae.
9.4.6 As soon as it is known to Seller, Seller shall disclose to PacifiCoip, the
extent of any material violation of any environmental laws or regulations arising out
of the constction or opetion of the Facilty, or the prsence of Envirnment
Contaon at the Facilty or on the Prmise, allege to exist by any Goverenta
Autorty havig jursdicton over the Premis, or the preent exstce of, or the
occurence durig Seller's occupancy of the Prmises of, any enforcement, legal, or
regulatory acon or prg relatig to suh aleged violaton or alleged prce of
Envirnmenta Continon prently occurg or havin ocur dug the peiod of
time that Seller ha occupied the Premises.
9.5 Matece of Met Eqen To the ext not oterw prvide in the
Generator Interconnection Agreement, PacifiCoip shall inspect, test, repair and replace the
metring equipment periodically, or at the reqest of Seller if Seller ha reason to believe
met may be off an reest an inon in wrg. To the ex not othere provided in
the Generator Intennection Agrent, all PacifiCorp's costs relatg to designng, inling,
maing, and repaiing metrig equipment instled to accmmodate Seller's Facilty shall be
borne by Seller.
9.6 WREGIS Metering. Seller shall cause the Facilty to implement all necessar
generation information communications in WREGIS, and report generation Information to
27
Cedar Creek Wind UC-- HiD
WRGIS puruant to a WREGIS-approved meter that is dedicate tothe Facilty and only
the Facilty.
SECTION 10.BILLINGS. COMPUTATIONS AN PAYMNTS
10.1 Payment for Net Output. On or before the thirteth (30th) day following the
end of each Biling Period, PacifiCoip shall send to Seller payment for Seller's deliveries of
Net Output to PacifiCoip, togeer with coputtion supprtg such payment. PacifCoip may
off any such paymen to reflec amoun owig frm Seller to PacifCoip purt to th
Agren or th Geeraon Innnecon Agrment Any suh offet shal be sely
itemized on the statement acompanyig each payment to Seller.
102 Annual Invoicing for Output Shortall. Thirt calendar days aftr the end of
each Con Yea, PacifCorp shal deliver to Seller an invoice showig PacifiCoip's computon of
Output Shortfall, if any, for all Biling Periods in the prior Contract Year and Output
Shortall Damages, if any. In preparing such invoices, PacifiCorp shall utilize the meter data
provided to PacifiCorp for the Contract Year in question, but may also rely on historica
averages and such oter inoraton as may be available to PacifCoip at the tie of invoice
preon if the metr da for suh Cont Yea is then incomplet or otherse not available. To
the ex reui, PacifiCoip shl pr any such invoice as prmpty asprcable followig
its receipt of actual results for the relevant Contract Year. Seller shall pay to PacifiCorp, by
wire trfer of imediatly availe fuds to an account spifed in wrtig by PacifCorp or by
any other mea aged to by the Pares in wrtig frm tie to tie, th amoun set fort as due in
such invoice, and shall within thirt (30) days after reeiving the invoice raise any.objections
regag any dispute porton of the invoice. Objecons not made by Seller wi the th-day
period shall be deemed waived.
103 Inteest on Overdue Amounts. Any amounts owing afr the due date therof
shall bear interest at the Prime Rate on the date the amount-bee due, plus two percent
(2%), frm the date due until paid; provided, however, that the intert rate shall at no time
exceed the maximum rate allowed by applicable law.
10.4 Disput Amoun. If either Par, in good faith disputes any amount due
pursuant to an invoice renderd hereunder, such Par shall notify the other Par of the
specific bais for the disput and, if the invoice shows an amomit due, shal pay that porton of
the statement tht is undisputed, on or before the due date. Any such notice shall be provided
within two (2) ye of the date of the invoice in which the err fi occur. If any amount
dispu by such Par is dened to be due to the other Par, or if the Pares resolve the
payment dispute, the amount due shall be paid within five (5) days after such determination
or resolution, along with interest in accordance with Section 10.3.
SECTION 11.SECURY
1 1.1 Delay Securty:
i 1.1.1 Dut to Pos Securty. By the da provided in Section 2.3.2, Seller shall
post a Letr of Credit, cash or a parenta guaranty, each in a form acceptable to
PacifiCoip, in the amowi caculat pW'ua to Section 11.1:i ("Dela Security'). To the
28
Ceda Creek Wind IL-C Hi
ext PacifCorp maes a drwig unde the Delay Securty, Seller sha with fi (15)
caenda days re the Delay Seurty as if no such deducton had occurred.
i 1.1.2 Calculation of Delay Securty. The dollar value of Delay Security
shall equal the greater of: (1) fort-five dollar ($45) multiplied by the Maximum
Facilty Delivery Rate with the Maximum Facilty Delivery Rate being measurd in
kW (bed on th fi Facil Caity Ra deined by Ma 30, 2012); or (2) the
sum of the products, for each of the fist thee calendar months aftr the Scheduled
Commercial Operation Date, of:
the energy in the Initial Year Energy Delivery Schedule for the month (kWh)
multiplied by the monthly weighted averae On-Peak and Off-Peak
Conforming Ener Pu Prce for the month ($I) divide by 100.
Such amount shall be fixed upon execution of this Agreement
11.13 Right to Draw on Security. PacifiCorp shall have the right to draw on
the Delay Security to collect Delay Liquidated Damages. Commencing on or about
first of each month PacifiCoip will invoice Seller for Delay Liquidate Damges
incu if any, during the preing month. If insuffcient Delay Securty is available,
Seller shll pay P~ifCorp for invoice Delay Liqudate Daes no late th five buines
days afr receivin such invoice. The Pares will make bil and payments for Delay
Liquidated Damages in accordce with Section 10.
11.1.4 Paral Releas of Delay Securty. Provided th Seller ha maintad
Delay Security in accordance with Section 11.1.1, PacifiCorp shall release one-third
of the. original amount of Delay Securty stad in Section i i .1.1 each tie Seller
accomplishes a milestone (a) or (b), below:
(a) Seller ha (i) execut the Geeron Intennecon Agrent
with Transmission Provider; and (ii) paid in full any interconnection and/or sys upgr
cost Seller is obliga to pay in advance of intercnnecon constrcton.
(b) Seller ha pour the concr foundaon at each of its plaed
individual Wind Turbine locations.
PacifiCoip shall make the parial refud of Delay Security reuired above within ten business
days of the date Seller provides PacifiCorp written notice (along with satfacry documentaon
therf) that it ha acomlished miesne (a) or (b) abve.
i 1. i.5 Full Relea of Delay Seurty. Unles PacifCoip diput whet Seller
has paid all Delay Liquidated Damages, PacifiCoip shall release all remaining Delay
Security upon the earlier of the 30th calendar day following commencement of
Commercial Operation or the 60t calenda day following PacifCoip's tetion of this
Agreement.
11.1.6 Default. Seller's failur to post and maintain Delay Security in
accordance with Section 11.1 wil constitute an event of default, unless cured in
accordance with Section 12.1.1 of this Agreement.
29
Ceda Creek Wind UC--oyfß HiD
11.2 Default Security (Levelized Pricing Only). (Reserved)
SECTION 12.DEFAULTS AN REMEDIES
12.1 The following events shall constitute defaults under this Agrement:
121. Non-Payment. A Par's failure to make a payment when due under
this Agrement or post and mainta securty in conformance with the reuirments of
Secton 11 or maintan insurance in conformance with the requirements of Section 14
of this Agrment, if the failur is not cured within ten (l0) business days after the
non-defaulting Par gives the defaultig Par a notice of the default.
12.12 Breach of Representation. Breach by a Par of a representation or
warranty set forth in this Agreement, if such failure or breach is not curd within
thirt (30) days following written notice.
12.13 Default on Oter Agrents. Seller's failur to cure any default under
the Generation Interconnection Agreement or any other agreement between the
pares relat to this Agrment the Geertion Intennection Agrent, or the
Facilty within the time allowed for a cur under such agrement or instrent.
12.1.4 Insolvency. A Par (a) makes an assignent for the beefit ofits
cretors; (b) fies a petion or otherwise commence, auories or acuiesces in the
commencement of a proceeding or cause of action under any banptcy or similar
law for the proteon of creitors, or ha such a petition filed agast it an such petion is
not withdrawn or dismissed within six (60) days afer such filing; (c) bemes
insolvent; or (d) is unable to pay its debts when due.
12.1.5 Ma Adver Chge. A Matal Adver Chge ha occ with
respect to Seller and Seller fails to provide such performance assurances as are
reasonably requested by PacifiCoip, within thir (30) days from the date of such
request.
12.1.6 Sale to Third-Par. Seller's sale of Net Output to an entity other than
PacifiCorp, as prohibited by Section 4.2.
12.1.7 Non-Delivery. Unless excused by an event of Force Majeure
(including PacifiCorp's breach of its obligations under this Agreement), Seller's
faur to deliver any Net Ener for th conse caenda month.
12.1.8 A Par otherwise fals to peorm any maal obligation (includg but not
limted to failur by Seller to meet any deae set fort in Secton 2.3.1 thugh 2.3.9)
imposed upon that Par by this Agreement if the failure is not cured within thirt
(30) days af th non-defati Par gives the defautig Par notice of the defalt.
12.1.9 Seller fails to achieve the Commercial Operon Date by the 91 st day
following the Scheduled Commercial Operation Date, provided, however, that, upon
writtn notice from the defaulting Par delivered prior to the ninety-first (91 s~ day of
delay, this ninety (90) day period shall be extnded by an additional one hundred and
30
Cedar Creek Wind, UC-Coyfß Húl
fifty (150) days if (a) Seller ha pour the cocr foundaon at eah ofitsplaned
individua wid tuine locations; and (b) Seller replenishes Delay Default Security in
accordace with Section 11.1.1. Seller shll contnue to ac Delay Liquida Dames
in acordan with Section 2.6 (Delay Prce ties the Delay Val) unti the Prjec achieves
Comerial Operation or this Agreement is terminated.
122 In the event of any default hereunder, the non-defaultig Par must notify the
defaultig Par in wrting of the ciumces indicating the default an outinig the
reireents to cur the deult. If the deft ha not be cur with th precrbe tie, abve,
the non-dti Par may te th Agremen at its sole discon by deliver wrtt
notce to the other Par an may pure any an al lega or equitale reedes provided by law or
puruant to this Agren The rights prvided in th Seon 12 ar cumulate such th the
exerise of one or mor righ shall not cons a waver of any other righ.
123 In the even th Agrment is te beus of Seller's defa and Seller
wihes to agai sell Net Outpt frm the Facilty using the sae motive forc to PacifCorp
following such termination, PacifiCorp in its sole discretion may require that Seller do so
subject to the te of this Agren includ but not li to th purha prce as set fort in
(Secion 5), un the Exiron Date (as set fort in Secon 2.1). At such tie Seller and
PacifiCoip agre to execute a wrttn document ratifying the terms of this Agreement.
