20110110Application.pdf

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201 South Main, Suite 2300
Salt Lake City, Uth 84111
Janua 8, 2011
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VI OVERNGHT DELIVERY
Idaho Public Servce Commssion
472 W. Washington Street
P.O. Box 83720
Boise, Idaho 83720-0074
PAC"-' ts- t ( -03
Attention: Jean D. Jewell
Commssion Secreta
RE: In the Mattr of the Applications of Rocky Mountan Power for Approval of Power Purchase
Agreements Between Rocky Mountain Power and Cedar Creek Wind
Please fid enclosed the origial and seven (7) copies each of five separate Applications and
Power Purchae Agreements between Rocky Mounta Power under which Cedar Creek would
, sell and Rocky Mounta Power would purchase electrc energy generated from each of the five
Cedar Creek Wind projects ("Projects") located in Bingh County, Idaho:
Project Name
Rattlesnae Canyon
~oyoteHill
v"Nort Point
Steep Ridge
Five Pine
Nameplate Capacity
Megawatt (M
27.6
27.6
27.6
25.2
25.2
Monthly Average MW
Delivery
9.4
9.4
,9.8
9.8
9.4
Inquies may be directed to Ted Weston, Idao Reguatory Maner at [phone], or
Danel Solander, Senior Counsel, at [phone].
"'ry Truy Your,ij¡vh~/1A~
Jeffey K. Laren
Vice President, Regulation
Enclosures
PA---E-l ( -0 3
PROJECT
NORTH POINT
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Vf.iw
Mark C. Moench
Daniel E. Solander
Yvonne R. Hogle
Rocky Mountain Power
201 South Main Street, Suite 2300
Salt Lake City, Uta 84111
Telephone: [phone]
Fax: [phone]
Email: mark.moench(ipacificorp.com
daniel.solander(ipacificorp.com
yvonne.hogle(ipacificorp.com
Attorneys for Rocky Mountain Power
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BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE
APPLICATION OF ROCKY
MOUNTAIN POWER FOR
APPROVAL OF A POWER
PURCHASE AGREEMENT
BETWEEN RMP AND CEDAR
CREEK WIND LLC
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CASE NO. PAC-E-ll-t';
APPLICATION OF
ROCKY MOUNTAIN POWER
Comes now Rocky Mountain Power ("RMP" or "Company" or "PacifiCorp"), in
accordance with RP 52 and the applicable provisions of the Public Utilty Regulatory
Policies Act of 1978 ("PURP A"), hereby respectfully applies to the Idaho Public Utilities
Commission ("IPUC" or "Commission") for an Order accepting or rejecting the published
avoided cost rate Power Purchase Agreement ("PP A") between RMP and Cedar Creek
Wind LLC ("Cedar Creek" or "Seller') under which Cedar Creek would sell and RMP
would purchase electric energy generated from each of the five Cedar Creek Wind
projects ("Projects") located in Bingham County, Idaho:
Project Name Nameplate Capacity
Megawatt (MW)
27.6
27.6
27.6
25.2
25.2
Monthly Average MW
Delivery
Rattlesnake Canyon
Coyote Hil
North Point
Steep Ridge
Five Pine
9.4
9.4
9.8
9.8
9.4
This application is specific to the North Point Project ("Facility"). In support of this
Application RMP represents as follows:
1. Communications regarding this Application should be addressed to:
Ted Weston
201 South Main, Suite 2300
Salt Lake City, Uta 84111
Telephone: [phone]
Fax: [phone]
Email: ted.weston(ipacificorp.com
and to:
Danel E. Solander
201 South Main, Suite 2300
Salt Lake City, Uta 84111
Telephone: [phone]
Fax: [phone]
Email: daniel.solander(ipacificorp.com
In addition, the Company respectfully requests that all data requests regarding this
matter be addressed to one or more of the following:
By regular mail
datarequest~pacificorp.com
Data Request Response Center
PacifiCorp
825 NE Multnomah, Suite 2000
Portland, OR 97232
Bye-mail (preferred)
I. BACKGROUND
2. Sections 201 and 210 ofPURPA, and pertinent regulations of the Federal
Energy Regulatory Commission ("FERC"), require that regulated electric utilties
purchase power produced by cogenerators or small power producers that obtain
qualifying facilty ("QF") status. The rate a QF receives for the sale of its power is
generally referred to as the "avoided cost" rate and is to reflect the incremental cost to an
electric utilty of electric energy or capacity or both, which, but for the purchase from the
QF, such utilty would generate itself or purchase from another source. The Commission
has authority under PURP A Sections 201 and 210 and the implementing regulations of
the FERC, 18 C.F.R. § 292, to set avoided costs, to order electric utilities to enter into
fixed-term obligations for the purchase of energy from QFs, and to implement FERC
rules.
3. Cedar Creek proposes to design, construct, install, own, operate, and
maintain a 27.6 megawatt ("MW") (Facility Capacity Rating) wind generating facility
named North Point, to be located in Bingham County, Idaho. The Facilty wil be a QF
under the applicable provisions of PURP A. The PPA for this Facility and the other four
Cedar Creek projects; Coyote Hil, Rattlesnake Canyon, Steep Ridge, and Five Pine, are
all executed by Scott Montgomery, President of Cedar Creek Wind LLC, being the
authorized manager of each aforementioned Project.
4. On November 5, 2010, RMP along with Idaho Power and Avista
Corporation fied a Joint Petition and Motion seeking a reduction in the published
avoided cost rate eligibility cap from 10 aMW to 100 kilowatts ("kW"). Case No. GNR-
E-IO-04. On December 3, 2010, the Commission issued Order No. 32131 setting a
Modified Procedure comment schedule with which to develop a record for its decision
regarding the Joint Petition and Motion's request to lower the published avoided cost rate
eligibility cap. Comments were provided December 22, 2010, Reply Comments are due
Janua 19,2011, and Oral Arguments are scheduled for Januar 27, 2011. As par of the
Order, the Commission ordered that its decision regarding whether to reduce the
published avoided cost eligibility cap become effective on December 14,2010.
5. RMP has an obligation under federal law, FERC reguations, and this
Commission's Orders to enter into power purchase agreements with PURP A QFs. As
stated in the Joint Petition fiing, RMP has received multiple requests from PURPA wind
QF developers for published avoided cost rate PP As. The Company continues to process
these requests as par of its normal course of business with the appropriate level of due
dilgence to ensure these potential resources comply with all PURP A regulations and
Commission Orders and are submitted to this Commission for review and decision, as is
its legal obligation. However, the request in this Application, the other four Applications
for Cedar Creek Wind projects, as well as several other QF PPA Applications that will be
fied over the course of the next several months, is made with the specific reservation of
rights and incorporation of the averments set forth in the Joint Petition regarding the
possible negative effects to the both the utility and its customers of additional and
unettered PURPA QF generation on system reliability, utility operations, and costs of
incorporating and integrating such a large penetration level of PURP A wind QF
generation into the utilty's system.
6. RMP is concerned with the increase II power supply costs, and the
resulting increase in rates to its customers, that the curent published SAR-methodology
avoided cost prices causes as compared to applying the IRP-methodology or the results
from a competitive request for proposal solicitation. A non-standard QF project using the
Commission Ordered IRP-methodology addresses the specific operating characteristics of
the QF as par of the Company's resource portfolio, resulting in avoided cost prices tied
to that specific resource and generally, at a lower cost than the SAR -derived avoided cost
prices. The magnitude of stadard wind QF project development in Idaho has reached
monumental levels and at the curent published avoided cost levels wil have a significant
impact on the net power cost portion of its Idaho and other jurisdiction customer's rates.
The North Point QF Contract and the other four Cedar Creek Idaho wind QF contracts
being submitted to the Commission total 133 MW, representing 30 percent of the 445
MW QFs that are currently requesting published avoided cost rate wind contracts. These
proposed projects are not small family or community-based developers doing a single
project, but rather large-scale, sophisticated developers with legal and technical assets
who have disaggregated large projects into multiple projects in order to meet the 10 aMW
threshold and qualify of published avoided cost contracts. Cedar Creek Wind originally
submitted a bid into the Company's 2009R renewable Request for Proposal (RFP) as a
single 151 MW project but did not make the RFP short-list of bids. In March 2010, Cedar
Creek requested QF pricing for two 78 MW projects. The projects were priced using the
IRP-methodology for large Idaho non-standard QFs. RMP prepared and delivered
avoided cost prices which Cedar Creek rejected as not meeting their price threshold and
therefore too low. In May 2010, Cedar Creek resubmitted five individual QF projects
totaling 133 MW for Idaho avoided cost pricing. The five projects, which share a
common interconnection under the original single large project's interconnection
agreement and have a single owner, complied with all PURPA's regulation including the
1-mile separation requirement, and met all Idaho rules and Commssion Orders. Five
published avoided cost contracts were prepared and executed. The Company points out
that at the avoided cost price difference between the SAR-methodology compared to the
IRP-methodology results in the Company paying an additional $10 milion per year for
the power from the five projects. Expanding these stadard avoided cost prices to the
other 312 MW of standard QF contract requests versus using the IRP-methodology would
results in an additional cost of $23 milion per year. In this instance, the published
avoided cost prices are significantly higher than the avoided cost prices produced using
the IRP-methodology. Furher, standard purchases result in an inherent overpayment to
the extent that the project does not offer the same delivery attributes as the proxy
resource on which the avoided costs are calculated. As standard pricing becomes
available to larger projects, for longer contract terms, the magntude of this overpayment
increases. Because a contract under the published QF rate has minimal flexibility to
adjust pricing or the terms and conditions in the contract based on the project's
characteristics, wind resources have found the QF path more conducive to gaining a long
term power purchase agreement without the project specific adjustments they would
encounter through the IRP-methodology or a competitive request for proposal
solicitation. This divergence between applying the project specific characteristics through
the IRP-methodology and the stadard default pricing natue of the QF process wil lead
to Idaho customers on the Company's system of carring the burden of a higher-cost (i.e.,
above avoided cost) QF resource than they would otherwise pay for.
7. The Revised Protocol agreement addresses treatment of New QF
Contracts under State Resources in Section C. as follows: "Costs associated with any
New QF Contract, which exceeds the costs PacifiCorp would have otherwise incured
acquiring Comparable Resources, will be assigned on a situs basis to the State approving
such contract." Therefore if the Commission approves this purchase power agreement the
Company respectfully requests that the $10 milion anual incremental expense
associated with these five contracts be situs assigned to the state of Idaho. This would be
in addition to Idaho's allocation of the cost produced by IRP-methodology valuation
representative of the avoided cost RMP would have otherwise incured acquiring these
resources.
8. Rocky Mountain Power is concerned with the impact on its electrical
system and reliability in adding the Cedar Creek Wind projects and other large volumes
of QF wind. Historically the generation threshold for published avoided cost rates had
been low, and the costs associated with capacity contribution and integration for an
intermittent resource have been deemed to have minimal impact on the Company's
electric system. With current thresholds in Idaho increased to 10aMW which equates to a
wind QF project in the nameplate capacity range of 20 to 30MW, the cost to the
Company and thus to the customer for integration, capacity contribution, and
transmission capacity are of greater significance and need to be revisited in the
determination of avoided costs for intermittent resources. In those cases where a resource
is added in Idaho and there is insuffcient load to absorb or use the generation, the added
QF power output must be moved elsewhere to be useful to the system and serve the
Company's network load. This is primarily expected to be the case in the off-peak time
period when customer loads are normally lower and canot absorb the wind generation,
but also may occur with the addition of significant numbers of 10 aMW QF projects or a
small number of large QF projects. While the Company recognizes that locational
transmission constraints and the need for transmission upgrades should not prevent
project development, any incrementa cost reflecting the constraint or upgrade should be
borne by the developer and not the ratepayer. Analysis of transmission system constraints
and the cost of options for dealing with those constraints should be incorporated into the
QF pricing and contract process so that appropriate adjustments can be made.
9. Even though RMP is legally obligated to continue to negotiate, execute,
and submit PURP A QF contracts for Commission review, it also feels obligated to
reiterate that the continuing and unchecked requirement for the Company to acquire
additional intermittent and other QF generation regardless of its need for additional
energy or capacity on its system not only circumvents the Integrated Resource Planng
process and creates system reliability and operational issues, but it also increases the
price its customers must pay for their energy needs.
II. THE POWER PURCHASE AGREEMENT
10. On December 22, 2010, RMP and Cedar Creek entered into a PPA
pursuat to the terms and conditions of the various Commission Orders applicable to this
PURPA agreement for a wind resource. See Order Nos. 29632, 30423, 31021, and 31025.
A copy of the PPA is attched to this Application as Attchment NO.1. Under the terms
of this PP A, Cedar Creek elected to contract with RMP for a 20-year term using the non-
levelized published avoided cost rates as curently established by the Commission for
energy deliveries of less than 10 average megawatts ("aMW"). This PPA was executed
by Cedar Creek on December 13, 2010. It was subsequently executed by RMP on
December 22, 2010, and now filed for the Commission's review on January 7, 2011.
11. The nameplate rating of this Facility is 27.6 MW. Cedar Creek has attested
and documented through its generation profile that the Facilty will not exceed 10 aMW
on a monthly basis. Furhermore, as described in Section 5.3 of the PP A, should the
Facility exceed 10 aMW on a monthly basis, RMP will accept the energy that does not
exceed the Maximum Facility Delivery Rate (Inadvertent Energy), but will not purchase
or pay for this Inadvertent Energy.
12. This PURPA wind agreement includes the Mechanical Availabilty
Guarantee ("MAG"), Wind Integration Cost adjustment, and Wind Forecasting cost
sharing as required in Commission Order No. 30497. In addition, Cedar Creek and RMP
have agreed to Delay Liquidated Damages and associated Delay Security provisions of
$1,506,418 for the North Point project with retu of the security as specific PPA
milestones are met.
13. Cedar Creek has elected October 1, 2012, as the Scheduled Commercial
Operation Date for this Facility. The PP A establishes numerous requirements in Section 2
that Cedar Creek must meet prior to RMP accepting energy deliveries from this Facility.
Cedar Creek must deliver a monthly report on progress starting in October 2011 and
RMP will monitor compliance with these initial requirements. In addition, RMP wil
monitor the ongoing contractual requirements through the full term of this PP A.
14. The PPA, as signed and submitted by the paries thereto, contains non-
levelized published avoided cost rates in conformity with applicable IPUC Orders. In
addition, Cedar Creek shall reimburse RMP for the cost of securing the network resource
and transmission service request.
15. Cedar Creek's projects share a common collector substation for the five
wind QF projects including North Point, which then delivers aggregated energy via a
Cedar Creek owned 345-kV transmission line to the Point of Delivery at the Goshen
Substation. This Facility and the other four Cedar Creek project's net output generation
is individually metered at the collector substation and each PP A contains an Addendum L
which distributes the line losses between the collector substation and the Point of
Delivery to each project based on their percentage of the monthly net output to the
aggregated delivery at the Point of Delivery.
16. The PP A provides that all applicable interconnection costs and monthly
operational or maintenance charges as defined in the Generator Interconnection
Agreement ("GIA") will be assessed to Seller. PURP A QF generation must be designated
as a network resource ("NR") on RMP's system, which requires the Company's merchant
fuction to submit a Transmission Service Request ("TSR") on behalf of the Facilty to
PacifiCorp Transmission. Submission of such request wil occur by Janua 30, 2011.
Upon resolution of any and all required upgrades, if necessary, to acquire network
transmission capacity for this Facility's delivery of energy and upon execution of the
PPA and the GIA, this Facilty may then be designated as a network resource.
