20200609Application.pdf

Y ROCKY MOUNTAIN
FOWER
iqE C TIVED
?.3?0 JUI{ -9 PH lr: l9
,,.,',',1 iiiii#tii* i3 *, **
1407 W. North Temple, Suite 330
Salt Lake City, Utah 84116
June9,2020
VU ELECTRONIC FILING
Diane Hanian
Commission Secretary
Idaho Public Utilities Commission
ll3l W. ChindenBlvd
Building 8 Suite 20lA
Boise,lD 83714
Re CASE NO. PAC.E-2O.TO
IN TIIE MATTER OF TIIE APPLICATION FOR APPROVAL OF TIIE POWER
PURCHASE AGREEMENT BETWEEN PACIFICORP AI\D FALL RIVER
ELECTRIC COOPERATIYE, INC.
Dear Ms. Hanian:
Please find enclosed for filing 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 truly yours,
Joelle R.
Vice-President of Regulation
Enclosures
"^-.D
Adam Lowney (ISB#10456)
McDowell Rackner Gibson PC
419 SW llthAvenue, Suite 400
Portland, OR 97205
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
IN THE MATTER OF THE APPLICATION
FOR APPROVAL OT THE POWER
PURCHASE AGREEMENT BETWEEN
PACIFICORP AIID FALL RIVER
ELECTRIC COOPERATIYE, INC.
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
) CASE NO. PAC-E-20-10
)) APPLTCATTON OF
) ROCKY MOITNTATN POWER
)
Comes now, Rocky Mountain Power, a division of PacifiCorp, ("CompLny"), and hereby
respectfully requests, pursuant to RP 52 and the applicable provisions of the Public Utility
Regulatory Policies Act of 1978 ("PURPA"), that the Idaho Public Utilities Commission,
("Commission"), issue an order approving or rejecting the Power Purchase Agreement
("Agreement") between PacifiCorp and Fall River Electric Cooperative, Inc., ("Seller") dated
May 29,2020.\n support of thisApplication, Rocky Mountain Power states as follows:
L INTRODUCTION
l. Rocky Mountain Power provides electric service to retail customers in the states of
ldaho, Wyoming, and Utah. Rocky Mountain Power is a public utility in the state of Idaho and is
subject to the Commission's jurisdiction with respect to its prices and terms of electric service to
retail customers pursuant to Idaho Code 6l-129. Rocky Mountain Power provides retail electric
service to approximately 84,000 customers in the state of Idaho.
Page I
2. Seller owns, operates, and maintains a small hydro-electric power plant located in
Teton County, Idaho with a nameplate capacity rating of 7.45 megawatts (the "Facility"). Seller
operates the Facility as a Qualifting Facility ("QF") under the applicable provisions of PURPA.
3 . Sections 201 and, 2 10 of PURPA, and pertinent regulations of the Federal Energy
Regulatory Commission ("FERC") require that regulated electric utilities purchase electricity
produced by co-generators or small power producers that obtain QF status. The rate a QF receives
for the sale of its electricity is generally referred to as the avoided cost and must reflect the
incremental cost to an electric utility of electric energy or capacity or both, which, but for the
purchase from the QF, such utility would generate itself or purchase from another source. The
Commissionhas authorityunderPURPA, Sections 201 and2l0 and FERC regulations, 18 C.F.R.S
292,to set avoided costs, order electric utilities to enter into fixed-term obligations for the purchase
of electricity from QFs, and implement FERC rules.
4. On December 18, 2012, the Commission issued Order No. 32697, which
established parameters for published and negotiated avoided cost rate calculations. The
Commission further established and defined numerous contract terms and conditions for standard
purchase power agreements ("PPA") entered into between regulated utilities and QFs. On
January 2,2013, the Commission issued an Errata to Order No. 32697, which corrected published
avoided cost rates to include energy payments not discounted by transmission and line loss.
Subsequently the Commission issued reconsideration Orders Nos. 32737 and 32802 on
February 5, 2013 and May 5, 2013, respectively, which further clarified certain terms and
conditions of PPAs. The ESA contains published rates for projects of l0 average megawatts
("aMW") or less pursuant to Commission Order No. 34350. The Facility is an existing QF that is
seeking a replacement agreement. The replacement ESA contains capacity payments for the entire
Page2
termoftheAgreement, withno sufficiencyperiod. SeeOrderNo.32697 at2l-22,OrderNo. 32737
at 5, and Order No. 32871. Pursuant to the Commission's direction in its Reconsideration Order
No. 32737, the rates were calculated by Commission Staff for a QF in the non-seasonal hydro
category based on the surrogate avoided resource avoided cost methodology.
II. THE POWER PURCHASE AGREEMENT
5. The Seller's current PURPA contract was executed on December 4, 1984, with the
then current owner, Bonneville Pacific Corporation. The QF was previously known as CDM
Hydro, and is now called Felt Hydro. The current PURPA contract will expire at midnight on
March 31,2021. The total nameplate capacity of the facility is 7.45 MW.
6. The Seller has demonstrated to the Company's reasonable satisfaction that: (1) the
facility's net energy will equal the energy delivery schedules for the full term of this Agreement;
and (2) the likelihood that the facility, under average design conditions, will generate at no more
than 2.5 aMW in any calendar month. The facility's estimated net output is approximately
21,098 megawatt-hours per year.
7. The PPA submitted herewith, as Attachment 1, complies with the Commission's
orders.
8. Under the terms of the Agreement, the Seller elected to contract with the Company
for a twenty-year ternl starting from the approval of the Agreement by the Commission. Except
as otherwise indicated, the Company will pay the Seller the price set forth in Exhibit K to the
Agreement.
9. Paragraph 2.1 of the Agreement provides that it will not become effective until the
Commission has approved it and determined that the prices paid for energy and capacity are just
and reasonable, in the public interest, and that costs incurred by the Company for purchasing
Page 3
energy and capacity are legitimate expenses, all of which the Commission will allow the Company
to recover in Idaho rates in the event otherjurisdictions deny recovery of their proportionate share
ofsaid expenses.
III. COMMT]NICATIONS
10. Communications regarding this filing should be addressed to:
Ted Weston
Idaho Regulatory Affairs Manager
Rocky Mountain Power
1407 West North Temple, Suite 330
salt Lake city, utah 84116
Telephone: [phone]
Email: ted.weston@pacifi corp. com
IdahoDockets@nacifi corp. com
JacobA. McDermott
Senior Counsel
Rocky Mountain Power
1407 West North Temple, Suite 320
salt Lake ciry, utah 84116
Telephone: [phone]
Email: Jacob.mcdermott@pacifi coro.com
Adam Lowney (ISB#1 0456)
McDowell Rackner Gibson PC
419 SW llthAvenue, Suite 400
Portland, OR 97205
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
In addition, Rocky Mountain Power requests that all data requests regarding this
Application be sent in MicrosoftWord to the following:
By email (preferred): datarequest(@nacificorp.com
Page 4
By regular mail:Data Request Response Center
PacifiCorp
825 Multromah, Suite 2000
Portland, Oregon 97232
Informal questions may be directed to Ted Weston, Idaho Regulatory Affairs Manager at
(80r) 220-2e63.
IV. MODIFIED PROCEDURE
11. The Company believes 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, pursuant to RP 201.
V. REOUEST FOR RELIEF
WHEREFORE, Rocky Mountain Power respectfully requests that the Commission:
(1) Issue an order authorizing that this matter be processed by Modified Procedure;
(2) Approve or reject the power purchase agreement between the Fall River Electric
Cooperative, Inc. and the Company without change or condition; and
(3) Declare that the avoided cost prices set forth in the Agreement are just and
reasonable, in the public interest, and that the Company's incurrence of such costs are legitimate
expenses, all of which the Commission will allow Rocky Mountain Power to recover in rates in
Idaho in the event otherjurisdictions deny recovery oftheir proportionate share ofsaid expenses.
DATED this 9ft day of June 2020
Page 5
Respectfully zubmitted
ROCKYMOI]NTAIN POWER
Adam Lowney (ISB# I 0[56)
McDowell Rackner Gibson PC
419 SW llthAvenue, Suite400
Portland OR 97205
Telephone: [phone]
Fax [phone]
Email: [e-mail]
Attorneyfor Roc,ky Mountain Power
Page 6
Attachment I
Idaho Existing Felt Hydro - Executed 5.29.2020
POWER PURCHASE AGREEMENT
BETWEEN
rALL RIVER RT]RAL ELECTRIC COOPERATIVE,INC.
AI\D
PACIT'ICORP
SECTION 2 TERM; MILESTONES...........10
4.6 PacifiCorp as Merchant .................... 15
4.7 Ownership of Environmental Attributes. .............. .................... 15
4.8 Purchase and Sale of Capacity Rights. ................. 15
SECTION 3 REPRESENTATIONS AI\D WARRANTIES ...............11
3.1 Mutual Representations and Warranties.. ............ 11
3.2 Seller's Further Representations, Warranties and Covenants... .................... 12
3.3 No Other Representations or Warranties............. ..................... 13
3.4 Continuing Nature of Representations and Warrantiesl Notice. ................... 13
SECTION 4 DELIVERIES OF NET OUTPUT
4.2 Designation as Network Resource..... .................... 14
43 No Sales to Third Parties......... ......... 14
TABLE OF CONTENTS
SECTTON I DEFINITIONS, RULES OF INTERPRETATION................ ............ 1
SECTION 5 CONTRACT PRICE; COSTS .---.-.............17
5.1 Contract Price; Includes Capacity Rights. ...........L7
13
-lt-
5.5 Costs of Ownership and Operation.... ................... 18
5.6 Rates Not Subject to Review. ...........18
SECTION 6 OPERATION AI\D CONTROL ....................18
6.2 Standard of tr'acility Operation.19
20
20
20
2t
2t
22
22
22
23
24
24
6.4 Coordination with System.
6.6 Scheduling.
6.7 tr'orecasting.
6.10 TransmissionProviderConsent.
6.11 DedicatedCommunicationCircuit....
6.12
6.13
6.14
Reports and Records
tr'inancial and Accounting Information. ...............
Access Rights.
SECTION 7 QUALTFYTNG FACTLTTY STATUS...2S
SECTION 8 SECURITY AND CREDIT SUPPORT ...25
9.1 Installation of Metering Equipment... ...................25
9.3 Inspection, Testing, Repair and Replacement of Meters
-lll-
25
9.5 WREGIS Metering.25
SECTION 10 BILLTNGS, COMPUTATIONS AI\D PAYMENTS................. .....26
f03 Interest on Late Payments. ..........26
10.4 Disputed Amounts.26
SECTION 11 DEFAULTS AI\D REMEDIES
Defaults.26
Remedies for tr'ailure to Deliver/Receive. ........... ...................28
26
11.1
tt.2
tt.4
11.5
11.6
tt.7
11.8
Termination Damages..
Duty/Right to Mitigate.
29
30
Cumulative Remedies. .................30
SECTION 12 INDEMNIFICATION AND LIABILITY................30
SECTION 13 INSURANCE .............31
SECTION 14 FORCE MAJEURE ....................32
l4.l Definition of f,'orce Majeure.
14.2 Suspension of Performance.
14.3 tr'orce Majeure Does Not Affect Other Obligations............
32
32
32
33
-lv-
14.5 Right to Terminate....33
SECTION 15 SEYERAL OBLIGATIONS 33
33
33
33
SECTION 16 CHOICE OF LAW
SECTION 17 PARTIAL INVALIDITY
SECTION 18 NON.WATVER......
SECTION 19 GOVERNMENTAL JURISDICTION AND AUTHORIZATIONS ..............34
SECTION 20 SUCCESSORS AI\D ASSIGNS........... ........34
20.1 Restriction on Assignments.34
20.2 Permitted Assignments .................:14
SECTION 21 ENTIRE AGREEMENT 34
22.1 Addresses and Delivery Methods....... ...............35
35
35
35
36
24.3 Choice of Forum.
24.4 WAIVER OF JURY TRIAL.
-v-
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit H
Exhibit I
Exhibit J
Exhibit K
Exhibit L
EXHIBITS
Estimated Monthly Net Output
Description of Seller's Facility
Seller' s Interconnection Facilities
Required Facility Documents
Leases
Reserved
Form of Parent Guaranty
Seller Authorization to Release Generation Data to PacifiCorp
Required Insurance
NERC Event Tlpes
Rocky Mountain Power Schedule No. 38
Party Notice Information
-vl-
POWER PURCHASE AGREEMENT
THIS POWER PURCHASE AGREEMENT (this "Agreement"), is entered into between
Fall River Rural Electric Cooperative, Inc., an Idaho Corporation (the "Seller") and PacifiCorp,
an Oregon corporation ("PacifiCorp"). Seller and PacifiCorp are sometimes referred to in this
Agreement collectively as the "Parties" and individually as a"Party."
A. Seller owns, operates and maintains an existing hydro-powered generating facility
for the generation of electric energy located in Teton County, Idaho, with a nameplate capacity
rating of 7.45 MW (the "Facility") known as the Felt Project;
B. Seller operates the Facility as a Qualifying Facility ("QF") and at the time of this
Agreement is selling the net output of the Facility to PacifiCorp under a Power Purchase
Agreement dated December 4, 1984 (the "Original PPA"), which Parties agree will expire by its
terms on April 1,2021;
C. Seller desires to sell, and PacifiCorp agrees to purchase, the Net Output delivered
by the Facility after April 1,2021in accordance with the terms and conditions of this
Agreement; and
D. The rates, terms and conditions in this Agreement are in accordance with the
rates, terms, and conditions approved by the Commission for purchases from QFs; and
E. PacifiCorp intends to renew the designation of the Facility as a Network Resource
for the purposes of serving network load under the provisions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises below
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties mutually agree as follows:
SECTION 1
DEFINITIONS, RI'LES OF INTERPRETATION
l.l Defined Terms. Unless otherwise required by the context in which any term
appears, initially capitalized terms used in this Agreement have the following meanings:
"Abandonment" means (a) the relinquishment of all possession and control of the
Facility by Seller, but only if such relinquishment is not caused by or attributable to an Event of
Default by PacifiCorp, a request by PacifiCorp, or an event of Force Majeure.