12.4 If this Agrment is ter as a result of Seller's default, in adition to and not
in limitation of any other right or remedy under this Agreement or applicable law (including
any right to set-off, counterclaim, or otherwise withold payment), Seller shall pay
PacifiCoip Outut Short Damag for a peod of eigh (18) month frm the da of
teon plus the estimated adinistrative cost to acquire the replacement power. The
Paries agree that the dages PacifCoip would incur due to teaton resulting frm Seller's
defult would be difficult or impossible to predict with certinty, and that the damages in this
Section 12.4 are an appropriate approxiation oÍsuch daages.
125 Recoupment of Damages.
(a) Default Security Available. If Seller has posted Default
Security, PacifiCorp may draw upon that security to satisfy any daages, above.
(b) Default Se Unavailable. If Seller ha not post Default
Securty, or ifPacifCorp ha exh the Defau Security, PacifCoip may collec any reaiin
amoun owig by paly witholdig fu paymen to Seller over a renable period of tie,
PacifiCoip and Seller shal work together in goo faith to estalish the peod and monthly
amounts, of such witholdig so as to avoid Seller's default on its commerial or fiing
agents necsa for it contnue opeon of th Facilty.
12.6 Upon an event of default or tm event resulting from default under this
Agreement, in addition to and not in limitation of any other right or remedy under this
Agreement or applicable law (including any right to set-off, counterclaim, or otherwise
withold payment), the non-defaultig Par may at its opton se-off agaist any amounts owed to
the defaulting Pary, any amounts owed by the defaulting Part under any contract(s) or
agent(s) betwee the Paes. The obligaons of the Pares shal be deed sasfied and
dischaged to the exnt of any such set-off The non-d:ltig Par shl give the defautig Par
31
Ceda Creek Wind IL-Cfß Hi
wr notice of any se-off but falur to give such notice shal not afect the valdity of the set-
off.
12.7 Amounts owed by Seller puruant to this Section 12 shaU be due within five
(5) business days afr any invoice from PacifiCorp for the same.
SECTION 13.INDEMNFICATION: LIAILITY
13.1 Indemnities.
13.1. Indemty by Seller. Seller shal relea, indemfy and hold haess
PacifiCorp, its directors, offcers, agents, and representatives against and from any
and all loss, fies, peales, clais, actions or suits, includig cost and atrney's fees,
both at tr an on ap resu frm, or aring ou of or in any way conn wit (a)
th energy delivered by Seller under this Agrement to and at the Point of Delivery,
(b) any facilties on Seller's side of the Point of Delivery, (c) Seller's opeation and/or
matenance of the Facilty, or (d) arsing frm Seller's brech of this Agrment,
includg without litaon any loss, clai acon or sui for or on acount of injur, bodily
or otherwise, to, or death of, persons, or for daage to, or destrction or economic
loss of propert belpngig to PacifiCoip, Seller or other, exceptig only such loss,
claim, action or suit as may be caused solely by the fault or grss negligence of
PacifiCorp, its directors, offcers, employees, agents or representatives.
13.12 Indem by PacifiCoip. PacifCoip shl relea indemnfy and hold
harless Seller, its dirctors, offcers, agents, lenders and reresetives againt and
from any and all loss, fines, penalties, claims, actions or suits, including costs and
attmey's fee, both at tr and on app, reg frm, or arsin out of or in æi way
connte with the energy deliver by Seller under th Agen af th Point of
Delivei,includ wiout limtaon any loss, clai, acon or sut, for or on acun of
injury, boily or othere, to, or dea of, pens or for dage to, or descton or
economic loss of propert, excepting only such loss, claim, action or suit as maybe
caed solely by the falt or grss negligece of Seller, its dirs offce, employee,
agents, lenders or representatives.
132 No Dedication. Nothing in this Agrement shall be constred to create any
duty to, any stada of ca with referce to, or any liabilty to any pen not a Par to ths
Agrement No undertg by one Par to the other under any provision of this Agrement shall
constitute the dedication of that Par's system or any portion thereof to the other Par or to
the public, nor af the st ofPacifiCorp as an indepdent public utli coiporaon or Seller as
an independent individual or entity.
133 No Warranty. Any review, acceptace or failure to review Seller's design,
specifications, equipment or facilties shall not be an endorsement or a confirtion by
PacifiCorp and PacifCorp mas no waanties, expressed or implied regarin any aspe of
Seller's design, specifications, equipment or facilties, includig, but not limited to, safety,
duril, reliailty, st cacity, aduay or ecnomic feaibilit.
13.4 CONSEQUETIA DAMAGES. EXCEPT TO THE EXTENT SUCH
DAMGES ARE INCLUDED IN TH LIQUIDATED DAMAGES, DELAY DAMGES,
32
Cedar Creek Wind UC-eayfß Hi
OR OT SPEC MEUR OF DAMGES EXRELY PROVIED FOR IN TI
AGREME'T, NE PARTY SHAL BE LIAll TO mE 01 PARTY FOR
SPECIA PU INIRCT, EXlAY OR CONSEUE DAMGE,
WHTHER SUCH DAMGES AR ALLOWED OR PROVIDED BY CONTRCT,
TORT (ICLUDING NEGLIGENæ), S1RCT LIILIT, STATU OR OrnWIE.
SECTION 14.INSURACE
14.1 Certificats. Prior to connection of the Facilty to the System, SeUer shall
secure and contiuously ca insurce in compliance with the requireent of ths Secon.
Seller shall provide PacifiCoip insuce certificat(s ) (of "ACORD Form" or the equivalent)
certifying Seller's compliance with the insurance requirements hereunder. Commercial
General Liabilty coverge wr on a "cla-m" basis, if any, shal be spcaly ideed on
th certca. If reue by PacifCoip, a copy of each insurce policy, ceified as a tre copy
by an authorized representave of the issuig insurce company, shall be fuished to
PacifCorp.
142 Reguired Policies and Coverages. Without limiting any liabilities or any other
obligations of Seller under this Agrement, Seller shall secure and continuously carr with
an insurance company or companies rated not lower than "A-:VII" by the A.M. Insurance
Report the insurance coverage specified below:
142.1 Commerial Geer Liailty inurce, to include contrtu liabilty,
with a minimum single limit of $1,000,000 per occurnce to protect against and
from all loss by reson of injur to persns or damage to prpe bas upn and arsing
out of the activity under this Agreement.
1422 All Risk Prpert insurce prvidig coverge in an amount at leat
equal to 80% of the replacement value of the Facilty against "all risks" of physical
loss or daage, including coverge for ea movement, flood, and boiler and machiner.
Th Propert policy may cont se su-lim and debles subject to inurce
company underwtig guidelines. The Risk Policy wil be maintained in acrdce with
terms available in the insurace market for similar facilties.
143 The Commerial Generl Liabilty policy require herin shall include
(i) provisions or endoements naing PacifiCoip, its Boa of Dirrs, Offcers and employee
as additional insureds, and (ii) cross liabilty coverage so that the insurance applies
separately to eah inur ag whom cla is mae or suit is brugt, even in in where
one in claims agaist or sues another insured.
14A All liabilty policies require by this Agrement shall include provisions that
such inurance is primar insuce with respect to the interests ofPacifiCoip and that any
other insurance maintained by PacifiCoip is excess and not contrbutory insurance with the
insurace reuird herunder, and prvisions th such policies shal not be caceled or their limits
of liabilty reed without (i) ten (l0) busines days prior wrn notice to PacifiCoip if caceled
for nonpayment of premium, or (ii) thirt (30) business days prior written notice to
PacifiCorp if canceled for any other reaon.
33
Cedar Creek Wind, LL-C Húl
14.5 Commerial General Liabilty insurce covera provided on a "claims-madè"
basis shall be maintained by Seller for a minimum period offive (5) years afer the
completion of ths Agrent and for such other len of tie necessar to cover liabilties arsl
out of th activities under this Agreement.
SECTION 15.FORCE MAJUR
15.1 As used in this Agreement, "Forc Majeure" or "an event of Force
Majeure" mea any ca beyond th renable contl of the Seller or ofPacifCoip which,
despit th exercise of due dilgence, such Par is unable to prevent or overcme. By way of
exaple, Force Majeur may include but is not limited to acts of God, flood, storms, wars,
hostilties, civil stfe, slres, and other labr distces, eaquaes, fire, Iightnng, epidemics,
sabota, restrnt by cour order or other delay or faiur in the peormance as a re of any acon
or inaction on behalf of a public authority which is in each case (i) beyond the reasonable
control of such Part, (ii) by the exercise of reasonable foresight such Part could not
reasonably have been expe to avoid and (iü) by the exerise of due diligece, such Par shall
be unle to prevent or overme. Forc Majeur, however, spcifcaly excludes th cost or
availabilty of ful or motive force to operate the Facilty or changes in maket coditions that
afect the price of energy or trsmission. If either Par is rendered wholly or in pa unble to
peonn its obligaton under this Agrent beus of an even of Forc Majeu, both Pares
shl be excused from whatever performance is afected by the event of Foree Majeure,
provided that:
15.1.1 the non-perfomiing Par, sha, as son as prcale but no lat than wiin
two (2) weeks af the occurnce of the Force Majeure, give the other Part wrtten
notice describing the pariculars of the occurce, including the star date of the
Force Majeure, the cause of Force Majeure, wheter the Facilty repaly
operaonal and th expete end da of the Force Majeur;
15.12 the suion of performance shall be of no grater scope and of no
longer duration than is required by the Force Majeur;
15.1.3 the non-performg Par uses its best effort to remedy its inabilty to
perform; and
15.1.4 the non-performing Par shall provide prompt wrtten notice to the
other Par at the end of the Force Majeur event detalig the end date, cause thereof,
damage caused there by and any repairs that were required as a result of the Force
Majeure event, and the end date of the Force Majeure.
i 5.2 No obligations of eiter Par which arse before the Forc Majeur causing the
suspension of performance shall be excused as a result of the Force Majeure.
15.3 Neither Par shall be required to settle any stre, walkout, lockout or other
labor disput on te whch, in the sole juden of the Par involved in 'te dipu, ar contr to
the Par's best interests.
34
Cedar Creek Wind UC-Q HiD
SECTION 16.SEVERA OBLIGATIONS
Nothing contained in this Agrement shall ever be constred to create an association, trst,
paerp or joint ventu or to impose a trst or parership duty, obligaon or liabilty
between the Paries. If Seller includes two or more paries, each such par shall be jointly
and severally liable for Seller's obligations under this Agrment.
SECTION 17.CHOICE OF LAW
Ths Agrent shall be intere an enfrced in acrdance with the laws of the state ofIdaho,
excluding any choice of law rules which may direct the application of the laws of another
jurisdiction.
