20190821Application.pdf

ROCKY MOUNTAIN
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REC E IVE D
?fi19 AUG 2l At{ 9: 29
1407 W. North Temple, Suite 310
Salt Lake City, Utah 841 16
August 21,2019 i IiJr?€LoCdBhlSu,**
OVERNIGHT DELIVERY
Diane Hanian
Commission Secretary
Idaho Public Utilities Commission
472 W. Washington
Boise,lD 83702
RE: CASE NO. PAC-E-19-11
IN THE MATTER OF THE APPLICATION FOR APPROVAL OF THE ASSET SALE
BETWEEN ROCKY MOUNTAIN POWER AND IDAHO POWER
Attention: Diane Hanian
Commission Secretary
Please find enclosed for filing an original and seven (7) copies of Rocky Mountain Power's
Application in the above-referenced matter.
Informal inquiries may be directed to Ted Weston, Idaho Regulatory Manager at (801) 220-
2963.
very yours,
"^*D
Vice President, Regulation
CC: Julia Hilton, Idaho Power Company
Brian Fritz, PacifiCorp
Thomas Woodworth, Pacifi Corp
Daniel E. Solander (ISB # 8931)
Rocky Mountain Power
1407 W. North Temple, Suite 320
Salt Lake City, Utah 84116
Telephone: (80 I ) 220-4014
Email : daniel. [e-mail]
Attorneyfor Roclqt Mountain Power
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE )
APPLTCATTON FOR APPROVAL OF )
THE ASSET SALE BETWEEN ROCKY )
MOUNTATN POWER AND IDAHO )POWER )
CASE NO. PAC.8.19.11
APPLICATION OF
ROCKY MOUNTAIN POWER
PacifiCorp, doing business as Rocky Mountain Power, (the "Compffiy"), pursuant to
Idaho Code $ 61-328, hereby applies to the Idaho Public Utilities Commission,
("Commission"), for approval of the asset sale, ("Agreement"), between PacifiCorp and Idaho
Power Company together, (the "Parties"). This Agreement provides for Idaho Power to
purchase from PacifiCorp 3.6 percent undivided ownership interest in one additional mile of
the American Falls to Wheelon 138 kilovolt ("kV") transmission line, portions of which are
already jointly owned by the Parties. In support of this Application, Rocky Mountain Power
states as follows:
l. PacifiCorp, an Oregon Corporation, whose address is 1407 West North Temple,
Suite 320 Salt Lake City, Utah 84116, is authorized to do and is doing business in the state of
Idaho under the name Rocky Mountain Power. The Company provides retail electric service
to approximately 82,000 customers in the state and is subject to the jurisdiction of the
Commission. The Company's retail certificated service territory encompasses portions of
APPLICATION OF
ROCKY MOUNTAIN POWER
Page I
Fremont, Madison, Teton, Clark, Jefferson, Lemhi, Oneida, Bannock, Franklin, Caribou,
Butte, Bingham, Bear Lake and Bonneville counties. Rocky Mountain Power is a public utility
in the state pursuant to Idaho Code $ 6l-129, and is a transmission provider which owns and
operates facilities for the transmission of electricity in Idaho, Utah, Wyoming, Oregon,
Washington, and Califomia.
2. Idaho Power is a public utility in Idaho pursuant to Idaho Code $ 6l-129, and
is a transmission provider which owns and operates facilities for the transmission of electricity
in Idaho and Oregon. Idaho Power currently owns 3.6 percent undivided ownership interest in
twenty-nine contiguous miles of the American Falls to Wheelon 138 kV line, beginning from
American Falls substation and extending southeast into Arbon Valley, (the "Line"), pursuant
to a Joint Purchase and Sale Agreement, ("JPSA"), approved by the Commissionl.
I. BACKGROUND
3. On October 24,2014,the Parties entered into the JPSA, pursuant to which Idaho
Power acquired from PacifiCorp 3.6 percent undivided ownership interest in the Line,
beginning from American Falls substation and extending southeast into Arbon Valley.
4. Idaho Power plans to construct a 138 kV substation in the Arbon Valley area,
connected to the Line, at a point located approximately one mile beyond the point where Idaho
Power's existing ownership interest in the Line ceases.
5. The Parties currently jointly own, as tenants in common, the Line, subject to
the terms and conditions of the Joint Ownership and Operating Agreement, ("JOOA").
PacifiCorp operates the Line pursuant to the terms and conditions of the JOOA.