"Adjusted Scheduled Monthly Energy Delivery" shall have the meaning set forth
in Section 4.1010.
"Affiliate" means, with respect to any entity, each entity that directly or indirectly
controls, is controlled by, or is under corlmon control with, such designated entity, with
"control" meaning the possession, directly or indirectly, of the power to direct management and
policies, whether through the ownership of voting securities or by contract or otherwise.
1
Notwithstanding the foregoing, with respect to PacifiCorp, "Affiliate" only includes Berkshire
Hathaway Energy Company and its direct, wholly owned subsidiaries.
"Agreement" is defined in the Recitals.
"AC" means alternating current.
"As-built Supplement" is a supplement to Exhibit B of this Agreement, as
provided in Section 6.1, which provides the final "as-built" description of the Facility, including
the Point of Delivery.
"Business Day" means any day on which banks in Portland, Oregon, are not
authorized or required by Requirements of Law to be closed.
"Capacity Rights" means any current or future defined characteristic, certificate,
tag, credit, ancillary service or attribute thereof, or accounting construct, including any of the
same counted towards any current or future resource adequacy or reserye requirements,
associated with the electric generation capability and capacity of the Facility or the Facility's
capability and ability to produce energy. Capacity Rights are measured in MW and do not
include any Tax Credits or other tax incentives existing now or in the future associated with the
construction, ownership or operation of the Facility.
"Commission" means the Idaho Public Utilites Commission.
"Conditional DNR Notice" is defined in Section 4.2
"Conforming Energy" means all Net Energy exceptNon-Conforming Energy
subject to any adjustments to the Energy Delivery Schedule in Section 4.9 and 4.10.
"Conforming Energy Purchase Price" means the applicable price for Conforming
Energy and capacity (if any), specified in Section 5. I .
"Contract lnterest Rate" means the lesser of (a) the highest rate permitted under
Requirements of Law or (b) 200 basis points per annum plus the rate per annum equal to the
publicly announced prime rate or reference rate for commercial loans to large businesses in
effect from time to time quoted by Citibank, N.A. as its "prime rate." If a Citibank, N.A. prime
rate is not available, the applicable prime rate will be the announced prime rate or reference rate
for commercial loans in effect from time to time quoted by a bank with $10 billion or more in
assets in New York City, N.Y., selected by the Party to whom interest is being paid.
"Contract Price" means the applicable price, expressed in $/MWh, for Net Output
and Capacity Rights stated in Section 5.1.1
I Not" to Form - The Contract Price in this form of agreement assumes that the QF Seller requests a fixed price
determined at the time of contract execution. This form of agreement will be revised if the QF Seller requests that
pricing be determined at the time of delivery of Net Output.
2
"Contract Year" means any consecutive twelve (12) month period during the
Term, commencing at 00:00 hours on April l, 202lor any of its anniversaries and ending at
24:00 hours on the last day of such twelve (12) month period.
"Credit Requirements" means a senior, unsecured long term debt rating (or
corporate rating if such debt rating is unavailable) of (a) 'BBB+' or greater from S&P, or (b)
'Baal' or greater form Moody's; provided that if such ratings are split, the lower of the two
ratings must be at least 'BBB+' or 'Baal' from S&P or Moody's, and provided further that if (a)
or O) is not available, an equivalent rating as determined by PacifiCorp through an internal
process review and utilizing a proprietary credit scoring model developed in conjunction with a
third party.
"Default Security" is an amount equal to fifty dollars ($50) per kW of the final
Nameplate Capacity Rating.
"Effective Date" is defined in Section 2.1.
"Electric System Authority" means each of NERC, WECC, WREGIS, an RTO, a
regional or sub-regional reliability council or authority, and any other similar council,
corporation, orgarization or body of recognized standing with respect to the operations of the
electric system in the WECC region, as such are applicable to the Seller or PacifiCorp.
"Energy Delivery Schedule" is defined in Section 4.9 of this Agreement.
"Energy Imbalance Market" means generation facilities electrically located within
PacifiCorp's balancing authority areas that are, from time to time, bid in to or otherwise subject
to dispatch instructions issued or originating from the Market Operator.
"Environmental Attributes" means any and all claims, credits, benefits, emissions
reductions, offsets, and allowances associated with the avoidance of the emission of any gas,
chemical, or other substance to the air, soil or water. Environmental Attributes include: (a) any
avoided emissions of pollutants to the air, soil, or water such as sulfur oxides, nitrogen oxides,
carbon monoxide, and other pollutants; and (b) any avoided emissions of carbon dioxide,
methane, and other greenhouse gases that have been determined by any Governmental Authority
to contribute to the actual or potential threat of altering the Earth's climate by trapping heat in
the atnosphere. Environmental Attributes do not include (i) Tax Credits or other tax incentives
existing now or in the future associated with the construction, ownership or operation of the
Facility, (ii) matters designated by PacifiCorp as sources of liability, or (iii) adverse wildlife or
environmental impacts.
o'Environmental Contamination" means the introduction or presence of Hazardous
Materials at such levels, quantities 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
purposes contemplated by this Agreement.
"Event of Default" is defined in Section I I .l
J
"Expected Monthly Net Output" means the estimated monthly Net Output as
determined in Exhibit A.
"Expected Net Output" means 21,098 MWh of Net Output in the first full
Contract Year. Seller estimates that the Net Output will be delivered during each Contract Year
according to the Expected Monthly Net Output provided in Exhibit A, as reduced each Contract
Year, as applicable, by the annual degradation factor.
"Facility" is defined in the Recitals and is more fully described in attached
Exhibit B and includes all equipment, devices, associated appurtenances owned, controlled,
operated and managed by Seller in connection with, or to facilitate, the production, generation,
transmission, delivery, or furnishing of electric energy by Seller to PacifiCorp and required to
interconnect with the System.
"FERC" means the Federal Energy Regulatory Commission.
"Firm Market Price Index" means the hourly value calculated based on the
average prices reported by the Intercontinental Exchange, Inc. ("ICE") Day-Ahead PV On-Peak
Index and the ICE Day-Ahead PV Off-Peak Index (each an "ICE Index") for a given day,
weighted by the count of hours for each ICE lndex on such day, multiplied by the hourly CAISO
day-ahead market locational marginal price for the "PACW. DGAP_PACW-APND" location,
and divided by the average of the same CAISO index over all hours in such day. If applicable,
the resulting value will be reduced by the integration costs specified in the most recent
Commission order as applicable to the Facility. If any index is not available for a given period,
the Firm Market Price Index will be the average price derived from days in which all published
data is available, for the same number of days immediately preceding and immediately
succeeding the period in which an index was not available, regardless of which days of the week
are used for this purpose. If the Firm Market Price Index or its replacement or any component of
that index or its replacement ceases to be published or available, or useful for its intended
purpose under this Agreement, during the Term, the Parties must agree upon a replacement Firm
Market Price Index or component that, after any necessary adjustments, provides the most
reasonable substitute quotation of the hourly price of electricity for the applicable periods.
"Force Majeure" is defined in Section l4.l .
"Forced Outage" means NERC Event Types Ul,Uz and U3, as provided in
attached Exhibit J, and specifically excludes any Maintenance Outage or Planned Outage.
"Generation Interconnection Agreement" means the generator interconnection
agreement entered into separately between Seller and Interconnection Provider concerning the
Interconnection Facilities.
"Governmental Authority" means any supranational, federal, state or other
political subdivision thereof, having jurisdiction over Seller, PacifiCorp or this Agreement,
including any municipality, township or county, and any entity or body exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining to government,
including any corporation or other entity owned or controlled by any of the foregoing.
4
"Hazardous Materials" means any waste or other substance that is listed, defined,
designated or classified as or determined to be hazardous under or pursuant to any environmental
law or regulation.
"Inadvertent Energy" means: (l) energy delivered in excess of the Maximum
Monthly Purchase Obligation; and (2) energy delivered to the Point of Delivery at a rate
exceeding the Maximum Delivery Rate. Inadvertent Energy is not included inNet Output.
"[ndemnified Party" is defined in Section 6.2.3(b).
"lnitial Energy Delivery Schedule" shall have the meaning set forth in Section
4.3.
"Interconnection Facilities" means all the facilities installed, or to be installed, for
the purpose of interconnecting the Facility to the System, including electrical transmission lines,
upgrades, transformers and associated equipment, substations, relay and switching equipment,
and safety equipment.
"Interconnection Provider" means Pacifi Corp Transmission.
6(KWr" means kilowaff.
"LendeC'means an entity lending money or extending credit (including any
financing lease, monetization of tax benefits, transaction with a tax equity investor, back
leverage financing or credit derivative arrangement) to Seller or Seller's Affiliates (a) for the
construction, term or permanent financing or refinancing of the Facility, (b) for working capital
or other ordinary business requirements for the Facility (including for the maintenance, repair,
replacement or improvement of the Facility), (c) for any development financing, bridge
financing, credit support, and related credit enhancement or interest rate, currency, weather, or
Environmental Attributes in connection with the development, construction or operation of the
Facility, or (d) for the purchase of the Facility and related rights from Seller.
"Letter of Credit" means an irrevocable standby letter of credit in a form
reasonably acceptable to PacifiCorp, naming PacifiCorp as the party entitled to demand payment
and present draw requests that:
(l) is issued by a Qualifying Institution;
(2) by its terms, permits PacifiCorp to draw up to the face amount thereof for
the purpose of paying any and all amounts owing by Seller under this Agreement;
(3) permits PacifiCorp to draw the entire amount available if such letter of
credit is not renewed or replaced at least thirty (30) Business Days prior to its stated expiration
date;
(4) permits PacifiCorp to draw the entire amount available if such letter of
credit is not increased or replaced as and when provided in Section 8;
5
(5) is transferable by PacifiCorp to any party to which PacifiCorp may assign
this Agreement; and
(6) remains in effect for at least ninety (90) days after the end of the Term.
"Liabilities" is defined in Section l2.l.l.
'oMaintenance Outage" means NERC Event Type MO, as provided in attached
Exhibit J, and includes any outage involving ten percent (10%) of the Facility's Net Output that
is not a Forced Outage or a Planned Outage.
"Market Operator" means the California Independent System Operator or any
other entity performing the market operator function for the Energy Imbalance Market or any
organized day-ahead or intra-hour market.
"Maximum Delivery Rate" means the maximum hourly rate of delivery of Net
Output in MWh from the Facility to the Point of Delivery, calculated on the basis of the Net
Output delivered in an hour accruing at al ayerage rate equivalent to the actual Nameplate
Capacity Rating, as stated in Exhibit A.
"Maximum Monthly Purchase Obligation" means the maximum amount of
energy PacifiCorp is obligated to purchase under this Agreement in a calendar month. [n
accordance with Commission orders, the Maximum Monthly Purchase Obligation for a given
month, in kWh, shall not exceed 10,000 kW multiplied by the total number of hours in that
month and prorated for any partial month.
"Moody's" means Moody's Investor Services, Inc.
"Mountain Prevailing Time" or "MPT" means Mountain Standard Time or
Mountain Daylight Time, as applicable in Utah on the day in question.
'(MWr" means megawatt.
rrMlVhrr means megawatt-hour
'Nameplate Capacity Rating" means the maximum installed instantaneous
generation capacity of the completed Facility, expressed in IvtW (AC), when operated in
compliance with the Generation Interconnection Agreement and consistent with the
recommended power factor and operating parameters provided by the manufacturer of the
generator. The Nameplate Capacity Rating of the Facility is 7.45 MW.
"Net Energy" means the energy component, in kWh, of Net Output. Net Energy does not
include Inadvertent Energy.
"NERC" means the North American Electric Reliability Corporation.
"Net Output" means all energy and capacity produced by the Facility, less station
use and less transformation and transmission losses and other adjustments (e.g., Seller's load
6
other than station use), if any. For purposes of calculating payment under this Agreement, Net
Output of energy will be the amount of energy flowing through the Point of Delivery.
"Network Resource" is defined in the Tariff.
"Non-Conforming Energy" means for any calendar month subject to any
adjustments to the Energy Delivery Schedule in Section 4.4: (l) that portion, if any, of Net
Energy delivered subsequently to the initial I l0% of the Scheduled Monthly Energy Delivery for
that calendar month; or (2) all Net Energy delivered when Net Energy delivered is less thang}o/o
of the Scheduled Monthly Energy Delivery for that calendar month; and (3) all Net Output
produced by the Facility prior to the Commercial Operation Date.
"Non-Conforming Energy Purchase Price" means the applicable price for Non-
Conforming Energy and capacity, specified in Section 5.1.
"Off-Peak Hours" means all hours ending 0l:00:00 through 06:00:00 and hours
ending 23:00:00 through 24:00:00, MPT, Monday through Saturday and hours ending 01:00:00
through 24:00:00, MPT, on Sundays and NERC designated holidays.
"On-Peak Hours" means all hours ending 07:00:00 through 22:00:00 MMPT,
Monday through Saturday, excluding NERC designated holidays.
"Output" means all energy produced by the Facility.
"PacifiCorp" is defined in the Recitals, and explicitly excludes PacifiCorp
Transmission.
"PacifiCorp Indemnitees" is defined in Section 12.l.l.
"PacifiCorp Representatives" is defined in Section 6.14.
"PacifiCorp Transmission" means PacifiCorp, an Oregon corporation, acting in its
interconnection or transmission function capacity.