SECTION 18.PARTIAL INVALIDITY
It is not the intetion of the Pares to violat any laws goverg the subject mattr of this
Agren If any of the tes of the Agrent ar fily held or deined to be invalid, ilegl
or void as being cotr to any applicable law or public policy, al other temi of the Agrment
shall remai in effect. If any tes ar finally held or detennined to be invalid, ilegal or void, the
Pares sha enter into negoations concerng th te afec by such decision for the puise of
achievig confonnity with requimen of any applicable law and the intent of the Pares to this
Agrement.
SECTION 19. WAIVER
Any waiver at any tie by either Pary of its rights with respect to a default under this
Agmen or wi re to any other mars aring in connecon with ths Agren mus be in
wrng, and such waiver shal not be deeed a waiver wi repe to any subsequent default or
other matter.
SECTION 20.GOVERNMENTAL JURISDICTION AND AUTHORIZATIONS
PacifCoip's compliane with the tenn of ths Agrent is conditioned on Seller's submission to
PacifiCoip prior to the Commercia Opon Dat of copies of all loca, ste and feder licenes,
peits and other approvals as then may be reuired by law for the constrction, opertion and
maitece of the FacUity. Faiur to manta such lawl st af the Commerial Opon
Da shal be an event of defiult, subjec to Secon 12.
SECTION2L.SUCCESSORS AN ASSIGNS
Th Agrement an all of the tes and provisions herf sh be bindi up and inur to the
benefit of the respective successors and assigns of the Paries heret, except tht no
assignment herfby either Par shal beme efecve without the writtn cons of both Pares
being fi obta. Such consnt sha not be unnaly wield; provided that the Paries
agree that commercially reasonable wrtten amendments to the Exhibits to this Agrment
and such other written updates to the information contained therein related to the Facilty
may be made in the event of any assignent of this Agreement pursuant to the terms of this
Section 21.1. Notwthdig the fi se of ths Seon, (a) any entity wi whch PacifiCorp
may consolida, or into which it may.merg, or to which it may conveyor transfer substatially
35
Ceda Creek Wind, LL-Coy Hil
all of its electc utility assets, shall automatically, without furter act, and without need of
consent or approval by the Seller, succeed to all ofPacifiCorp's rights, obligations, and
interests under this Agreement and (b) Seller shal have the right to assign this Agrement,
subject to PacifiCorp's wrttn consent, which consent shall not be uneasonably withheld or
delayed, for collateral security puroses to one or more fmancing entities (or a collatera
agent acting on their behal providing financing to Seller for the Facilty, in which event
PacifCoip agres to provide a writtn consent in favor of Seller's financing entities in form
and substce similar to consents executed by PacifCorp in connection with non-recourse
project financings. This aricle shall not prevent a financing entity with recorded or secud
rights frm exerising all rights and reedies available to it under law or contract. PacifiCorp
shall have the right to be notified by the financing entity that it is exercising such rights or
remedies and all such other rights as provided in the writtn consent.
SECTION 22.ENTIR AGREEMENT
22.1 Th Agren sus all prior agen, proposas, reretaons,
negotiations, discussions or leters, whether oral or in wrting, regarding PacifiCorp's
purchae of Net Output frm the Facilty. No modification of this Agrement shall be
effective unless it is in writing and signed by both Paries.
22.2 By executig this Agrement, each Par releaes the other from any claims,
known or unown, that may have arisen prior to the execution date of this Agrement wi
repe to the Facili and any prr fàil prpose to have be consct on the site of the
Facilty.
SECTION 23.NOTICES
Al notices exce as otherw prvided in this Agrment sha be in wrting, sha be dir as
follows and shall be considere delivered If delivered in person or when deposited in the
U.S. Mail, postage prepaid by certfied or registered mail and retu receipt requested.
Notices PacifCorp Seller
All Notice PacifiCorp Cedar Creek Wind, LLC
83 S. King Street, Suite 200
Seattle, WA 98104
825 NE Multnom St Portd,
OR 97232
Att: Contr Admston Att: Richar W. Burkhardt
Suite 600 Phone: [phone] i
Phone:[phone] Facsimile: [phone]
Facsimile: [phone] E-mail:
E-mail:rbur~umitpower.com
I)uns: 00-790-9013 Duns: 83-297-9483
Feder Tax ID Numbe 93-046 Fed Tax ID Numbe 80 0326531
36
Cedar Creek Wind UC-eoy Húl
Notices PacifiCorp Seller
All Invoices:Att: Back Offce, Suite Att: Vici Hall, General Accounting
700 Phone:[phone] Manager
Facsimile: (503) 813 -5580 Email:
accountigCásummitpower.com;
vhalll'summitpower.com
Phone:[phone]
Scheduling:Att: Resour Pla Sui 600 Att: Thoma Camern
Phone: (503) 813 - 6090 (702) 360186
Facsimile: [phone] tceron($tpwer.co
Payments:Att: Back Offce, Suite Att: VicÎ Hall, General Accounting
700 Phone:(S03)813-5578 Manager
Facsimile: [phone] Email:
accountingl'summitpower.com;
vhallcmsummitpower.com
Phone:[phone]
Wir Trer Ban One N.A.Ban Wells Fargo
To be prvided in se letter frm To be provided in se let frm
PacifiCorp to Seller Seller to PacifiCorp
Credit and Att: Crit Maagr, Suite 700 Att: Richard W. Burkhardt, Chief
Collections Phone:(S03)813-5684 Financial Offcer
:Facsimile: [phone] Email:
rburkhardt(tummitpower.com
Phone:[phone]Wid Addi Att PacifCo Geer Counl Att: Vici Hall, General Accounting
Notices of an Phone:[phone] Facsimile:Mager
Event of Default [phone] Email:
or Potential accountingcmsummitpower.com;
Event of Deult vhallcmsummitpower.com
to:Phone:[phone]
The Partes may change the person to whom such notices are addressed or their addresses,
by providing wrtten notices thereof in accordance with this Section.
37
Oûo.ii.
In WITNESS WHEF, tb Pacs have ca dû Aa to be cl execute as of. th da fi ab". wr:
PACRP,. ~co
l) n, - : ¡;' ~')By: .~: Ú?vVOTit: shoAvY'
) CÑ1Ltf.CI-hoV\
SiP9
CJAR CU WI, LLa De lim liailit COY
BY.~NI: c.. 'tTit ~..
Cecm UC-(Hi
ExmIT A
DESCRITION OF SELLER'S FACILITY
Seller's Facilty consists of 18 wid tubine generator(s) manufactued by Siemens. More
specifically, each generator at the Facilty is described as:
Type (synchronous or inductive): Asynchronous with Invertr
Model: Siemens SWT-2.3-101
Number of Phases: Three
Rated Output (kW): 2,300 Rated Output (kVA): 2,555
Rated Voltage (line to line): 750V
Rated Currnt (A): Stator: Converer Supply Currnt: 1953A; Rotor: 2070 A
Maximum kW Output: 2300 kW Maximum kV A Output: 2555kV A
Minimum kW Output: _40_ kW
Manufacturer's Published Cut-in Wind Spee: 4 meterssecond
Facilty Capacity Rating: 41,400kW at or above rated wind speed and below cut-out
speed
Mamum Facilty Delivery Rate: _40,986 kW at PacifiCorp Goshen
Substation at 345 kV
Maximum GIA Delivery Rate 133,400 - instataeous kW
Identify the maximum output of the generator(s) and describe any differences between that
output and the Nameplate Capacity Rating: Maximum generator output is 2300 kW (same as
Naieplate Capacity Rating)
Station service requirements, and other loads served by the Facilty, if any, are described
as follows: Station service requirements consist of Cedar Creek Wind Operations and
Maintenance building loads, tubine stadby loads, and tubine cutout loads. Average tubine
standby load for Coyote Hil is approximately 95 kW. Cutout loads would be infquent and not
COl1current with stdby loads.
Location of the Facilty: The Facilty is located in Bingham County, Idaho. The location is
more paricularly described as follows: 43° 19.146.' Latitude, 112° 1.428' Longitude WGS84.
Power factor requirements:
Rated Power Factor (PF) or reactive load (kVAR): 0.9 Leading to 0.9 Lagging
Seller has provided a copy of manufactuer's Power Cure (Rev. 4, June 2010) for the Siemens
SWT-2.3-101. PacifiCoip maintains the power curve in its fies puruant to a Non-Disclosur
Agreement between PacifiCoip and Seller.
A- i
Ce0æ UC-coy Hi
EXHIIT A - Attchments
1. Cedar Creek Wind Farm Site Map
A-2
CeOæ ll--oy Hi
Site Map
.,
Çe CIW WInd PrSi Pl
(cuminl 8B of 12111)(WLo Re 8)
A.3
CeOæ UC-eHi
EXlITB
POINT OF DELIVERY I PARTIES' INRCONNCTION FACILITIES
Seller has provided the following single line drawing of the Facilty interconnection facilties
including meterig points used to calculate Net Output and any transmission facilties on Seller's
side of the Point of Delivery.
The Meterng Point and the Point of Delivery is the PacifiCoip 345kV bus at the Goshen
substation.
The Project includes a 34.5kV -345kV collector substation. The project wil have one or more
34.5kV breakers tht wil connect to a common 34.5kV bus. The bus wil connect to a central
34.5kVmain breaker, 34.5-345kV Power Tranformer, 345kV breaker, line disconnect switch
and a 5.1 mile 345kV trsmission line to the Goshen Substtion.
B .1
EXHIT B - Attaehments
1. Substation Metenng One-Line Diagram
B-2
CeOæ LL-eoyHi
,...........................................................__..............__...._----.,=;.~ ¡
¡
!
:i
!
i
i
i
I(1T\Ill :....___.......... _................_.._____..........._.... .............._J
r.......................................,. .I .f '
i'li-'Qi:; i: ~
:
,¡ cei Cree 'Wnd, LLC :
L.~.~~!.~~~................j
3"s:~LNAp:i$ fn
B
CEDAR CREEK wiND. LLÇ
Coye Hil
ONEoIN& DIRAM
.t
A02-~mW~DATE:
RE
1jUM1
B.4
EXHBITC
REQUIRED FACILITY DOCUMNTS
Qualifyng Facilty Number from to be obtained frm FERC: (TBD)
The followIng Documents are required prior to delivery of any output from the Facilty:
Generation Interconnection Agreement
Propert rights required to maitain and operate the Project in accordance with this
Agrement (site leases, transmission easements, etc.).
The following Permits ar required on or before the milestone date specified in Section 2.2.1;
Federal Aviation Administration Determinations of No Hazd
Bingham County Special Use Permit
Crossing agreements with paries other than PacifiCoip Transmission
C-l
CeOæk UC-eoyHúl
EXHITD
SUBSEQUET ENERGY DELIVRY SCHEDULE
Coyote Hil Wind Pro.ied
Scheduled Monthly
Energy Delivery AvekW/mo
Januar
Februar
Marh
Apnl
May
June
July
August
September
October
November \
December
TOTAL:
Planed Outages. Seller wil provide a Planed Outage schedule anually not to exceed 150
hours per year (150 hours excludes first year "break in" or similar stap period outages).