17. Seller has selected October 1, 2012, as the Scheduled Commercial
Operation Date. Cedar Creek has been advised that it is Cedar Creek's responsibility to
work with PacifiCorp Transmission to ensure that sufficient time and resources wil be
available to constrct the interconnection facilities, and transmission upgrades if required,
in time to allow the Facility to achieve the Scheduled Commercial Operation Date. Cedar
Creek has been fuher advised that delays in the interconnection or transmission process
are not Force Majuere events in achieving the Scheduled Commercial Operation Date and
if Seller fails to achieve the Scheduled Commercial Operation Date at the times specified
in the PP A, delay damages will be assessed.. Cedar Creek has advised RMP that is has
been advised of and accepted the responsibility and risk associated with meeting the
Schedule Commercial Operation Date requirements relating to interconnection and
possible transmission upgrades.
18. Cedar Creek has also been made aware of and accepted the provisions of
the PP A regarding curailment or disconnection of its Facility should certin operating
conditions develop on the Company's system. Section 6 of the PP A defines the conditions
for curilment and obligations of Cedar Creek in the event of curailment.
19. Section 2.1 of the PPA provides that the PPA will not become effective
until the Commission has approved all of the PP A's terms and conditions and issued a
final and non-appealable order that declares that all payments RMP makes to Cedar
Creek for purchases of energy wil be allowed as prudent and legitimate expenses for
ratemaking puroses and that Idaho wil allow PacifiCorp to recover through its rates in
Idaho any shortfall in recovery of power purchase costs under the PP A if any other public
utility commission with jurisdiction over PacifiCorp disallows recovery of any par of
that state's proportionate share of said expenses.
III. MODIFIED PROCEDURE
20. RMP believes that a hearing is not necessar to consider the issues
presented herein and respectfully requests that this Application be processed under
Modified Procedure, i.e., by written submissions rather than by hearing. Reference
Commission Rules of Procedure, IDAPA 31.01.01.201-204. If, however, the Commission
determines that a technical hearing is required, the Company stands ready to prepare and
present its testimony in such hearing.
WHEREFORE, Rocky Mountain Power respectfully requests that the
Commission issue an Order accepting or rejecting the published avoided cost rate Power
Purchase Agreement ("PP A") between RMP and Cedar Creek Wind LLC ("Cedar Creek"
or "Seller') under which Cedar Creek would sell and RMP would purchase electric energy
generated from the North Point facilty.
Dated this 7th day of Januar, 2011
Respectfully submitted,
By¿U~/91Danel E. Solande I
Attorney for Rocky Mountain Power
POWER PURCHASE AGREEMENT
BETWEEN
CEDAR CREEK WIND, LLC ~ ",' ~'''.''(),'Relating to NORTH POINT, a Wind Turbine Generation Projecl:;;:" šE
a non-fueled, on-system, Intermttent Resource with Mechancal Availabilty ~~~ant£,
Idao Qualifying Facilty-1 OaMW /Month or less ç::~:;
AND
PACIFICORP
Section 1: Defitions..................................................................................... .................... 1
Section 2: Term, Commercial Operation Date ................................................................... 9
Section 3: Representations and Waranties....................................................................... 12
Section 4: Delivery of Power; Availabilty Guaranty... ................. ......... ....... ................... 15
Section 5: Purchase Prices ......... .............. ..... .................. ........... ............ ............ ........ ....... 17
Section 6: Operation and Control ..................................................................................... 19
Section 7: Motive Force....................................................................................................22
Section 8: Generation Forecasting Costs .......................................................................... 23
Section 9: Metering; Report and Records ................................................. ..... ................. 23
Section 10: Bilings, Computations and Payments ................. ............... .................... ....... 25
Section 11: Security ................................................ ....... ................................................... 26
Section 12: Defaults and Remedies .................................................................................. 27
Section 13: Indemnfication; Liabilty .............................................................................. 30
Section 14: Insurance........................................................................................................ 31
Section 15: Force Majeure................................................................................................ 32
Section 16: Several Obligations........................................................................................ 33
Section 17: Choice of Law................................................................................................ 33
Section 18: Paral Invalidity ............................................................................................ 33
Section 19: Waiver............................................................................................................ 33
Section 20: Governental Jursdiction and Authorizations ............................................. 33
Section 21: Successors and Assign ................................................................................. 33
Section 22: Entire Agreement ........... .................. ..... ............... ................ ..... ........... .......... 34
Section 23: Notices. .............. ................ .......... ............. ...................... ................. .............. 34
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Cedar Creek Wind, LLC-North Point
POWER PURCHASE AGREEMENT
THIS POWER PURCHASE AGREE~NT, rela' g to NORTH POINT, a wind tubine
generation project entered into ths 7f1 day of 201Q is between Cedar Creek
Wind, LLC, a Delaware limited liability company the "Seller") and PacifiCorp, an Oregon
corporation acting in its merchant fuction capacity ("PacifiCorp"). Seller and PacifiCorp are
referred to collectively as the "Partes" and individually as a "Part".
RECITALS
A. Seller intends to constrct, own, operate and maintain a wind facility, including
Seller's Interconnection Facilities, for the generation of electrc power located in Bingham,
County with an expected Facilty Capacity Rating of 27,600-kilowatts (kW) as furer described
in Exhibit A and Exhibit B ("Facilty").
B. Seller has secured rights to deliver output from its Facilty to PacifiCorp across
interconnection facilties shared by five Quafying Facilties (Coyote Hil, Five Pine, Steep
Ridge, Nort Point, and Rattesnake Canyon); the five Quaifyng Facilties have agreed to
allocate coming1ed line losses on those interconnection facilties as set fort in Addendum L.
C. Seller intends to operate the Facilty as a Qualifyng Facilty, as such term is
defined in Section 1.55 below, and to sell Net Output to PacifiCorp in Idaho.
D. Seller estimates that the average anual Net Output to be delivered by the Facilty
to PacifiCorp is 77,441,742 kilowatt-hours (kWh) ("Average Annual Net Output") pursuant to
the Initial Year Energy Delivery Schedule in Section 4.3.i, which amount of energy Pacifi Corpwill include in its resource planng. .
E. Seller intends to sell and PacifiCorp intends to purchase all the Net Output from
the Facility in accordance with the terms and conditions of ths Agreement.
F. PacifiCorp intends to designate Seller's Facilty as a Network Resource for the
puroses of servng Network Load.
G. Ths Agreement is a "New QF Contract" under the PacifiCorp Inter-Jurisdictional
Cost Allocation Revised Protocol.
H. Seller i: has U has not authorized Transmission Provider to release generation
data to PacifCorp. If yes, the authorization is attched as Exhibit H.
NOW, THEREFORE, the Paries mutuy agree as follows:
SECTION 1: DEFINTIONS
When used in this Agreement, the following terms shall have the followig meanings:
1.1 "As-built Supplement" shall be a supplement to Exhibit A, provided by Seller
following completion of constrction of the Facilty, accurately describing the completed
Facilty.
1
Cedar Creek Wind, LLC-North Point
1.2 "Availabilty" means, for any Billng Period, the ratio, expressed as a percentage,
of (x) the aggregate sum of the turbine-minutes in which each of the Wind Turbines at the
Facilty was available to generate at the Maximum Facilty Delivery Rate during the Biling
Period over (y) the product of the number of Wind Turbines that comprise the Facility 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 durng minutes in which it is (a) in an
emergency, stop, service mode or pause state; (b) in "ru" status and faulted; or (c) otherwse 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 curailment in accordace with Section 6.3 or (ii) insufficient wind
(including the normal amount of time requied by the generating equipment to resume operations
followig a period when wind speed is below the Cut-In Wind Speed).
1.3 "Billng Period" means the time period between PacifiCorp's reading of its
power purchase meter at the Facilty and for ths Agreement shall coincide with calendar months.
1.4 "Commercial Operation" meas that not less than the 90% of the expected
Facilty Capacity Rating is fuly operational and reliable and the Facility is fuly interconnected,
fuly integrated, and synchronized with the System, all of which shall be Seller's responsibilty to
receive or obta, and which occurs when all of the followig events (i) have occured, and (ii)
remai simultaeously tre and accurate as of the date and moment on which Seller gives
PacifiCorp notice that Commercial Operation has occured:
1.4.1 PacifiCorp has received a certificate addressed to PacifiG:orp from a
Licensed Professional Engineer (a) stating the Facilty Capacity Rating oftle Facilty at
the anticipated time of Commercial Operation and (b) stating that the Facilty is able to
generate electric power reliably in amounts required by ths Agreement and in accordace
with all other terms and conditions of this Agreement.
1.4.2 Start-Up Testig of the Facilty has been completed in accrdance with
Exhibit E.
1.4.3 PacifiCorp has received a certificate addressed to PacifiCorp from a
Licensed Professiona Engineer, an attorney in good stading in Idaho, or a letter from
Transmission Provider, stating tht, in accordance with the Generation Interconnection
Agreement, all required interconnection facilities 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 fuly
integrated and synchronized with the System.
1.4.4 PacifiCorp ha received a certficate addressed to PacifiCorp from a
Licensed Professional Engineer, or an attorney in good standig in Idaho, statig that
Seller has obtained all Required Facility Documents and, if requested by PacifiCorp in
wrting, Seller shall have provided copies of any or all such requested Required FaciltyDocuments. .
2
Cedar Creek Wind, LLC-North Point
1.4.5 Seller has complied with the security requirements of Section 11.
1.4.6 Network Resource Designation and Tranmission Service Request. (i)
PacifiCorp has received confation from the Tranmission Provider that the Facilty
has been designated as a Network Resource and (ii) PacifiCorp ha received confrmation
from the Transmission Provider that the tranmission service request has been granted in
sufficient capacity to meet or exceed the Maxmum Facilty Delivery Rate and the Seller
has paid all costs associated with any requiements of the tranmission service request.
1.5 "Commercial Operation Date" means the date, as designated by PacifiCorp
pursuant to Section 2.4, the Facilty first achieves Commercial Operation.
1.6 "Commission" means the Idaho Public Utilties Commission.
1.7 "Conforming Energy" mean all Net Energy except Non-Conforming Energy.
1.8 "Conforming Energy Purchase Price" means the applicable price for
Conforming Energy and capacity, specified in Section 5.1.
1.9 "Contract Year" means a twelve (12) month period commencing at 00:00 hours
Pacific Prevailing Time ("PPT") on Januay 1 and ending on 24:00 hours PPT on December 31;
provided, however, that the fist Contract Year shall commence on the Commercial Operation
Date and end on the next succeeding December 31, and the las Contract Year shall end on the
Expiration Date, uness earlier termated as provided herein.
1.10 "Cut-in Wind Speed" meas the wind speed at which a stationar wind tubine
begins producing Net Energy, as specified by the tubine manufacturer and set fort in Exhibit
A.
1.11 "Delay Liquidated Damages", "Delay Daily Minimum", "Delay Period",
"Delay Price" and "Delay Volume" shall have the meanings set fort in Section 2.5 of ths
Agreement. "Delay Security" shall have the meaning set fort in Section 11.1.1 of ths
Agreement.
1.12 "Default Security" shall have the meaning set forth in Section 11.2 of ths
Agreement.
1.13 "Effective Date" shall have the meaning set forth II Section 2.1 of this
Agreement.
1.14 "Energy Delivery Schedule" shall have the meanng set forth in Section 4.3 of
this Agreement.
1.15 "Environmental Attributes" means any and all claims, credits, benefits,
emissions reductions, offsets, and allowances, howsoever entitled, resulting from the avoidace
of the emission of any gas, chemical, or other substance to the air, soil or water, which are
deemed of value by PacifiCorp. Environmental Attibutes include but are not limited to: (1) any
avoided emissions of pollutats to the ai, soil, or water such as (subject to the foregoing) sulfu
3
Cedar Creek Wind, LLC-North Point
oxides (SOx), nitrogen oxides (NOx), carbon monoxide (CO), and other pollutants; and (2) any
avoided emissions of carbon dioxide (C02), methane (CH4), and other greenhouse gases
(GHGs) that have been determned by the United Nations Intergovernmenta Panel on Climate
Change to contribute to the actua or potential theat of altering the Ear's climate by trapping
heat in the atmosphere. Environmenta Attibutes do not include (i) Production Tax Credits or
certain other ta incentives existing now or in the future associated with the constction,
ownership or operation of the Facilty, (ii) matters designated by PacifiCorp as sources of
liabilty, or (iii) adverse wildlife or environmental impacts.
1.16 "Environmental Contamination" means the introduction or presence of
Hazardous Materials at such levels, quatities or location, or of such form or character, as to
constitute a violation of federal, state or local laws or regulations, and present a material risk
under federal, state or local laws and regulations that the Premises will not be available or usable
for the purses contemplated by this Agreement.
1.17 "Expiration Date" shall have the meang set fort in Section 2.1 of this
Agreement.
1.18 "Facilty" is defined in Recital A of ths Agreement.
1.19 "Facilty Capacity Rating" means the sum of the Nameplate Capacity Ratings
for all generators comprising the Facility.
1.20 "Force Majeure" has the meaning set forth in Section 15.1.
1.21 "Forced Outage" means an outage that requires removal of one or more Wind
Turbines from service, another outage state or a resere shutdown state before the end of the next
weekend. Maintenance Outages and Planed Outages are not Forced Outages.
1.22 "Generation Interconnection Agreement" means the generation interconnection
agreement 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.
1.23 "Governmental Authority" means any supranational, federal, state or other
political subdivision thereof, having jursdiction over Seller, PacifiCorp or this Agreement,
including any muncipality, township or county, and any entity or body exercising executive,
legislative, judicial, regulatory or adminstrative fuctions of or pertaining to governent,
including any corporation or other entity owned or controlled by any of the foregoing.
1.24 "Hazardous Materials" means any waste or other substace that is listed,
defined, designated or classified as or determined to be hazardous under or pursuat to any
environmenta law or regulation. .
1.25 "Inadvertent Energy" means: (l) energy delivered to the Point of Delivery in
excess of the Maximum Monthly Purchase Obligation; and (2) energy delivered to the Point of
Delivery at a rate exceeding the Maximum Facilty Delivery Rate on an hour-averaged basis.
Inadvertent Energy is not included in Net Energy.
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Cedar Creek Wind, LLC-North Point
1.26 "Index Price", for each day, shall mean the weighted averge of the average Peak
and Off-Peak firm energy market prices, as published in the Intercontinental Exchange (ICE)
Day Ahead Power Price Report for the Palo Verde Hub. For Sunday and NERC holidays, the
24-Hour Index Price shall be used, uness ICE shall publish a Fir On-Peak and Fir Off-Peak
Price for such days for Palo Verde, in which event such indices shall be utilized for such days. If
the ICE index or any replacement of that index ceases to be published during the term of ths
Agreement, PacifiCorp shall select as a replacement a substantially equivalent index that, afer
any appropriate or necessar adjustments, provides the most reasonable substitute for the index
in question. PacifiCorp's selection shall be subject to Seller's consent, which Seller shall not
uneasonably withold, condition or delay.
1.27 "Initial Year Energ Deliery Schedule" shall have the meanng set fort in
Section 4.3.1.
1.28 "Interconnection Facilties" mean all the facilties and ancilar equipment used
to interconnect the Facility to the System, as defined in the Generation Interconnection
Agreement.
1.29 "Letter of Credit" means an irrevocable standby lettr of credit in a form
reasonably acceptable to PacifiCorp, namng PacifiCorp as the par entitled to demand payment
and present draw requests thereunder. Such letter of credit shall be provided by an institution
that is a United States offce of a commercial ban or trt company organzed under the laws of
the United States of America or a political subdivision thereof, with a credit rating on its long-
term senior unsecured debt of at least "A" from Stadard & Poor's and "A2" from Moody's
Investor Services, and (uness otherwse agreed) having asset of at least $10,000,000,000 (net of
reserves).