"PacifiCorp's Cost to Cover" means the positive difference, if any, between (a)
the time weighted average of the Firm Market Price lndex for each day for which the
determination is being made, and (b) the Contract Price in effect on such days, stated as an
amount per MWh.
"Party" and "Parties" are defined in the Recitals.
"Permits" means the permits, licenses, approvals, certificates, entitlements and
other authorizations issued by Govemmental Authorities required for the construction,
ownership or operation of the Facility or occupancy of the Premises.
"Planned Outage" means NERC Event Type PO, as provided in attached Exhibit
J, and specifically excludes any Maintenance Outage or Forced Outage.
7
"Point of Delivery" means the point of interconnection between the Facility and
the System, as specified in the Generation lnterconnection Agreement and as furfier described in
Exhibit C.
"Premises" means the real property on which the Facility is or will be located, as
more fully described on Exhibit B.
"Prudent Electrical Practices" means any of the practices, methods and acts
engaged in or approved by a significant portion of the independent electric power generation
industry for facilities of similar size and characteristics 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 reliability, safety and expedition.
"PURPA" means the Public Utility Regulatory Policies Act of 1978.
'oQF" means "Qualifying Facility," as that term is defined in the FERC
regulations (codified at l8 CFR Part292) in effect on the Effective Date.
"Qualifying Curtailment" means, to the extent not caused by Seller's negligent,
reckless, or willful actions, a period in a given calendar month during which delivery of Net
Output is curtailed or intemrpted pursuant to Section 4.5, and only applicable to adjustment of
the Energy Delivery Schedule as described in Section 4.10.
"Qualifying Institution" means a United States commercial bank or trust company
organized under the laws of the United States of America or a political subdivision thereof
having assets of at least $10,000,000,000 (net of reserves) and a credit rating on its long-term
senior unsecured debt of at least 'A' from S&P and'A2' from Moody's.
"Qualifying Outage" is defined in Section 4.10.
"Required Facility Documents" means the Permits and other authorizations, rights
and agreements necessary for construction, ownership, operation, and maintenance of the
Facility, and to deliver the Net Output to PacifiCorp in accordance with this Agreement and
Requirements of Law, including those listed in Exhibit D.
"Requirements of Law" means any applicable federal, state and local law, statute,
regulation, rule, action, order, code or ordinance enacted, adopted, issued or promulgated by any
Governmental Authority (including those pertaining to electrical, building, zoning,
environmental and wildlife protection, and occupational safety and health).
"RTO" means any entity (including an independent system operator) that
becomes responsible as system operator for, or directs the operation of, the System.
"S&P" means Standard & Poor's Rating Group (a division of S&P Global,Inc.).
"schedule 38" means Rocky Mountain Power Idaho Schedule No. 38 as attached
in Exhibit K, and as approved by the Commission on the Effective Date.
8
"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.
"Subsequent Energy Delivery Schedule" is defined in Section 4.3.2 of this
Agreement.
"Seller" is defined in the Recitals
"Seller Indemnitees" is defined in Section 12.1.2
"Seller's Cost to Cover" means the positive difference, if any, between (a) the
Contract Price per MWh, and (b) the net proceeds per MWh actually realizedby Seller from the
sale to a third party of Net Output not purchased by PacifiCorp as required under this
Agreement.
"System" means the electric transmission substation and transmission or
distribution facilities owned, operated or maintained by Transmission Provider, which includes
the circuit reinforcements, extensions, and associated terminal facility reinforcements or
additions required to interconnect the Facility, all as provided in the Generation lnterconnection
Agreement.
"Tariff'means PacifiCorp's Open Access Transmission Tariffon file with FERC,
as such tariffis revised from time to time.
"Tax Credits" means any state, local and federal production and investment tax
credits, tax deductions, or other tax benefits specific to the production of renewable energy or
investments in renewable energy facilities.
"Term" is defined in Section 2.1.
"Termination Damages" is defined in Section I1.5.
"Transmission Provider" means PacifiCorp Transmission, including PacifiCorp's
business unit responsible for the safe and reliable operation of PacifiCorp's balancing authority
areas.
"WECC" means the Western Electricity Coordinating Council
1.2 Rules of Intemretation.
1.2.1 General. Unless otherwise required by the context in which any term
appears, (a) the singular includes the plural and vice versa; (b) references to "Articles,"
"Sections," "Schedules," "Appendices" or "Exhibits" are to articles, sections, schedules,
appendices or exhibits of this Agreement; (c) all references to a particular entity or an electricity
market price index include a reference to such entity's or index's successors; (d) "herein,"o'hereof' and "hereunder" refer to this Agreement as a whole; (e) all accounting terms not
specifically defined in this Agreement must be construed in accordance with generally accepted
accounting principles, consistently applied; (0 the masculine includes the feminine and neuter
and vice versa; (g) "including" means "including, without limitation" or "including, but not
9
limited to"; (h) all references to a particular law or statute mean that law or statute as amended
from time to time; (i) all references to energy or capacity are to be interpreted as utilizing
alternating current, unless expressly stated otherwise; and O the word "or" is not necessarily
exclusive. Reference to "days" means calendar days, unless expressly stated otherwise in this
Agreement.
1.2.2 Terms Not to be Construed For or Aeainst Either Party. Each term in this
Agreement must be construed according to its fair meaning and not strictly for or against either
Party.
1.2.3 Headines. The headings used for the sections and articles of this
Agreement are for convenience and reference purposes only and in no way affect the meaning or
interpretation of the provisions of this Agreement.
1.2.4 Intemretation with FERC Orders. Each Party conducts its operations in a
manner intended to comply with FERC Order No. 717, Standards of Conduct for Transmission
Providers, and its companion orders, requiring the separation of its tansmission and merchant
functions. Moreover, the Parties acknowledge that Interconnection Provider's transmission
function offers transmission service on its system in a manner intended to comply with FERC
policies and requirements relating to the provision of open-access transmission service.
(a) The Parties acknowledge and agree that the Generation
lnterconnection Agreement is a separate and free standing contract and that the terms of this
Agreement are not binding upon the lnterconnection Provider.
(b) Notwithstanding any other provision in this Agreement, nothing in
the Generation lnterconnection Agreement, nor any other agteement between Seller on the one
hand and Transmission Provider or Interconnection Provider on the other hand, nor any alleged
event of default under the Generation lnterconnection Agreement, will alter or modify the
Parties' rights, duties, and obligations in this Agreement. This Agreement will not be construed
to create any rights between Seller and the Interconnection Provider or between Seller and the
Transmission Provider.
(c) Seller acknowledges that, for purposes of this Agreement, the
lnterconnection Provider and Transmission Provider are deemed separate entities and separate
contracting parties from PacifiCorp. Seller acknowledges that PacifiCorp, acting in its merchant
capacity function as purchaser in this Agreement, has no responsibility for or control over
lnterconnection Provider or Transmission Provider, and is not liable for any breach of agreement
or duty by lnterconnection Provider or Transmission Provider.
SECTION 2
TERM; MILESTONES
2.1 Term. This Agreement will become effective after the occulrence of all of the
following events: (l) execution by both Parties; (2) approval by the Commission; provided,
however, this Agreement shall not become effective until the Commission has determined,
l0
pursuant 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 incurred 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 ldaho in the event other jurisdictions
deny recovery of their proportionate share of said expenses. Once effective, the terms, conditions
and rates contained in this Agreernent will apply to the sale of energy and capacity from the
Facility upon expiration or mutual termination of the Original PPA; and 3) Seller has executed
and is performing in accordance with a new Generation Interconnection Agreement with the
lnterconnection Provider.. Unless terminated earlier as provided herein, once effective, this
Agreement remains in effect until March 31,2041(the "Term").
2.2 Milestones. Time is of the essence in the performance of this Agreement, and
Seller's delivery of Net Output is critically important. Therefore, Seller must achieve the
milestones provided in (a) through (e) below at the times so indicated, and each is a material
obligation under this Agreement.
(a) Seller must provide a fully executed and effective Generation
Interconnection Agreement to PacifiCorp before April 1,2021.
(b) If and to the extent required by this Agreement, on or before April
I,2021, Seller must post the Default Security.
(c) Seller must provide PacifiCorp with documentation showing that
Seller has obtained retail electric service for the Facility before April 1, 2021.
SECTION 3
REPRESENTATIONS AI\D WARRANTIES
3.1
the other that
Mutual Representations and Warranties. Each Party represents and warrants to
3.1.1 Oreanization. It is duly organized and validly existing under the laws of
the State of its organization.
3.1.2 Authoritv. It has the requisite power and authority to enter this Agreement
and to perform according to its terms.
3. 1 .3 Comorate Actions. It has taken all corporate actions required to be taken
by it to authorize the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated.
3.1.4 No Confravention. The execution and delivery of this Agreement does not
contravene any provision of, or constitute a default under, any indenture, mortgage, security
instrument or undertaking, or other material agreement to which it is a party or by which it is
bound, or any valid order of any court, or any regulatory agency or other Governmental
Authority having authority to which it is subject.
l1
3.1.5 Valid and Enforceable Aereement. This Agreement is a valid and legally
binding obligation of it, enforceable in accordance with its terms, except as enforceability may
be limited by general principles of equity or bankruptcy, insolvency, bank moratorium or similar
laws affecting creditors' rights generally and laws restricting the availability of equitable
remedies.
3.2 Seller's Further Representations. Warranties and Covenants. Seller further
represents, warrants, and covenants to PacifiCorp that:
3.2.1 Authority. Seller (a) has all required regulatory authority to make
wholesale sales from the Facility; (b) has the power and authority to own and operate the Facility
and be present upon the Prernises for the Term; and (c) is duly qualified and in good standing
under the laws of each jurisdiction where its ownership, lease or operation of property, or the
conduct of its business requires such qualification.
3.2.2 No Contravention. The execution, delivery, performance and observance
by Seller of its obligations in this Agreement do not and will not:
(a) contravene, conflict with or violate any provision of any material
Requirements of Law presently in effect having applicability to either Seller or any owner of
Seller;
(b) require the consent or approval of or material filing or registration
with any Governmental Authority or other person other than consents and approvals which are
(i) provided in Exhibit D or (ii) required in connection with the construction or operation of the
Facility and expected to be obtained in due course; or
(c) result in a breach of or constitute a default under any provision of
(i) any security issued by Seller or any owner of Seller, the effect of which would materially and
adversely affect Seller's performance of, or ability to perform, its obligations in this Agreement,
or (ii) any material agreement, instrument or undertaking to which either Seller or any owner or
other Affiliate of Seller is a party or by which the property of either Seller or any owner or other
Affiliate of Seller is bound, the effect of which would materially and adversely affect Seller's
performance of, or ability to perform, its obligations in this Agreement.
3.2.3 Required Facilitv Documents. All Required Facility Documents are listed
on Exhibit D. Pursuant to the Required Facility Documents, Seller holds as of the Effective Date
(or such other later date as may be specified under Requirements of Law), and will maintain for
the Term all Required Facility Documents. The anticipated use of the Facility complies with all
applicable restrictive covenants affecting the Premises. Following the the Effective Date, Seller
must promptly notifu PacifiCorp of any additional Required Facility Documents. If reasonably
requested by PacifiCorp, Seller must provide copies of any or all Required Facility Documents.
3.2.4 Delivery of Enerey. Before April l, 2021, Seller must hold all rights
sufficient to enable Seller to deliver Net Output at the Nameplate Capacity Rating from the
Facility to the Point of Delivery pursuant to this Agreement throughout the Term.
t2
3.2.5 Control of Premises. Seller has all legal rights necessary for the Seller to
enter upon and occupy the Premises for the purpose of constructing, operating and maintaining
the Facility for the Term. All leases of real property required for the operation of the Facility or
the performance of any obligations of Seller in this Agreement are identified in Exhibit E. Seller
must maintain all leases or other land grants necessary for the construction, operation and
maintenance of the Facility. Upon request by PacifiCorp, Seller must provide copies of the
memoranda of lease recorded in connection with the development of the Facility.
3.2.6 Litieation. No litigation, arbitration, investigation or other proceeding is
pending or, to the best of Seller's knowledge, threatened against Seller or any Affiliate of Seller,
with respect to this Agreement, the Facility, or the transactions contemplated in this Agreement.
No other investigation or proceeding is pending or threatened against Seller or any Affiliate of
Seller, the effect of which would materially and adversely affect Seller's performance of its
obligations in this Agreement.
3.2.7 Elisible Contract Participant. Seller, and any guarantor of its obligations
under this Agreement, is an "eligible contract participant" as that term is defined in the United
States Commodity Exchange Act.
3.2.8 Undertakine of Aereement Professionals and Experts. Seller has engaged
those professional or other experts it believes necessary to understand its rights and obligations
pursuant to this Agreement. In entering into this Agreement and agreeing to undertake the
obligations within, Seller has investigated and determined that it is capable of performing and
has not relied upon the advice, experience or expertise of PacifiCorp in connection with the
transactions contemplated by this Agreement.
3.2.9 Verification. All information relating to the Facility, its operation and
output provided to PacifiCorp and contained in this Agreement has been verified by Seller and is
true and accurate.
3.3 No Other Representations or Warranties. Each Party acknowledges that it has
entered into this Agreement in reliance upon only the representations and warranties provided in
this Agreement, and that no other representations or warranties have been made by the other
Party with respect to the subject matter.
3.4 Continuing Nature of Representations and Warranties: Notice. The
representations and warranties provided in this Section 3 are made as of the Effective Date and
are deemed repeated as of April 1,2021. If at any time during the Term, either Party obtains
actual knowledge of any event or information that would have caused any of the representations
and warranties in this Agreement to be materially untrue or misleading at the time given, such
Party must provide the other Party with written notice of the event or information, the
representations and warranties affected, and the action, if any, which such Party intends to take
to make the representations and warranties true and correct. The notice required by this section
must be given as soon as practicable after the occurrence of each such event.