D- i
EXmBITE
START-UP TESTIG
Required factory testing includes such checks and tests necessar to deteine that the
equipment sysems and subsystems have been properly manufacturd and installed, function
properly, and are in a condition to permit safe and effcient sta-up of the Facilty, which may
include but are not limited to:
1. Test of mechacal and electica equipment;
2. Calibraton of all monitonn intruents;
3. Operating tets of all valves, operators, motor sters and motor;
4. Alans, signals, and fail-safe or system shutdown contol tests;
5. Point-to-point continuity tests;
6. Bench tes of protective devices; and
7. Tests requied by manufactr(s) and designer(s) of equipment.
Required st-up tests are those checks and tests necessary to determine that all features
and equipment, systems, and subsystems have been properly installed and adjusted, fuction
properly, and are capable of operating simultaeously in such condition that the Facilty is
capable of continuous delivery into PacifiCorp's electrical system, which may include but are
not limited to:
i. Turbine/generator mechancal rus and fuctionality;
2. System operation tests;
3. Brake tests;
4. Energization of trsformers;
5. Synchroning tests (manua and auto);
6. Excitation and voltage regulation operation test;
7. Auto stop/sta sequence;
8. Completion of any state and federal environmental testng requirements; and
9. Tests required by manufacturer(s) and designer(s) of equipment.
For wind projects only, the following Wind Turbine Generator Installation Checklists are
required documents to be signed offby Manufacturer or Subcntract Category Commissioning
Personnel as par of the Commissioning and stap testing:
Turbine Installation
Foundation Inspection (by Owner's independent inspector)
Controller Assembly
Power Cables
Cable Inallation Checklist includng: Controller
Top Deck / Yaw Deck
Tower Top Section / Saddle
Mid Section Cables or buss bars
Base Section
Tower Base Section
Tower Lights and Outlets
Tower Mid Section
Tower Top Section
Nacelle
Rotor
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EXHIITG
SAMLE ENRGY PURCHASE PRICE CALCULA nONS
The following ar samples of calculations of energy purhase prices using the formula and tables
in Section S.lError! Reference source not found..
The calculation for the non-Ievelized purhase price durng an On-Pea Hour in May of 2012
equals $63.97/M (the 2012 annua rate for Conforming Energy) multiplied by 92% (0.92)
(the May On-Peak Hour multiplier) minus $6.50/MWh (the wind integrtion cost), which equals
$52.3S/Mh.
Table 1: Sample calculations for non-levelized On-Peak Conforming Energy in 2012: Purchase
Price = (annual rate * monthly On-Peak multiplier) - wind integration cost
Conforming
Energy Calculated Purchase
Annual Rate On-Peak Wind Price for 2011 On-
for 2011 Hour Integration Pea Conforming
Month (perMW)Multiplier Cost Energ (per MWh)
Januar $63.97 103%$6.50 $59.39
Februar $63.97 105%$6.50 $60.67
Marh $63.97 95%$6.50 $54.27
April $63.97 95%$6.50 $54.27
May $63.97 92%$6.50 $52.35
June $63.97 94%$6.50 $53.63
July $63.97 121%$6.50 $70.90
August $63.97 121%$6.50 $70.90 i
September $63.97 109%$6.50 $63.23
October $63.97 115%$6.50 $67.07
November $63.97 110%$6.50 $63.87
December $63.97 129%$6.50 $76.02
Table 2: Sample calculations for non-Ievelized Off-Pea Conforming Energy in 2012: Purhase
Price =: (anual rate * monthly Off-Pea multiplier) - wind integration cost.
Conforming
Energy Calculated Purchase
Annual Rate OtT-Peak Wind Price for 2012 Off-
for 2012 Hour Integration Peak Conforming
Month (perMWh)Multiplier Cost Energ (per MWh)
Janua $63.97 94%$6.50 $53.63
Febru $63.97 97%$6.50 $55.55
Marh $63.97 80%$6.50 $44.68
April $63.97 76%$6.50 $42.12
G -1
CeCr UC-eoyHi
Conforming
Energy Calculated Purchase
Annual Rate Off-Pea Wind Price for 2012 Off-
for 2012 Hour Integration Peak Conforming
Month (perMWh)Multiplier Cost Energ (per MWh)
May $63.97 63%$6.50 $33.80
June $63.97 65%$6.50 $35.08
July $63.97 92%$6.50 $52.35
August $63.97 106%$6.50 $61.31
September $63.97 99%$6.50 $56.83
October .$63.97 105%$6.50 $60.67
November $63.97 96%$6.50 $54.91
December $63.97 120%$6.50 $70.26
G-2
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EXIDBITH
Seller Authoriztion to Release Generation Data to PacifCorp
H-l
WEST~RNENERGY
May 7, 2010
Pacificorp
Att: Kenneth Huston
825 NE Multnomah, Ste. 1600,
Portland, Oregon 97232
HE: Cedar Creek Wind, LLC PacifCorp Transmision
Dear Mr. Huston:
Ceda Creek Wind, LLC hereby voluntaly authorizes PacifiCorp's Transmission business unit
to share Ceda Creek Wind, LLC's genertor interconnection inormtion and generator metr
data with market fuction employees of PacifiCorp, includig, but not liited to the those in the
Commercial and Tradig group. Ceda Crek Wind, LLC acknowledges that PacifiCorp did not
provide it any preferences, either operationa or rate-related, in exchage for ths volunta
consent.
Sincerely,
~OM~ 21
Dana C. Zentz, P.E.
Vice President
Sumit Power Group, Inc.lCed Creek Wind, LLC
[phone] (Offce)
[phone] (Mobile)
..
Cedar Creek Wind, LLC
701 Winslow Way E., Suite B
Bainbridge Island, WA 98110
1
206-7803551.
fax: [phone]
CONFIDENTIAL
CeCæ LL-eoyHúl
EXHIT 4.7(A)
GREEN TAG ATTESTATION AND BILL OF SALE
("Seller") hereby sells, tranfers and delivers to PacifiCorp the Gren
Tags (including all Environmental Attibutes and Grn Tag Reporting Rights) associated with
. the generation of Net Output under the Power Puhase Agreement (Renewable Energy) between
Seller and PacifiCorp dated r 1 (the "PPA"), as described below, in the amount of one
Green Tag for each megawatt hour generated. Defined ters (as indicated by initial
capitalization) used in this Green Tag Attestation and Bil of Sale shall have the meaning set
forth in the PP A.
Facilty name and location:Fuel Type: Wind
Capacity (MW: _ MW Operational Date:
Energy Admin. ID no.:
Dates MWh generated
Seller fuer attests, warants and represents, under penalty of perjury, as follows:
i) to the best of its knowledge, the information provided herein is tre and correct;
ii) its sale to PacifiCoip is its one and only sale of the Green Tags and associated
Environmental Attbutes referenced herein;
ii) the Facilty generated Output is the amount indicated above; and
iv) to the best of Seller's knowledge, each of the Green Tags and Environmental
Attbutes associated with the Facilty's Output are being sold to Buyer.
This Green Tag Attestation and Bil of Sale confirs, in accordace with the PPA, the transfer
from Seller to PacifCoip of all of Seller's right, title and interest in and to the Gren Tags
(including Green Tag Reportng Rights and Environmental Attbutes), as set fort above.
Exh. 4.7(A)-1
Ce0æ LL-eoyHi
Seller's Contact Person: r
WITSS MY HAD,
a
By
Its
Date:
This Attestation may be disclosed by Seller and PacifCorp to others, including the Center for
Resource Solutions and the public utility commissions having jurisdiction over PacifCoip, to
substantiate and verify th~ accurcy ofPacifiCorp's advertising and public communication
claims, as well as in PacifiCoip's advertsing and other public communications.
Exh. 4.7(A) -2
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EXHBIT 4.7(B)
QUALIFID REPORTING ENTITY SERVICES AGREEMENT
C & T Masterv1.1; 071411
This Qualified Reportng Entity Services Agreement (this "Agreement") is entered into by
and between PacifiCoip ("PacifiCorp") and ("Counterpary"; PacifiCorp and
Counterpar may be referrd to individually herein as "Pary" and collectively as "Pares")
as of , with reference to the following:
WHERES, Counterpar represents to PacifiCorp that it owns or otherwse has the rights to
all or par of the non-energy attributes of the generation frm that certin electric generation
facilty more paricularly describe on Exhibit A hereto (the "Facilty"), or other rights
respecting the Facility itself enabling it to lawfully enter hereinto; and
WHEREAS, The Western Renewable Electricity Generation Information System
("WRGIS") is a system tracking quatities of renewable energy generation generated by
electric generating facilties in the natu of the Facilty, as a Facilty pursuant to WRGIS
Terms of Use ("TOU"); and
WHEREAS, WRGIS requires that each Facilty have a designated Qualified Reporting
Entity; and
WHEREAS, Counteipar is an Account Holder in WREGIS and wishes to register the
Facilty with WREGIS; and
WHREAS, Counterpar wishes to retain PacifiCorp to act as its WRGIS-defined
Qualified Reportng Entity C'QRE") for the Facilty;
NOW THREFORE, in consideration of the mutual promises herein contained, the Parties
agr as follows:
1. Definitions: Rules of Constrction.
i .1 Initially capitaized terms used and not otherwise defined herein are dermed in the in
the Operatig Rules or in Attachment 1 Defmitions of the WREGIS TOU.
1.2 "Affliate" means, with respect to any entity, each entity that directly or indirectly
controls, is controlled by, or is under common contrl with, such designated entity, with
"control" meaning the possession, directly or indirectly, of the power to direct management
and policies, whether though the ownership of votig securties or by contract or otherwise.
Notwithstading the foregoing, with respect to PacifiCoip, Affliate shall only include
MidAerican Energy Holdings Company and its direct, wholly owned subsidiaries.
1.3 "Business Day" means a day of the week other th Saturday, Sunday, or a federal
holiday.
1.4 "Electric System Authority" means each ofNERC, WECC, WREGIS, an RTO, a
regional or sub-regiona reliabilty council or authority, and any other similar council,
Exh. 4.7(B) - 1
Ce C' LL-Coy Hi
corporation, organization or body of recognized standing with respect to the operations of the
electic system in the WECC region.
1.5 "FERC" means the Federal Energy Regulatory Commission.
1.6 "Generation Interconnection Agreement" mean the agrement entered into
separately beteen Counterpar and Interconnection Provider concerning the
Interconnection Facilties.
1.7 "Facilty" is defined in the Preamble.
1.8 "Interconnection Facilties" means all the facilties installed, or to be installed, for the
purose of interconnecting the Facilty to the System, including electcal transmission lines,
upgrades. transformers and associated equipment, substations, relay and switching
equipment, and safet equipment.