I Case No. PAC-E-14-1 1, Order No. 333 13.
APPLICATION OF
ROCKY MOUNTAIN POWER
Page2
6. Idaho Power desires to acquire from PacifiCorp 3.6 percent undivided
ownership interest in one additional mile of the American Falls to Wheelon 138 kV
transmission line beginning 29 line miles from American Falls substation at Latitude
42.467942, Longitude -112.573621 and ending at structure number 451, two structures south
of Church Rd in Power county, at Latitude 42.452821, Longitude -112.569982, in order to
have thirty miles of contiguous ownership between American Falls and the Arbon Valley (the
"Acquired Assets").
7. Consistent with the JPSA and subject to the terms and conditions of the JOOA,
PacifiCorp and Idaho Power have executed a bill of sale, subject to approval from the
Commission, for the sale of the Acquired Assets at PacifiCorp's net book value, which will
result in a payment by Idaho Power to PacifiCorp of $3,389.75.
II. REOUEST FOR APPROVAL
8. PacifiCorp and Idaho Power hereby jointly petition the Commission for
approval of the Bill of Sale, provided as an attachment to this Application, for the Acquired
Assets.
III. COMMUNICATION
9. Communications regarding this Application should be addressed to:
If to Roclry Mountain Power:
Ted Weston
Daniel E. Solander
1407 W. North Temple, Suite 330
Salt Lake City, Utah 84116
Telephone: [phone]
Fax: [phone]
Email : ted.weston@oacifi corp.com
daniel.solander@nacifi corp.com
APPLICATION OF
ROCKY MOI.]NTAIN POWER
Page 3
If to Idaho Power:
Julia Hilton
1221 West Idaho St.
Boise,Idaho 83702
Email : j [e-mail]
In addition, the Company respectfully requests that all data requests regarding this matter be
addressed to one or more of the following:
IV. MODIFIED PROCEDURE
10. The Parties believe that a hearing is not necessary to consider the issues
presented herein and respectfully requests that this Application be processed under Modified
Procedure; i.e., by written submissions rather than by hearing, RP 201. If, however, the
Commission determines that a technical hearing is required, the Parties stand ready to prepare
and present testimony in such hearing.
V. CONCLUSION
WHEREFORE, PacifiCorp and Idaho Power respectfully request that the Commission
issue a final order: 1) authorizingthat this matter be processed under Modified Procedure; 2)
approving the asset sale; and 3) authorizing the transfer ofthe Acquired Assets from PacifiCorp
to Idaho Power.
By e-mail (prefened)
By regular mail
APPLICATION OF
ROCKY MOI.INTAIN POWER
datarequest@pacificorp. com
Data Request Response Center
PacifiCorp
825 NE Multnomah, Suite 2000
Portland, OR 97232
Page 4
DATED this 2l't day of August, 2019
APPLICATION OF
ROCKY MOI.'NTAIN POWER
Respectfully submitted,
4'fiJ^By
Daniel E. Solander
Attorney for Rocky Mountain Power
Page 5
\
Attachment 1 - Bill of Sale
BILL OF SALE
This Bill of Sale (this "Bill_of Sale.") is entered into by and between PacifiCorp, an Oregon
corporation, with principle offices at 825 NE Multnomah Stree! Suite 1600, Portland Oregon
97232 ("PacifiCorp"), and Idaho Power Company, an Idaho corporation, with principal offices at
l22l West Idaho Street, Boise, Idaho 83702 ("Idaho--Powef") as of this day of
, 2019 (the "Execution Date"). Idaho Power and PacifiCorp are sometimes
hereinafter referred to individually as a "Party," and collectively as the "Part!es."