SECTION 4
13
DELIVERIES OF NET OUTPUT
4.1 Purchase and Sale. Subject to the provisions of this Agreement, Seller must sell
and make available to PacifiCorp, and PacifiCorp must purchase and receive the entire Net
Output from the Facility at the Point of Delivery. PacifiCorp is under no obligation to make any
purchase other than Net Output and is not obligated to purchase, receive or pay for Net Output
that is not delivered to the Point of Delivery.
4.2 Desisnation as Network Resource. Within five (5) Business Days following the
Effective Date, PacifiCorp will submit an application to the Transmission Provider requesting
designation of the Facility as a Network Resource, thereby authorizing transmission service
under PacifiCorp's Network lntegration Transmission Service Agreement with the Transmission
Provider. If PacifiCorp is notified in writing by the Transmission Provider that designation of
the Facility as a Network Resource requires the construction of transmission system network
upgrades or otherwise requires potential redispatch of other Network Resources of PacifiCorp
(the "Conditional DNR Notice"), the Parties will promptly meet to determine how such
conditions to the Facility's Network Resource designation may impact the Contract Price or
other terms and conditions of this PPA. I[ within thirty (30) days following the date of
PacifiCorp's receipt of the Conditional DNR Notice, the Parties are unable to reach agreement
on any necessary adjustments to ensure the Contract Price reflects an "avoided cost" price as
determined by the Commission and PURPA, PacifiCorp will submit the matter to the
Commission for a determination on what adjustments, if any, are appropriate as a result of the
Conditional DNR Notice. PacifiCorp will submit such filing with the Commission within sixty
(60) days following the date of PacifiCorp's receipt of the Conditional DNR Notice. In the event
of a Conditional DNR Notice, Seller will have the right to terminate the Agreement upon written
notice to PacifiCorp and such termination by Seller will not be an Event of Default and no
damages or other liabilities under this Agreement will be owed by one Party to the other P*y;
!, however, that Seller's right to terminate the Agreement under this Section 4.2will
cease following (a) any amendment of this Agreement associated with addressing matters
covered under this Section 4.2 or (b) PacifiCorp incurring costs at Seller's request in furtherance
of addressing matters covered under this Section 4.2.
4.3 No Sales to Third Parties. During the Term, Seller will not sell any Net Output,
energy, or Capacity Rights from the Facility to any party other than PacifiCorp; ry(!91|
however, that this restriction does not apply during periods when PacifiCorp is in default under
this Agreement because it has failed to accept or purchase Net Output as required under this
Agreement.
4.4 Title and Risk of Loss of Net Output. Seller must deliver Net Output to the Point
of Delivery and Capacity Rights free and clear of all liens, claims and encumbrances. Title to
and risk of loss of all Net Output transfers from Seller to PacifiCorp upon its delivery to
PacifiCorp at the Point of Delivery. Seller is in exclusive control of, and responsible for, any
damage or injury caused by, all Output up to and at the Point of Delivery. PacifiCorp is in
exclusive control of, and responsible for, any damages or injury caused by, Net Output after the
Point of Delivery.
4.5 Curtailment. PacifiCorp is not be obligated to purchase, receive, pay for, or pay
any damages associated with, Net Output not delivered to the System or Point of Delivery due to
t4
any of the following: (a) the interconnection between the Facility and the System is
disconnected, suspended or intemrpted, in whole or in part, consistent with the terms of the
Generation lnterconnection Agreement; (b) the Market Operator or Transmission Provider
directs a general curtailment, reduction, or redispatch of generation in the area (which would
include the Net OutpuQ for any reason (excluding curtailment of purchases for general economic
reasons unilaterally directed by the Market Operator or PacifiCorp acting solely in its merchant
function capaciry), even if and no matter how such curtailment or redispatch directive is carried
out by PacifiCorp, which may fulfiII such directive by acting in its sole discretion; or if
PacifiCorp curtails or otherwise reduces the Net Output in any way in order to meet its
obligations to the Market Operator or Transmission Provider to operate within system
limitations; (c) the Facility's Output is not received because the Facility is not fully integrated or
synchronized with the System; or (d) an event of Force Majeure prevents either Party from
delivering or receiving Net Output. Seller will reasonably determine the MWh amount of Net
Output curtailed under this Section 4.5 based on the amount of energy that could have been
generated at the Facility and delivered to PacifiCorp as Net Output but that was not generated
and delivered because of the curtailment. Seller must promptly provide PacifiCorp with access
to such information and data as PacifiCorp may reasonably require to confirm to its reasonable
satisfaction the amount of energy that was not generated or delivered because of a curtailment
described in this Section 4.5.
4.6 PacifiCom as Merchant. Seller acknowledges that PacifiCorp, acting in its
merchant capacity function as purchaser under this Agreement, has no responsibility for or
control over PacifiCorp Transmission, in either its capacity as Transmission Provider or
Interconnection Provider.
4.7 Ownership of Environmental Attributes. Seller maintains ownership of any
commercially transferrable or tradeable renewable energy credits associated with the Output.
4.8 Purchase and Sale of Capacity Riehts. Seller ffansfers to PacifiCorp, and
PacifiCorp accepts from Seller, any right, title, and interest that Seller may have in and to
Capacity Rights, if any, existing during the Term. Seller represents that it has not sold, and
covenants that during the Term it will not sell or attempt to sell to any other person or entity the
Capacity Rights, if any. During the Term, Seller must not report to any person or entity that the
Capacity Rights, if any, belong to anyone other than PacifiCorp. At PacifiCorp's request, Seller
must execute such documents and instruments as may be reasonably required to effect
recognition and transfer of the Net Output or any Capacity Rights to PacifiCorp.
4.9 Enersy Delivery Schedule. Seller shall prepare and provide to PacifiCorp, on an
ongoing basis, a written schedule ofNet Energy expected to be delivered by the Facility
("Energy Delivery Schedule") , in accordance with the following:
From the Effective Date until revised consistent with this Section 4.9, Seller predicts that the
Facility will produce and deliver the following monthly amounts ("Initial Energy Delivery
Schedule"):
l5
Month
January
February
March
April
May
June
July
August
September
October
November
December
1,330,000
1,228,000
1,625,000
l,g60,000
2,240,000
2,560,000
2,240,000
1,745,000
1,625,000
1,650,000
1,585,000
1,410,000
Enerw Deliverv ftWh)
4.9.1 Seller may revise the Initial Energy Delivery Schedule any time prior to
April l, 2021 by giving written notice by electronic transmission pursuant to Section 22.1 .
4.9.2 On an after April I,2021, the Seller may revise any future monthly
Energy Delivery Schedule with additional forward estimates (which shall be the "Subsequent
Energy Delivery Schedule") by providing written notice no later than 5 PM Mountain Standard
time on the 20th day of the month that is prior to the month to be revised. If the 20th day of the
month falls on a weekend or holiday, then written notice must be received on the last business
day prior to the 20th day of the month . For example, if the Seller would like to revise the Energy
Delivery Schedule for October, Seller must submit a revised schedule no later than September
20th or the last business day prior to September 20th.
a.)This written notice must be provided to PacifiCorp in accordance with
Section 22.1, including the electronic notice provisions therein, or by other
means of electronic notice as agreed to by both parties.
b.) Failure to provide timely written notice of changes to the Initial Energy
Deliviery Schedule or, if applicable, the most recent Subsequent Energy
Delivery Schedule will be deemed to be an election of no change from the
most recently provided Energy Delivery Schedule.
4.10 Adjustnent of Enerey Delivery Schedule. ln the event of (i) a Qualifying
Curtailment, or (ii) a Forced Outage lasting at least 48 hours and for which Seller provides
16
notice to PacifiCorp pursuant to Section 6.5.3 ("Qualifiying Outage"), the Scheduled Monthly
Energy Delivery will be adjasted, pro rata, ("Adjusted Scheduled Monthly Energy Delivery")
for that month to determine Conforming Energy and Non-Conforming Energy. The Adjusted
Scheduled Monthly Energy Delivery shall be calculated as follows:
s M frtu11-51v7 &,,*DRm-DRq
I:Tt DRm
Where:
SMED Scheduled Monthly Energy Delivery for the month in which the
Qualiffing Curtailment(s) and/or Qualifying Outage(s) occur
Adjusted Scheduled Monthly Energy Delivery for the month in
which the Qualiffing Curtailment(s) and/or Qualiffing Outage(s)
occur
the duration in hours of the Qualifying Curtailment or Qualiffing
Outage (i)
total hours in the month in which Qualifying Curtailment(s) and/or
Qualifying Outage(s) occurs
the Maximum Curtailed Facility Delivery Rate during the
Qualiffing Curtailment or Quali$ing Outage (i)
the Maximum Facility Delivery Rate
a Qualifying Curtailment or Qualifying Outage
the number of Qualifying Curtailments and/or Qualiffing
Outage(s) in the month
SMED(adj)
Where Qualiffing Curtailments and Qualifying Outages overlap, each distinct period of overlap
shall be calculated as a separate Qualifying Curtailment or Qualifuing Outage such that no hour
within a calendar month may figure into more than one Qualifying Curtailment or Qualiffing
Outage.
SECTION 5
CONTRACT PRICE; COSTS
5.1 Contract Price: Includes Capacity Riehts. PacifiCorp will pay Seller Conforming
Energy or Non-Conforming Energy Purchase Prices stated in Exhibit K and as described in this
Section 5.1 for all deliveries of Net Output adjusted for the month and On-Peak Hours or Off-
Peak Hours and Capacity Rights, up to the Maximum Delivery Rate.
5.2 Costs and Charees. Seller is responsible for paying or satisffing when due all
costs or charges imposed in connection with the scheduling and delivery of Net Output up to and
at the Point of Delivery, including hansmission costs, transmission line losses, and any operation
and maintenance charges imposed by Interconnection Provider for the lnterconnection Facilities.
Except as provided in Section 4.2,PacifrCorp is responsible for all costs or charges, if any,
t7
4 n
)El
Hci
Ht
DRci
DRm
I
n
imposed in connection with the delivery of Net Output at and from the Point of Delivery.
Without limiting the generality of the foregoing, Seller, in accordance with the Generation
lnterconnection Agreement, is responsible for all costs associated with the modifications to
lnterconnection Facilities or the System (including System upgrades) caused by or related to the
Facility.
5.3 Station Service. Seller is responsible for arranging and obtaining, at its sole risk
and expense, station service required for the Facility that is not provided by the Facility itself.
5.4 Taxes. Seller must pay, or reimburse PacifiCorp for, all existing and any new
sales, use, excise, severance, ad valorem, and any other similar taxes, imposed or levied by any
Governmental Authority on the Net Output or Capacity Rights up to and including the Point of
Delivery, regardless of whether such taxes are imposed on PacifiCorp or Seller under
Requirements of Law. PacifiCorp must pay, or reimburse Seller for, all such taxes imposed or
levied by any Governmental Authority on the Net Output or Capacity Rights beyond the Point of
Delivery, regardless of whether such taxes are imposed on PacifiCorp or Seller under
Requirements of Law. The Contract Price will not be adjusted on the basis of any action of any
Govemmental Authority with respect to changes to or revocations of sales and use tax benefits,
rebates, exception or give back. [n the event any taxes are imposed on a Party for which the
other Party is responsible in this Agreement, the Party on which the taxes are imposed must
promptly provide the other Party notice and such other information as such Party reasonably
requests with respect to any such taxes.
5.5 Costs of Ownership and Operation. Without limiting the generality of any other
provision of this Agreement and subject to Section 5.4, Seller is solely responsible for paying
when due (a) all costs of owning and operating the Facility in compliance with existing and
future Requirements of Law and the terms and conditions of this Agreement, and (b) all taxes
and charges (however characterized) now existing or later imposed on or with respect to the
Facility and its operation, including any tax or charge (however characteized) payable by a
generator of Environmental Attributes.
5.6 Rates Not Subject to Review. The rates for service specified in this Agreement
will remain in effect until expiration of the Term, and are not subject to change for any reason,
including regulatory review, absent agreement of the Parties. Neither Party will petition FERC
to amend such prices or terms, or support a petition by any other person seeking to amend such
prices or terms, absent the agreement in writing of the other Party. Further, absent the agreement
in writing by both Parties, the standard of review for changes to this Agreement proposed by a
Party, a non-party or the FERC acting sua sponte will be the "public interest" application of the
'Just and reasonable" standard of review as described in United Gas Pipe Line Co. v. Mobile Gas
Service Com., 350 U.S. 332 (1956), and Federal Power Commission v. Sierra Pacific Power Co.,
350 U.S. 348 (1956), and clarified by Morean Stanley Capital Group. lnc. v. Public Util. Dist.
No. I of Snohomish, 554 U.S. 527,128 S. Ct.2733 (2008).
SECTION 6
OPERATION AND CONTROL
18
6.2 Standard of Facilitv Operation.
6.2.1 General. Seller will operate all interconnected equipment associated with
the Facility within its contol in accordance with all applicable federal, state, and local laws and
regulations to ensure system safety and reliability of interconnected operations. At Seller's sole
cost and expense, Seller must operate, maintain and repair the Facility in accordance with (a) the
applicable and mandatory standards, criteria and formal guidelines of FERC, NERC, any RTO,
and any other Electric System Authority and any successors to the functions thereof; (b) the
Permits and Required Facility Documents; (c) the Generation lnterconnection Agreement; (d) all
Requirements of Law; (e) the requirements of this Agreement; and (f) Prudent Electrical
Practice. Seller acknowledges that it has no claim under this Agreement against PacifiCorp with
respect to any requirements imposed by or damages caused by (or allegedly caused by) the
Transmission Provider or Interconnection Provider or with respect to the provision of station
service.