1.9 "Interconnection Provider" means the FERC-regulate or United States Departent
of Energy entity with whom the Facilty has contracted for interconnection to the electric
trsmission grid; in the event Interconnection Provider is PacifiCorp, PacifiCorp would be
the Interconnection Provider operating in its regulated transmission function, and not as the
par hereto.
1.10 "Metering Exteral Webpge" meas a website owned and operated by PacifiCorp
that PacifiCorp may at its option, but without being obligated to do so, make available and
operate for the display of all data that wil be included in the Monthly Generation Extct
File.
1.11 "Monthly Generation Extrct File" means a data file tht contains generation data
from Counterar's Points of Metering and conforms to the characteristics and requirements
set fort in the WRGIS Interface Control Document.
1.12 "NERC" means the Nort American Electric Reliabilty Corporation.
1.13 "Points of Meterig" means the points at which electric generation is measured.
1.14 "Prudent Electrical Practices" means any of the practices, metods and ac engaged
in or approved by a significant portion of the electrical utilty industr or any of the
practices, metods or acts, which, in the exercise of reasonable judgment in the light of the
facts known at the time a decision is made, could have been expected to accomplish the
desired result at the lowest reasonable cost consistent with reliabilty, safety and expedition.
Prudent Electrical Practices is not intended to be Iimitêd to the optimum pracice, method or
act to the exclusion of all others, but rater to be a spectr of possible practices, methods or
acts,
1.15 "QRE" means a WRGIS-defined Qualified Reportng Entity.
1.16 "Renewable" is defined in section 2 of the WREGIS Operating Rules.
1.17 "Requirements of Law" means any applicable federal, stte and local law, statute,
reguation, rule, code or ordinance enacted, adopted, issued or promulgated by any federal,
state, local or other Governental Authority or regulatory body (including those pertining
to electrical, building, zoning, environmental and occupational safety and health
requirements).
Exh. 4.7(B) - 2
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1.18 "Settlement Estimation Procedures" means a calculation based on stadard utilty
estimation rules using algorithms developed and approved by PacifiCorp's biling
departent.
1.19 "System" means the electric trsmission substation and transmission or distribution
facilties owned, operated or maintained by Trasmission Provider, which shall include, after
constrction and installation of the Facilty, the circuit reinorcements, extensions, and
associated terminal facilty reinforcements or additions required to interconnect the Facilty,
all as set fort in the Generation Inteonnection Agrement.
1.20 "Tariff' means PacifiCorp FERC Electrc Tariff Fift Revised Volume No. 11 Pro
Forma Open Access Transmission Tar.
1.21 "Transmission Provider" means the FERC-regulated or United States Departent of
Energy entity with whom the Facilty has contracted for electrc trsmission at and away
frm the Facilty to any point on, or interconnection with, the electric transmission grd; in
the event Transmission Provider is PacifiCorp, PacifiCoip would be the Interconnection
Provider operating in its regulated transmission fuction, and not as the par hereto..
1.22 "Wholesale Generation Also Serving On-Site Loads" is defined in section 2 of the
WREGIS Operating Rules.
1.23 "WECC" means the Western Electrcity Coordinating CounciL.
1.24 "WREGIS" means the Western Renewable Energy Generation Information System.
1.25 "WRGIS Certificate" or "Certificate" means "Certificate" as defined by the
WRGIS Operating Rules.
1.26 "WRGIS Operatig Rules" means the operating rules and requirements adopted by
WRGIS, including the TOU.
1.27 General Rules of Interpretation. Unless otherwse required by the context in which
any term appears, (a) the singular includes the plural and vice versa; (b) references to
"Articles," "Sections," "Schedules," "Anexes," "Appendices" or "Exhibits" are to aricles,
sections, schedules, anexes, appendices or exhibits herof; (c) all references to a partcular
entity or an electrcity market price index include a reference to such entity's or index's
successors; (d) "herein/, "hereotl and "hereunder" refer to this Agreement as a whole; (e) all
accountig terms not specifically defined herein shall be constred in accordance with
generally accepted accounting principles consistently applied; (f) the masculine includes the
feminine and neuter and vice versa; (g) "including" means "including, without limitation" or
"including, but not limited to"; (h) all references to a parcular law or statute m~an that law
or statute as amended frm time to time; and (i) the word "or" is not necessaly exclusive.
1.28 Interpretation with FERC Orers. Each Par conducts and shall conduct its
operations in a manner intended to comply with FERC Order No. 717, Standads of Conduct
for Transmission Providers, requirng the separation of its transmission and merchant
functions. Moreover, the Paries acknowledge that each of Transmission Provider's and
Interconnection Providets transmission function offers transmission service on its system in
a manner intended to comply with FERC policies and requirements relating to the provision
of open.access transmission serice. Counterar agrees to conduct itself and operate the
Facilty in accordance with all Requirments of Law, all requirements of all applicable
Electric System Autorities, and all requirements of the Interconnection Agreement.
Exh. 4.7(B) .3
CeOæA; UC-CoyHi
1.28.1 Counteiparty agrees to enter into the Generation Intercnnection Agreement with the
Interconnection Provider. The Generation Interconnection Agrement shall be a separate
and fre stading contract and the terms hereof are not binding upon the Interconnection
Provider or Tranmission Provider, although both ar express third part beneficiaries
hereof.
1.28.2 Notwithstading any other provision in this Agreement, nothing in the Generation
Interconnection Agreement, nor any other agrement between Counterpary on the one hand
and Transmission Provider or Interconnection Provider on the other hand, nor any alleged
event of default thereunder, shall alter or modify the Paries' nghts, duties, and obligation
hereunder. Likewise, nothing herein or connected with the performance by PacifiCorp
heref shall affect or impair the rights of Interconnection Provider or Tranmission Prvider,
under the Interconnection Agreement or otherwise. This(Agreement shall not be consted
to create any rights between Counterpar and the Interconnection Provider or between
Counteipar and the Trasmission Provider.
1.28.3 Counteiparty expressly recognizs thatt for purses hereof, the Interconnection
Provider and Trasmission Provider each shall be deemed to be a separte entity and
separate contractig par frm PacifiCorp whether or not the Generation Interconnection
Agreement is entered into with Interconnection Provider or an afliate thereof. Counterpart
acknowledges that PacifiCorp, acting in its merchant capacity function as purchaser
hereunder, has no responsibilty for or control over Interconnection Provider or Trasmission
Provider, and is not liable for any breach of agrement or duty by Interonnection Provider
or Transmission Provider. Nothing in this Agreement shall operate to diminish, nor shall this
Agrement extend to, Interconnection Prvider or Trasmission Provider's use, retention, or
disclosure of Counteipar or Facilty information (including information within the scope of
this Agreement) in connection with PacifiCorp operang in its trsmission fuction,
including its carng out of its obligations and business practices as a Balancing Authority
or activities underten pursuant to the Tarff.
II. Term and Termination.
2.1 This Agreement shall be effectve upon execution by the Paries and shaU continue in
effect until such tiie as either Pary, upon providing 60 days written notice to the other
Pary, chooses to terminate. PacifiCorp may initiate any regulatory proceedings it deems
appropriate to terminate this Agreement prior to the effectiveness of such termination.
Notwithstading the foregoing, (a) Counteipar may terminate this Agrement upon an
event of default by PacifiCorp if PacifiCoip does not cure such event of default within 10
days of wrtten notice; (b) PacifiCorp may terminate this Agreement upon an event of default
by Counterary if Counterary does not cur such event of default within 10 days of
written notice, (c) PacifiCorp may terminate this Agrement if the Facilty fails to meet the
requirements of Section 3.1 hereof and such failure is not curd within 30 days, and (d)
Either Par may terminate ths Agrment immediately upon notice to the other if
Counteipar or the Facilty fail to comply with Section 1.28. Ths Agreement may also be
terminated as otherwise sèt forth herein.
II. QRE Services.
3.1 QRE Services. PacifiCorp wil, on the terms set fort herein, serve as a QRE for the
Facilty so long as the Facility meet the definition of Renewable, is within the metered
Exh. 4.7(B) - 4
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boundaries of both PacifiCoip's Balancing Autority and is equipped with either:
(1) Trasmission Prvider or Intercnnection Provider (as applicable) owned and operated
meters; or (2) meters that meet the Interconnection Provider's requirments and (3) meet all
applicable WRGIS requirements.
3.2 Compensation to PacifiCorp. In exchange for the services performed by PacifiCorp
hereunder, Counterpar shall pay PacifiCorp as follows: Counteipar shall pay PacifiCoip
a one-time initil setup fee of $280, which shall be due upon execution of this Agrement.
The Counteipary shall pay PacifiCoip a monthly reportng fee of $50 per generating unit for
which PacifiCoip report output to WRGIS, provided that PacifiCorp may, in its discretion,
assess and bil for all fees due hereunder on an annual, rather than monthly, basis. Other
th the initial setup fee, which shall be due in advance, all other fees due hereunder shall be
due within ten days ofPacifiCorp's issuace of an invoice for such fees. PacifiCorp wil
review costs associated with this service on an annua basis, and may make necessar
adjustments to the monthly reporting fee charged herein. Any chage in the monthly
reortg fee wil becme effective only after a minimlÌ thir (30) days prior writt notice
to Counteipart. In the event WRGIS, WECC, or any other entity with the abilty or
jurisdiction to modify the QRE reporting process requires a change that materially increases
the costs to PacifiCorp of providing QRE services, PacifiCoip may pass those costs to the
Counterpar by increasing the monthly reporting fee. PacifiCorp will use best effort to
provide Counterparty with prior notice before billng Counterpar for such increased costs.
The fees set forth herein relate to PacifCoip serving as a QRE for Counterpary pursuat to
the terms of this Agrement. The necessar metering is a prerequisite for this service and is
not covere in the fees described above.
3.3 Points of Metering. The Points of Meterig that PacifiCorp wil use ate set fort in
Exhibit A. Counterpar certfies that all Points of Metering listed in Exhibit A measur data
only from Facilty that meet the definition of Renewable. Counterpar shall notify
PacifiCorp at least thirt (30) Business Days prior to making any proposed material changes
to the Points of Metering. Following such notification, the Pares wil decide wheter such
changes ar mutully acceptable. If such changes are not acceptable to PacifiCorp,
PacifiCorp may terminate this Agreement.
3.4 Expenses. Except as otherwise provided in the Interconnection Agreement (and in
such case, only vis-à-vis Interconnection Provider), Counterpar shall bear all costs and
expenses, including those incurred by PacifiCoip, relatig to all metering or other equipment
installed to accommodate Counterpary's Facilty.