1.30 "Licensed Professional Engineer" means a person acceptable to PacifiCorp in its
reasonable judgment who is licensed to practice engineering in the state of Idaho, who has
traig and experience in the engineering discipline(s) relevant to the matters with respect to
which such person is called to provide a certfication, evaluation and/or opinon, who has no
economic relationship, association, or nexus with the Seller, and who is not a representative of a
consultig engineer, contractor, designer or other individual involved in the development of the
Facilty, or of a manufactuer or supplier of any equipment installed in the Facilty. Such
Licensed Professional Engineer shall be licensed in an appropriate engineering discipline for the
required certification being made. The engagement and payment of a Licensed Professional
Engineer solely to provide the certfications, evaluations and opinions required by ths
Agreement shall not constitute a prohibited economic relationship, association or nexus with the
Seller, so long as such engineer has no other economic relationship, association or nexus with the
Seller.
1.31 "Maintenance Outage" means any outage of one or more Wind Turbines that is
not a Forced Outage or a Planed Outae. A Maintenance Outage is an outage that can be
deferred until afer the end of the next weekend, but that requires tht the Wind Turbine(s) be
removed from servce before the next Planed Outage. A Maitenace Outage may occur any
time durg the year and must have a flexible sta date.
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Cedar Creek Wind, LLC-North Point
1.32 "Material Adverse Change" shall mean, with respect to the Seller, if the Seller
has experienced a change in facts or circumstaces related to development or operation of the
Facilty that materially and adversely impact Seller's abilty to fulfill its obligations under this
Agreement.
1.33 "Maximum Facilty Delivery Rate" means the maximum instantaneous rate
(kW) at which the Facilty is capable of delivering Net Output at the Point of Delivery, as
specified in Exhibit A, and in compliance with the Generation Interconnection Agreement.
1.34 "Maximum GIA Delivery Rate" means the maximum rate (kW) at which the
Generator Interconnection Agreement allows the Facility to deliver energy to the Point of
Delivery and is set fort in Exhibit A.
1.35 "Maximum Monthly Purchase Obligation" means the maximum amount of
energy PacifiCorp is obligated to purchase under ths Agreement in a calendar month. In
accordance with Commission Order No. 29632, the Maximum Monthly Purchase Obligation for
a given month, in kWh, shall equa 10,000 kW multiplied by the total number of hours in that
month and prorated for any parial month; provided however that, subsequent to the Effective
Date of ths Agreement, any change by the Commission to the Maximum Monthly Purchase
Obligation established by Order No. 29632 shall have no affect on the obligations of the Pares
pursuat to this Agreement.
1.36 "Nameplate Capacity Rating" means the maximum instataeous generating
capacity of any qualifying small power or cogeneration generating unit supplyig all or par of
the energy sold by the Facilty, expressed in MW or kW, when operated consistent with the
manufacturer's recommended power factor and operating parameters, as set fort in a notice
from Seller to PacifiCorp delivered before the Commercial Operation Date and, if applicable,
updated in the As-built Supplement.
1.37 "NERC" means the Nort American Electrc Reliabilty Corporation.
1.38 "Net Energ" means the energy component, in kWh, of Net Output. Net Energy
does not include Inadvertent Energy.
1.39 "Net Output" means all energy and capacity produced by the Facilty, less station
use and less transformation and transmission losses and other adjustments, if any. For puroses
of calculating payment under this Agreement, Net Output of energy shall be calculated as set
fort in Addendum L. Net Output does not include Inadvertent Energy.
1.40 "Network Resource" shall have the meanng set fort in the Tarff.
1.41 "Network Service Provider" means PacifiCorp Transmission, as a provider of
network service to PacifiCorp under the Tariff.
1.42 "Non-Conforming Energy" means Net Output produced by the Facility prior to
the Commercial Operation Date.
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Cedar Creek Wind, LLC-North Point
1.43 "Non-Conforming Energy Purchase Price" means the applicable price for Non-
Conforming Energy and capacity, specified in Section 5.1.
1.44 "Off-Peak Hours" means all hours ofthe week that are not On-Peak Hours.
1.45 "On-Peak Hours" means hours from 6:00 a.m. to 10:00 p.m. Pacific Prevailing
Time, Monday though Satuday, excluding Western Electricity Coordinating Council (WECC)
and Nort American Electric Reliabilty Corporation (NERC) holidays.
1.46 "Output Shortall" and "Output Shortall Damages" shall have the meanings
set fort in Section 4.5 of ths Agreement.
1.47 "PacifCorp" is defied in the fist paragraph of this Agreement, and excludes
PacifiCorp Transmission.
1.48 "PacifCorp Transmission" means PacifiCorp, an Oregon corporation, acting in
its interconnection and transmission fuction capacity.
1.49 "Planned Outage" means an outage of predetermined duration that is scheduled
in Seller's Energy Delivery Schedule. Boiler overhauls, tubine overhauls or inspections are
tyical planed outages. Maitenance Outages and Forced Outages are not Planed Outages.
1.50 "Point of Delivery" means the point of interconnection between the Facilty and
the System, as specified in the Generation Interconnection Agreement and in Exhibit B.
1.51 "Premises" means the real property on which the Facilty is or will be located, as
more fully described on Exhibit A.
1.52 "Prime Rate" mean the rate per anum equa to the publicly anounced prime
rate or reference rate for commercial loans to large businesses in effect from time to time quoted
by JPMorgan Chae & Co. If a JPMorgan Chase & Co. prie rate is not available, the
applicable Prime Rate shall be the anounced prie rate or reference rate for commercial loans
in effect from tie to time quoted by a ban with $10 bilion or more in assets in New York
City, N.Y., selected by the Par to whom interest based on the prime rate is being paid.
1.53 "Production Tax Credits" means production ta credits under Section 45 of the
Internal Revenue Code as in effect from time to time durng the term hereof or any successor or
other provision providing for a federal tax credit determed by reference to renewable electric
energy produced from wind resources and any correlative state ta credit determined by
reference to renewable electric energy produced from wid resources for which the Facilty is
eligible. Production Tax Credits do not include any tax credit determed by reference to
investment.
1.54 "Prudent Electrical Practices" means any of the practices, methods and acts
engaged in or approved by a significant porton of the electrcal utilty industr or any of the
practices, methods 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
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Cedar Creek Wind LLC-North Point
Practices is not intended to be limited to the optimum practice, method or act to the exclusion of
all others, but rather to be a spectr of possible practices, methods or acts..
1.55 "QF" means "Qualifng Facilty", as that term is defined in the version of
FERC Regulations (codified at 18 CFR Par 292) in effect on the date of this Agreement.
1.56 "Required Facilty Documents" means all deeds, titles, leases (including Wind
Leases), licenses, permits, authorizations, and agreements demonstrating that seller controls the
necessar property rights and governent authorizations to constrct, operate, and maintain the
Facilty, including without limitation those set fort in Exhibit C.
1.57 "Requirements of Law" means any applicable and mandatory (but not merely
advisory) federal, state and local law, statute, regulation, rue, code or ordinance enacted,
adopted, issued or promulgated by any federal, state, local or other Governenta Authority or
regulatory body (including those perting to electrical, building, zoning, environmenta and
occupational safety and health requirements).
1.58 "Scheduled Commercial Operation Date" means the date by which Seller
promises to achieve Commercial Operation, as specified in Section 2.2.7.
1.59 "Scheduled Monthly Energy Delivery" means the Net Energy scheduled to be
delivered during a given calendar month, as specified by Seller in the Energy Delivery Schedule.
1.60 "Shared Interconnection Facilties" means that portion of the Interconnection
Facilties used by the Facility and one or more other Qualifying Facilities.
1.61 "Seller's Forecast-Cost Share" and "Seller's Capped Forecast-Cost Share"
shall have the meanings set fort in Sections 8.2 and 8.3 respectively.
1.62 "Subsequent Energy Delivery Schedule" shall have the meanng set fort in
Section 4.3.3.
1.63 "System" means the electric transmission substation and transmission or
distribution facilties owned, operated or maintained by Transmission Provider, which shall
include, afer constction and instalation of the Facilty, the circuit reinforcements, extensions,
and associated termina facilty reinorcements or additions required to interconnect the Facilty,
all as set fort in the Generation Interconnection Agreement.
1.64 "Tariff' means the PacifiCorp Transmission FERC Electrc Tariff Seventh
Revised Volume NO.1! Pro Forma Open Access Transmission Tariff or the Transmission
Provider's corresponding FERC tariff or both, as revised from time to time.
1.65 "Transmission Provider" means PacifiCorp Tranmission or a successor,
including any regional transmission organzation ("RTO").
1.66 "Wind Leases" 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
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Cedar Creek Wind LLC-North Point
Facilty, as the same may be supplemented, amended, extended, restated, or replaced from time
to time.
1.67 "Wind Turbine" means a tye SWT-2.3-101 Siemens 2,300 kilowatt wind
turbine. At its full Facility Capacity Ratig, the Facilty will consist of 12 Wind Turbines.
SECTION 2: TERM. COMMRCIAL OPERATION DATE
2.1 This Agreement shall become effective afr execution by both Paries and afer
approval by the Commission ("Effectie Date"); provided, however, ths Agreement shall not
become effective until the Commission has determined, pursuat to a final and non-appealable
order, that the prices to be paid for energy and capacity are just and reasonable, in the public
interest, and that the costs incured by PacifiCorp for purchases of capacity and energy from
Seller are legitimate expenses, all of which the Commission will allow PacifiCorp to recover in
rates in Idaho in the event other jursdictions deny recovery of their proportionate share of said
expenses.
Unless earlier terminated as provided herein the Agrement shall remain in effect until
24:00 PPT September 30, 2032 ("Expiration Date").
2.2 Time is of the essence of ths Agrement, and Seller's ability to meet certai
requirements prior to the Commercial Operation Date and to achieve Commercial Operation by
the Scheduled Commercial Operation Date is criticaly importt. Therefore,
2.2.1 By September 30, 2011, Seller shall obtan and provide to PacifiCorp
copies of all governental permts and authorizations listed in Exhibit C.
2.2.2 By the date 30 calendar days afer the Effective Date, Seller shal provide
Delay Securty required under Section 11.1.1, as applicable.
2.2.3 By June 30, 2011, Seller: (i) has provided all information and paid all fees
the Transmission Provider requires to designate the Facilty as a Network Resource in
accordace with the Tariff (OATT); and (ii) has provided all information reasonably
required by PacifiCorp to submit a transmission service request for the Facilty to the
Transmission Provider pursuant to the Tarff.
2.2.4 At least ten business days prior to delivery of any energy from the Facilty
to PacifiCorp, Seller shall provide PacifiCorp with an executed Generation
Interconnection Agreement.
2.2.5 Prior to Commercial Operation Date, Seller shall provide Default Securty
required under Section 11.2, as applicable.
2.2.6 Prior to Commercial Operation Date, Seller shall provide PacifiCorp with
an As-built Supplement reasonably acceptable to PacifiCorp.
2.2.7 By 00:00 PPT October 1, 2012, Seller shall achieve Commercial
Operation ("Scheduled Commercial Operation Date").
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Cedar Creek Wind, LLC-North Point
2.3 Beging October 1, 2011, Seller shall provide PacifiCorp a one-page monthly
update bye-mail on the progress of the milestones in Section 2.2.
2.4 Establìshing Commercial Operation. Seller shall provide written notice to
PacifiCorp stating when Seller believes that the Facilty has achieved Commercial Operation.
PacifiCorp shall have ten (l0) business days afer receipt either to confirm to Seller tht all of the
conditions to Commercial Operation have been satisfied or have occured, or to stte with
specificity what PacifiCorp reasonably belìeves has not been satisfied. If, within such ten (l0)
business day period, PacifiCorp either does not respond or else confrms that the Facility has
achieved Commercial Operation, the original date of receipt of Seller's notice shall be the
Commercial Operation Date. If PacifiCorp notifies Seller within such ten (10) business day
period that PacifiCorp reasonably believes the Facilty has not achieved Commercial Operation,
Seller may, if it has a good faith belief that Coinmercial Operation has been achieved, submit a
Techncal Dispute Notice, or else Seller shall address the concerns stated in PacifiCorp's notice
to the mutual satisfaction of both Paries. If Seller submits a Techncal Dispute Notice and the
Techncal Expert determines that Commercial Operation has been achieved, then the
Commercial Operation Date shall be the date, as deterned by the Technical Expert, that the
Facilty first met all the requirements of Commercial Operation; otherwse the date upon which
Seller has addressed the concern stated in PacifiCorp's notice to PacifiCorp's reasonable
satisfaction, as specified in a notice from PacifiCorp to Seller, shall be the Commercial
Operation Date. If Commercial Operation is achieved at less than one hundred percent (100%)
of the expected Facilty Capacity Rating and Seller informs PacifiCorp that Seller intends to
bring the Facility to one hundred percent (100%) of the expected Facility Capacity Rating, Seller
shall provide PacifiCorp with a list of all items to be completed in order to achieve the expected
Facilty Capacity Rating.
2.4.1 Techncal Expert. If, and only if, a dispute regards (i) whether or not
Commercial Operation ha been achieved, and/or (ii) the date when Commercial
Operation was achieved, the Paries may have such dispute, and only such dispute,
resolved pursuant to ths Section 2.4.1. Any such dispute will be determined by an
independent techncal expert, who shall be a mutully acceptable thd par with trainig
and experience in the disciplines relevant to the matters with respect to which such
person is called upon to provide a certification, evaluation or opinion (the "Technical
Expert"), which determination shall be (X) made (subject to the terms in this Section
2.4) in accordance with the Constrction Industr Arbitration Rules and Medation
Procedures (Including Procedures for Large, Complex Constrction Disputes) of the
AA, as amended and effective on October 1, 2009 (the "Technical Dispute
Procedures"), notwithstading any dollar amounts or dollar limitations contained
therein, and (Y) binding upon the Paries.
(a) Either Pary may commence the dispute process as to the matters
set fort in paragraph 2.4.1, above, with the American Arbitration Association
("AA") by notifying AAA and the other Pary in writing ("Technical Dispute
Notice") of such Pary's desire that the dispute be resolved though a
determnation by a Technical Expert.
10
Cedar Creek Wind, LLC-North Point
(b) The determnation shall be conducted by a sole Technical Expert.
The Paries may select any mutually acceptable Techncal Expert. If the Paries
canot agree on a Techncal Expert with five (5) days afer the date of the
Technical Dispute Notice, then the AA's Arbitration Adminstrator shall send a
list and resumes of thee (3) available techncal experts meetig the qualifications
set fort in Section 2.4.1 to the Pares, each of whom shall strike one name, and
the remaig person shall be appointed as the Techncal Expert. If more than
one name remains, either because one or both Pares have failed to respond to the
AA's Arbitration Adminstrator within five (5) days after receiving the list or
because one or both Pares have failed to stre a name from the list or because
both Pares strike the same name, the AA's Arbitration Administrator will
choose the Technical Expert from the remaining names. If the designated
Techncal Expert shall die, become incapable or, unwillng to, or unable to serve
or proceed with the determination, a substitute Technical Expert shall be
appointed in accordance with the selection procedure described above, and such
substtute Techncal Expert shall have all such powers as if he or she has been
originally appointed herein.
(c) Within th (30) days of the appointment of the Technical Expert
pursuant to the foregoing sub-section, each Part shall submit to the Techncal
Expert (and copy the other Par) a wrtten report contaiing its position with
respect to the dispute, and arguments therefor together with supporting
documentation and calculations. Discovery shall be limited to Facilty documen-
tation relating to the disputed matter. Withn six (60) days from receipt of such
submissions, the Techncal Expert shall select one or the other Pary's position
With respect to the disputed, arbitrte-able issues set fort in paragraph 2.4.1
above, whereupon such selection shal be a binding determination upon the
Paries for all puroses hereof. The costs of the Techncal Expert, including his or
her fees and expenses, shall be borne by the Par whose position was not selected
by the Technical Exper; each Par shall otherwse bear its own expenses. rfthe
Technical Expert fails to render a decision within ninety (90) days from receipt of
each Pary's submissions, either Par may, prior to the Technical Expert's final
decision, intiate litigation, in which case the Technical Expert's final decision
shall not be binding on the Pares uness otherwse agreed.