WHEREAS, PacifiCorp is a transmission provider which owns and operates certain
facilities for the transmission of electric power and energy located in several states, including
Idaho; and
WHEREAS, Idaho Power is a transmission provider which owns and operates certain
facilities for the transmission of electric power and energy located in Idaho and Oregon; and
WHEREAS, the Parties previously entered into a Joint Purchase and Sale Agreement,
dated as of October 24,2014 (as amended, amended and restated or otherwise supplemented
through the Execution Date, the "IPSA"), pursuant to which Idaho Power acquired from
PacifiCorp a three and six tenths percentage (3.6%) undivided ownership interest in twenty-nine
(29) contiguous miles of the American Falls to Wheelon 138 kV line (the o'![ne"), beginning from
American Falls substation and extending southeast into Arbon Valley, with the intent to construct
a 138 kV class distribution substation; and
WHEREAS, the Parties now jointly own, as tenants in common, the Line, subject to the
terms and conditions ofthe Joint Ownership and Operating Agreement dated October 24,2014 (as
amended and restated through the Execution Date, the "JOOA") between Idaho Power and
PacifiCorp; and
WHEREAS, PacifiCorp operates the Line pursuant to the terms and conditions of the
JOOA; and
WHEREAS, Idaho Power plans to construct a 138 kV class distribution substation in the
Arbon Valley area, connected to the Line, at a point located approximately one mile beyond the
point where Idaho Power's existing ownership interest in the Line ceases; and
WHEREAS, Idaho Power desires to acquire from PacifiCorp a three and six tenths
percentage (3.6%) undivided ownership interest (the "Idaho Power Ownershio Percentage") in one
additional mile of the American Falls to Wheelon 138 kV transmission line beginning 29line miles
from American Falls substation at Latitude 42.467942, Longitude -112.573621 and ending at
structure number 451, two structures south of Church Rd in Power, County Idaho, at Latitude
42.452821, Longitude -112.569982 (the "Acquired Assets"), to have thirty (30) miles of
contiguous ownership between American Falls and the Arbon Valley; and
WHEREAS, consistent with the methodology of the JPSA and subject to the terms and
conditions of the JOOA, PacifiCorp desires to transfer to Idaho Power a three and six tenths
Bill of Sale Page I of13
percentage (3.6%) undivided ownership interest in the Acquired Asset at the PacifiCorp Net Book
Value, which will result in a payment by Idaho Power to PacifiCorp of $3,389.75 (the "Eu[cha5e
Price").
NOW, THEREFORE, in consideration ofthe mutual covenants, agreements, and benefits
hereinafter set forth, and for good and valuable consideration, the receipt and sufficiency of which
are hereby recognized, the Parties hereby mutually agree as follows:
1. Defined Terms and Other Definitional and Interpretive Matters.
a. JOOA Defined Terms. Unless otherwise provided herein, capitalizedterms
used but not defined in this Bill of Sale will have the meanings assigned to them in the JOOA.
b. JPSA Defined Terms. The following defined terms from the JPSA are
incorporated herein mutatis mutandis as if they had been fully set forth herein:
"Affiliate"
"Claims"
"Contract"
"Encumbrances"
"Environmental Claims"
"Environmental Laws"
"Environmental Permits"..GAAP"
"Good Utility Practice"
"Governmental Authorizations"
"Governmental Entity"
"Governmental Requirements"
"Hazardous Materials"
"Indemnified Party"
"Indemnifuing Party"
"Liability"
"Losses"
"Material Adverse Effect"
"PacifiCorp Net Book Value"
"Person"
"Release"
"Representatives"
c. Defined Terms. The following capitalized terms will have the meanings
assigned to them below or in this Bill of Sale.
Bill of Sale
..@,,,hasthemeaninggiventosuchterminthepreamble.
"@" has the meaning given to such term in Section 2(c).
Page 2 of 13
"Ei!!-o-[Sa!e,'has the meaning given to such term in the preamble
"Directional Capac ' has the meaning given to such term in
the JOOA.
"El&@,Ate." means the date on which all of the Required Regulatory
Approvals have been obtained by the Parties.
..@,meanS12:00:01a.m',PacifictimeontheEffectiveDate.
..@,,hasthemeaninggiventosuchterminthepreamble.
"I&ho&IEf" has the meaning given to such term in the preamble.
" " has the meaning given to such term
in the preamble.
"Idaho Power's Knowlek" means the actual, constructive or imputed
knowledge that the following individuals have or could reasonably be
expected to have after reasonable due inquiry: Jared Ellsworth.
6(JQOA" has the meaning given to such term in the recitals.
'(JPSA" has the meaning given to such term in the recitals.
"Know!e!lE" means Idaho Power's Knowledge
Knowledge, as the context requires.
or PacifiCorp's
66line" has the meaning given to such term in the preamble
"PacifiCorp" has the meaning given to such term in the preamble.
..@,,hasthemeaninggivento..PacifiCorpPermitted
Encumbrances" in the JPSA, which definition is incorporated herein mutatis
mutandis as if it had been fully set forth herein.
"PacifiCorp Exclude ' has the meaning given to such term in
Section 2(b).
" " has the meaning given to such term in
Section 2(d).