3.5 Reporting. Counteipart hereby grants to PacifiCoip sole and exclusive permission
and authority to report Data and Output to WREGIS and warants and represents that neither
Counterpary nor any other person or entity acting on behalf of Counterpar has granted, or
wil hereafer grant during the tenn hereof any similar data reporting authority or permission
to any other QRE or WRGIS Account Holder or to any other par or Agent for use in
WRGIS, or any other energy tracking system, for the Facilty. As a precondition for
PacifiCorp to be able to perform hereunder, Counterpar shall submit Counterpart's Output
data to PacifiCoip by allowing PacifiCorp to collect such data, at the Points of Metering, and
report such data in the maner set fort herein.
Exh.4.7(B)-5
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3.5.1 Monthly Generation Extact File. Once a month PacifiCorp shall submit a Monthly
Generation Exact File to WRGIS on Counteipar's behalf, which wil conform to the
charcteristics and data requirements set fort in the WREGIS Interace Control Document.
3.5.2 Reportg Cycle. PacifiCoip shall submit the Monthly Generation Extrct File to
WRGIS no sooner th the last business day of each month for data collected during the
previous month, or previous portion of month. PacifiCoip shall submit such data no later
than the end of the calendar month following the end date of the output being reported.
3.5.3 Verification. Should PacifiCorp choose at its option to operate and make available a
Metering External Webpage, PacifCorp may in its reasonably exercised discretion grant
Countetar access for Counteipar to verify such information as precribed by PacifCorp
from time to time, and to timely notify PacifiCoip in writing of any errrs Counteipar
detects.
3.5.4 Adjustments. Aftr PacifiCoip submits the Monthly Genertion Extact File to
WREGIS, any information contained in the Monthly Generation Extract File shall be final
for puroses ofWRGIS reporting, subject only to the adjustment procedures set fort in the
WREGIS Operating Rules, which shall be Counterpars responsibilty to implement if
necessar.
3.6 Obligations of Counterpar. Counterpar shall report and provide to PacifiCorp
accurate and complete generation Data and Output information for the Facilty.
Counterpar shall send the Data and other Output Information in a format and in compliance
with any protocols which PacifiCorp may specify to Counterpar. Counterpary has a
continuing duty to immediately notify PacifiCorp, if and when any generation Data or
Output information has been sent in error or ceases to be trthful, accurte, or complete and
to supply the corrted data as soon as practical, but not later than five (5) Business Days
from the date Counterpar discovers that discrepancy in the Data or Output information.
3.7 WRGIS Fees. Counterpar is solely responsible for the payment directly to
WREGIS of any and all WRGIS fees and costs tht are required to register Counterpary's
Facilty and, to the extent the Generator Ower is a WRGIS Account Holder, Counteipar
is responsible for the payment dirctly to WREGIS of all other WRGIS fees incident to the
reporting of Generator Data and Output to WREGIS. Counteipar acknowledges and
agrees that PacifiCorp shall have no obligation to advance or make payment ofWRGiS
fees or costs on Counterpar's behalf. Upon request by PacifiCorp made ifPacifiCoip has
received such a request from WREGIS or any regulator or third par, Counteipary shall
provide PacifiCorp with evidence of payment of WREGIS fees and costs; failure to provide
such information to PacifCoip, upon request, shall consttute an event of default under this
Agreement.
3.8 WREGIS Accunts. Counteipar wil be solely responsible to make argements
and registations and for entering into any such agreements that ar necessary to estblish
trsfer of Certificates dirctly to proper Accounts or Subaccounts ofCounterpy.
Counterpar agrees that such arangements shall preclude the need for PacifiCorp to act as
custodian of such Certificates or to be responsible in any way to hold such Certficates in any
Account or Subaccount of PacifiCoip or bear any responsibilty, possession, obligation, or
risk of loss with respect to Certificates created, held, or owned, with respect to the Facilty.
Counterpar acknowledges that, pursuat to section 11 of the WREGIS TOU, any
generation data that PacifiCoip, acting as a QRE, provides to WREGIS shall reside in
Exh. 4.7(B) - 6
CecbQæ LL-e HiD
WREGIS and Counteipar wil have no control over such data's use other than that provided
for under the WRGIS TOU.
3.9 Obligations QfPacifiCotp. PacifiCoip shall specify for Counterpar the protocols,
reorting frequency, data file formats, and communication protocols for reportng generating
Data, or Output, as necessar. PacifiCoip shall timely report to WRGIS Counterpar Dat
and/or Output information as specifed in the most curnt WRGIS Interface Control
Document (ICD). PacifiCorp shall not use or disclose Counterpary generation Data for any
other purose th reportng the Data to WREGIS, excet as may be required by law, the
Public Utility Commission of Oregon, any other state, federa, municipal or other regulator
or governenta authority with jursdiction over PacifCorp or any of its assets, or a cour of
competent jursdiction or as required under the terms of an existing agreement betwee the
Pares. PacifiCorp shall not use Generator Owner generaton Data for any other purpose.
Notwithstading the foregoing, PacifiCorp shall not be responsible for handling, account
administration, transfer, evidence of, or any determintion of Counteipary Cerificate
ownership or any other obligations for Certificates of Counteipary with regard to
Certficates; and Counterpar shall bea all responsibilty for such handling, account
adinistration, evidence of, or any determination of Counterpar Certificate ownership and
all other obligations pertining to creation and ownership of such Certificates.
3.10 Measurment.
3.10.1 Meter Data. Counterpar authorizes PacifiCoip's metering services organization to
provide Counterpar's meter data diretly to WREGIS in the form of the Monthly
Generation Extract File. Counteipar authories PacifiCoip to gather data from the Points of
Metering listed in Exhibit A. All such data is considered data which Counteipart has
created and submitted to PacifCorp, notwithstading that PacifiCorp, rather than
Counterparty wil gather it.
3. i 0.2 Wholesale Generation Also Serving On-Site Loads. If Counteiparty has any
Wholesale Generation Also Serving On-Site Loads (as defined in Arcle One above), such
Facilty will need to have the on-site load generation metered (and registered) separately
from the generation that is supplied to the grid, in accordance with the WREGIS Operating
Rules. Oterwse, PacifiCorp wil not report any data from such Facilty. If such Facilty
exist, they must be specified in Exhibit A.
3.10.3 Estimates. When meter readings are not available due to meter hardware failure or
data that is determined to be invalid due to meter malfuction or calibration or configuration
eror, to the extent deemed by PacifiCoip to be appropriate and permitted pursuant to
WRGIS TOU, PacifiCorp wil, if possible, rely on readings from redundant meters whether
such meters are PacifiCorp owned or not. If readings from redundant meters are not
possible, PacifiCorp wil estimate and reprt meter data according to PacifiCorp's Settlement
Estimation Procedures.
3.10.4 Responsibility. Counterpar is solely responsible for the data created and submitted
to PacifiCorp, acting as a QRE, to forward to WRGIS.
3.11 Regulatory Requirements. PacifiCorp may release information provided by
Counteipar hereunder, or gathered by PacifiCorp in connection herewith, to comply with
any regulatory requirements applicable to PacifiCorp or if requested by a PacifCoip
regulator or if required by any other federal law or court order. Counteipary waives all
Exh. 4.7(B) - 7
CeOæt UC-Q Hú/
applicable provisions of the Tarff which requir PacifiCoip to hold confidential information
with respect to the Generator Owner and the Facilty, to the extent necessar for PacifiCoip
to report, as a QRE, generation Data and Output regaring the Generation Unites) and to
car out PacifiCorp's obligations under ths Agreement. This provision shall surive any
termination of this Agreement.
3.12 Grt by Counteipar. Counterpart hereby grants to, permits, and autorizes
PacifiCoip the following:
3.12.1 PacifiCorp is hereby authorized to communicate and trnsact with WRGIS as
Counteipart's sole and exclusive reportng source of generation data for the Facilty, and
WRGIS is hereby autorized to communicate and trsact directly with PacifiCoip
regarding any generation data issues for the Facilty. PacifiCoip is hereby authorized to act
on behalf of Counteipart, but only to the extent tht PacifiCoip has lawfl, contrtul
access to WRGIS.
3.12.2 PacifiCorp is hereby authoried to provide WRGIS with all generation data for the
Facilty that WRGIS requires, including, but not limited to, data required for preparation of
required report and biling.
3.12.3 PacifiCorp is authorized to undertke all actions which are reasonable and necessa
to carr out the obligations set fort in the subsections above.
3.12.4 Counterpart retns all other rights and responsibilties and all other obligations to
WREGIS.
IV. Indemnity and Hold Harmless by Countema.
4.1 Indemnity. To the extent permittd by Requirements of Law, Counterar hereby
indemnifies and agrt./es to hold PacifiCoip, its offcers, employees, agents, or representatives,
haless for any and all liabilty that is in any way associated with PacifiCorp's performance
hereunder. This includes liabilty arsing frm: the data contained in the Monthly
Generation Extrt File, or any other financial injur, or daage to persons or propert.
Without limiting the generality of the foregoing:
4.1.1 Waiver of Causes of Action and Claims for Damages. Counterpary hereby waives
any and all causes of action arsing under or in respect to this Agreement, whether in
contract, tort or any other legal or equitable theory (including strict liabilty) against
PacifiCorp. In no event shall PacifiCoip be liable to Counteipar its boar of directors,
employees, agents, or representatives for any demands, diret costs, lost or prospective
profits or any other losses, liabilties or expenses, whether special, punitive, exemplar,
consequential, incidental, or indirect in natu, that ar in any way associated with
PacifiCorp's performance of the QRE function or otherwise under or in respect of this
Agrement.
4.2 Indemnity by Counteipar. Counteipar shall release, indemnify and hold harless
PacifiCorp, its Affliates, and each of its and their respective directors, offcers, employees,
agents, and representatives (collectively, the "PacifiCorp Indemnties") against and from any
and all losses, fines, penalties, claims, demands, damages, liabilties, actions or suits of any
natue whatsoever (including legal costs and attorney's fees, both at trial and on appeal,
whether or not suit is brought) (collectively, "Liabilties") resulting frm, or arising out of, or
in any way connected with, the performance by Counteipar of its obligations hereunder, or
Exh. 4.7(B) - 8
CeCr LL-eoyHil
.
relating to the Facilty, for or on account of (i) injury, bodily or otherwse, to, or death of, or
(ii) for damage to, or destrction or economic loss of property of, any person or entity,
excepting only to the extent such Liabilties as may be caued by the gross negligence or
wilful misconduct of any person or entity within the PacifiCorp Indemnities.