2.4.2 All verbal and wrtten communications between the Paries and issued or
prepared in connection with this Section 2.4.1 shall be deemed prepared and
communicated in fuerance, and in the context, of dispute settlement, and shall be
exempt from discover and production, and shall not be admissible in evidence (whether
as admission or otherwise) in any litigation or other proceedings for the resolution of the
dispute.
2.4.3 All deadlines specified in this Section 2.4 may be extended by mutual
agreement of the Paries.
2.5 Delay Damages. Seller shall cause the Facilty to achieve Commercial Operation
on or before the Scheduled Commercial Operation Date. If Commercial Operation occurs afer
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Cedar Creek Wind, LLC-North Point
the Scheduled Commercial Operation Date, Seller shall be liable to pay PacifiCorp delay
damages for the number of days ("Delay Period") the Commercial Operation Date occurs afer
the Scheduled Commercial Operation Date, until the earlier of occurence of the Commercial
Operation Date or the termination of this Agreement ("Delay Liquidated Damages"), provided
that Seller shall not accrue any Delay Liquidated Damages after: (i) Seller has timely achieved
the milestone in Section 2.2.3; and (ii) Seller has satisfied all requirements of Commercial
Operation except for one or more requirements in Section 1.4.6. Bilings and payments for
Delay Liquidated Damages shall be made in accordance with Section 11.1.
2.5.1 Delay Liquidated Damages. Delay Liquidated Damages equas the sum
of: for each day in the Delay Period, the greater of (1) the Delay Daily Minimum or (2)
the Delay Price times the Delay Volume
Where:
"Delay Daily Minimum" equals (a) for the first fort-five (45) calendar days
following the Scheduled Commercial Operation Date: one-ninetieth (l/90th) of
forty-five dollars ($45) multiplied by the Maximum Facilty Delivery Rate with
the Maximum Facilty Delivery Rate being measured in kW; (b) afer the forty-
fift (45th) calendar day followig the Scheduled Commercial Operation date: the
Delay Price times the Delay Volume.
"Delay Price" equals the positive difference, if any, of the Index Price minus the
weighted average of the On-Peak and Off-Peak monthly Conforming Energy
Purchase Prices; and
"Delay Volume" equals the applicable Scheduled Monthly Energy Delivery
divided by the number of days in that month.
2.5.2 Appropriateness of Damages. The Paries agree that the damages
PacifiCorp would incur due to delay in the Facilty achieving Commercial Operation on
or before the Scheduled Commercial Operation Date would be diffcult or impossible to
predict with cernty, and that the Delay Liquidated Damages are an appropriate
appr~ximation of such damages.
SECTION 3: REPRESENTATIONS AND WARTIES
3.1 Pacifi Corp represents, covenants, and warants to Seller that:
3.1.1 PacifiCorp is duly organized and validly existing under the laws of the
State of Oregon.
3.1.2 PacifiCorp has the requisite corporate power and authority to enter into
this Agreement and to perform according to the terms of this Agreement.
3.1.3 PacifiCorp has taen all corporate actions required to be taken by it to
authorize the execution, delivery and performance of ths Agreement and the
consummation of the transactions contemplated hereby.
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Cedar Creek Wind, LLC-North Point
3.1.4 Subject to Commssion approval, the execution and delivery of this
Agreement does not contravene any provision of, or constitute a default under, any
indenture, mortgage, or other material agreement binding on PacifiCorp or any valid
order of any cour, or any reguatory 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 of PacifCorp, enforceable agait PacifiCorp in accordance with its
terms (except as the enforceabilty of ths Agreement may be limited by banptcy,
insolvency, ban moratoriwn or similar laws afecting creditors' rights generally and
laws restricting the availabilty of equitable remedies and except as the enforceabilty 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).
3.2 Seller represents, covenants, and warants to PacifiCorp that:
3.2.1 Seller is a limted liabilty company duly organzed and validly existig
under the laws of Delaware.
3.2.2 Seller has the requisite power and authority to enter into ths Agreement
and has, or will have at the date of Commercial Operation of the Facilty, all requisite
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 shareholders, diectors, and officers have taen all actions required
to authorize the execution, deliver and performance of ths Agreement and the
consumation 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 indentue, mortgage, or other material
agreement binding on Seller or any valid order of any cour, or any reguatory agency or
other body having authority to which Seller is subject.
3.2.5 Ths Agreement is a valid and legally binding obligation of Seller,
enforceable against Seller in accordance with its terms (except as the enforceabilty of
ths Agreement may be limited by banptcy, inolvency, ban moratorium or similar
laws affecting creditors' rights generally and laws restricting the availabilty of equitable
remedies and except as the enforceabilty of ths Agreement may be subject to general
principles of equity, whether or not such enforceability is considered in a proceeding at
equity or in law).
3.2.6 The Facilty is and shall for the term of ths Agreement continue to be a
QF. Seller has provided the appropriate QF certification, which may include a Federal
Energy Regulatory Commission self-certification to PacifiCorp prior to PacifiCorp's
execution of ths Agreement. At any time PacifiCorp has reason to believe during the
term of ths Agreement that Seller's status as a QF is in question, PacifiCorp may require
Seller to provide PacifiCorp with a written legal opinon from an attorney in good
13
Cedar Creek Wind, LLC-North Point
standing in the state of Idaho and who has no economic relationship, association or nexus
with the Seller or the Facilty, stating that the Facilty is a QF and providing sufficient
proof (including copies of all documents and data as PacifiCorp may request)
demonstrating that Seller has maintained and will continue to maintain the Facilty as a
QF.
3.2.7 Neither the Seller nor any of its principal equity owners is or has within
the past two (2) years been the debtor in any banptcy proceeding, is unable to pay its
bils in the ordinar course of its business, or is the subject of any legal or reguatory
action, the result of which could reasonably be expected to impair Seller's abilty to own
and operate the Facility 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
electrcity purchased from PacifiCorp.
3.2.9 Seller is not in default under any of its other material agreements that
would result in Seller's failure to perform its material obligations hereunder.
3.2.10 Seller own all right, title and interest in and to the Facilty, free and clear
of all liens and encumbrances other than liens and encumbrances related to third-par
financing of the Facilty, and Seller (or its successor in interest) will 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 than liens and encumbrances related to thrd-pary
financing of the Facilty.
3.2.11 Tn entering into this Agreement and the undertng by Seller of the
obligations set fort herein, Seller has investigated and determined that it is capable of
performng hereunder and has not relied upon the advice, experience or expertise of
PacifiCorp in connection with the transactions contemplated by ths Agreement.
3.2.12 All professionals or experts including, but not limted to, engineers,
attorneys or accountants, 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 required for the operation of the Facilty or the
performance of any obligations of Seller hereunder are set fort and accurately described
in Exhibit C. Upon request by PacifiCorp, Seller shall provide copies of the Wind
Leases to PacifiCorp.
3.2.14 All information about 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.
3.3 Notice. If at any time during ths Agreement, any Par obtans actu knowledge
of any event or information which would have caused any of the representations and waranties
in this Section 3 to have been materially untre or misleading when made, such Party shall
provide the other Par with written notice of the event or information, the representations and
waranties affected, and the action, if any, which such Pary intends to take to make the
14
Cedar Creek Wind LLC-North Point
representations and waranties tre and correct. The notice required pursuant to this Section
shall be given as soon as practicable afer the occurence of each such event.
SECTION 4: DELIVRY OF POWER; AVAILABILITY GUARANTY
4.1 Delivery and Acceptance of Net Output. Except for any curailment specified in
Section 6.3, uness otherwse provided herein, PacifiCorp will purchase and Seller will sell all
Net Output from the Facilty.
4.2 No Sales to Third Pares. During the term of this Agreement, Seller shall not sell
any Net Output from the Facility to any entity other than PacifiCorp.
4.3 Energy Delivery Schedule. Seller shall prepare and provide to PacifiCorp, on an
ongoing basis, a wrtten schedule of Net Energy expected to be delivered by the Facilty
("Energy Delivery Schedule"), in accordance with the following:
4.3.1 Durng the fist twelve ful calendar months following the Commercial
Operation Date, Seller predicts that the Facilty will produce and deliver the following
monthly.amounts ("Initial Year Energy Deliery Schedule"):
Month Energy Delivery (kWh)Avg.kW
Janua 6,451,627 8,672
Februar 6,007,786 8,940
March 6,660,205 8,952
April 6,066,428 8,426
May 5,989,786 8,051
June 6,224,223 8,645
July 6,068,779 8,157
August 6,727,493 9,042
September 6,471,852 8,989
October 6,572,902 8,835
November 7,076,452 9,828
December 7,124,210 9,576
TOTAL:77,441,742 8,840
4.3.2 Seller may revise the Initial Year Energy Delivery Schedule any time prior
to the Commercial Operation Date.
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Cedar Creek Wind, LLC-North Point
4.3.3 Beginning at the end of the ninth full calendar month of operation, and at
the end of every third month thereafer, Seller shall supplement the Energy Delivery
Schedule with thee additional months of forward estimates (which shall be appended to
ths Agreement using the format specified in Exhibit D) ("Subsequent Energy Delivery
Schedule"), such that the Energy Delivery Schedule wil provide at least thee months of
scheduled energy estimates at all times. Seller shall provide Subsequent Energy Delivery
Schedules no later than 5:00 pm PPT of the 5th day afer the due date. If Seller does not
provide a Subsequent Energy Delivery Schedule by the above deadline, scheduled energy
for the omitted period shal equal the amounts scheduled by Seller for the same thee-'
month period during the previous year.
4.3.4 Upon and afer the Commercial Operation Date, Seller may no longer
revise the Energy Delivery Schedule for the first six full calendar months of Commercial
Operation. After 5:00 p.m. PPT of the fift business day following the end of the third
ful calendar month of Commercial Operation and the end of each thrd calendar month
thereafter, Seller may no longer revise the Energy Delivery Schedule for the six calendar
months immediately following such third month. Subject to the foregoing restrctions in
this Section 4.3.4, Seller may revise the Energy Delivery Schedule for any unestrcted
month by providing written notice to PacifiCorp. Failure to provide tiely written notice
of changed amounts will be deemed to be an election of no change.
4.4 Minimum Availability Obligation. Seller shall cause the Facilty to achieve an
Availabilty of at least 85% durg each month ("Guaranteed Availabilty").
4.5 Liquidated Damages for Output ShortalL. If the Availability in any given month
falls below the Guaranteed Availabilty, the resulting shortall shall be expressed in kWh as the
"Output Shortfall." The Output Shortfall shall be calculated in accordance with.the followig
formula:
Output Shortfall = (Guaranteed Availabilty - Avaiabilty) *
Scheduled Monthy Energy Delivery
Seller shall pay PacifiCorp for any Output Shortall at the lower of (1) the positive difference, if
any, of the Index Price mius the weighted average of the On-Peak and Off-Peak monthy
Conformng Energy Purchase Prices; or (2) the weighted average of the On-Peak and Off-Peak
monthly Conformg Energy Purchase Prices ("Output Shortal Damages").
Output Shortfall Damages = Output Shortfall * Output Shortfall Price
Where:
Output Shortall Price =(Index Price - Weighted Average CEPP), except
that if Output Shortfall Price -( 0, then Output
Shortfall Price = 0, and except that if Output
Shortall Price ;: Weighted Average CEPP, then
Output Shortfall Price = Weighted Average CEPP
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Cedar Creek Wind, LLC-North Point
Weighted Average CEPP = the weighted average On-Peak and Off-Peak
Conformg Energy Purchase Prices for the month
of Output Shortall
If an Output Shortall occurs in any given month Seller may owe PacifiCorp liquidated
damages. Each Par agrees and acknowledges that (a) the daages that PacifiCorp would incur
due to the Facilty's failure to achieve the Guaanteed Availabilty would be diffcult or
impossible to predict with certaity, and (b) the liquidated damages contemplated in ths 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 Guaanteed
Availabilty using any reasonable methods. Seller agees to reta all performance related data
for the Facilty for a minimum of thee years, and to cooperate with PacifiCorp in the event
PacifiCorp decides to audit such data.
SECTION 5: PURCHASE PRICES
5.1 Energy Purchase Price. Except as provided in Section 5.3, PacifiCorp will pay
Seller Conforming Energy or Non-Conformng Energy Purchase Prices for Net Output adjusted
for the month and On-Pea Hours or Off-Peak Hours and the wind integration cost using the
following formulae, in accordance with Commission Order Nos. 30423, 31025, and 31021:
Conforming Energy Purchase Price = (AR * MPM) - WIC
Non-Conforming Energy Purchase Price = (ARnce * MPM) - WIC
Where:
A.e =Conformng Energy anual rate from Table 1, below, for the year
of the Net Output.
the lower of.
85% of the Conformg Energy anua rate from Table 1
below, for the year of Net Output
ARnce =
or
MPM =
85% of average of the daily Index Price for each day of the
month, or portion of month, of Net Output.
monthy On-Peak or Off-Peak multiplier from Table 2, below, that
corresponds to the month of the Net Output and whether the Net
Output occured during On-Peak Hours or Off-Peak Hours.
$6.50/MWh, the wid integration cost prescribed in Commission
Order No. 31021.
WIC
Example calculations are provided in Exhibit G.
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Cedar Creek Wind, LLC-North Point
Table 1: Conforming Energy Annual Rates (from Commssion Order No. 31025)
Conforming Energy
Annual Rate (ARce)
Year $/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 90.63
2022 93.78
2023 97.05
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
Table 2: Monthly On-PeaklOff-Peak Multipliers
Month On-Peak Off.Peak
Hours Hours
Januar 103%94%
Februar 105%97%
March 95%80%
April 95%76%
May 92%63%
June 94%65%
July 121%92%
August 121%106%
September 109%99%
October 115%105%
November 110%96%
December 129%120%
5.2 Payment.
For each Biling Period in each Contract Year, PacifiCorp shall pay Seller as follows:
For delivery of Conforming Energy:
18
Cedar Creek Wind, LLC-North Point
(CEnergYOn_Pea * CEPPriceOn_Peak / 1000) +
(CEnergyoff-Pea *. CEPPriceoff-Peak / 1000)
For delivery of Non-Conformg Energy:
Payment (NCEnergyOn-Peak * NCEPPriceon_Peak / 1000) +
(NCEnergyoo-Peak * NCEPPriceoff_Peak / 1000)
Payment
Where:
CEnergy =
CEPPrice =
NCEnergy =
NCEPPrice =
On-Peak =
Off-Peak =
=
Conforming Energy in kWh
Conforming Energy Purchase Price in $/MWh
Non-Conformng Energy in kWh
Non-Conformg Energy Purchase Price in $/MWh
the correspondig value for On- Peak Hours
the corresponding value for Off-Peak Hours
5.3 Inadvertent Enenrv. So long as acceptace of Inadvertent Energy does not cause
PacifiCorp to violate the terms of its Network Transmission Servce and is consistent with
Prudent Electrical Practices, PacifiCorp will accept Inadvertent Energy, but wil not purchase or
pay for Inadvertent Energy.
SECTION 6: OPERATION AN CONTROL
6.1 As-Built Supplement. Upon completion of any constrction afecting the Facility,
Seller shall provide PacifiCorp an As-built Supplement bearg the stamp of a Licensed
Professiona Engineer tht accurately depicts the Facilty as built. The As-built Supplement must
be reviewed and approved by PacifiCorp, which approval shall not uneasonably be witheld,
conditioned or delayed.