6.2.2 Preliminary Interconnection. Notwithstanding any other provision of this
Agreement to the contrary, for the period (if any) beginning on April 1,2021and ending on the
effective date of operations under the Generation Interconnection Agreement obtained by Seller
from Interconnection Provider with respect to the Facility, PacifiCorp agrees that the
intercorurection-related provisions of the Original PPA, shall apply to and be incorporated by
reference into this Agreement, to the extent that Seller supplies PacifiCorp with consent from the
lnterconnection Provider pursuant to Section 2.2(a)(ii).
6.2.3 Oualified Operator. Seller or an Affiliate of Seller must operate and
maintain the Facility or cause the Facility to be operated and maintained by an entity that has at
least two years of experience in the operation and maintenance of similar facilities of comparable
size to the Facility. Seller must provide PacifiCorp thirty (30) days prior written notice of any
change in operator of the Facility.
6.2.3 Fines and Penalties.
(a) Without limiting a Party's rights under Section 6.2.3(b), each Party
must pay all fines and penalties incurred by such Party on account of noncompliance by such
Party with Requirements of Law as such fines and penalties relate to the subject matter of this
Agreement, except where such fines and penalties are being contested in good faith through
appropriate proceedings.
(b) Iffines, penalties, or legal costs are assessed against or incurred by
either Party (the "lndemnified Party") on account of any action by ary Governmental Authority
due to noncompliance by the other Party (the "Indemni$ing Party") with any Requirements of
Law or the provisions of this Agreement, or if the performance of the Indemnifying Party is
delayed or stopped by order of any Governmental Authority due to the lndemniffing Party's
noncompliance with any Requirements of Law, the Indemnifying Party must indemni$ and hold
harmless the lndemnified Party against any and all Liabilities suffered or incurred by the
lndemnified Party as a result thereof. Without limiting the generality of the foregoing, the
Indemnifying Party must reimburse the lndemnified Party for all fees, damages, or penalties
imposed on the Indemnified Party by any Governmental Authority, other person or to other
t9
utilities for violations to the extent caused by a default by the Indemnifying Party or a failure of
performance by the Indemnifoing Party under this Agreement.
6.3 Interconnection. Seller is responsible for the costs and expenses associated with
obtaining from the lnterconnection Provider network resource interconnection service (or
interconnection service of a comparable nature) for the Facility at its Nameplate Capacity Rating.
Seller has no claims under this Agreement against PacifiCorp, acting in its merchant function
capacity, with respect to any requirements imposed by or damages caused by (or allegedly
caused by) acts or omissions of the Transmission Provider or lnterconnection Provider, acting in
such capacities, in connection with the Generation Interconnection Agreement or otherwise.
6.4 Coordination with System. Seller's delivery of electricity to PacifiCorp under this
Agreement must be at a voltage, phase, power factor, and frequency as reasonably specified by
PacifiCorp. Seller will furnish, install, operate, and maintain in good order and repair, and
without cost to PacifiCorp, such switching equipment, relays, locks and seals, breakers,
automatic synchronizers, and other control and protective apparatus determined by PacifiCorp to
be reasonably necessary for the safe and reliable operation of the Facility in parallel with the
System, or Seller may contract with PacifiCorp to do so at the Seller's expense. PacifiCorp must
at all times have access to all switching equipment capable of isolating the Facility from the
System.
6.5 Outaqes.
6.5.1 Planned Outaees. Seller must provide PacifiCorp with an annual forecast
of Planned Outages for each Contract Year at least one month, but no more than three months,
before the first day of that Contract Year, and may update such Planned Outage schedule as
necessary to comply with Prudent Electrical Practices. Any such update to the Planned Outage
schedule must be promptly submitted to PacifiCorp. Except as may be required in the
Generation lnterconnection Agreement, Seller may not schedule a Planned Outage during any
portion of the months of December and July, except to the extent reasonably required to enable a
vendor to satisfy a guarantee requirement.
6.5.2 Maintenance Outaqes. If Seller reasonably determines that it is necessary
to schedule a Maintenance Outage, Seller must notify PacifiCorp of the proposed Maintenance
Outage as soon as practicable but in any event at least five (5) days before the outage begins.
Seller must take all reasonable measures consistent with Prudent Electrical Practices to not
schedule any Maintenance Outage during the months of December and July. Notice of a
proposed Maintenance Outage by Seller must include the expected start date and time of the
outage, the amount of generation capacity of the Facility that will not be available, and the
expected completion date and time of the outage. PacifiCorp will promptly respond to such
notice and may request reasonable modifications in the schedule for the outage. Seller must use
all reasonable efforts to comply with any request to modiff the schedule for a Maintenance
Outage provided that such change has no substantial impact on Seller. Once the Maintenance
Outage has commenced, Seller must keep PacifiCorp apprised of any changes in the generation
capacity available from the Facility during the Maintenance Outage and any changes in the
expected Maintenance Outage completion date and time. As soon as practicable, any
notifications given orally must be confirmed in writing. Seller make take all reasonable
20
measures consistent with Prudent Electrical Practices to minimize the frequency and duration of
Maintenance Outages.
6.5.3 Forced Outases. Seller must promptly provide to PacifiCorp an oral
report, via telephone to a number specified by PacifiCorp (or other method approved by
PacifiCorp), of any Forced Outage resulting in more than ten percent (l0o/o) of the Nameplate
Capacity Rating of the Facility being unavailable. This report from Seller must include the
amount of the generation capacity of the Facility that will not be available because of the Forced
Outage and the expected retum date of such generation capacity. Seller must promptly update
the report as necessary to advise PacifiCorp of changed circumstances. As soon as practicable,
the oral report must be confirmed in writing to PacifiCorp. Seller must take all reasonable
measures consistent with Prudent Electrical Practices to avoid Forced Outages and to minimize
their duration.
6.5.4 Notice of Deratines and Outaees. Without limiting the foregoing, Seller
will inform PacifiCorp, via telephone to a number specified by PacifiCorp (or other method
approved by PacifiCorp), of any limitations, restrictions, deratings or outages reasonably
predicted by Seller to affect more than five percent (5o/o) of the Nameplate Capacity rating of the
Facility for the following day and will promptly update such notice to the extent of any material
changes in this information.
6.5.5 Effect of Outaees on Estimated OuE ut. Seller represents and warrants
that the Expected MonthlyNet Output provided in Exhibit A takes into account the Planned
Outages, Maintenance Outages, and Forced Outages that Seller reasonably expects to encounter
in the ordinary course of operating the Facility.
6.6 Scheduline.
6.6.1 Cooperation and Standards. With respect to any and all scheduling
requirements, (a) Seller must cooperate with PacifiCorp with respect to scheduling Net Output,
and (b) each Party will designate authorized representatives to communicate with regard to
scheduling and related matters arising under this Agreement. Each Party must comply with the
applicable variable resource standards and criteria of any applicable Electric System Authority,
as applicable.
6.6.2 Schedule Coordination. If, as a result of this Agreement, PacifiCorp is
deemed by an RTO to be financially responsible for Seller's performance under the Generation
Interconnection Agreement due to Seller's lack of standing as a "scheduling coordinator" or
other RTO-recognized designation, qualification or otherwise, then Seller most promptly take all
actions necessary to acquire such RTO-recognized standing (or must contract with a third party
who has such RTO-recognized standing) so that PacifiCorp is no longer responsible for Seller's
performance under the Generation lnterconnection Agreement or RTO requirement.
6.7 Forecastins.
6.7.1 Lone-Ranee Forecasts. Seller must, by December 1't of each year during
the Term (except for the last year of the Term), provide an annual update to the expected long-
2t
term monthly/diurnal mean net energy and net capacity factor estimates (lzx 24 profile). Seller
must prepare such forecasts utilizing a renewable energy resource prediction model or service
that is satisfactory to PacifiCorp in the exercise of its reasonable discretion and comparable in
accuracy to models or services commonly used in the industry. The forecasts provided by Seller
must comply with all applicable Electic System Authority tariff procedures, protocols, rules and
testing as necessary and as may be modified from time to time.
6.8 Increase in Nameplate Caoacity Ratine: New Project Expansion or
Development. If Seller elects to increase the ability of the Facility to deliver Net Output in
quantities in excess of the Maximum Delivery Rate through any means, including replacement or
modification of Facility equipment or related infrastructure, PacifiCorp is not required to
purchase any Net Output above the Maximum Delivery Rate. If Seller elects to build an
expansion or additional project within one mile of the Facility (measured from the nearest
generation equipment at both locations), Seller may not require PacifiCorp to purchase (and
PacifiCorp will have no obligation to purchase pursuant to this Agreement) the output of any
such expansion or additional facility. Seller agrees that it will not seek to avoid the obligations
in this Section 6.8 through use or establishment of a special purpose entity or other Affiliate.
Any such expansion or additional facility may not materially and adversely impact the ability of
either Party to fulfill its obligations under this Agreement.
6.9 Telemeterine. Seller must provide telemetering or other cellular or web-based
equipment and facilities capable of transmiffing the following information concerning the
Facility pursuant to the Generation lnterconnection Agreement and to PacifiCorp on a real-time
basis, and will operate such equipment when requested by PacifiCorp to indicate:
(a) instantaneous MW output at the Point of Delivery;
O) Net Output; and
(c) the Facility's total instantaneous generation capacity.
Commencing on the date of initial deliveries under this Agreement, Seller must also transmit or
otherwise make accessible to PacifiCorp any other data from the Facility that Seller receives on a
real time basis, including Net Output data. Such real time data must be made available to
PacifiCorp on the same basis as Seller receives the data (e.g., if Seller receives the data in four
second intervals, PacifiCorp must also receive the data in four second intervals). If Seller uses a
web-based performance monitoring system for the Facility, Seller must provide PacifiCorp
access to Seller's web-based performance monitoring system.
6.10 Transmission Provider Consent. Within ten (10) days of the Effective Date,
Seller must execute and submit to PacifiCorp, a consent in the form provided in Exhibit H or as
otherwise required by Transmission Provider, that allows PacifiCorp to read the meter and
receive any and all data from the Transmission Provider relating to transmission of Output or
other matters relating to the Facility without the need for further consent from Seller.
6.1I Dedicated Communication Circuit. Seller must install a dedicated direct
communication circuit (which may be by common carrier telephone), or cellular or web-based
equipment, between PacifiCorp and the control center in the Facility's control room or such
22
other communication equipment as the Parties may agree.
6.12 Reoorts and Records.
6.12.1 Electronic Fault Los. Seller must maintain an electronic fault log of
operations of the Facility during each hour of the Term commencing on April 1,2021. Seller
must provide PacifiCorp with a copy of the electronic fault log within thirty (30) days after the
end of the calendar month to which the fault log applies.
6.12.2 Information to Governmental Authorities. Seller must, promptly upon
written request from PacifiCorp, provide PacifiCorp with data collected by Seller related to the
construction, operation or maintenance of the Facility reasonably required for reports to any
Governmental Authority or Electric System Authority, along with a statement from an officer of
Seller certifying that the contents of the submittals are true and accurate to the best of Seller's
knowledge. Seller must use best efforts to provide this information to PacifiCorp sufficiently in
advance to enable PacifiCorp to review such information and meet any submission deadlines.
PacifiCorp will reimburse Seller for all of Seller's reasonable actual costs and expenses in excess
of $5,000 per year, if any, incurred in connection with PacifiCorp's requests for information
under this subsection.
6.12.3 Data Request. Seller must, promptly upon written request from
PacifiCorp, provide PacifiCorp with data collected by Seller related to the construction,
operation or maintenance of the Facility reasonably required for information requests from any
Governmental Authorities, state or federal agency intervener or any other party achieving
intervenor status in any PacifiCorp rate proceeding or other proceeding before any Governmental
Authority. Seller must use best efforts to provide this information to PacifiCorp sufficiently in
advance to enable PacifiCorp to review such date and meet any submission deadlines.
PacifiCorp will reimburse Seller for all of Seller's reasonable actual costs and expenses in excess
of $5,000 per year, if any, incurred in connection with PacifiCorp's requests for information
under this subsection.
6.12.4 Documents to Governmental Authorities. By January 30th of each year,
Seller shall provide PacifiCorp with a list of all filings, statements, applications, and reports or
any documents submitted with any Governmental Authority or Electric System Authority
relating to operation and maintenance of the Facility during the previous calendar year. If
PacifiCorp subsequently requests any such materials, Seller must promptly provide to PacifiCorp
a copy of the materials requested. PacifiCorp will reimburse Seller for all of Seller's reasonable
actual costs and expenses in excess of $5,000 per year, if any, incurred in connection with
PacifiCorp's requests for information under this subsection.
6.12.5 Notice of Material Adverse Events. Seller must promptly notify
PacifiCorp of receipt of written notice or actual knowledge by Seller or its Affrliates of the
occurrence of any event of default under any material agreement to which Seller is a party and of
any other development, financial or otherwise, which would have a material adverse effect on
Seller, the Facility, or Seller's ability to develop, construct, operate, maintain or own the Facility,
including any material violation of any environmental laws or regulations arising out of the
construction or operation of the Facility, or the presence of Environmental Contamination at the
23
Facility or on the Premises.
6.12.6 Notice of Litieation. Following its receipt of written notice or knowledge
of the colnmencement of any action, suit, or proceeding before any court or Governmental
Authority against Seller, its members, or any Affiliate relating to the Facility or this Agreement,
or that could materially and adversely affect Seller's performance of its obligations in this
Agreement, Seller must promptly notify PacifiCorp.
6.12.7 Additional lnformation. Seller must provide to PacifiCorp such other
information as relevant to Seller's performance of its obligations under this Agreement or the
Facility as PacifiCorp may, from time to time, reasonably request.