4.3 NOTWITISTANING ANY OTHE PROVISION OF THIS AGREEMET,
COUNTERPARTY ASSUMS FULL RESPONSIBILITY AND RISK OF LOSS
RESULTING FROM (1) THE FAILUR TO SEND DATA IN A FORMAT SPECIFIE
BY PACIFICORP, (2) THE FAILURE TO USE PROTOCOLS SPECIFIED BY
PACIFICORP OR (3) THE SENDING OF ERRONEOUS, UNTRUTUL,
INACCURTE, AND/OR INCOMPLETE GENERATING DATA TO PACIFICORP OR
THE SENDING OF ERRONEOUS, UNTRUTHUL, INACCURTE, AND/OR
INCOMPLETE DATA BY PACIFICORP TO WRGIS. IN NO EVENT SHALL
PACIFICORP BE LIABLE FOR ANY CONSEQUENTI, INCIDENTAL, SPECIAL,
EXEMPLAY, OR OTHR INIRCT LOSS OR DAMGES RESULTING FROM ANY
BREACH OF THIS AGREEMENT, WHTHER CAUSED BY THE NEGLIGENCE OR
INTENTIONAL ACTIONS OF PACIFICORP (AN/OR ITS CONTRCTORS, AGENTS,
AN EMPLOYEES), REGARLESS OF WHTHR SUCH CLAIM FOR DAMGES is
BASED IN CONTRCT, TORT, STRCT LIABILITY OR OTHERWISE. IN NO EVENT
SHAL PACIFICORP BE LIALE FOR ANY LOSS OR HAR SUFFERED BY
COUNRPARTY OR ANY THI PARTY DUE TO ANY ACTION OR INACTION
BY PACIFICORP TAKE HEREUNER THT CAUSES A FACILITY TO LOSE ANY
CREDENTIAS, REGISTRTION OR QUALIFICATION UNER THE REEWABLE
PORTFOLIO STANDARD OR SIMLAR LAW OF ANY STATE OR OTHR
JURISDICTION.
4.4 PACIFICORP WILL NOT BE RESPONSIBLE FOR ANY DAMAGES
RESULTING FROM ECONOMIC LOSS, LOSS OF USE, LOSS OF DATA, LOSS OF
BUSINSS, LOSS OF PROFIT, LOSS OF PRODUCTION TAX CREDITS, LOSS OF
SAVINGS OR REVENUE, LOSS OF GOODWILL, TH CLAIMS OF THRD PARTIES
(INCLUDING CUSTOMERS AND SHAREHOLDER OR OTHER EQUITY OWNRS),
PERSONAL INJUS OR PROPERTY DAMGES SUSTAIND BY THE
COUNTERPARTY OR ANY lHIR PARTIES, EVE IF PACIFICORP HAS BEEN
NOTIFIED BY COUNTERPARTY (OR BY ANY THIR PARTY) OF SUCH
DAMGES.
4.5 PACIFICORP DISCLAIMS AN LIABILITY FORAND COUNTERPARTY
WAIVS ANY CLAIM FOR LOSS OR DAMGE RESULTING FROM ERRORS,
OMISSIONS, OR OTHER INACCURCIES IN AN PART OF WRGIS OR TH
REPORTS, CERTIFICATES OR OTHR INORMTION COMPILED OR PRODUCED
BY AND FROM OR INPUT INTO WREGIS USING COUNRPARTY SUPPLIED
GENERATION DATA, WHETHR OR NOT SUCH ERRORS, OMISSIONS OR
INACCURCIES ARE DUE TO ERRONEOUS, UNTRUTHFUL, INCOMPLETE, OR
INACCURATE INFORMTION INUT BY PACIFICORP INTO WREGIS.
4.6 COUNTERPARTY HEREBY RELEASES PACIFICORP AND ANY OF ITS
CONTCTORS, AGENTS, AN EMPLOYEES FROM ANY AN ALL LIABILIT
WITH RESPECT TO DAMAGES OR INJURIES INCURD BY GENERA TOR OWNER
AS RELATES TO 11f FOREGOING, EXCLUDING ANY ARSING AS A RESULT OF
Em. 4.7(B) - 9
CeOæ UC-uHi
TORTIOUS AND INTENTIONALLY KNOWING OR RECKLESS CONDUCT BY
PACIFICORP.
4.7 COUNERPARTY ACKNOWLEDGES AND AGREES THT, IN TH EVENT
OF BRECH OF THS CONTRACT OR AN OTHR ACTION RESULTING IN LOSS
OR POTENTIAL LOSS OR DAMGE TO COUNTERP ARTY, THE SOLE RECOURE
TO GENERATORIOWNERIS TERMATION OF THIS AGREEMENT.
4.8 Counterpar agrees to defend, indemnify, and hold harless PacifiCorp and its
directors, offcers, employees, and agents from and against any and all clais (including
third-par claims); causes of action, wheter in contrt, tort, or any other legal theory
(including strict liabilty); demands; damages; costs; liabilties,; losses and expenses
(including reasonable attorney's fees and court costs) of any natu whatsoever, whenever
arising, arising out of, resulting from, attibutable to, or related to Counterpar generation
Data our Output for: any inaccuracy, errr, or delay in or omission of (i) any Data,
inonnation, or service, or (ii) the trsmission or delivery of any Data, informtion, or
service; any interrption of any such Data, Output, information, or serice (whether or not
caused by PacifCorp); or any financial, business, commercial, or other judgment, decision,
act, or omission mad by any person or entity based upon or related to the information.
4.9 InterconnectQn. Counteipart shall have no clais hereunder against PacifiCorp,
actig in its merchant function capacity, with respect to any requirements imposed by or
damages caused by (or allegedly caused by) acts or omissions of the Transmission Provider
or Interconnecton Prvider, in connection with the Generation Interconnection Agreement
or otherwise. Counteipar shall defend, indemnify and hold PacifiCoip harless against
any liabilty arising due to Counterpar's performance or failure to perform under the
Generation Interconnection Agreement. Counteipar's failur to obtain, or perform under,
the Generation Interconnection Agreement, or its other contracts and obligations to,
Transmission Prvider or Interconnection Provider is not a Force Majeure.
4.10 THS ARTICLE SHALL SURVIV ANY TERMATION OF THIS
AGREEMENT, WHTHER SUCH TERMATION IS BY PACIFICORP OR
COUNTERPARTY, AND WHTHR OR NOT SUCH TERMINATION IS ON
ACCOUN OF A DEFAULT.
V. Furer Countemar Obligations.
5.1 No Sale. Nothing herein constitutes a sale or purchase of energy or renewable energy
certficates to or by PacifiCoip.
5.2 PTCs. Counteipar shall bear all risks, financial and otherwise throughout the Tenn,
associated with Counteipar's or the Facilty's eligibilty to receive production tax creits
("PTCs")or qualify for accelerated depreciation for Counteipary's accounting, reprting or
tax puroses.
5.3 Furher Assurances. At PacifiCorp's request, the Paries shall execute such
documents and instrments as may be reasonably required to effect the essential intent and
purposes hereof.
5.4 Station Service. Counteipart shall be responsible for aranging and obtaining, at its
sole risk and expense, any station service required by the Facilty.
Exh. 4.7(B) - 10
Ce (' LL-eoy Hi
5.5 Costs of Owership and Opration. Without limiting the generality of any other
provision hereof, Counterpar shall be solely responsible for paying when due (a) all costs
of owning and operating the Facilty in compliance with existing and futue Requirements of
Law and the terms and conditions hereof, and (b) all taes and charges Qiowever
charterized) now existing or hereinfter imposed on or with respect to the Facilty, its
operation, or on or with respect to emissions or other environmental impacts of the Facilty,
including any such ta or charge (however characterized) to the extent payable by a
generator of such energy or renewable energy certficates.
5.6 Coordination with System. Counteipart shall be responsible for the coordination
and synchronization of the Facilty and the Interconnection Facilties with the System, and
shall be solely responsible for (and shall defend and hold PacifiCorp harless against) any
daage that may occur as a dire result ofCounteipar's breach of the Generation
Interconnection Agreement.
5.7 Data Request. Counteipar shall, promptly upon wrtten request from PacifiCorp,
provide PacifiCorp with data reasonably required for information requests from any
Governental Authorities, state or federal agency intervener or any other par achieving
intervenor statu in any PacifiCorp rate proceeding or other proceeding before any
governental authority. Counterpar shall use best effort to prvide this information to
PacifiCorp suffciently in advance to enable PacifiCoip to review it and meet any submission
deadlines.
5.8 Additional Inormation. Counteipar shall provide to PacifiCoip such other
informtion respecting Counteipary or the Facilty as PacifiCorp may, from time to time,
reasonably request.
5.9 No Dedication. Nothing herein shall be constred to create any duty to, any stadard
of cae with reference to, or any liabilty to any person not a Pary hereto. No underng by
one Par to the other under any provision hereof shall constitute the dedication of
PacifiCorp's facilties or any portion thereof to Counteipary or to the public, nor afect the
status of PacifiCoip as an independent public utilty corporation or Counterar as an
independent individual or entity.
5.10 Required Policies and Coverages. Without limiting any liabilties or any other
obligations of Counterpar hereunder, Counterpar shall secur and continuously car
with an insurance company or companies rated not lower than "B+" by the A.M. Best
Company the insurace coverage specifed in the Generation Interconnection Agrement.
VI. Representations and Warties.
6.1 Mutual Representations and Waranties. Each Par represents and warts to the
other that: (i) it is duly organized and validly existing under the laws of the jurisdiction of its
incorporation or organization; (ii) it has the corporate, governental and other legal capacity
and autority to enter hereinto and to perform its obligations hereunder; (ii) such execution
and performance do not violate or conflct with any law, order or agreement applicable to it;
(iv) it has all governental and other authorizations tht ar requird to have been obtained
or submitted by it with respect hereto, and they ar in full force and effect; (v) its obligations
hereunder are valid, binding and enforceable in accordance with their terms (subject to
banptcy or similar laws afecting creditors' rights generally); and (vi) no Event of Default,
or event which with notice anelor lapse of time would constitute such an Event of Default,
Exh. 4.7(B) . 11
CeOek W:~Hì
has occured and is continuing or would occur as a result of its entering into or performing
its obligations hereunder.
6.2 Representations and Waranties of Countemary. Counteipar hereby represents and
warants to PacifiCorp: (i) it is not relying upon any representations of PacifCorp other than
those expressly set fort herein; (ii) it has entered hereinto with a full understading of the
material terms and risks of the same, and it is capable of assuming those risks; (ii) it has
made its tring and investment decisions based upon its own judgment and any advice from
such advisors as it has deemed necessar and not in reliance upon any view expressed by
PacifiCorp; (iv) it has not reeived from PacifiCoip any assuraces or promises regarding
any financial results or benefits hereunder; (v) service hereunder is not a utilty service
within the meaning of Section 466 of the United States Bankrptcy Code; and (vi)
Counteiparholds legal title to the Facility or otherwise holds the legal right to cause the
Facilty to enter into this Agreement.