6.2 Operation. Seller shal operate and maintain the Facilty in a safe maner in
accordance with the Generation Interconnection Agreement, Prudent Electrical Practices and in
accordance with the requirements of all applicable federal, state and local laws and the National
Electric Safety Code as such laws and code may be amended from tie to time. PacifiCorp sha
have no obligation to purchase Net Output from the Facilty to the extent the interconnection
between the Facility and PacifiCorp's electrc system is disconnected, suspended or interrpted,
in whole or in par, puruat to the Generation Interconnection Agreement, or to the extent
generation curilment is required as a result of Seller's non-compliance with the Generation
Interconnection Agreement. PacifiCorp shall have the right to inspect the Facilty to confirm
that Seller is operatig the Facilty in accordance with the provisions of ths Section 6 upon
reasonable notice to Seller. Seller is solely responsible for the operation and maitenance of the
Facilty. PacifiCorp shall not, by reason of its decision to inspect or not to inspect the Facilty, or
by any action or inaction taen with respect to any such inspection, assume or be held
responsible for any liabilty or occurence arising from the operation and maitenance by Seller
of the Facilty.
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Cedar Creèk Wind, LLC-North Point
6.3 Curlment. PacifiCorp shall not be obligated to purchae, receive, pay for, or
pay any damages associated with, Net Output (or associated Production Tax Credits or
Environmenta Attibutes) if such Net Output (or associated Production Tax Credits or
Environmental Attibutes) is not delivered to the System or Point of Delivery due to any of the
following: (a) the interconnection between the Facilty and the System is disconnected,
suspended or interrupted, in whole or in par, consistent with the terms of the Generation
Interconnection Agreement, (b) the Transmission Provider or Network Service Provider directs a
general curailment, reduction, or redispatch of generation in the area, (which would include the
Net Output) for any reason, even if such curailment or redispatch directive is caried out by
PacifiCorp, which may fulfill such directive by actig in its sole discretion; or if PacifiCorp
curails or otherwse reduces the Net Output in order to meet its obligations to the Trasmission
Provider or Network Service Provider to operate within system limitations, (c) the Facilty's
Output is not received because the Facilty is not fuly integrated or synchronized with the
System, or (d) an event of Force Majeure prevents either Pary from delivering or receiving Net
Output. Seller shall reasonably determine the MWh amount ,of Net Output curailed pursuant to
ths Section 6.3 afer the fact based on the amount of energy that could have been generated at
the Facilty and delivered to PacifiCorp as Net Output but that was not generated and delivered
because of the curailment. Seller shall determine the quantity of such curailed energy based on
(x) the time and duration of the curailment period and (y) wid conditions recorded at the
Facility during the period of curailment and the power cure specified for the for the Wìnd
Turbines as shown in Exhibit A. Seller shall promptly provide PacifiCorp with access to such
information and data as PacifiCorp may reasonably requie to confrm to its reasonable
satisfaction the amount of energy that was not generated or delivered because of a curlment
described in this Section 6.3.
6.4 PacifiCorp as Merchant. Seller acknowledges that PacifiCorp, acting in its
merchant capacity fuction as purchaser under ths Agreement, has no responsibilty for or
control over PacifiCorp Transmission or any successor Transmission Provider.
6.5 Outages.
6.5.1 Planed Outages. Except as otherwse provided herein, Seller shall not
schedule Planed Outage durg any portion of the months of November, December,
Janua, Februar, June, July, and August, except to the extent a Planed Outage is
reasonably required to enable a vendor to satisfy a guarantee requirement in a situation in
which the vendor is not otherwse able to perform the guarantee work at a time other than
during one of the months specified above. Seller shall, in Exhibit D, provide PacifCorp
with an anual forecast of Planed Outages for each Contract Year at least one (1) month,
but no more that thee (3) months, before the fist day of that Contract Year, and shall
promptly update such schedule, or otherwse change it only, to the extent that Seller is
reasonably required to change it in order to comply with Prudent Electrical Practices.
Seller shall not schedule more than one hundred fift (150) hours of Planed Outages for
each calendar year. Seller shall notify PacifiCorp of any deviation to the anual Planed
Outage schedule, above, on the Monday preceding the schedulng week in which the
sooner of the following will 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
Monday-Sunday, hourly spreadsheet showing the revised tota Facilty curailment (MW)
20
Cedar Creek Wind, LLC-North Point
for that scheduling week. Seller shall not schedule any maitenance of Shared
Interconnection Facilties during November, December, Janua, Februar, June, July, or
August, without the prior wrtten approval of PacifiCorp, which approval may be
reasonably witheld by PacifiCorp.
6.5.2 Maintenance Outages. If Seller reasonably determnes that it is necessary
to schedule a Maintenance Outage, Seller shall notify PacifiCorp of the proposed
Maitenance Outage as soon as practicable but in any event at least five (5) days before
the outage begin (or such shortr period to which PacifCorp may reasonably consent in
light of then existing wind conditions). Upon such notice, the Pares shall plan the
Maintenance Outae to mutually accommodate the reasonable requirements of Seller and
the service obligations of PacifiCorp. Seller shal tae all reasonable measures and use
commercially reaonable effort. consistent with Prudent Electrical Practices to not
schedule any Maintenance Outage during the following periods: June 15 though June 30,
July, August, and September 1 though September 15. Seller shal include in such notice
of a proposed Maintenance Outage the expected sta date and time of the outage, the
amount of generation capacity of the Facilty that will not be available, and the expected
completion date and time of the outage. Seller may provide notices under this Section
6.5.2 orally. Seller shall conf any such oral notification in wrting as soon as
practicable. PacifiCorp shall promptly respond to such notice and may request
reasonable modifications in the schedule for the outae. Seller shall use all reasonable
effort to comply with PacifiCorp's request to modify the schedule for a Maintenance
Outage if such modification has no substatial impact on Seller. Seller shall notify
PacifiCorp of any subsequent changes in generation capacity of the Facilty durg such
Maintenance Outage and any changes in the Maintenace Outage completion date and
time. Seller shall take all reasonable measures and exercise its best efforts consistent with
Prudent Electrical Practices to minize the frequency ard duration of Maitenace
Outages.
6.5.3 Forced Outages. Seller shall promptly provide to PacifiCorp an oral
report, via telephone to a number specified by PacifiCorp, of any Forced Outage of the
Facilty. Such report shal include the amount of generation capacity of the Facility that
will not be available beause of the Forced Outage and the expected retur date and time
of such generation capacity. Seller shall promptly update the report as necessar to
advise PacifiCorp of changed circumstances. If the Forced Outage resulted in more than
15% of the Facilty Capacity Ratig of the Facility being unavailable, Seller shall comir
the oral report in writing as soon as practicable. Seller shall tae all reasonable measures
and exercise its best efforts consistent with Prudent Electrcal Practices to avoid Forced
Outages and to minimize their duration.
6.5.4 Notice of Deratigs and Outages. Without limiting other notice
requirements, Seller shal notify PacifiCorp, via telephone or via electronic mail, to a
number or email address specified by PacifiCorp, of any limitation, restriction, derating
or outage known to Seller that affects the generation capacity of the Facilty in an amount
greater than five percent (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.
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Cedar Creek Wind, LLC-North Point
6.5.5 Effect of Outages on Estimated Output. Seller shall factor Planed
Outages and Maintenance Outages that Seller reasonably expects to encounter in the
ordinar course of operating the Facilty into the Scheduled Monthy Energy Delivery
amounts in the Energy Delivery Schedule set forth in Exhibit D.
6.6 Scheduling.
6.6.1 Cooperation and Stadads. With respect to any and all scheduling
requirements in this Agreement, (a) Seller shall cooperate with PacifiCorp with respect to
scheduling Net Output, and (b) each Pary shall designate authorized representatives to
communicate with regard to scheduling and related matters arsing hereunder.
6.6.2 Schedule Coordination. If, as a result of this Agreement, PacifiCorp is
deemed by an RTO to be fiancially responsible for Seller's performance under the
Generation Interconnection Agreement due to. Seller's lack of stading as a "scheduling
coordinator" or other RTO recognized designation, qualification or otherwse, then (a)
Seller shall acquire such RTO recogned stdig (or shall contract with a thrd pary
who has such RTO recognized standing) such that PacifiCorp is no longer responsible for
Seller's pedormance under the Generation Interconnection Agreement, and (b) Seller
shall defend, indemnfy and hold PacifiCorp harmless against any liabilty arising due to
Seller's performance or failure to pedorm under the Generation Interconnection
Agreement or RTO requirement.
6.7 Delivery Exceeding the Maximum GIA Delivery Rate. Seller shall not deliver
energy from the Facilty to the Point of Delivery at a rate that exceeds the Maximum GIA
Delivery Rate. Seller's failure to limit such deliveres to the Maximum GIA Delivery Rate shall
be a breach of a material obligation subject to Section 12.1.8.
6.8 Access Rights. Upon reasonable prior notice and subject to the prudent safety
requiements of Seller, and Requirements of Law relating to workplace health and safety, Seller
shall provide PacifiCorp and its authorized agents, employees and inspectors ("PacifiCorp
Representatives") with reasonable access to the Facilty: (a) for the purose of reading or testing
metering equipment, (b) as necessary to witness any acceptace tests, (c) for puroses of
implementing Section 4.6, and (d) for other reasonable puroses at the reasonable request of
PacifiCorp. PacifiCorp shall release Seller against and from any and all any and all loss, fines,
penalties, claims, actions or suits, including costs and attorney's fees, both at tral and on appeal
resulting from actions or omissions by any of the PacifiCorp Representatives in connection with
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.
SECTION 7: MOTIVE FORCE
Prior to the execution of this Agreement, Seller provided to PacifiCorp Wind Leases and
a motive force plan including an hourly wind profie acceptable to PacifiCorp in its reasonable
discretion and attched hereto as Exhibit F-l, together with a certfication from a Licensed
Professional Engineer to PacifiCorp attched hereto as Exhibit F-2, certifying that the
implementation of the fuel or motive force plan can reasonably be expected to provide fuel or
22
Cedar Creek Wind, LLC-North Point
motive force to the Facilty for the duration of this Agreement adequate to generate power and
energy in quantities necessar to deliver the Average Anual Net Output.
SECTION 8: GENERATION FORECASTING COSTS
8.1 Forecat Service Election. PacifiCorp may, in its discretion, add forecasting
services for Seller's Facilty to PacifiCorp's existig contract with a quaified wind-energy-
production forecasting vendor, which contract and vendor may change durng the term of ths
Agreement.
8.2 Seller's Forecast-Cost Share. Pursuat to Commission Order No. 30497, Seller
shall be responsible for 50% of PacifiCorp's cost of adding such forecasting services ("Seller's
Forecast-Cost Share") up to Seller's Capped Forecast-Cost Share.
8.3 Cap on Seller's Forecast-Cost Shae. Seller's Forecast-Cost Share for a given
Contract Year is capped at 0.1% of tota payments made by PacifiCorp to Seller for Net Output
during the previous Contract Year ("Seller's Capped Forecast-Cost Share"). If the last
Contract Year of ths Agreement is shorter than a ful calenda year, the cap will be prorated for
that shortened year. For the year(s) prior to the second Contract Year of this agreement that
equals a ful calendar year, Seller's Forecast-Cost Share is capped at 0.1 % of estimated payments
for Net Output based on the Energy Delivery Schedule.
8.4 Payment. Seller shall pay to PacifiCorp Seller's Forecat-Cost Share uncapped by
Section 8.3 for each Contract Year in equa payments for each month of such year except the last
month of such year. (For example, in a Contract Year equaling a ful calendar year, Seller would
pay 1/11 th of Seller's Forecast-Cost Share durng each of the first 11 months.) In the last month
of each Contract Year, PacifiCorp shall refud to Seller the amount paid by Seller under ths
Section in excess, if any, of Seller's Capped Forecast-Cost Share. For a Contract Year
encompassed by just one calendar month, Seller's payment to PacifiCorp and PacifiCorp's
refund to Seller shall be calculated and paid simultaeously. To the extent practicable, payments
and refuds under ths Section shall be included in monthy payments and invoices under Section
10.
SECTION9: METERING; REPORTS AND RECORDS
9.1 Meterig Adjustment. Metering will be performed at the location specified in
Exhibit B and in the maner specified in. the Generator Interconnection Agreement. All
quantities of energy purchased hereunder shall be adjusted in accordance with Addendum L, so
that the purchased amount reflects the net amount of power flowig into the System at the Point
of Delivery. 1
9.2 Metering Errors. If any inspections or tests made pursuat to the Generator
Interconnection Agreement discloses an error exceeding two percent (2%), either fast or slow,
1 If station service is supplied via separate facìlties, PacifiCorp wil deduct station service from the metered facilty
output to calculate Net Output.
23
Cedar Creek Wind, LLC-North Point
proper correction, based upon the inaccuracy found, shall be made of previous readings for the
actu period during which the metering equipment rendered inaccurate measurements if that
period can be ascertned. If the actual period canot be ascertaied, the proper correction shall
be made to the measurements taken during the time the metering equipment was in service since
last tested, but not exceeding thee Biling Periods, in the amount the metering equipment shall
have been shown to be in error by such test. Any correction in billngs or payments resulting
from a correction in the meter records shall be made in the next monthy biling or payment
rendered.
9.3 Telemetering. In accordance with the Generation Interconnection Agreement,
Seller shall provide telemetering equipment and facilties capable of transmitting to
Transmission Provider (who will share it with PacifiCorp as authorized by Exhibit H, "Seller
Authorization to Release Generation Data to PacifiCorp") the followig information concerning
the Facility on a real-time basis, and wil operate such equipment when requested by PacifiCorp
to indicate:
(a) instataeous MW output at the Point of Delivery;
(b) Net Output;
( c) the Facilty's tota instataeous generation capacity; and
(d) wind velocity at tubine hub height.
Seller shall also transmit to PacifiCorp any other data from the Facility that Seller receives on a
real-time basis, including meteorological data, wind speed data, wind direction data and gross
output data. Seller shall provide such real-time data to PacifiCorp in the same detal that Seller
receives the data (e.g., if Seller receives the data in four second intervals, PacifiCorp shall also
receive the data in four second intervals). PacifiCorp shall have the right from tie to time to
require Seller to provide additional telemetering equipment and facilties to the extent necessar
and reasonable.
9.4 Monthly Reports and Logs and Oter Information.
9.4.1 Reports. Withn thirt (30) calenda days afr the end of each Biling
Period, Seller shall provide to PacifiCorp a report in electronic format, which report shall
include (a) sumares of the Facility's wid and output data for the Biling Period in
intervals not to exceed one hour (or such shorter period as is reasonably possible with
commercially available technology), including information from the Facilty's computer
monitoring system; (b) sumares of any other significat events related to the
constrction or operation of the Facilty for the Billig Period; (c) detals of Availabilty .
of the Facilty for the Biling Period suffcient to calculate Availabilty and including
hourly average wind velocity measured at tubine hub height and ambient air
temperature; and (d) any supporting inormation that PacifiCorp may from time to time
reasonably request (including historical wid data for the Facilty).
9.4.2 Electronic Fault Log. Seller shall maintain an electronic fault log of
operations of the Facilty during each hour of the term of this Agreement commencing on
the Commercial Operation Date. Seller shall provide PacifiCorp with a copy of the
24
Cedar Creek Wind, LLC-North Point
electronic fault log within thirt (30) calendar days afer the end of the Biling Period to
which the fault log applies.
9.4.3 Upon the request of PacifCorp, Seller shall provide PacifiCorp the
manufactuers' guidelines and recommendations for maintenance of the Facilty
equipment.