6.12.8 Confidential Treatment. The reports and other information provided to
PacifiCorp under this Section 6.12 will be treated as confidential if such treatrnent is requested in
writing by Seller at the time the information is provided to PacifiCorp, subject to PacifiCorp's
rights to disclose such information pursuant to Sections 6.1,23 and 6.12.4, and pursuant to any
applicable Requirements of Law. Seller will have the right to seek confidential treafrnent of any
such information from any Governmental Authority entitled to receive such information.
6.13 Financial and Accountine Information. If PacifiCorp or one of its Affiliates
determines that, under (a) the Accounting Standards Codification (ASC) 810, Consolidation of
Variable lnterest Entities, and (b) Requirements of Law that it may hold a variable interest in
Seller, but it lacks the information necessary to make a definitive conclusion, Seller agrees to
provide, upon PacifiCorp's written request, sufficient financial and ownership information so
that PacifiCorp or its Affiliate may confirm whether a variable interest does exist under ASC 810
and Requirements of Law. If PacifiCorp or its Affiliate determines that, under ASC 810, it holds
a variable interest in Seller, Seller agrees to provide, upon PacifiCorp's written request, sufficient
financial and other information to PacifiCorp or its Affiliate so that PacifiCorp may properly
consolidate the entity in which it holds the variable interest or present the disclosures required by
ASC 810 and Requirements of Law. PacifiCorp will reimburse Seller for Seller's reasonable
costs and expenses, if any, incurred in connection with PacifiCorp's requests for information
under this Section 6.13. Seller will have the right to seek confidential treatment of any such
information from any Governmental Authority entitled to receive such information.
6.14 Access Riehts. Upon reasonable prior notice and subject to the prudent safety
requirements of Seller, and Requirements of Law relating to workplace health and safety, Seller
must provide PacifiCorp and its authorized agents, employees and inspectors ("PacifiCorp
Representatives") with reasonable access to the Facility: (a) for the purpose of reading or testing
metering equipment, (b) as necessary to witness any acceptance tests, and (c) for other
reasonable purposes at the reasonable request of PacifiCorp. PacifiCorp will release Seller from
any and all Liabilities resulting from actions or omissions by any of the PacifiCorp
Representatives in connection with their access to the Facility, except to the extent such
Liabilities are caused by the intentional or negligent act or omission of Seller or its agents or
Affiliates.
24
SECTION 7
QUALIFYING FACILITY STATUS
7.1 Seller's OF Status. Seller must maintain throughout the Term the Facility's status
as a QF. Seller must provide PacifiCorp with copies of any QF certification or recertification
documentation within ten (10) days of its filing with any Governmental Authority. At any time
during the Term, PacifiCorp may require Seller to provide PacifiCorp with evidence satisfactory
to PacifiCorp in its reasonable discretion that the Facility continues to qualify as a QF under all
applicable requirements.
SECTION 8
SECTruTY AI\D CREDIT SUPPORT
RESERVED
SECTION 9
METERING
9.1 Installation of Meterine Equipment. At Seller's expense, metering equipment
must be designed, furnished, installed, owned, inspected, tested, maintained and replaced as
provided in the Generation lnterconnection Agreement. Seller must reasonably cooperate with
PacifiCorp in developing any metering protocols necessary for PacifiCorp to comply with the
requirements of the Market Operator.
9.2 Metering. Metering must be performed at the location and in the manner
specified in Exhibit C, the Generation lnterconnection Agreement, and as necessary to perform
Seller's obligations under this Agreement. All quantities of Net Output purchased must reflect
the net amount of energy flowing onto the System at the Point of Delivery.
9.3 lnspection. Testine. Repair and Replacement of Meters. PacifiCorp has the right
to periodically inspect, test, repair and replace the metering equipment that is provided for in the
Generation lnterconnection Agreement, without PacifiCorp assuming any obligations of Seller
under the Generation lnterconnection Agreement. If any of the inspections or tests disclose an
error exceeding 0.5 percent (0.5%), either fast or slow, the necessary corrections will be made of
previous readings for the actual period during which the metering equipment rendered inaccurate
measurements if that period can be ascertained. If the actual period of error cannot be
ascertained, the corrections will be made for the entire time period since the metering equipment
was last inspected and verified accurate, not to exceed three (3) months. Any corrections under
this Section 9.3 will be reflected as an adjustment in the next monthly invoice.
9.4 Meterine Costs. To the extent not otherwise provided in the Generation
Interconnection Agreement, Seller is responsible for all costs relating to all metering equipment
installed to accommodate Seller's Facility.
9.5 WREGIS Meterine. Seller must cause the Facility to implement all necessary
generation information communications in WREGIS, and report generation information to
WREGIS pursuant to a WREGIS-approved meter dedicated to the Facility and only the Facility.
25
SECTION 10
BILLINGS, COMPUTATIONS AND PAYMENTS
10.1 Monthly Invoices. On or before the tenth (106) day following the end of each
calendar month, Seller must deliver to PacifiCorp an invoice showing Seller's computation of
Net Output delivered to the Point of Delivery during such month. When calculating the invoice,
Seller must provide computations showing the portion of Net Output that was delivered during
On-Peak Hours and the portion of Net Output that was delivered during Off-Peak Hours. If such
invoice is delivered by Seller to PacifiCorp, then PacifiCorp must send to Seller, on or before the
later of the twentieth (206) day following receipt of such invoice or the thirtieth (30ft) day
following the end of each month, payment for Seller's deliveries of Net Output to PacifiCorp.
10.2 Offsets. Either Party may offset any payment due under this Agreement against
amounts owed by the other Party pursuant under this Agreement. Either Party's exercise of
recoupment and set off rights will not limit the other remedies available to such Party under this
Agreement.
10.3 Interest on Late Payments. Any amounts not paid when due under this
Agreement will bear interest at the Contract Interest Rate from the date due until paid.
10.4 Disputed Amounts. If either Party, in good faith, disputes any amount due under
an invoice provided under this Agreement, such Party must notify the other Party of the specific
basis for the dispute and, if the invoice shows an amount due, must pay that portion of the
invoice that is undisputed on or before the due date. Any such notice of dispute must be
provided within two (2) years of the date of the invoice in which the error first occured. If any
amount disputed by such Parry is determined to be due the other Pu.ty, or if the Parties resolve
the payment dispute, the amount due must be paid within five (5) Business Days after such
determination or resolution, along with interest at the Contract Interest Rate from the date due
until the date paid.
10.5 Audit Rights. Each Pu.ty, through its authorized representatives, has the right, at
its expense upon reasonable notice and during normal business hours, to examine and copy the
records ofthe other Party to the extent reasonably necessary to verify the accuracy ofany
statement, charge or computation made under this Agreement or to verify the other Party's
performance of its obligations under this Agreement. Upon request, each Party must provide to
the other Party statements evidencing the quantities ofNet Output delivered at the Point of
Delivery. If any statement is found to be inaccurate, a corrected statement will be issued and,
subject to Section 10.4, any amount due one Party to the other Party as a result of the corrected
statement will be promptly paid including the payment of interest at the Contract Interest Rate
from the date of the overpayment or underpayment to the date of receipt of the reconciling
payment.
SECTION 11
DEFAULTS AI\D REMEDIES
11.1 Defaults. The following events are defaults under this Agreement, and are
"Events of Defaults" after the passing of notice and cure periods, as applicable:
26
11.1.1 Defaults b), Either Part),.
(a) A Party fails to make a payment when due under this Agreement if
the failure is not cured within ten (10) Business Days after the non-defaulting Party gives the
defaulting Party a notice of the default.
(b) A Party (i) makes a general assignment for the benefit of its
creditors; (ii) files a petition or otherwise corlmences, authorizes or acquiesces in the
commencement of a proceeding or cause of action under any bankruptcy or similar law for the
protection of creditors, or has such a petition filed against it and such petition is not withdrawn or
dismissed within sixty (60) days after such filing; (iii) becomes insolvent; or (iv) is unable to pay
its debts when due.
(c) A Party breaches a representation or warranty in this Agreement if
the breach is not cured within thirty (30) days after the non-defaulting Party gives the defaulting
Party a notice of the default; @l(le<!, however, that if such default is not reasonably capable of
being cured within the thirty (30) day cure period but is reasonably capable of being cured within
ninety (90) days, the defaulting Party will have an additional reasonable time to cure the default,
not to exceed ninety (90) days following the date of notice of the default by the non-defaulting
Party, if the defaulting Party provides to the non-defaulting Party a remediation plan within
fifteen (15) days following the date of notice of the default by the non-defaulting Party, the non-
defaulting Party approves such remediation plan, and the defaulting Party promptly commences
and diligently pursues the remediation plan.
(d) A Party fails to perform any material obligation in this Agreement
for which an exclusive remedy is not provided in the Agreement and which is not otherwise an
identified Event of Default in this Agreement, if the failure is not cured within thirty (30) days
after the non-defaulting Party gives the defaulting Party notice of the default; ryglec!, however,
that if such default is not reasonably capable of being cured within the thirty (30) day cure period
but is reasonably capable of being cured within ninety (90) days, the defaulting Party will have
an additional reasonable time to cure the default, not to exceed ninety (90) days following the
date of notice of the default by the non-defaulting Party, if the defaulting Party provides to the
non-defaulting Party a remediation plan within fifteen (15) days following the date of notice of
the default by the non-defaulting Party, the non-defaulting Party approves such remediation plan,
and the defaulting Party promptly commences and diligently pursues the remediation plan.
1 I .1.2 Defaults by Seller.
(a) Seller fails to post, increase, or maintain the Default Security as
required under this Agreement and such failure is not cured within fifteen (15) days after Seller's
receipt of written notice from PacifiCorp.
(b) Seller sells Output or Capacity Rights from the Facility to a party
other than PacifiCorp in breach of Section 4.3, if Seller does not permanently cease such sale and
compensate PacifiCorp for the damages arising from the breach within ten (10) days after
PacifiCorp gives Seller a notice of default.
27
(c) PacifiCorp receives notice of foreclosure of the Facility or any part
thereof by a Lender, mechanic or materialman, or any other holder, of an unpaid lien or other
charge or encumbrance, if the same has not been stayed, paid, or bonded around within ten (10)
days of the date of the notice received by PacifiCorp.
(d) Seller fails to maintain any Required Facility Documents or
Permits necessary to own or operate the Facility and is not able to obtain the necessary Required
Facility Documents or Permits within ninety (90) days after the loss of the applicable Required
Facility Documents or Permits.
(e) Seller's Abandonment of consffuction or operation of the Facility
and such failure continues for thirty (30) days after Seller's receipt of written notice from
PacifiCorp.
(f) Seller fails to maintain insurance as required by the Agreement
and such failure continues for fifteen (15) days after Seller's receipt of written notice from
PacifiCorp.
ll.2 Remedies for Failure to Deliver/Receive.
ll.2.I Remedy for Seller's Failure to Deliver. Upon the occurrence and during
the continuation of a default of Seller under Section 1 1.1 .2(c), Seller must pay PacifiCorp within
five (5) Business Days after receipt of invoice, an amount equal to the sum of (a) PacifiCorp's
Cost to Cover multiplied by the Net Output delivered to a party other than PacifiCorp, (b)
additional transmission charges, if any, reasonably incurred by PacifiCorp in moving
replacement energy to the Point of Delivery or if not there, to such points in PacifiCorp's control
area as determined by PacifiCorp, and (c) any additional cost or expense incurred as a result of
Seller's default, as determined by PacifiCorp in a commercially reasonable manner. The invoice
for such amount must include a written statement explaining in reasonable detail the calculation
of such amount.
11.2.2 Remedy for 's Failure to Purchase. If PacifiCorp fails to
receive or purchase all or part of the Net Output required to be purchased under this Agreement
and such failure is not excused by Seller's failure to perform under or comply with this
Agreement, then PacifiCorp must pay Seller, on the earlier of the date payment would otherwise
be due in respect of the month in which the failure occurred or within five (5) Business Days
after receipt of invoice, an amount equal to Seller's Cost to Cover multiplied by the amount of
Net Output not purchased. The invoice for such amount must include a written statement
explaining in reasonable detail the calculation of such amount.
11.2.3 Remedy for Seller's Failure to Provide Capacit), Rights. Seller is liable
for PacifiCorp's actual damages in the event Seller fails to sell or deliver all or any portion of the
Capacity Rights to PacifiCorp.
11.3 Termination and Remedies. From and during the continuance of an Event
of Default, the non-defaulting Party will be entitled to all remedies available at law or in equity,
and may terminate this Agreement by notice to the other Party designating the date of
28
termination and delivered to the defaulting Party no less than fifteen (15) days before such
termination date. The notice required under this Section I1.3 may be provided in the notice of
default (and does not have to be a separate notice) provided it complies with the terms of this
Section 11.3. Seller must provide copies of such termination notice to the notice addresses of the
then-current President and General Counsel of PacifiCorp by registered overnight delivery
service or by certified or registered mail, return receipt requested. Seller's termination notice
must state prominently in type font no smaller than l4-point capital letters that "THIS IS A
TERMINATION NOTICE UNDER A PPA. YOU MUST CURE A DEFAULT, OR THE PPA
WILL BE TERMINATED," must state any amount alleged to be owed, and must include wiring
instructions for payment. Notwithstanding any other provision of this Agreement to the
conffary, Seller will not have any right to terminate this Agreement if the default that gave rise to
the termination right is cured within fifteen (15) days of PacifiCorp's receipt of such notice.