"PacifiCorp's Knowle@" means the actual, constructive or imputed
knowledge that the following individuals have or could reasonably be
expected to have after reasonable due inquiry: Brian Fritz.
Billof Sale Page 3 of 13
'(W-)) and "Parties" have the meanings given to such term in the preamble.
"fughase!1i6" has the meaning given to such term in the recitals
"Required Reeulato " means PacifiCorp's approval from the
Idaho Public Utilities Commission for the sale, assignment, conveyance,
transfer and delivery to Idaho Power of the Acquired Assets in accordance
with this Bill of Sale.
"@" has the meaning given to such term in the
JOOA.
d. Other Definitional and Interpretive Matters. Sections 1.2 and 1.3 of the JPSA
are incorporated herein mutatis mutandis as if they had been fully set forth
herein as Section 1(dXi) and Section 1(dXii), respectively.
2. Purchase and Sale of the Acquired Asset.
a. Purchase and Sale of Acquired Asset. Subject to receipt of the Required
Regulatory Approvals, PacifiCorp hereby sells, assigns, conveys, transfers, and
delivers to Idaho Power, and Idaho Power hereby purchases and accepts from
PacifiCorp, free and clear of all Encumbrances (other than Permitted
Encumbrances ), a three and six tenths percentage (3.6%) undivided ownership
interest in the Acquired Assets. The sale, assignment, conveyance, transfer and
delivery ofthe Acquired Assets pursuant hereto will result in Idaho Power being
allocated as of the Effective Date a Directional Capacity Allocation of 10 MW
north-to-south on the Line out of a Total Directional Capacity of 138 MW
north-to-south on the Line, and a Directional Capacity Allocation of 0 MW
south-to-north on the Line out of a Total Directional Capacity of 138 MW
south-to-north on the Line, subject in all respects to the terms and conditions of
the JOOA.
b. PacifiCorp Excluded Assets. The Acquired Assets do not include any property
or assets of PacifiCorp not described in the definition in the recitals and,
notwithstanding any provision to the contrary in this Bill of Sale, the Acquired
Assets do not include the PacifiCorp Excluded Assets which are defined in
Section 2.20) of the JPSA, which provisions are incorporated by reference
herein, mutatis mutandis, as ifthey had been fully set forth herein as this Section
2(.b\, and Idaho Power shall have no Liability with respect thereto.
c. Assumed Oblisations. Effective as of the Effective Time, Idaho Power shall
assume all Liabilities (other than the PacifiCorp Excluded Liabilities), solely
to the extent applicable to any period after the Effective Date, related to,
arising from, or associated with the Acquired Assets, to the extent of the
Bill of Sale Page 4 of 13
respective Idaho Power Ownership Percentage therein (collectively, the
"Assumed Obligations").
d. PacifiCorp Excluded Liabilities. PacifiCorp shall retain and remain fully
responsible for, and Idaho Power does not assume and shall have no
responsibility or Liability for, and will not be obligated to pay, perform, or
otherwise discharge any of the PacifiCorp Excluded Liabilities which are
defined in Section 2.4(b) of the JPSA, which provisions are incorporated by
reference herein, mutatis mutandis, as if they had been fully set forth herein as
this Section 2(d).
e. Tax Prorations. Sections 2.6(a). (c) and (d) ofthe JPSA are incorporated herein,
mutatis mutandis, as if they had been fully set forth herein as Sections 2(eXi),
2(SXii), and 2(eXiii), respectively.
3. Representations and Waranties.
a. Representations and Warranties of Both Parties. Each Party represents and
warrants to the other Party as of the Effective Date as follows:
It is a corporation duly formed, validly existing and in good standing
under the laws of the State of Idaho (in the case of Idaho Power) and
the State of Oregon (in the case of PacifiCorp).
It has all necessary corporate power and authority to execute and
deliver this Bill of Sale and to perform its obligations under this Bill
of Sale, and the execution and delivery of this Bill of Sale and the
performance by it of this Bill of Sale have been duly authorized by
all necessary corporate action on its part.
lll.Subject to the receipt of the applicable Required Regulatory
Approvals, the execution and delivery of this Bill of Sale by it and
the performance by it of this Bill of Sale, and the consummation of
the transactions contemplated hereby, do not and will not, with
respect to it: (A) violate its organizational documents; (B) violate any
Governmental Requirements applicable to it; or (C) result in a breach
of or constitute a default, or an event which, with the passage of time
or the giving of notice, or both, would become a default, under any
material Contract relating to the Acquired Assets to which it is a party
or by which the Acquired Assets may be bound.