9.4.4 By each January 10 followig the Commercial Operation Date, Seller
shall provide to PacifiCorp wrtten certification that Seller has completed all the
manufactuers' guidelines and recommendations for maintenance of the Facilty
equipment applicable to the previous calendar year.
9.4.5 At any time from the Effective Date, one (1) year's advance notice of the
termination or expiration of any agreement, including Wind Leases, pursuant to which
the Facility or any equipment relating thereto is upon the Facilty site; provided that the
foregoing does not authorize any early termnation of any land lease.
9.4.6 As soon as it is known to Seller, Seller shall disclose to PacifiCorp, the
extent of any material violation of any environmental laws or regulations arsing out of
the constrction or operation of the Facility, or the presence of Environmental
Containation at the Facilty or on the Premises, aleged to exist by any Governental
Authority having jursdiction over the Premises, or the present existence of, or the
occurence during Seller's occupancy of the Premises of, any enforcement, legal, or
reguatory action or proceedg relating to such alleged violation or alleged presence of
Environmenta Contamination presently occuring or having occurred durg the period
of time that Seller has occupied the Premises.
9.5 Maintenance of Metering Equipment. To the extent not otherwse provided in the
Generator Interconnection Agreement, PacifiCorp shall inspect, test, repai and replace the
metering equipment periodicaly, or at the request of Seller if Seller has reason to believe
metering may be off and requests an inpecton in wrtig. To the extent not otherwse provided
in the Generator Interconnection Agreement, al PacifiCorp's costs relating to designing,
instaling, maitaing, and repaig meterig equipment installed to accommodate Seller's
Facilty shall be borne by Seller.
SECTION 10: BILLINGS, COMPUTATIONS AND PAYMENTS
10.1 Payment for Net Output. On or before the thirtieth (30th) day followig the end
of each Biling Period, PacifiCorp shall send to Seller payment for Seller's deliveries of Net
Output to PacifiCorp, together with computations supporting such payment. PacifiCorp may
offset any such payment to reflect amounts owing from Seller to PacifiCorp pursuat to this
Agreement or the Generation Interconnection Agreement. Any such offsets shall be separately
itemized on the statement accompanying each payment to Seller.
10.2 Anual Invoicing for Output ShortalL. Thiry calendar days after the end of each
Contract Year, PacifiCorp shall deliver to Seller an invoice showing PacifiCorp's computation of
Output Shortfall, if any, for all Biling Periods in the prior Contract Year and Output Shortfall
25
Cedar Creek Wind, LLC-North Point
Damages, if any. In preparing such invoices, PacifiCorp shall utilze the meter data provided to
PacifiCorp for the Contract Year in question, but may also rely on historical averages and such
other information as may be available to PacifiCorp at the time of invoice preparation if the
meter data for such Contract Year is then incomplete or otherwse not avaiable. To the extent
required, PacifiCorp shall prepare any such invoice as promptly as practicable following its
receipt of actual results for the relevant Contract Year. Seller shall pay to PacifiCorp, by wire
transfer of immediately available funds to an account specified in wrting by PacifiCorp or by
any other means agreed to by the Paries in writing from time to time, the amount set fort as due
in such invoice, and shall withn thirt (30) days after receiving the invoice raise any objections
regarding any disputed portion of the invoice. Objections not made by Seller within the thrt-
day period shall be deemed waived.
.
10.3 Interest on Overdue Amounts. Any amounts owing afer the due date thereof
shall bear interest at the Prime Rate on the date the amount became due, plus two percent (2%),
from the date due until paid; provided, however, that the interest rate shall at no time exceed the
maximum rate allowed by applicable law.
10.4 Disputed Amounts. If either Pary, in good faith, disputes any amount due
pursuat to an invoice rendered hereunder, such Par shall notify the other Pary of the specific
basis for the dispute and, if the invoice shows an amount due, shall pay that portion of the
statement that is undisputed, on or before the due date. Any such notice shall be provided within
two (2) years of the date of the invoice in which the error first occured. If any amount disputed
by such Par is determined to be due to the other Pary, or if the Paries resolve the payment
dispute, the amount due shall be paid within five (5) days afer such determination or resolution,
along with interest in accordance with Section 10.3.
SECTION 11: SECURTY
11.1 Delay Securty:
11.1.1 Duty to Post Security. By the date provided in Section 2.2.2, Seller shall
post a Letter of Credit, cash or a parental guaranty, each in a form acceptable to
PacifiCorp, in the amount of $1,506,418 as calculated pursuat to Section 11.1.2 ("Delay
Security"). To the extent PacifiCorp receives payment from the Delay Security, Seller
shall, withn fifteen (15) calenda days, restore the Delay Securty as if no such deduction
had occured.
11.1.2 Calculation of Delay Security. The dollar value of Delay Security shall
equa the greater of: (1) fort-five dollars ($45) multiplied by the Maximum Facilty
Delivery Rate with the Maxmum Facilty Delivery Rate being measured in kW; or (2)
the sum of the products, for each of the first thee calendar months afer the Scheduled
Commercial Operation Date, of:
the energy in the Initial Year Energy Delivery Schedule for the month (kWh)
multiplied by the monthly weighted average On-Peak and Off-Peak Conforming
Energy Purchase Price for the months ($/MWh) divided by 1000.
26
Cedar Creek Wind, LLC-North Point
Such amount shall be fixed upon execution of ths Agreement.
11.1.3 Right to Draw on Securty. PacifCorp shall have the right to draw on the
Delay Securty to collect Delay Liquidated Damages. Commencing on or about first of
each month, PacifiCorp will invoice Seller for Delay Liquidated Damages incurred, if
any, durg the preceding month. If insuffcient Delay Securty is available, Seller shall
pay PacifiCorp for invoiced Delay Liquidated Damages no later than five business days
afer receiving such invoice. The Pares will make bilings and payments for Delay
Liquidated Damages in accordace with Section 10.
11.1.4 Paral Releae of Delay Securty. Provided that Seller has maintaned
Delay Securty in accordance with Section 11.1.1, PacifiCorp shall release one-third of
the original amount of Delay Securty stated in Section 11.1.1 each time Seller
accomplishes a milestone (a) or (b), below:
. (a) Seller has (i) executed the Generation Interconnection Agreement
with Transmission Provider; and (ii) paid in ful any interconnection and/or
system upgrade costs Seller is obligated to pay in advance of interconnection
construction.
(b) Seller ha poured the concrete foundation at each of its planed
individua Wind Turbine locations.
PacifiCorp shall make the parial refud of Delay Securty required above within ten
business days of the date Seller provides PacifiCorp written notice (along with
satisfactory documentation thereof) that it has accomplished milestone (a) or (b).
11.1.5 Full Release of Delay Securty. Unless PacifiCorp disputes whether Seller
has paid all Delay Liquidated Damages, PacifiCorp shall release all remainig Delay
Securty upon the earlier of the 30th calendar day followig commencement of
Commercial Operation or the 60th calenda day following PacifiCorp's termination of
ths Agreement.
11.1.6 Default. Seller's failure to post and maitan Delay Security in
accordance with Section 11.1 will constitute an event of default, unless cured in
accordance with Section 12.1.1 of this Agreement.
11.2 Default Securty (Levelized Pricing Only).
Reserved.
SECTION 12: DEFAULTS AND REMEDIES
. 12.1 The following events shall constitute defaults under this Agreement:
12.1.1 Non-Payment. Seller's failure to make a payment when due under ths
Agreement or post and maintan securty in conformance with the requirements of
Section 11 or maintai insurance in conformance with the requirements of Section 14 of
27
Cedar Creek Wind, LLC-North Point
this Agreement, if the failure is not cured withn ten (10) business days afer the non-
defaulting Pary gives the defaulting Par a notice of the default.
12.1.2 Breach of Representation. Breach by a Pary of a representation or
waranty set fort in this Agreement, if such failure or breach is not cured withn thrty
(30) days following written notice.
12.1.3 Default on Other Agreements. Seller's failure to cure any default under
the Generation Interconnection Agreement or any other agreement between the paries
related to this Agreement, the Generation Interconnection Agreement, or the Facility
within the time allowed for a cure under such agreement or instrent.
12.1.4 Insolvency. A Par (a) makes an assignent for the benefit of its
creditors; (b) files a petition or otherwse commences, authorizes or acquiesces in. the
commencement of a proceeding or cause of action under any banptcy or similar law
for the protection of creditors, or has such a petition filed agaist it and such petition is
not withdrawn or dismissed withn sixty (60) days afer such filig; (c) becomes
insolvent; or (d) is unable to pay its debts when due.
12.1.5 Material Adverse Change. A Material Adverse Change has occurred with
respect to Seller and Seller fails to provide such performace assurances as are
reasonably requested by PacifiCorp, within thrt (30) days from the date of such request.
12.1.6 Sale to Thrd-Pary. 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, Seller's
failure to deliver any Net Energy for thee consecutive calendar months.
12.1.8 A Pary otherwse fails to perform any material obligation (including but
not limited to failure by Seller to meet any deadline set fort in Section 2.2.1 through
2.2.6) imposed upon that Par by ths Agreement if the failure is not cured within thirt
(30) days after the non-defaulting Pary gives the defaulting Par notice of the default.
12.1.9 Seller fails to achieve the Commercial Online Date by the 91st day
following the Scheduled Commercial Online Date, provided, however, that, upon written
notice from the defaulting Pary delivered prior to the 91 st day of delay, this ninety (90)
day period shall be extended by an additional one hundred and fifty (150) days if (a)
Seller has poured the concrete foundation at each of its planed individua wind tubine
locations; and (b) Seller replenishes Delay Default Securty in accordance with Section
11.1.1. Seller shall continue to accrue Delay Liquidated Damages in accordance with
Section 2.5 (Delay Price times the Delay Value) until the Project achieves Commercial
Operation or this Agreement is terminated.
12.2 In the event of any default hereunder, the non-defaulting Pary must notify the
defaulting Par in wrting of the circumstances indicating the default and outlining the
requirements to cure the default. If the default has not been cured withn the prescribed time,
28
Cedar Creek Wind, LLC-North Point
above, the non-defaultig Pary may terate this Agreement at its sole discretion by delivering
written notice to the other Par and may pursue any and all legal or equitable remedies provided
by law or pursuat to this Agreement. The rights provided in ths Section 12 are cumulative such
that the exercise of one or more rights shall not constitute a waiver of any other rights.
12.3 1n the event this Agreement is terminated because of Seller's default and Seller
wishes to again sell Net Output from the facilty using the same motive force to PacifiCorp
following such termination, PacifiCorp in its sole discretion may requie that Seller do so subject
to the terms of ths Agreement, including but not limited to the purchase prices as set fort in
(Section 5), until the Expiration Date (as set fort in Section 2.1). At such time Seller and
PacifiCorp agree to execute a wrtten document ratifyg the terms of ths Agreement.
12.4 If this Agreement is termted as a result of Seller's default, 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 otherwse withold payment), Seller shall pay PacifiCorp
Output Shortall Damages for a period of eighteen (18) month from the date of termination plus
the estimated adminstrative cost to acquie the replacement power. The Paries agree that the
damages PacifiCorp would incur due to termation resulting from Seller's default would be
diffcult or impossible to predict with certty, and that the daages in ths Section 12.4 are an
appropriate approximation of such damages.
12.5 Recoupment of Damages.
(a) Default Security Available. If Seller has posted Default Security,
PacifCorp may draw upon that securty to satisfy any damages, above.
(b) Default Securty Unavailable. If Seller has not posted Default Securty, or
if PacifiCorp has exhausted the Default Security, PacifiCorp may collect
any remaining amount owing by parially witholding futue payments to
Seller over a reasonable period of tie. PacifiCorp and Seller shall work
together in good faith to establish the period, and monthly amounts, of
such witholdig so as to avoid Seller's default on its commercial or
financing agreements necessar for its continued operation of the Facilty.
12.6 Upon an event of default or teination event resulting from default under this
Agreement, in addition to and not in limitation of any other right or remedy under ths
Agreement or applicable law (including any right to set-off, counterclaim, or otherwse withold
payment), the non-defaulting Par may at its option set-off, agaist any amounts owed to the
defaulting Par, any amounts owed by the defaulting Par under any contract(s) or
agreement(s) between the Pares. The obligations of the Pares shall be deemed satisfied and
discharged to the extent of any such set-off. The non-defaultig Par shall give the defaulting
Pary written notice of any set-off, but failure to give such notice shall not affect the validity of
the set-off.
12.7 Amounts owed by Seller pursuat to this Section 12 shall be due within five (5)
business days afer any invoice from PacifiCorp for the same.
29
Cedar Creek Wind, LLC-North Point
SECTION 13: INDEMNIFICATION; LIABILITY
13.1 Indemnties.
13.1.1 Indemnity by Seller. Seller shall release, indemnfy and hold harless
PacifiCorp, its directors, officers, agents, and representatives against and from any and all
loss, fines, penalties, claims, actions or suits, including costs and attorney's fees, both at
tral and on appeal, resulting from, or arising out of or in any way connected with (a) the
energy delivered by Seller under ths Agreement to and at the Point of Delivery, (b) any
facilties on Seller's side of the Point of Delivery, (c) Seller's operation and/or
maintenance of the Facilty, or (d) arising from Seller's breach of this Agreement,
including without limitation any loss, claim, action or suit, for or on account of injur,
bodily or otherwse, to, or death of, persons, or for damage to, or destrction or economic
loss of property belonging to PacifiCorp, Seller or others, excepting only such loss,
claim, action or suit as may be caused solely by the fault or gross negligence of
PacifiCorp, its directors, officers, employees, agents or representatives.
13.1.2 Indemnty by PacifiCorp. PacifiCorp shall release, indemnify and hold
harless Seller, its directors, offcers, agents, lenders and representatives agaist and
from any and all loss, fines, penalties, claims, actions or suits, including costs and
attorney's fees, both at trial and on appeal, resulting from, or arising out of or in any way
connected with the energy delivered by Seller under this Agreement afer the Point of
Delivery, including without limitation any loss, claim, action or suit, for or on account of
injur, bodily or otherwse, to, or death of, persons, or for damage to, or destrction or
economic loss of property, exceptig only such loss, claim, action or suit as may be
caused solely by the fault or gross negligence of Seller, its directors, offcers, employees,
agents, lenders or representatives.
13.2 No Dedication. Nothing in ths Agreement shall be constred to create any duty
to, any standard of care with reference to, or any liability to any person not a Pary to this
Agreement. No underting by one Par to the other under any provision of this Agreement
shall constitute the dedication of that Par's system or any portion thereof to the other Pary or
to the public, nor afect the status of PacifiCorp as an independent public utilty corporation or
Seller as an independent individua or entity.
13.3 No Waranty. Any review, acceptace or failure to review Seller's design,
specifications, equipment or facilities shall not be an endorsement or a confirmation by
PacifiCorp and PacifiCorp makes no waranties, expressed or implied, regarding any aspect of
Seller's design, specifications, equipment or facilties, including, but not limited to, safety,
durabilty, reliabilty, strength, capacity, adequacy or economic feasibilty.
13.4 CONSEQUENTIAL DAMAGES. EXCEPT TO TH EXTENT SUCH
DAMAGES ARE INCLUDED IN THE LIQUIDATED DAMGES, DELAY DAMGES, OR
OTHER SPECIFIED MEASUR OF DAMAGES EXPRESSL Y PROVIDED FOR IN THIS
AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR
SPECIAL, PUNITIVE, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES,
30
Cedar Creek Wind, LLC-North Point
WHTHER SUCH DAMGES AR ALLOWED OR PROVIDED BY CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRCT LIABILITY, STATUTE OR OTHERWISE.