VII. Financial Responsibilty.
7.1 Adequate Assurances. Without limitig PacifiCoip's rights under Article VII hereof,
if Counteipary has failed to make a timely payment hereunder, and PacifiCoip has
reasonable grounds for insecurity regaring the performance of any obligation of
Counteipary hereunder (whether or not then due), PacifiCoip may demand Adequate
Assurances of Performance. "Adequate Assurces of Performance" means suffcient
securty in the form, amount, by an issuer or guantor, and for the term reasonably
acceptable to PacifiCorp, including, but not limited to, cash, a stadby irrvocable letter of
credit, a prepayment, a securty interest in governent securities, an asset or a performance
bond or guarty. Such Adequate Assurces of Performance shall be provided within th
business days after a wrtten demand is made by PacifiCorp.
VIII. Events of Default; Remedies.
8.1 Event of Default. "Event of Default" means, with respect to a Pary (the "Defaulting
Par"):
8.1.1 the failure to render when due any payment or performance hereunder, if such failure
is not remedied within five days after writtn notice;
8.1.2 the failur to timely provide adequate assurances required puruant to Article VII
hereof;
8.1.3 any such Part's representation or waranty proves to have been incorrct or
misleading in any material respect when made;
8.1.4 the failure to perform any other covenant set fort herein if such failur is not
remedied within five days afer wrtten notice;
8. 1.5 its banptcy, if adequate assurances acceptale to PacifiCorp and approved by the
Bankrptcy Cour are not provided;
8.1.6 the expiration or termination of any credit support of Counteipary's obligations
hereunder (other than in accordance with its terms) prior to the satisfaction of all obligations
of Counterpar without the written consent of PacifiCorp; or
8. i. 7 In the case of Counterpart:
Exh. 4.7(B) - 12
Ce Oæ LL--oyHi
8.1.7.1 Counterpary fails to report generation Data or Output information to PacifiCoip for
the Facilty or Counteipary fails to send the data in a format and use the protocols specified
by PacifiCoip as determined by PacifiCorp to be required to meet the requirements of the
WRGIS Operating Rules;
8.1.7.2 Counteipart is delinquent in payment to WREGIS of any WRGIS fees for
registation or maintenance of Accounts or Subaccounts, which payment impair the abilty
of PacifiCorp to report Generator Data, Output, or other information to WRGIS regarding
the Facilty, which delinquency continues for a period of thirt (30) days;
8.1.7.3 Counteipar fails to comply with a reuest by PacifiCorp to provide evidence of
payment ofWRGIS fees pertining to the Facilty; or
8.1.7.4 Counterpary knowingly or intentionally falsifies or misrepresents any Data, Output
information, or other information require by WREGIS.
8.2 Remegies Upon Event of Default. In the Event of Default by a Par and for so long
as the Event of Default is contiuing, the non-defaulting Pary (the "Pedorming Pary") shall
have the right to do any or all of the following: (1) upon two business days' written notice to
the Defaulting Par, terminate this Agreement; (2) withhold any payments or performance
due in respect of this Agreement; and (3) exercise such other remedies as may be available at
law or in equity or as otherwise provided for herein, to the extent such remedies have not
been otherwise waived or limited pursuant to the terms hereof.
8.3 Setff. If an Event of Default occurs, the Performing Par may, at its election, set
off any or all amounts which the Defaultig Par owes to it or any Affliate of the
Performing Par (whether under this Agrement or otherwise and whether or not then due)
against any or all amounts which it or any Affliate of the Performing Pary owes to the
Defaulting Pary (whether under this Agreement or otherwise and wheter or not then due).
8.4 Payment of Damages. Any amounts due on account of default shall be paid by the
close of business on the next business day following the Defaulting Par's receipt of the
Performing Par's written termination notice setting fort the termination payment due.
8.5 Limitation of Liabilty. THE EXPRESS REMEDIES AND MEASURS OF
DAMGES PROVIDED HEREIN SATISFY THE ESSENTI PURPOSES HEREOF.
FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS REMEDY OR
MEASURE OF DAMAGE is PROVIED, SUCH REMEDY OR MEASUR SHALL BE
THE SOLE AN EXCLUSIV REMEDY THEREFOR. LIABILITY THAT HAS NOT
BEEN OTHRWISE EXCLUDED PURSUANT TO THE TERMS HEREOF SHALL BE
LIMITED TO DIRCT ACTUAL DAMGES ONLY AS TH SOLE AND EXCLUSIVE
REMEDY. EXCEPT AS OTHRWISE SPECIFICALLY SET FORTH HEREIN, NO
PARTY SHAL BE REQUID TO PAYOR BE LIABLE FOR SPECIAL,
CONSEQUENTIAL, INCIDENTAL, PUNTIVE, EXEMPLAY, OR INDIRCT
DAMAGES, LOST PROFIT OR BUSINSS INTERRUPON DAMGES, BY
STATU, IN TORT, CONTRACT OR OTHRWISE.
8.6 SurivaL. This Aricle survives the expiration or termination hereof.
IX. Force Majeure.
9.1 Except with regard to a Par's obligation to make payments hereunder, in the event
, either Par hereto is rendere unable, wholly or in part by Force Majeur to car out its
Exh. 4.7(B) . 13
CectOæA; UC..HiO
obligatons with respect hereto, then upon such Par's (the "Claiming Par") giving notice
and full pariculars of such Force Majeur as soon as reasonably possible after the
occurrence of the cause relied upon, such notice to be confied in writing or by facsimile to
the other Par, then the obligations of the Claiing Par shall, to the extent they are
afected by such Force Majeur, be suspended during the continuace of said inabilty, but
for no longer period, and the Claiming Par shall not be liable to the other Par for, or on
account of, any loss, daage, injur or expense resulting from, or arising out of such event
of Force Majeur. The Par receiving such notice of Force Majeure shall have until the end
of the Business Day following such receipt to notify the Claiming Par that it objects to or
disputes the existence of an event of Force Majeure. "Force Majeure" means an event or
circumstace which prevents one Par from performing its obligations hereunder, which
event or circumstace was not anticipated, which is not within the reasonable contrl of, or
the result of the negligence of, the Claiming Par, and which, by the exercise of due
dilgence, the Claiming Par is unable to overcome or avoid or cause to be avoided.
Counterpary's failure to obtain, or perorm under, the Generation Interconnection
Agrement, or its other contracts and obligations to, Tranmission Provider or
Interconnection Provider is not a Force Majeure.
9.2 Force Majeure Does Not Afect Oter Obligations. No obligations of either Party
that arose before the Force Majeur causing the suspension of performance or that arse aftr
the cessation of the Force Majeur shall be excused by the Force Majeure.
9.3 Strkes. Notwithstading any other provision hereof, neither Par shall be required
to setle any strike, walkout, lockout or other labor dispute on terms which, in the sole
judgment of the Part involved in the dispute, are contr to the Par's best interests.
X. Miscellaneous.
10.1 CHOICE OF LAW. This Agreement shall be interreted and enforcd in accorda.nce
with the laws of the state of Oregon, excluding any choice of law rules that may direct the
application of the laws of another jurisdiction.
10.2 Restriction on Assignments. Neither Par may assign ths Agrement or any of its
rights or obligations hereunder without the prior wrtten consent of the other Par, which
consent shall not be unreasonably witheld. Any purorted assignent in violation hereof
shall be void ab initio. This Agreement inurs to the benefit of and is binding upon the
Paries and their respective successors and permitted assigns.
10.3 Notices. All notices, requests, sttements or payments shall be made to the addesses
set out on the Notices Exhibit. Notices required to be in writing shall be delivered by letter,
facsimile or other documentary form. Notice by facsimile or hand delivery shall be deemed
to have been given when received or hand delivered. Notice by overnight mail or courer
shall be deemed to have been given on the date and time evidenced by the delivery receipt.
The Paries may change any of the persons to whom notices ar addressed, or their
addresses, by providing writtn notice in accordance with this Section.
10.4 Entire Agrement; Counterpart. This Agreement constitutes the entire agreement
beteen the Paries with respect to its subject matter. This Agreement may not be amended,
changed, modified, or altered unless such amendment, change, modification, or alteration is
in writing and signed by both Paries. This Agreement may be executed in counterparts,
including by telefacsimile trsmission, each of which is an original and all of which taen
Ex. 4.7(B) - 14
Ce Oæ UC-- Hi
togeter constitute one and the same original instrment. This Agreement completely and
fully supersedes all other prior understadings or agrements, both writtn and oral, between
the Parties relating to the subject mattr hereof. If any provision of this Agreement is
determined to be invalid, void or unenforceable by any court of competent jursdiction, such
determination shall not invalidate, void, or make unenforceable any other provision,
agreement or covenant of this Agreement, provided the basic puroses of this Agreement and
the benefits to the Pares ar not substatially impaied.
10.5 No Waiver. Waiver by a Par of any default by the other Par shall not be
constred as a waiver of any other default, nor shall any delay by a Par in the exercise of
any right under this Agreement be considered as a waiver or relinquishment thereof.
i 0.6 Jurisdiction. Any judicial action arsing out of, resulting from or in any way relating
to this Agreement shall be brought only in a state or federal court of Multnomah County,
Oregon. In the event such judicial proceedings ar instituted by either Par, the prevailng
Par shall be entitled to award of its costs and attorneys' fees incurd in connection with
such proceedings.
10.7 JuiTrial Waiver. THEPARTISEACHHEBYIRVOCABLYWAIVE
ALL RIGHT TO TRIAL BY JUY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARSING OUT OF OR RELATING HERETO, ANY GREEN TAGS
OR THE TRNSACTIONS CONTEMPLATED HEREBY. EACH PARTY FURTHR
WAIVS ANY RIGHT TO CONSOLIDATE ANY ACTION IN WHCH A JURY TRIAL
HAS BEEN WAID WITH ANY OTHER ACTION IN WHICH A JURY TRL
CANNOT BE OR HAS NOT BEEN WAIVD.
10.8 No Third PartBeneficiaries. With the exception of Transmission Provider and
Interconnection Provider, who are express third part beneficiaries hereof, this Agrement
confers no rights whatsoever upon any person other than the Pares and shall not create, or
be interpreted as creating, any standard of care, duty or liabilty to any person not a Part
hereto.
10.9 Relationship of the Paries. Nothing contained herein shall be constred to create an
association, joint venture, trst, or parterhip, or impose a trst or parership covenant,
obligation, or liabilty on or with regard to anyone or more of the Partes. Each Pary shall
be individually responsible for its own covenants, obligations, and liabilties under this
Agrement.
IN WITNSS WHREOF, the Paries have executed this Agrement by their duly
authorized representatives as of the date first above wrttn.
PacifiCorp (Counterpar)
BY:
NAM:
TITLE:
BY:
NAM:
TITLE:
Exh. 4.7(8). 15
Exhibit A
Facilty and Generation Data to be sent by QRE
For Facilty enter the following information:
Facilty Name and Address
CeCr UC-D H'i/
Resource ID and Meter Number (Device il) as listed on the Meter Service Agreement for
the iso Metered Entities (MSAlSOME) Schedule 1
WRGIS ID
Meter Points
Exh. 4.7(B) -16