IV This Bill of Sale has been duly and validly executed and delivered by
it and constitutes its legal, valid and binding obligation enforceable
against it in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency or other similar laws affecting
creditors' rights generally and by principles of equity regardless of
Page 5 of 13
l.
ll.
Bill of Sale
whether such principles are considered in a proceeding at law or in
equity.
Except for any applicable Required Regulatory Approvals, no
material consent or approval of, filing with or notice to, any
Governmental Entity or other Person by it is required in connection
with the due execution and delivery of, and, performance by it of its
obligations under, this Bill of Sale.
b. Representations and Warranties of PacifiCorp: PacifiCorp further represents
and warrants to Idaho Power as of the Effective Date as follows:
There are no material Liabilities related to the Acquired Assets,
whether or not required by GAAP to be disclosed in a balance sheet.
It does not have any obligations (absolute or contingent) related to
the Acquired Assets to provide funds on behalf of, or to guarantee
any debt, liability or obligation of, any Person; and
It has good and marketable title to the Acquired Assets and there exist
no Encumbrances (other than Permitted Encumbrances) applicable to
the Acquired Assets that would restrict the ownership, use or
operation of the Acquired Assets, as the Acquired Assets are
reasonably expected to be operated in accordance with the provisions
of the JOOA on the Effective Date.
iii. Environmental.
1) Except as to matters that would not reasonably be expected to
have a Material Adverse Effect on Idaho Power, with respect to
the Acquired Asset, (A) to its Knowledge, PacifiCorp is in
compliance with all applicable Environmental Laws, (B) to its
Knowledge, it possesses all Environmental Permits required
under Environmental Laws for the operation of the Acquired
Asset (as the Acquired Assets are reasonably expected to be
operated in accordance with the provisions of the JOOA on the
Closing Date) and is in compliance with such Environmental
Permits; and (C) PacifiCorp has received no written notice that
any Environmental Permit required under Environmental Laws
for the operation of the Acquired Asset is subject to termination,
modifi cation or revocation.
2) Except as to matters that would not reasonably be expected to
have a Material Adverse Effect on Idaho Power, to its
Knowledge, neither PacifiCorp nor any Affiliate of PacifiCorp
has received, within the five (5) years preceding the Effective
Date, any written notice, report, request for information or other
information regarding any actual or alleged violation of
Page 6 of 13
l.
ll.
Bill of Sale
Environmental Laws or any Liabilities or potential Liabilities,
including any investigatory, remedial, or corrective obligations,
relating to the operation of the Acquired Asset or the real
property upon which the Acquired Asset are located, arising
under or relating to Environmental Laws or regarding Hazardous
Materials.
3) Except as to matters that would not reasonably be expected to
have a Material Adverse Effect on Idaho Power, (A) to
PacifiCorp's Knowledge, PacifiCorp has not caused any
Release, and there is and has been no other Release from, in, on,
beneath, or affecting the Acquired Assets or the real property
upon which the Acquired Assets are located that could form a
basis for an Environmental Claim, and (B) within the five (5)
years preceding the Effective Date, to PacifiCorp's Knowledge,
PacifiCorp has not received written notice of any Environmental
Claims relating to the Acquired Assets or the real property upon
which the Acquired Assets are located that have not been fully
and finally resolved ffid, to its Knowledge, no such
Environmental Claims are pending or threatened against it.
4) Except as to matters that would not reasonably be expected to
have a Material Adverse Effect on Idaho Power, to PacifiCorp's
Knowledge, there are and have been no underground storage
tanks, and there are no asbestos-containing building materials or
poly-chlorinated biphenyls owned, leased, used, operated or
maintained by PacifiCorp or, to PacifiCorp's Knowledge,
otherwise located on the real property upon which the Acquired
Asset are located.
5) Except as to matters that would not reasonably be expected to
have a Material Adverse Effect on Idaho Power, to its
Knowledge, within the five (5) years preceding the Effective
Date, it has not assumed or retained, by contract or operation of
law, any obligation under any Environmental Law or concerning
any Hazardous Materials relating to the Acquired Assets or the
real property upon which the Acquired Assets are located.
iv. No broker, finder, or other Person is entitled to any brokerage fees,
commissions, or finder's fees for which Idaho Power could become
liable or obligated in connection with the transactions contemplated
hereby by reason of any action taken by PacifiCorp or its Affiliates.
v. It does not own, or directly license from a third party, any Intellectual
Property used in or necessary for the ownership, use and operation of
the Acquired Assets (as the Acquired Assets is reasonably expected to
Billof Sale Page 7 of 13
be operated in accordance with the provisions of the JOOA on the
Effective Date) in accordance with Good Utility Practice and
Governmental Requirements, that is not part of the Acquired Assets.