SECTION 14: INSURACE
14.1 Certificates. Prior to.connection of the Facility to the System, Seller shall secure
and continuously car insurance in compliance with the requirements of ths Section. Seller
shall provide PacifiCorp insurance certificate(s) (of "ACORD Form" or the equivalent)
certfying Seller's compliance with the inurance requiements hereunder. Commercial General
Liabilty coverage wrtten on a "clais-made" basis, if any, shall be specifically identified on the
certficate. If requested by PacifiCorp, a copy of each inurance policy, certified as a tre copy
by an authorized representative of the issuig insurance company, shall be fuished to
PacifiCorp.
14.2 Required Policies and Coverages. Without limiting any liabilties or any other
obligations of Seller under this Agreement, Seller shall secure and continuously car with an
insurance company or companes rated not lower than "A-:VII" by the A.M. Insurance Report
the insurance coverage specifed below:
14.2.1 Commercial General Liability inurance, to include contractual liabilty,
with a minimum single limit of $1,000,000 per occurence to protect against and from all
loss by reason of injur to persons or damage to property based upon and arsing out of
the activity under ths Agreement.
14.2.2 All Risk Propert insurance providing coverage in an amount at least
equal to 80% of the replacement value of the Facilty agaist "all risks" of physical loss
or daage, includig coverage for ear movement, flood, and boiler and machinery.
The Propert policy may contai separate sub-limits and deductibles subject to insurance
company underwiting gudelines. The Risk Policy will be maintained in accordance
with terms available in the insurance market for simiar facilties.
14.3 The Commercial General Liabilty policy required herein shall include (i)
provisions or endorsements namng PacifiCorp, its Board of Directors, Offcers and employees
as additional insureds, and (ii) cross liabilty coverage so that the insurance applies separately to
each insured against whom claim is made or suit is brought, even in instces where one insured
claims against or sues another insured.
14.4 All liabilty policies required by ths Agreement shall include provisions that such
insurance is primar insurance with respect to the interests of PacifiCorp and that any other
insurce maintaned by PacifiCorp is excess and not contrbutory insurance with the insurance
required hereunder, and provisions that such policies shall not be canceled or their limits of
liabilty reduced without (i) ten (10) business days prior written notice to PacifiCorp if canceled
for nonpayment of premium, or (ii) thrty (30) business days prior wrtten notice to PacifiCorp if
canceled for any other reason.
14.5 Commercial General Liabilty insurance coverage provided on a "claims-made"
basis shall be maintaied by Seller for a minmum period of five (5) years after the completion of
31
Cedar Creek Wind, LLC-North Point
ths Agreement and for such other lengt of time necessar to cover liabilties arising out of the
activities under this Agreement.
SECTION 15: FORCE MAJEUR
15.1 As used in this Agreement, "Force Majeure" or "an event of Force Majeure"
means any cause beyond the reasonable control of the Seller or of PacifiCorp which, despite the
exercise of due dilgence, such Pary is unable to prevent or overcome. By way of example,
Force Majeure may include but is not limited to acts of God, flood, storms, wars, hostilties, civil
strife, strikes, and other labor disturbances, earhquakes, fires, lightning, epidemics, sabotage,
restraint by cour order or other delay or failure in the performance as a result of any action or
inaction on behalf of a public authority which is in each case (i) beyond the reasonable control of
such Pary, (ii) by the exercise of reasonable foresight such Pary could not reasonably have been
expected to avoid and (iii) by the exercise of due diligence, such Pary shall be unable to prevent
or overcome. Force Majeure, however, specifically excludes the cost or availabilty of fuel or
motive forcè to operate the Facilty or changes in market conditions that affect the price of
energy or transmission. If either Pary is rendered wholly or in par unable to perform its
obligation under ths Agreement because of an event of Force Majeure, both Paries shall be
excused from whatever performance is afected by the event of Force Majeure, provided that:
15.1.1 the non-performing Pary, shall, withn two (2) weeks after the occurence
of the Force Majeure, give the other Pary written notice describing the parculars of the
occurence, including the sta date of the Force Majeure, the cause of Force Majeure,
whether the Facility remains parially operational and the expected end date of the Force
Majeure;
15.1.2 the suspension of performance shall be of no greater scope and of no
longer duration than is requied by the Force Majeure;
15.1.3 the non-performing Pary uses its best efforts to remedy its inabilty to
perform; and
15.1.4 the non-performing Par shall provide prompt written notice to the other
Par at the end of the Force Majeure event detaling the end date, cause there of, 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.
15.2 No obligations of either Par which arose before the Force Majeure causing the
suspension of performance shall be excused as a result of the Force Majeure.
15.3 Neither Pary shall be required to settle any strike, walout, lockout or other labor
dispute on terms which, in the sole judgment of the Pary involved in the dispute, are contrar to
the Pary's best interests.
32
Cedar Creek Wind, LLC-North Point
SECTION 16: SEVERAL OBLIGATIONS
Nothng contaied in ths Agreement shall ever be constred to create an association, trst,
parnership or joint ventue or to impose a trst or parership duty, obligation 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 ths Agreement.
SECTION 17: CHOICE OF LAW
This Agreement shall be interpreted and enforced in accordance with the laws of the state of
Idaho, excluding any choice of law rues which may direct the application of the laws of another
jurisdiction.
SECTION 18: PARTIA INVALIDITY
It is not the intention of the Pares to violate any laws governng the subject matter of ths
Agreement. If any of the terms of the Agreement are fially held or determined to be" invalid,
ilegal or void as being contrar to any applicable law or public policy, all other terms of the
Agreement shall remain in effect. If any term are finally held or determned to be invalid,
ilegal or void, the Paries shal enter into negotiations concerng the terms affected by such
decision for the purose of achievig conformty with requirements of any applicable law and
the intent of the Paries to ths Agreement.
SECTION 19: WAIVER
Any waiver at any time by either Pary of its rights with respect to a default under this
Agreement or with respect to any other matters arsing in connection with this Agreement must
be in wrting, and such waiver shal not be deemed a waiver with respect to any subsequent
default or other-mattr.
SECTION 20: GOVERNNTAL JURSDICTION AND AUTHORIZATIONS
PacifiCorp's compliance with the terms of ths Agreement is conditioned on Seller's submission
to PacifiCorp prior to the Commercial Operation Date of copies of all local, state and federal
licenses, permits and other approvals as then may be required by law for the constrction,
operation and maintenace of the Facility. Failure to maitan such lawf status afer the
Commercial Operation Date shall be an event of default, subject to Section 12.
SECTION 21: SUCCESSORS AN ASSIGNS
This Agreement and all of the terms and provisions hereof shall be binding upon and inure to the
benefit of the respective successors and assigns of the Pares hereto, except that no assignment
hereof by either Pary shall become effective without the wrtten consent of both Paries being
first obtained. Such consent shall not be uneasonably withheld. Notwthstading the foregoing,
any entity with which PacifiCorp may consolidate, or into which it may merge, or to which it
33
Cedar Creek Wind, LLC-North Point
may conveyor transfer substatially all of its electrc utilty assets, shall automatically, without
fuer act, and without need of consent or approval by the Seller, succeed to all ofPacifiCorp's
rights, obligations, and interests under this Agreement. This aricle shall not prevent a financing
entity with recorded or secured rights from exercising all rights and remedies avaiable to it
under law or contract. PacifiCorp shall have the right to be notified by the fiancing entity that it
is exercising such rights or remedies.
SECTION 22: ENTIRE AGREEMENT
22.1 This Agreement supersedes all prior agreements, proposals, representations,
negotiations, discussions or letters, whether oral or in wrting, regarding PacifiCorp's purchase of
Net Output from the Facilty. No modification of ths Agreement shall be effective unless it is in
writing and signed by both Paries.
22.2 By executing ths Agreement, each Pary releases the other from any
claims, known or unown, that may have arisen prior to the execution date of ths Agreement
with respect to the Facilty and any predecessor facilty proposed to have been constrcted on the
site of the Facilty.
SECTION 23: NOTICES
All notices except as otherwse provided in ths Agreement shall be in writing, shall be directed
as follows and shall be considered delivered if delivered in person or when deposited in the U.S.
Mail, postage prepaid by certified or registered mail and retu receipt requested.
Notices PacifCorp Seller
All Notices PacifiCorp Cedar Creek Wind, LLC
825 NE Multnomah Street Portland,701B Winslow Way E
OR 97232 Baibridge Island, W A 98110
Att: Contract Administration,Att: Richard W. Burkhardt
Suite 600 Phone: (206) 780 - 3551
Phone: (503) 813 - 5380 Facsimile: (206) 780 - 3571Facsimile: (503) 813 - 6291
E-mail:E-mail:
rburkhardt~sumitpower.com
Duns: 00-790-9013 Duns: 83-297-9483
Federal Tax ID Number: 93-0246090 Federal Tax ID Number:80-0326531
All Invoices:Att: Back Office, Suite 700 Att:(accountingcmsummitpwer.com)
Phone: (503) 813 - 5578 Vici Hall, General Accounting
Facsimile: (503) 813 - 5580 Manager (vhal(gsumitpower.com)
Phone: [phone]
Scheduling:Att: Resource Planng, Suite 600 Att: (tcameronlisumitpower.com)
Phone: (503) 813 - 6090 Thomas Cameron
34
Cedar Creek Wind, LLC-North Point
Notices PacifiCorp Seller
Facsimile: (503) 813 - 6265 [phone]
Payments:Att: Back Office, Suite 700 Att:(accountingrgsumitpower . com)
Phone: (503) 813 - 5578 Vici Hall, General Accounting
Facsimle: (503) 813 - 5580 Manger (vha1~summitpower.com)
Phone: [phone]
Wire Transfer:Ban One N.A.BNK: Wells Fargo
To be provided in separate leter from To be provided in separate letter fromPacifiCorp to Seller Seller to PacifiCorp
Credit and Att: Credit Manager, Suite 700 Att: Richad W. Burkhardt
Collections:Phone: (503) 813 - 5684 (rburkhardt~sumtpower.com)
Facsimile: [phone] Chief Financial Officer
Phone: [phone]
With Additional Att: PacifiCorp General Counsel Att: Richard W. Burkhardt
Notices of an Phone: [phone] (rburkhardt~swnmitpower.com)
Event of Default Facsimile: [phone] Chief Financial Offcer
or Potential Phone: [phone]
Event of Default Davis Wright Tremaie LLP
to:1201 Third Avenue, Suite 2200
'\Seattle, VV ll 98101)~Attntion: Scott MacCormackJFacsimile No.: [phone]
The Paries may change the person to whom such notices are addressed, or their addrsses, by
providing written notices thereof in accordance with ths Section.
HEREOF, the Pares hereto have caused ths Agreement to be executed
es as of the date first above written.
Title: Di hort Term Origination
and QF Contrcts
35
Cedar Creek Wind, LLC-North Point
EXHBIT A
DESCRIPTION OF SELLER'S FACILITY
(Seller to Complete)
Seller's Facility consists of 12 wid tubine generator(s) manufactued by Siemens. More
specifically, each generator at the Facilty is described as:
Type (synchronous or inductive): Asynchronous with Inverter
Model: Siemens SWT-2.3-101
Number of Phases: Thee
Rated Output (kW): 2,300 Rated Output (kV A): 2,555
Rated Voltage (line to line): 750V
Rated Current (A): Stator: Converter Supply Curent: 1953A; Rotor: 2070 A
Maximum kW Output: 2300 kW Maxium kV A Output: 2555kV A
Minimum kW Output: _40_ kW
Manufacturer's Published Cut-in Wind Speed: 4 meters/second
Facilty Capacity Rating: 27,600 kW at or above rated wind speed and below cut-out
speed
Maximum Facilty Delivery Rate: _27,186 kW at PacifiCorp Goshen
Substation at 345 kV
Maximum GIA Delivery Rate 151,800 - instantaeous kW (combined with the other Cedar
Creek Projects described in Addendum L J
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
Nameplate Capacity Ratig)
Station service requirements, and other loads served by the Facilty, if any, are described
as follows: Station servce requirements consist of Cedar Creek Wind Operations and
Maintenance building loads, tubine standby loads, and tubine cutout loads. Average turbine
stadby load for Nort Point is approximately 60 kW. Cutout loads would be infrequent and not
concurrent with stadby loads.
Location of the Facilty: The Facility is located in Bingham County, Idao. The location is
more paricularly described as follows: 43° 19.764' Latitude, 112° 1.850' Longitude WGS84.
Locations of each tubine tower relative to other qualifying facilities owned by Cedar Creek
Wind showing Cedar Creek Wind's compliance with the spacing requirements in 18 C.F.R. §
292.204 are attched hereto.
Power factor requirements:
Rated Power Factor (PF) or reactive load (kV AR): 0.9 Leading to 0.9 Lagging
Seller has provided a copy of manufacturer's Power Cure (Rev. 4, June 2010) for the Siemens
SWT-2.3-101. PacifiCorp maintains the power cure in its files pursuat to a Non-Disclosure
Agreement between PacifiCorp and Seller.
A-I
Cedar Creek Wind, LLC-North Point
EXHIBIT A - Attachments
1. Cedar Creek Wind Far Site Map
2. Distace Between Wind Turbines of Adjacent Qualifng Facilties
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Distanc Betwn Wind Turbine of Adcet Qulifyng Facilites
Da 1111612010
The table below list the dinc betw turb in se Quaifying
Faclites. These disance are .base on th turbin locon deed by Wind
Logics in thr Turbne Layou Revion 5 docmen da 11/16/10.
North Point/Coyote Hill
Turin Turbne Diance
T6 T14 56.2'
T6 T15 53.1'
T6 T16 5638.0'
rn T14 6161.2'
T7 T15 5610.9'
T7 T16 5594.1'
T7 T17 5595.3'
T11 T15 6361.3'
T11 Ti6 5842.6'
1T11 T17 541.r
Coyote Hilll$lake Canyon
Turbine Turbne DlsceT3T25558.5'
T36 123 6057.0'
T36 T24 6504.5
T37 T2 5378.4'
T37 123 5629.7'
T37 124 5898.8'
Nor Point/SteeD RieTurbTurbneDìtanc
t12 125 5799.5'
T12 127 5397.2'
ir12 13 5401.6
T12 13 5358.f
$lee RidgeJovote HiD
Turbine Turbine 1 Dìtance
T32 124 1753.9'
StP Ridge/Ratnake CanyonrrurITurbneI Olstnce rr IT40 194.3'
SteeD Ridgelve. Pine
Turbne Turbine Dice
T48 T2 5466.S'
T48 T31 5558.3'
T48 T35 5921.r
Verified by:
Cedar Creek Wind, LLC-North Point
EXHBITB
POINT OF DELIVERY / PARTIES' INTERCONNCTION FACILITIES
(Seller ha provided the following single line drawing of the Facility interconnection facilties
including metering points used to calculate Net Output and any tranmission facilties on Seller's
side of the Point of Delivery.)
The Metering Point and the Point of Delivery is the PacifiCorp 345kV bus at the Goshen
substation.
The Project will be shared by a 34.5kV-345kV collector substation. Each project will have a
34.5kV breaker that will connect to a common 34.5kV bus. The bus will connect to a central
34.5kV main breaker, 34.5-345kV Power Transformer, 345kV breaker, line disconnect switch
and a 5.1 mile 345kV transmission line to the Goshen Substation.
B- 1
Cedar Creek Wind, LLC-North Point
EXIIT B - Attchments
1. Substation Metering One-Line Diagram
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Cedar Creek Wind, LLe-North Point
EXHBITC
REQUID FACILITY DOCUMNTS
Qualifying Facilty Number from FERC: QF10-536-000
The following Documents are required prior to delivery of any output from the Facilty:
Generation Interconnection Agreement
Agreement perttg Seller acess to shaed interconnection facilties
Propert rights requied to maintain and operate the Project in accordance with ths
Agreement (site leases, transmission easements, etc).