Further, from and after the date upon which Seller fails to remedy a default within the time
periods provided in this Agreement, and until PacifiCorp has recovered all damages incurred on
account of such default by Seller, PacifiCorp may offset its damages against any payment due
Seller. Except in circumstances in which a remedy provided for in this Agreement is described
as a Party's sole or exclusive remedy, the non-defaulting Party may pursue any and all legal or
equitable remedies provided by law, equity or this Agreement. The rights contemplated by this
Section 1l are cumulative such that the exercise of one or more rights does not constitute a
waiver of any other rights. In the event of a termination of this Agreement:
(a) Each Party must pay to the other all amounts due the other under
this Agreement for all periods prior to termination, subject to offset by the non-defaulting Party
against damages incurred by such Party.
(b) The amounts due under this Section I 1.3 must be paid within thirty
(30) days after the billing date for such charges and will bear interest at the Contract lnterest
Rate from the date of termination until the date paid. The foregoing does not extend the due date
of, or provide an interest holiday for any payments otherwise due under this Agreement.
(c) Without limiting the generality of the foregoing, the provisions of
Sections 4.6,5.4,5.5, 10.3, 10.4, 10.5, 11.3, 11.4, 11.5, 11.6, 11.7, 11.8, 12,13,16,17,2l,and
24 survive the termination of this Agreement, and Sections 6.12.2,6.12.3,6.12.4, and 6.13 shall
survive termination of this Agreement for a period of fiveyears after such termination.
ll.4 Rishts Upon Termination. In the event this Agreement is terminated because of
Seller's default and Seller or any Affiliate or successor to Seller with respect to ownership of the
Facility wishes to again sell Net Output from the Facility to PacifiCorp following such
termination, PacifiCorp in its sole discretion may require that Seller or any Affiliate or successor
to Seller with respect to ownership of the Facility shall do so subject to the terms of this
Agreement, including but not limited to the Contract Price, until March 31,2041. At such time
Seller and PacifiCorp agree to execute a written document ratiffing the terms of this Agreement.
I l.5 Termination Damaees. If this Agreement is terminated by PacifiCorp as a result
of an Event of Default by Seller, termination damages owed by Seller to PacifiCorp will be the
positive difference, if any, between (a) PacifiCorp's estimated costs to secure replacement power
for a period of twenty four (24) months following the date of termination, including any
29
associated transmission necessary to deliver such replacement power; and (b) the Contract Price
for such twenty four (24) month period ("Termination Damages"). PacifiCorp must calculate the
Termination Damages in a commercially reasonable manner and provide to Seller a written
statement explaining in reasonable detail the calculation of Termination Damages. Amounts
owed pursuant to this Section t 1.5 are due by Seller within ten (10) Business Days after receipt
of the written statement of Termination Damages from PacifiCorp. Each Party agrees and
acknowledges that the damages that PacifiCorp would incur due to Seller's Event of Default
would be difficult or impossible to predict with certainty, it is impractical and difficult to assess
actual damages in the circumstances stated, and therefore the Termination Damages as agreed to
in this Section 11.5 are a fair and reasonable calculation of such damages
11.6 Dutv/Right to Mitieate. Each Party agrees that it has a duty to mitigate damages
and covenants that it will use commercially reasonable efforts to minimize any damages it may
incur as a result of the other Party's performance or non-performance. With respect to Seller,
Seller must use commercially reasonable efforts to maximize the price for Net Output received
by Seller from third parties, including entering into an enabling agreement with, or bemg
affiliated with, one or more power marketers of nationally recognized standing to market such
Net Output not purchased or accepted by PacifiCorp (only during a period PacifiCorp is in
default), to the extent permitted by Requirements of Law and the Generation Interconnection
Agreement. With respect to PacifiCorp, PacifiCorp must use commercially reasonable efforts to
minimize the price paid to third parties for energy purchased to replace Net Output not delivered
by Seller as required under this Agreement.
ll.7 Securitv. If this Agreement is terminated because of Seller's default, PacifiCorp
may, in addition to pursuing any and all other remedies available at law or in equity, proceed
against any security held by PacifiCorp in whatever form to reduce the amounts that Seller owes
PacifiCorp arising from such default.
11.8 Cumulative Remedies. Except in circumstances in which a remedy provided for
in this Agreement is described as a sole or exclusive remedy, the rights and remedies provided to
PacifiCorp in this Agreement are cumulative and not exclusive of any rights or remedies of
PacifiCorp.
SECTION 12
INDEMNIFICATION AND LIABILITY
12.l Indemnities.
l2.l.l lndemnitv bv Seller. To the extent permitted by Requirements of Law and
subject to Section 12.1.5, Seller releases, indemnifies and holds harmless PacifiCorp, its
divisions, Affrliates, and each of its and their respective directors, officers, employees, agents,
and representatives (collectively, the "PacifiCorp Indemnitees") against and from any and all
losses, fines, penalties, claims, demands, damages, liabilities, actions or suits of any nature
whatsoever (including legal costs and attorneys' fees, both at trial and on appeal, whether or not
suit is brought) (collectively, "Liabilities") actually or allegedly resulting from, arising out of, or
in any way connected with, the performance by Seller of its obligations under this Agreement, or
relating to the Facility or Premises, for or on account of injury, bodily or otherwise, to, or death
of, or damage to, or destruction or economic loss of property of, any person or entity, except for
30
Liabilities caused by the gross negligence or willful misconduct of any person or entity within
the PacifiCorp Indemnitees. Seller is solely responsible for (and will defend and hold PacifiCorp
harmless against) any damage that may occur as a direct result of Seller's breach of the
Generation Interconnection Agreement.
12.1.2 Indemnit), by PacifiCorp. To the extent permitted by Requirements of
Law and subject to Section 12.1.5, PacifiCorp releases, indemnifies and holds harmless Seller, its
Affiliates, and each of its and their respective directors, officers, employees, agents, and
representatives (collectively, the "Seller Indemnitees") against and from any and all Liabilities
actually or allegedly resulting from, arising out of, or in any way connected with, the
performance by PacifiCorp of its obligations under this Agreement for or on account of injury,
bodily or otherwise, to, or death of, or damage to, or destruction or economic loss of property of,
any person or entity within the Seller Indemnitees, exce,pt for Liabilities caused by the gross
negligence or willful misconduct of any person or entity within the Seller Indemnitees.
12.1.3 Additional Cross Indemnity. Without limiting Sections l2.l.l and 12.1.2,
Seller releases, indemnifies and holds harmless the PacifiCorp Indemnitees from and against all
Liabilities related to Net Output prior to its delivery by Seller at the Point of Delivery, and
PacifiCorp releases, indemnifies and holds harmless the Seller lndemnitees from and against all
Liabilities related to Net Output once delivered to PacifiCorp at the Point of Delivery as
provided in this Agreement, except in each case to the extent such Liabilities are attributable to
the gross negligence, willful misconduct, or a breach of this Agreement by any member of the
PacifiCorp lndemnitees or the Seller Indemnitees, respectively, seeking indemnification under
this Agreement.
12.1.4 No Dedication. Nothing in this Agreement will be construed to create any
duty to, any standard of care with reference to, or any liability to any person not a Party. No
undertaking by one Party to the other under any provision of this Agreement will constitute the
dedication of PacifiCorp's facilities or any portion thereof to Seller or to the public, nor affect
the status of PacifiCorp as an independent public utility corporation or Seller as an independent
individual or entity.
12.1.5 Consequential Damaqes. NEITHER PARTY WILL BE LIABLE TO
THE OTHER PARTY FOR SPECIAL, PUNITIVE,INDIRECT, EXEMPLARY OR
CONSEQUENTIAL DAMAGES, WIIETHER SUCH DAMAGES ARE ALLOWED OR
PROVIDED BY CONTRACT, TORT (INCLIJDING NEGLIGENCE), STRICT
LIABILITY, STATUTE OR OTHERWISE. THE PARTIES AGREE THAT AIIY
LIQUIDATED DAMAGES, DELAY DAMAGES, TERMINATION DAMAGES,
PACIFICORP AI\D SELLER COST TO COVER DAMAGES, OR OTHER SPECIFIEI)
MEASURE OF DAMAGES EXPRESSLY PROVIDED FOR IN THIS AGREEMENT DO
NOT REPRESENT SPECIAL, PUNITIYE,INDIRECT, EXEMPLARY OR
CONSEQUENTIAL DAMAGES AS CONTEMPLATED IN THIS PARAGRAPH.
SECTION 13
INSURANCE
13.1 Required Policies and Coveraees. Without limiting any Liabilities or any other
3l
obligations of Seller, Seller must secure and continuously carry the insurance coverage specified
on Exhibit I.
SECTION 14
FORCE MAJEURE
l4.l Definition of Force Majeure. "Force Majeure" or "an event of Force Majeure"
means an event that prevents a Party from performing an obligation under this Agreement and
that (a) is not reasonably anticipated as of the Effective Date, (b) is not within the reasonable
control of the Party affected by the event, (c) is not the result of such Party's negligence or
failure to act, and (d) could not be overcome by the affected Party's use of due diligence in the
circumstances. Force Majeure includes events of the following types (but only to the extent that
such an event, in consideration of the circumstances, satisfies the requirements in the preceding
sentence): environmental disasters; civil disturbance; sabotage; strikes; lock-outs; work
stoppages; and action or restraint by court order or public or Governmental Authority (as long as
the affected Party has not applied for or assisted in the application for, and has opposed to the
extent reasonable, such court or govemment action). Nohvithstanding the foregoing, none of the
following constitute Force Majeure: (i) Seller's ability to sell, or PacifiCorp's ability to purchase
energy or capacity at a more advantageous price than is provided under this Agreement; (ii) the
cost or availability of fuel or motive force to operate the Facility; (iii) economic hardship,
including lack of money or the increased cost of electricity, steel, labor, or transportation; (iv)
any breakdown or malfunction of the Facility's equipment (including any serial equipment
defect) that is not caused by an independent event of Force Majeure; (v) the imposition upon a
Party of costs or taxes; (vi) delay or failure of Seller to obtain or perform any Required Facility
Document unless due to a Force Majeure event; (vii) any delay, alleged breach of contract, or
failure by the Transmission Provider or lnterconnection Provider unless due to a Force Majeure
event; (viii) maintenance upgrade or repair of any facilities or right of way corridors constituting
part of or involving the Interconnection Facilities, whether performed by or for Seller, or other
third parties (except for repairs made necessary as a result of an event of Force Majeure); (ix)
Seller's failure to obtain, or perform under, the Generation Interconnection Agreement, or its
other contracts and obligations to transmission owner, Transmission Provider or lnterconnection
Provider, unless due to a Force Majeure event; or (x) any event attributable to the use of
Interconnection Facilities for deliveries of Net Output to any party other than PacifiCorp.
14.2 Suspension of Performance. Neither Party will be liable for any delay or failure
in its performance under this Agreement, nor will any delay, failure, or other occurrence or event
become an Event of Default, to the extent such delay, failure, occurrence or event is substantially
caused by conditions or events of Force Majeure during the continuation of the event of Force
Majeure, provided that: (a) the Party affected by the Force Majeure, within five (5) days after the
occlurence of the event of Force Majeure, gives the other Party written notice describing the
particulars of the event of Force Majeure and how the event has impacted the affected Party's
obligations under this Agreement; (b) the suspension of perforrnance of the affected Party's
obligations is of no greater scope and of no longer duration than is required to remedy the effect
of the Force Majeure; and (c) the affected Party uses diligent efforts to remedy its inability to
perform.
14.3 Force Maieure Does Not Affect Other Oblieations. No obligations of either Party
32
that arose before the event of Force Majeure causing the suspension of perfornance or that arise
after the cessation of such event of Force Majeure is excused by such event of Force Majeure.
14.4 Stikes. Notwithstanding any other provision of this Agreement, neither Party
will be required to settle any strike, walkout, lockout or other labor dispute on terms which, in
the sole judgment of the Party involved in the dispute, are contrary to the Party's best interests.
14.5 Rieht to Terminate. If a Force Majeure event prevents a Party from substantially
performing its obligations under this Agreement for a period exceeding 180 consecutive days,
then the Party not affected by the Force Majeure event may terminate this Agreement by giving
ten (10) days prior notice to the other Party. Notwithstanding the foregoing, the non-performing
Party's inability to substantially perform is obligations for a period exceeding 180 days due to a
Force Majeure event will be excused and the other Party may not terminate this agreement if
delay in excess of 180 days is the result of (i) delayed availability or delivery of a replacernent
transformer; or (ii) seasonal limitations on the non-performing Party's ability to reasonably
access the Facility or the affected electrical system to complete repairs during during such 180-
day period, in which case the 180-day period will be extended to allow 180 consecutive days
during which the non-performing party can achieve reasonable access. Upon such termination,
neither Party will have any liability to the other with respect to the period following the effective
date of such termination; ry4!9g!, however, that this Agreement will remain in effect to the
extent necessary to facilitate the settlement of all liabilities and obligations arising under this
Agreement before the effective date of such termination.
SECTION 15
SEYERAL OBLIGATIONS
Nothing in this Agreement will be construed to create an association, trust, partnership or
joint venture or to impose a trust, parbrership or fiduciary duty, obligation or Liability on or
between the Parties.
SECTION 16
CHOICE OF LAW
This Agreement will be interpreted and enforced in accordance with the laws of the State
of Idaho, applyrng any choice of law rules that may direct the application of the laws of another
jurisdiction.
SECTION 17
PARTIAL INVALIDITY
If any of the terms of this Agreement are finally held or determined to be invalid, illegal
or void as being contrary to any applicable law or public policy, all other terms of this
Agreement will remain in effect. The Parties agree to use best efforts to amend this Agreement
to reform or replace any terms determined to be invalid, illegal or void, such that the amended
terms (a) comply with and are enforceable under applicable law, (b) give effect to the intent of
the Parties in entering into this Agreement, and (c) preserve the balance of the economics and
equities contemplated by this Agreement in all material respects.