4. Indemnification
a. Survival of Representations. Warranties. Covenants and Agreements:
Notices of Claims. The representations, warranties, covenants and agreements of the Parties
contained in this Bill of Sale will survive for a period of one (l) year following the Effective Date,
except that (i) the representations and warranties in Sections 3(bXii), 3(bxiii), 3(bXv) will survive
for a period of two (2) years following the Effective Date, (ii) the covenants and agreements in
Section 2(d) will survive the Effective Date indefinitely, and (iii) any covenant or agreement that
is stated elsewhere in this Bill of Sale to survive for longer than one (1) year shall survive for such
longer period; provided that, any representation or warranty (and the indemnification obligations
of the Parties with respect thereto) that would otherwise terminate in accordance with this Section
4(a) will continue to survive if notice for indemnification shall have been timely given under this
Section 4 on or prior to such termination date, until the related claim for indemnification has been
satisfied or otherwise resolved as provided in this Section 4.Indemnification.
(i) Idaho Power. On the terms and subject to the conditions set forth in
this Bill of Sale, from and after the Effective Date, Idaho Power hereby agrees to indemnify,
defend, and hold harmless PacifiCorp and its Affiliates and Representatives from and against, and
shall reimburse PacifiCorp with respect to, all Losses, whether or not involving a third-party
Claim, resulting from or arising out of or in connection with:
(A) the breach in any material respect of any representation or
warranty made by Idaho Power in this Bill of Sale; or
(B) the breach in any material respect by Idaho Power of any
covenant or agreement contained in this Bill of Sale to be performed by Idaho Power.
(ii) PacifiCorp. On the terms and subject to the conditions set forth in
this Bill of Sale, from and afterthe Effective Date, PacifiCorp hereby agrees to indemnify, defend
and hold harmless Idaho Power and its Affiliates and Representatives from and against, and shall
reimburse Idaho Power with respect to, all Losses, whether or not involving a third-party Claim,
resulting from or arising out of or in connection with:
(A) the breach in any material respect of any representation or
warranty made by PacifiCorp in this Bill of Sale;
(B) the breach in any material respect by PacifiCorp of any
covenant or agreement contained in this Bill of Sale to be performed by PacifiCorp (other than with
respect to the PacifiCorp Excluded Liabilities); or
(C) the PacifiCorp Excluded Liabilities.
Bill of Sale
c. Limitations on Indemnification.
Page 8 of 13
(D A Party may assert a claim for indemnification pursuant to this
Section 4 to the extent the Indemnified Party gives a notice to the Indemnifuing Party specifuing
the factual basis of such claim in reasonable detail to the extent known to the notifring Party (i)
for claims pursuant to Section 4(bXiXA) or Section 4(bXiiXA), prior to the expiration of the
applicable time period set forth in Section 4(a): (ii) for claims pursuant to Section 4(bXiXB) or
Section 4(bXii)G), within one (1) year of the Closing Date; and (iii) for claims pursuant to Section
4(b)(iii)(C), at any time following the Closing. If any claim for indemnification is not made in
accordance with Section 4(fl and the foregoing sentence by a Party on or prior to the applicable
date set forth in Section 4(a) or this Section 4(c), the other Party's indemnification obligations with
respect thereto will be irrevocably and unconditionally released and waived.
(ii) Notwithstanding any provision to the contrary contained in this Bill
of Sale, neither Party shall have Liability to the other Party pursuant to Section 4 unless and until
the amount of such Losses, individually or in the aggregate, exceed five hundred thousand dollars
($500,000) and then, only for the Losses above that amount.
(iiD Notwithstanding anything to the contrary contained in this Bill of
Sale, the maximum amount of the indemnification obligation of Idaho Power under Section 4(bXi)
to PacifiCorp and its Affiliates and Representatives shall not exceed an amount equal to the
Purchase Price. Notwithstanding anything to the contrary contained in this Bill of Sale, the
maximum amount of the indemnification obligation of PacifiCorp under Section 4(bXii) to Idaho
Power and its Affiliates and Representatives shall not exceed an amount equal to the Purchase
Price.