The following Permits are required on or before the milestone date specified in Section 2.2.1.
Federal Aviation Admnistration Determination of No Hazard
Bingham County Special Use Permit
Crossing agreements with paries other than PacifiCorp Tranmission
C-l
Cedar Creek Wind, LLe-North Point
EXHIBITD
SUBSEQUENT ENERGY DELIVERY SCHEDULE
North Point Wind Project
Scheduled Monthly
Energy Delivery Ave kW/rno
Januar
Februar
March
April
May
June .
July
August
September
October
November
December
TOTAL:
Planed Outages. Seller will provide a Planed Outage schedule anually not to exceed 150
hours per year.
D- 1
Cedar Creek Wind, LLC-North Point
EXHBITE
START-UP TESTING
Required factory testing includes such checks and tests necessary to determine that the
equipment systems and subsystems have been properly manufactued and instaled, function
properly, and are in a condition to permit safe and effcient st-up of the Facility, which may
include but are not limited to:
1. Test of mechanical and electrcal equipment;
2. Calibration of all monitoring instrents;
3. Operating tests of all valves, operators, motor staers and motor;
4. Alars, signals, and fail-safe or system shutdown control tests;
5. Point-to-point continuity tests;
6. Bench tests of protective devices; and
7. Tests required by manufacturer(s) and designer(s) of equipment.
Required star-up tests are those checks and tests necessar to determine that all featues
and equipment, systems, and subsystems have been properly instaled 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:
1. Turbine/generator mechancal runs and functionality;
2. System operation tests;
3. Brake tests;
4. Energization of transformers;
5. Synchronizing tests (manua and auto);
6. Excitation and voltage regulation operation test;
7. Auto stop/sta sequence;
8. Completion of any state and federal environmental testing requirements; and
9. Tests required by manufactuer(s) and designer(s) of equipment.
For wind projects only, the following Wind Turbine Generator Instlation Checklists are
requied documents to be signed off by Manufacturer or Subcontract Category Commissioning
Personnel as par of the Commissioning and stp testig:
Turbine Installation
Foundation Inspection (by Owner's independent inspector)
Controller Assembly
Power Cables
Cable Instalation Checklists including: 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
E- 1
Cedar Creek Wind LLC-North Point
EXHITF-l
MOTIVE FORCE PLAN
WIND SPEED DATA SUMMAES & HOURLY WIN PROFILE
F1- 1
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EXHIBITF.2
ENGINEER'S CERTIFICATION
NORTH POINT
I hereby certify that I am a License Professional Engineer who is license to practice
engineering in the state of Idaho and that I have no economic relationship. association,
or nexus with Ceda Creek Wind. LLC and no involvement in the subject wind
project.
Having reviewed. and in reliance! upon the Western Energy Group, LLC, Cedar
Creek, Idaho, Site Visit Summar report date September 30.2010, and Cedar Creek
Wind Far Turbine Layout Anaysis dated November 16. 2010, prepared by Wind
Logics on behalf of Cedar Creek Wind. LLC. I hereby certfy:
fessional Engineer # 8155
(2) THAT THE AVERGE ANAL NET OUTPUT ESTIMATE IS 77,442.034
KWH PER YEAR IN EACH FULL CALENDAR YEAR OF THIS AGREEMENT
BASED Ol) EMOTIV F CE PLAN IN EXHIBIT F. i ;/'//
rofessional Engineer # 8 i 55
(3) THAT THE FACILITY. UNDER AVERGE DESIGN CONDITIONS, LIKELY
WILL GEN TE NO MO THAN 10 aMW IN ANY CALENDAR MONTH.
o rofessional Engineer # 8155
i No independent verification of the raw wind data contained in summary form in Exhibit F-I has been
conducted.
Exbit F.2 Engineer's Cel'iijcaie RalileS//æ CanyOf (2).doc
Cedar Creek Wind, Lie-North Point
EXHIBITG
SAMPLE ENERGY PURCHASE PRICE CALCULATIONS
The following are samples of calculations of energy purchase prices using the formula and tables
in Section 5.1.
The calculation for the non-Ievelized purchase price during an On-Peak Hour in May of 2011
equals $60.24/MWh (the 2011 anua rate for Conforming Energy) multiplied by 92% (0.92)
(the May On-Peak Hour multiplier) minus $6.50/MWh (the wind integration cost), which equals
$48. 92/MWh.
Table 1: Sample calculations for non-Ievelized On-Peak Conformng Energy in 2011: Purchase
Price = (anual 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 Peak Conforming
Month (per MWh) Multiplier Cost Energ (per MWh)
Januar $60.24 103%$6.50 $55.55
Februar $60.24 105%$6.50 $56.75
March $60.24 95%$6.50 $50.73
April $60.24 95%$6.50 $50.73
May $60.24 92%$6.50 $48.92
June $60.24 94%$6.50 $50.13
July $60.24 121%$6.50 $66.39
August $60.24 121%$6.50 $66.39
September $60.24 109%$6.50 $59.16
October $60.24 115%$6.50 $62.78
November $60.24 110%$6.50 $59.76
December $60.24 129%$6.50 $71.21
Table 2: Sample calculations for non-levelized Off-Peak Conforming Energy in 2011: Purchase
Price = (anual rate * monthly Off-Peak multiplier) - wind integration cost.
Conforming
Energy Calculated Purchase
Annual Rate Off-Peak Wind Price for 2011 Off-
for 2011 Hour Integration Peak Conforming
Month (perMWh)Multiplier Cost Energy (per MWh)
Januar $60.24 94%$6.50 $50.13
Februar $60.24 97%$6.50 $51.93
March $60.24 80%$6.50 $41.69
G- 1
Cedar Creek Wind, LLC-North Point
Conforming
Energ Calculated Purchase
Annual Rate Off-Peak Wind Price for 2011 Off-
for 2011 Hour Integration Peak Conforming
Month (per MWh) Multiplier Cost Energ (per MWh)
April $60.24 76%$6.50 $39.28
May $60.24 63%$6.50 $31.45
June $60.24 65%$6.50 $32.66
July $60.24 92%$6.50 $48.92
August $60.24 106%$6.50 $57.35
September .$60.24 99%$6.50 $53.14
October $60.24 105%$6.50 $56.75
November $60.24 96%$6.50 $51.33
December $60.24 120%$6.50 $65.79
G-2
Cedar Creek Wind, LLC-North Point
EXHIBITH
Seller Authorization to Release Generation Data to PacifCorp
H-1
WESTERNENERGY SUMMITrOWER
May 7, 2010
Pacificoip
Att: Kenneth Huston
825 NE Multnomah Ste. 1600,
Portland, Oregon 97232
RE: Cedar Creek Wind, LLC PacifiCorp Transmission
Dear Mr. Huston:
Ceda Creek Wind, LLC hereby voluntaly authories PacifiCoip's Tranmission business unit
to share Ceda Creek Wind, LLC's generator inteconnection inormation and generator meter
data wi1A market fuction employees of PacifiCoip, includig, but not liited to the those in the
Commercial and Trading group. Ced Creek Wind, LLC acknowledges that PacifiCorp did not
provide it any preferences, either operationa or rate-related in exchange for this volunta
consent.
Sincerely,
~OM~ ?t
Dana C. Zentz, P.E.
Vice President
Sumit Power Group, Inc.lCeda Creek Wind, LLC
[phone] (Offce)
[phone] (Mobile)
Cedar Creek Wind, LLC
701 Winslow Way E., Suite B
Bainbridge Island, WA 98110
1
206-780-3551
fa: 206-780-3571
CONFIDENTIAL
Cedar Creek Wind, LLC-North Point
ADDENDUML
. STATION LOAD, LOSSES, and NET OUTPUT
ALLOCATION ALGORITHM FOR THE
CEDAR CREEK WIND, LLC PROJECTS
Ths Addendum L is hereby made a par of, and clarifies certain terms in, the Power Purchase
Agreement between Cedar Creek Wind, LLC relating to NORTH POINT and PacifCorp
("Agreement") entered into the ~day of Jl41j. 2010. Capitaized terms not defined
herein shall have the meaning set fort in the Agreement. Cedar Creek Wind, LLC ("Seller")
and PacifiCorp are at times referred to herein individually as a "Party" or collectively as the
"Parties".
Ceda Creek Wind, LLC shall own a complex of five (namely, Coyote Hil, Five Pine, Steep
Ridge, North Point, and Rattlesnake Canyon) separate, Idao small wind Qualifyg Facilties
(each, a "Cedar Creek Project" and collectively, the "Cedar Creek Projects") that share
collector wires, a 34.5/345 kV substation (Cedar Creek Substation), and related equipment,
which connect the Qualifying Facilties to the Point of Delivery ("Shared Interconnection
Facilties").
PacifiCorp has agreed to buy (and Seller has agreed to sell), at the Point of Delivery, Seller's
total energy output net of: (1) Seller's station service; (2) energy provided by Seller to another
Cedar Creek Project for station service; (3) Seller's share of the transformation losses; and (4)
Seller's share of the line losses between Seller's Facilty and the Point of Delivery (together
Seller's "Station Auxiliary Load and Losses"). However, Seller and PacifiCorp agree that it is
impossible to measure Seller's Station Auxiliar Load and Losses separate and apar from the
Station Auxilar Load and Losses of the other Cedar Creek Projects. Therefore, in order to
implement an objective, practicable, and equitable process by which PacifiCorp may quantify
energy delivered by Seller to the Point of Delivery (net of its Station Auxiliar Load and
Losses), the Paries do agree as follows:
A. Billig Formulae. PacifiCorp shall determine Seller's Net Output in kWh for puroses of
the Agreement using the method specified below.
1. Definitions
NR¡
NRT
PALLT
= the nameplate rating (ala Facilty Capacity Rating) of Cedar Creek Project i
the sum of all the nameplate ratings of Cedar Creek Projects (i = 1 to 5).
the accumulated purchased energy from Utility Supplier, as deterined at the Point
of Delivery, to supply the net tota station auxilar load and losses for the Shared
Interconnection Facilties for Cedar Creek Projects i = 1 to 5 whenever such total
load and losses exceeds total generation output.
= the allocated share of P ALLT for Project i as determed by multiplying P ALLT by
NR¡ and dividing by NRT.
PALLj
L-1
Cedar Creek Wind, LLe-North Point
OP¡ = for a 'given integration interval, the metered output energy of Cedar Creek Project i,
as determined by PacifiCorp's meter at the point where Cedar Creek Project i
connects to the Shaed Interconnection Facilties. For any integration interval
durng which any energy is delivered to a Project from the Shared Interconnection
Facilities, such delivered energy is accumulate in a separate meter register and
does not decrement the register used to meaure accumulated OP¡. Therefore OP¡ is
by definition always greater than or equal to zero, and in the event the meter records
OP¡ less than zero, OP¡ shall be deemed to equal zero.
OPT the sum of all OP¡ (i = 1 to 5).
NOT = for a given integration interval, the tota energy delivered to the Point of Delivery
(345 kV bus at Goshen Substation). NOT shall be as measur~d at PacifiCorp's
meter near the Point of Delivery (kWh, in 10-minute interals), adjusted for any
transformation losses between the meter and the Point of Delivery. For any
integration interval durng which any energy is delivered to the Point of Delivery
from PacifCorp's system, such delivered energy is accumulated in a separate meter
register of the PacifiCorp meter and does not decrement the register used to
measure accumulated Net Output energy. Therefore NOT is by definition always
greater than or equal to zero and in the event the meter records NOT less than zero,
NOT shall be deemed to equal zero.
NO¡ = the net energy sold to PacifiCorp by Cedar Creek Project i during the integration
interval.
SALLT = the tota of all station auxilar load and losses for the Shared Interconnection
Facilties for Cedar Creek Projects (i = 1 to 5) when NOT is positive.
SALL¡ = the allocated share for Ceda Creek Project i of SALLr.
2. Calculations
Calculations shall be reconciled and setted monthy. Calculations shall be based upon raw data
gathered from specified meters using a metering integration interval of 5, 10, or 15 minutes at
PacifiCorp's election to match the metering instalation PacifiCorp specified ("integration
interval"). Calculations shall be rounded to the nearest kilowatt-hour in the final step.
raJ. When Total Generation Outut ..= Station Auxiary Load and Losses
When, for any integration interval, the tota of all OP¡ Project output amounts of energy among
all Cedar Creek Projects (OPT) is less than or equa to the tota station auxilar load and losses
for the Shared Interconnection Facilties, the meters at the Point of Delivery will accumulate the
Utilty Supplier's delivery of purchased energy, P ALLT, to supply such net tota load and losses
in a meter register that is separate from that which accumulates NOT and NOT shall equal zero or
if negative, be deemed to equal zero. The "Utilty Supplier" shall be the utilty providing retail
electrc servce at the Facilty (Rocky Mountain Power). PacifiCorp shall have no obligation to
serve any of the Cedar Creek Projects' retal electric needs absent a separate wrtten agreement
with PacifiCorp and then only with the permission of Seller's Utilty Supplier. None of the costs
associated with provision of retal electric service to Seller shall be borne by PacifiCorp.
L-2
Cedar Creek Wind, LLC-North Point
(b). When Total Generation Output ~ Station Auxüiary Load and Losses
When, for any integration interval, the tota generation of energy among all Cedar Creek Projects
is greater than the total station auxiliar load and losses for the Shared Interconnection Facilties,
the meters at the Point of Delivery will accumulate in a separate register PacifiCorp's receipt of
the total combined energy from all the Projects (NOT). The difference between OPT and NOT for
that interval (SALLT) is allocated to each Cedar Creek Project in proportion to its generation
output (OP¡) in the same integration interval to determine NO¡ by the formulae:
Let SALLT = ( OPT - NOT) and
SALL¡ = (SALLT) * (OP¡ / OPT)
The Net Output energy sold by each Project i is then determned as:
NOi = (OP¡ - SALL¡) and substituting for SALL¡ ;
NO¡ = NOT * (OP¡ / OPT)
B. Limitation of PacifiCorp Purchase Liabilty. PacifiCorp's total purchase obligation to the
Cedar Creek Projects shall at no time exceed total energy delivered by the Cedar Creek Projects
to the Point of Delivery. Therefore, in the event the sum of the Net Output energy (calculated
according to the preceding formulae) for all the Cedar Creek Projects is greater than NOT, then
PacifiCorp shall reduce calculated Net Output energy from each Cedar Creek Project, pro rata
each Cedar Creek Project's share of the OPT, such that the total energy purchased from all the
Cedar Creek Projects at the Point of Delivery by PacifiCorp equals NOT.
C. PacifiCorp Right to Offset. In the event PacifiCorp determines it has underpaid one or
more Ceda Creek Projects (due to metering error or otherwse) and, as a result of underpaying
one or more Cedar Creek Projects, has overpaid Seller, PacifiCorp may adjust Seller's future
payment(s) accordingly in order to recapture any overpayment received by Seller in a reasonable
time.
D. Condition Subsequent. This Addendum L was negotiated jointly among the Cedar Creek
Projects and PacifiCorp and is intended by all of the Cedar Creek Projects and PacifiCorp to be
one of five identical bilateral agreements, each between PacifiCorp and a Cedar Creek Project,
but each related to the other. Therefore, in the event one or more Cedar Creek Projects does not
agree to be bound by the terms and conditions set fort in ths Addendum L, PacifiCorp may,
upon thirt days written notice, cancel all Addendum L agreements. In the event PacifiCorp
cancels this Addendum L in accordance with ths Section D, PacifiCorp may satisfy its
obligation to pay Seller by depositing when due, with an escrow agent chosen by the Cedar
Creek Projects, the tota payment due to all Cedar Creek Projects under their respective Power
Purchase Agreements, less offsets (if any) calculated based upon NOT and the Contract Price.
(END)
L-3