(iv) The Parties acknowledge and agree that if any Parry has knowledge
of a material breach by the other Party of any representation or warranty or covenant or agreement
contained in this Bill of Sale because any Party is aware, to Idaho Power's Knowledge or to
PacifiCorp's Knowledge, respectively, of any such material breach by the other Party, such Party
shall be deemed to have waived such condition or breach (but then only to the extent the knowledge
acquired prior to the Effective Date) and such Party and its successors, assigns and Affiliates and
Representatives shall not be entitled to be indemnified pursuant to this Section 4 to sue for damages
or to assert any other right or remedy for any Losses reasonably relating to such breach prior to
execution of this Bill of Sale, notwithstanding anything to the contrary contained herein.
(v) Notwithstanding anything contained in this Bill of Sale to the
contrary, except for the representations and warranties contained in this Bill of Sale, neither Party
nor its Affiliates, Representatives or any other Person is making any other express or implied
representation or warranty with respect to the Acquired Assets, the Assumed Obligations or the
transactions contemplated hereby and each Party disclaims and negates, and expressly waives, any
other representations or warranties, express (whether made by the other Party or its Affiliates or
Representatives) or implied, at common law, by statute or otherwise relating to the Acquired Asset,
Assumed Obligations or the transactions contemplated hereby, INCLUDING THE IMPLIED
WARRANTY OF MERCHANTABILITY AND ANY IMPLIED WARRANTY OF FITNESS.
Any claims a Party may have pursuant to Sections 4(bXiXA) and aOXiiXA) for breach of
representation or warranty must be based solely on the representations and warranties of the other
Party set forth in this Bill of Sale. In furtherance of the foregoing, except for the representations
Bill of Sale Page 9 of 13
and warranties contained in this Bill of Sale, each Party acknowledges and agrees that neither the
other Party nor any of its Affiliates or Representatives will have or be subject to any liability to it
or any of its Affiliates or Representatives for, and each Party hereby disclaims all liability and
responsibility for, any representation, warranty, projection, forecast, statement, or information
made, communicated, or furnished (orally or in writing) to the other Party or any of the other
Party's Affiliates or Representatives. EACH PARTY HEREBY ACKNOWLEDGES THAT,
EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN SECTION 3, THE
ACQUIRED ASSET ARE BEING PURCHASED ON AN "AS IS, WHERE IS" BASIS.
(vi) Notwithstanding anything in this Sectign 4(c) to the contrary, except
as otherwise may be ordered by a court of competent jurisdiction, the Indemnified Party shall bear
its own costs, including counsel fees and expenses, incurred in connection with Claims against the
Indemnifuing Party hereunder that are not based upon Claims asserted by third parties.
d. Exclusive Remedies. Idaho Power and PacifiCorp acknowledge and agree
that, from and after the Effective Date, except in the case of fraud, the sole and exclusive remedy
for any breach or inaccuracy, or alleged breach or inaccuracy, ofany representation or warranty in
this Bill of Sale will be indemnification in accordance with this Section 4. In furtherance of the
foregoing, except to the extent provided under this Section 4, from and after the Effective Date,
Idaho Power and PacifiCorp hereby waive, to the fullest extent permitted by applicable
Govemmental Requirements, any and all other rights, claims, and causes of action (including
rights of contributions, if any) against the other Party that may be based upon, arise out of, or relate
to this Bill of Sale, or the negotiation, execution, or performance of this Bill of Sale (including any
tort or breach of contract claim or cause of action based upon, arising out of, or related to any
representation or warranty made in or in connection with this Bill of Sale or as an inducement to
enter into this Bill of Sale), known or unknown, foreseen or unforeseen, which exist or may arise
in the future, that it may have against the other arising under or based upon any Governmental
Requirement, common law, or otherwise; provided, ]roweve1, that such waiver does not include a
waiver of either Party's rights with respect to the Excluded Liabilities.
e. Additional Indemnification Provisions. The terms of JPSA Sections 6.5 , 6.6,6.7,6.8. 6.9,
6. 1 0 and 6. 1 1 are incorporated into and made part of this Bill of Sale, mutatis mutandis, as if they
had been fully set forth herein as Section 4(0, (g), (h), (i), O, (k) and (l), respectively.
5. Miscellaneous Provisions.
a. Entire Bill of Sale. This Bill of Sale constitutes the entire agreement of the
Parties with respect to its subject matter hereof and supersedes all prior communications, contracts
and agreements, both oral and written between them, with respect to the subject matter hereof;
provided that in no event shall this Bill of Sale affect, alter or amend the JPSA or JOOA.
b. Amendments and Waivers. This Bill of Sale may not be amended or
otherwise modified, and no rights may be waived, except by an instrument in writing signed by a
duly authorized representative of each of the Parties.
Bill of Sale Page l0 of13
c. Assignment. This Bill of Sale and all of the provisions hereof will be
binding upon and inure to the benefit of the Parties and their respective successors and permitted
assigns, but neither this Bill of Sale nor any of the rights, interests, or obligations hereunder may
be assigned by either Pa(ry, without the prior written consent of the other Party.
d.Y TRIAL W TO THE FULLEST EXTENT PERMITTED BY
LAW, EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, I.INDER OR IN CONNECTION WITH THIS BILL OF SALE. EACH PARTY
FURTHER WAIVES ANY RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY
TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A ruRY TRIAL
CANNOT BE OR HAS NOT BEEN WAIVED.
e. Expenses. Except as otherwise set forth in this Bill of Sale, each Party shall
bear its own expenses (including attorneys' fees) incurred in connection with the preparation,
negotiation, execution and performance of this Bill of Sale and the consummation of the
transactions contemplated hereby.
f. Further Assurances. PacifiCorp shall, from time to time after the date
hereof, at Idaho Power's request and expense, prepare, execute and deliver to Idaho Power such
other instruments of conveyance and transfer and take such other action as Idaho Power may
reasonably request in order to sell, transfer, convey, assign, and delivery and vest in Idaho Power,
its successors and assigns, title to and possession of the Acquired Assets free and clear of all
Encumbrances (except for Permitted Encumbrances) and to further effect the purposes of this Bill
of Sale.
g. No Waiver. It is understood and agreed that nothing in this Bill of Sale
shall constitute a waiver or release of any claims arising out any other contractual relationship
between PacifiCorp and Idaho Power.
h. No Third-Pa4v Beneficiar.v. Nothing in this Bill of Sale, express or implied,
is intended or shall be construed to confer upon, or give to, any person other than Idaho Power,
PacifiCorp and their successors and permitted assigns any remedy or claim under or by reason of
this Bill of Sale or any agreements, terms, covenants or conditions hereof and all the agreements,
terms, covenants and conditions contained in this Bill of Sale shall be for the sole and exclusive
benefit of Idaho Power, PacifiCorp and their successors and permitted assigns.
i. Binding Effect. This Bill of Sale and all of the provisions hereof shall be
binding upon and shall inure to the benefit of PacifiCorp, Idaho Power and their respective
successors and permitted assigns.
j. Governins Law. This Bill of Sale shall be governed by and construed in
accordance with the laws of the state of Idaho (regardless of the laws that might otherwise govern
under applicable principles of conflicts of law) as to all matters, including matters of validity,
construction, effect, performance and remedies.
Bill of Sale Page 1l of13
k. Severabilitv. Any term or provision of this Bill of Sale that is invalid or
unenforceable in any situation will not affect the validity or enforceability of the remaining terms
and provisions hereof or the validity or enforceability of the offending term or provisions in any
other situation or in any other jurisdiction.
l. Counterparts. This Bill of Sale may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this Bill of Sale and all of
which, when taken together, will be deemed to constitute one and the same agreement.
m. Incorporation of Recitals. The recitals to this Bill of Sale are incorporated
into and made apart ofthis Bill of Sale by this reference to the same extent as if these recitals were
set forth in full herein.
n. Notices. All notices, requests, demands and other communications under
this Bill of Sale shall be given in accordance with Section 19.1 of the JOOA and at the addresses
set forth therein.
[Signature Page Follows]
Bill of Sale Page 12 of13
IN WITNESSETH WHEREOF, the Parties hereto have caused their duly authorized
representative to execute this Bill of Sale as of the date and year first above written.
PACIFICORP
Name:
Title:
State of Oregon
County of
On this day of in the year of2019, personally appeared before
me personally known to me to be the person whose name is subscribed to the within
instrument, and acknowledged to me that he executed the same
Notary Public for Oregon
Residing
My commission expires on:_
IDAHO POWER COMPANY
Name
Title:
State of Idaho
County of
On this day of in the year of2019, personally appeared before
me personally known to me to be the person whose name is subscribed to the within
instrument, and acknowledged to me that he executed the same.
Notary Public for Idaho
Residing at
)
)
)
SS.
)
)
)
SS.
Bill of Sale
My commission expires on
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