SECTION 18
NON.WAIVER
33
No waiver of any provision of this Agreement will be effective unless the waiver ts
provided in writing that (a) expressly identifies the provision being waived, and (b) is executed
by the Party waiving the provision. A Party's waiver of one or more failures by the other Party
in the perfornance of any of the provisions of this Agreement will not be construed as a waiver
of any other failure or failures, whether of a like kind or different nature.
SECTION 19
GOVERNMENTAL JURISDICTION
AI\D AUTHORIZATIONS
This Agreement is subject to the jurisdiction of those Governmental Authorities having
jurisdiction over either Party or this Agreement.
SECTION 20
SUCCESSORS AND ASSIGNS
20.1 Restriction on Assignments. Except as provided in this Section 20, neither Party
may assign this Agreement or any of its rights or obligations without the prior written consent of
the other Party, which consent shall not be unreasonably withheld.
20.2 Permitted Assignments. Notwithstanding Section 20.1, either Party may, without
the need for consent from the other Party (but with notice to the other Party, including the names
of the assignees): (a) transfer, sell, pledge, encumber or assign this Agreement or the related
accounts, revenues or proceeds in connection with project financing for the Facility; or (b)
transfer or assign this Agreement to an Affiliate meeting the requirements of this Agreement,
ry4!g!, however, that Seller will not transfer, sell, encumber or assign this Agteement or any
interest in this Agreement to any Affrliate of PacifiCorp without the prior written consent of
PacifiCorp. For any assignment under (b) above, the assignee must agree in writing to be bound
by the terms and conditions of this Agreement and must possess the same or similar experience,
and possess the same or better creditworthiness, as the assignor. PacifiCorp may assign this
Agreement in whole or in part without the consent of Seller to any person or entity in the event
that PacifiCorp ceases to be a load-serving entity, in which event PacifiCorp will be released
from liability under this Agreement. The Party seeking to assign or transfer this Agreement is
solely responsible for paying all costs of assignment.
SECTION 21
ENTIRE AGREEMENT
This Agreement supersedes all prior agreements, proposals, representations, negotiations,
discussions or letters, whether oral or in writing, regarding the subject maffer of this Agreement.
No modification of this Agreement is effective unless it is in writing and executed by both
Parties.
SECTION 22
NOTICES
34
22.I Addresses and Deliverv Methods. All notices, requests, statements or payments
must be made to the addresses set out in Exhibit L. In addition, copies of a notice of termination
of this Agreement under Section 1 L3 must contain the information required by Section I 1.3 and
must be sent to the then-current President and General Counsel of PacifiCorp. Notices required
to be in writing must be delivered by letter or other tangible documentary form. Notice by
overnight mail or courier will be deemed to have been given on the date and time evidenced by
the delivery receipt. Notice by hand delivery will be deemed to have been given when received
or hand delivered. Notice by electronic transmission is effective as of transmission, but must be
followed up by notice by registered mail or overnight carrier to be effective. Notice by certified
or registered mail, return receipt requested, will be deemed to have been given upon receipt. The
Parties may change any of the persons to whom notices are addressed, or their addresses, by
providing written notice in accordance with this section.
SECTION 23
PUBLICITY
23.1 News Releases and Publicitv. Before Seller issues any news release or publicly
distributed promotional material regarding this Agreement, Seller must first provide a copy
thereof to PacifiCorp for its review. Any use of the name "Berkshire Hathaway," in any form,
requires the prior written consent of PacifiCorp.
SECTION 24
DISAGREEMENTS
24.1 Neeotiations. Prior to proceeding with formal dispute resolution, the Parties must
first attempt in good faith to resolve informally all disputes arising out of, related to or in
connection with this Agreement. Any Party may give the other Party written notice of any
dispute not resolved in the normal course of business. Executives of both Parties at levels one
level above those employees who have previously been involved in the dispute must meet at a
mutually acceptable time and place within ten (10) days after delivery of such notice, and
thereafter as often as they reasonably deem necessary, to exchange relevant information and to
attempt to resolve the dispute. If the matter has not been resolved within thirfy (30) days after
the referral of the dispute to such executives, or if no meeting of such executives has taken place
within fifteen (15) days after such referral, either Party may initiate any legal remedies available
to the Party. No statements of position or offers of settlement made in the course of the dispute
process described in this section will be offered into evidence for any purpose in any litigation
between the Parties, nor will any such statements or offers of settlement be used in any manner
against either Party in any such litigation. Further, no such statements or offers of settlement
will constitute an admission or waiver of rights by either Party in connection with any such
litigation. At the request of either Purty, any such statements and offers of settlement, and all
copies thereof, will be promptly returned to the Party providing the same.
24.2 Mediation. If the dispute is not resolved under the procedures provided in Section
24.1, either Party may request that the matter be submitted to non-binding mediation. The costs
of the mediation, including fees and expenses, will be borne equally by the Parties. All verbal
and written communications between the Parties and issued or prepared in connection with the
mediation will be deemed prepared and communicated in furtherance, and in the context, of
35
dispute settlement, and will be exempt from discovery and production, and will not be admissible
in evidence (whether as admission or otherwise) in any litigation or other proceedings for the
resolution of the dispute.
24.3 Choice of Forum. Each Party irrevocably consents and agrees that any legal
action or proceeding arising out of this Agreement or the actions of the Parties leading up to the
Agreement will be brought exclusively in the state and federal courts in Salt Lake City, Utah.
By execution and delivery of this Agreement, each Party (a) accepts the exclusive jurisdiction of
such court and waives any objection that it may now or hereafter have to the exercise of personal
jurisdiction by such court over each Party for the purpose of any proceeding related to this
Agreement; (b) inevocably agrees to be bound by any final judgment (after any and all appeals)
of any such court arising out of such documents or actions; (c) irrevocably waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceedings arising out of such documents brought in such court (including
any claim that any such suit, action or proceeding has been brought in an inconvenient forum) in
connection herewith; (d) agrees that service of process in any such action may be effected by
mailing a copy thereof by registered or certified mail, postage prepaid, to such Party at its
address stated in this Agreement; and (e) agrees that nothing in this Agreement affects the right
to effect service of process in any other manner permitted by law.
24.4 WATVER OF ruRY TRIAL. EACH PARTY WATVES THE RIGHT TO A
TRIAL BY ruRY IN RESPECT OF ANY LITIGATION BASED ON THIS AGREEMENT,
OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH
PARTY FURTHER WATVES ANY RIGHT TO CONSOLIDATE ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT WITH ANY PROCEEDING IN WHICH A JURY TRIAL HAS NOT OR
CANNOT BE WAIVED. THIS PARAGRAPH WILL SURVTVE THE EXPIRATION OR
TERMINATION OF THIS AGREEMENT.
36
IN WITNESS WIIEREOF, the Parties have caused this Agreement to be executed
in their respective names as of the date last written below.
FALL RIVER RURAL PACMICORP
COOPERA INC.
\By:
Bruce Griswold
Name: Bruce Griswold
Title: Short-term Origination, Director
Date: May 29,2020
Digltally signed by Bruce
griswold
Date: 2020,0529 1 5:45:41 -07'00By:
Name:
Title:
Date:
37
EXHIBIT A
EXPECTED MONTHLY NET OUTPUT2
MAXIMUM DELIVERY RATE
7.45 MWh
2 Not" to Form - Prior to executing the Agreement, Seller will be required to provide PacifiCorp information
sufficient to allow PacifiCorp to reasonably veri$ the output estimates stated in Exhibit A.
Month On-Peak Energy
(kwh)
Off-Peak Energy
ftwh)
Total Energy (kWh)
January 772,256 557.744 1,330,000
February 701,726 526,274 1.228.000
March 908.960 716,040 1,625,000
April 1,075,360 784,640 1.860,000
May r302.260 937,740 2,240,000
June 1,422,860 t.t37.r40 2,560,000
July 1,300,640 939,360 2.240.000
Auzust 1.016.000 729,000 1,745,000
September 902,400 722.600 1,625,000
October 957,800 692,200 1.650.000
November 915,600 669,400 1,585,000
December 786,400 623.600 1,410,000
EXIIIBIT B
DESCRIPTION OF SELLER'S FACILITY
The Felt project, licensed in FERC Docket P-5089, is a hydropower facility that includes trvo
powerplants (referred to as Powerhouse #l and Powerhouse #2) located at a diversion dam on
the Teton fuver. The project has a total installed capacity of 7,450 kilowatts (k\y).
Powerhouse #l contains two horizontal Francis turbines and generators with a combined
hydraulic capacity of 400 cfs and a combined generating capacity of 1,950 kW.
Powerhouse #2 contains two vertical Francis turbines and generators with a combined hydraulic
capacity of 500 cfs and a combined generating capacity of 5,500 kW.
FacilityNameplate Capacity Rating: 7.45 MW (all four generators below)
Powerhouse# I Generator l:
Type (synchronous or inductive): Synchronous
Model: GE Generator
Number of Phases: 3
Power factor requirements:
Rated Power Factor (PF) or reactive load (kVAR):
Rated Output (kW): 1000
Rated Output (kVA): 1250
Rated Voltage (line to line): 4160
Rated Current (A): Stator:173 A; Rotor: A
Maximum kW Output: 1000 kW
Maximum kVA Output: 1250 kVA
Minimum kW Output: 325 kW
Powerhouse # I Generator 2:
Type (synchronous or inductive): Synchronous
Model:
Number of Phases: 3
Power factor requirements:
Rated Power Factor (PF) or reactive load (kVAR):
Rated Output (kW): 950
Rated Output (kVA): I187
Rated Voltage (line to line): 4160
Rated Current (A): Stator: _165_ A; Rotor: _ A
Maximum kW Output:950
Maximum kVA Output: _l 187 kVA
Minimum kW Output: _310_ kW
kw
Powerhouse # 2 Generator l:
Type (synchronous or inductive): Synchronous
Model:
Number of Phases: 3
Power factor requirements:
Rated Power Factor (PF) or reactive load (kVAR): 1.0
Rated Output (kW): 2750
Rated Output (kVA): 2750
Rated Voltage (line to line): 4160
Rated Current (A): Stator: _382-,4.; Rotor: _ A
Maximum kW Output: 2750_ kW
Maximum kVA Output: 2750_kVA
Minimum kW Output: _900_ kW
Powerhouse# 2 Generator 2:
Type (synchronous or inductive): Synchronous
Model:
Number of Phases: 3
Power factor requirements :
Rated Power Factor (PF) or reactive load (kVAR): 1.0
Rated Output (kW): 2750
Rated Output (kVA): 2750
Rated Voltage (line to line): 4160
Rated Current (A): Stator: _382-,4.; Rotor: _ A
Maximum kW Output: 2750_ kW
Maximum kVA Output: 2750_kVA
Minimum kW Output: _900_ kW
Station service requirements, and other loads served by the Facility, if any:
a. Parsitic station power: 1.3 kW
b. Electrical losses in interconnection transformers: 16.6 kW
c. lnterconnection losses in power lines between generators and POI: 38.4 kW
d. Total station power and losses (a.-c.): 56.3 kW
Location of the Facility:
The Felt Project is located in unincorporated area in Teton County, and Tetonia, Idaho is the
nearest city.
The lands used are onwed by Fall River Rural Electric Cooperative and the United States under
the jurisdiction of the Bureau of Land Management. The lands are located in Township 7N,
Range 44E, Boise Meridian, Sections 29,20, and 28. The approximate latitude and longitude are
43 degrees, 55 minutes North and I l1 degrees, 17 minutes West.
EXIIIBIT C
SELLER'S INTERCONNECTION FACILITIES
[Instructions to Seller:1. Include description of point of metering, and Point of Delivery
2. Provide interconnection single line drawing of Facility including any transmission
facililtes on Seller's side of the Point of Delivery.J
The point of interconnection to PacifiCorp's system is located at PacifiCorp's pole # 3l-07-44#
290901. The point of metering is located at PacifiCorp pole # 3l-07-44# 290900.
See attached one-line diagram.
EXEIBIT D
REQTIIRED FACILITY DOCTJMENTS
QF Certification
FERC Hydropower License
Interconnection Agreement
EXHIBIT E
LEASES
Property not owned by Fall River Rural Electric Cooperative is authorized for use under the
Federal Energy Regulatory Commission's Hydropower license (P-5089) and/or a Right of
Way Issued by the Bureau of Land Management.
EXIIIBIT G
FORM OF PARENT GUARANTY
N/A
EXIIIBIT tI
SELLER AUTHORIZATION TO RELEASE
GENERATION DATA TO PACIFICORP
lDArEl
Director, Transmission Services
PacifiCorp
825 NE Multnomah, Suite 1600
Portland, OR 97232
To Whom it May Concern:
("Seller") hereby voluntarily authorizes PacifiCorp's Transmission
business unit to share Seller's interconnection information with marketing function employees of
PacifiCorp, including but not limited to those in Energy Supply Management. Seller
acknowledges that PacifiCorp did not provide it any preferences, either operational or rate-
related, in exchange for this voluntary consent.
EXIIIBIT I
REQUIRED INSURANCE
l.l Required Policies and Coveraees. Without limiting any liabilities or any other obligations
of Seller under this Agreement, Seller must secure and continuously carry with an insurance
company or companies rated not lower than "A-IVII" by the A.M. Best Company the insurance
coverage specified below: tl l
l.l.1 Workers' Compensation. Seller shall comply with any applicable laws or statutes,
state or federal jurisdiction, where Seller performs work.
1.1.2 Employers' Liability. Seller shall maintain employers' liability insurance with
minimum limits covering bodily injury for: $1,000,000 - each accident, $1,000,000 by
disease - each employee, and $1,000,000 by disease - policy limit.
1.1.3 Commercial General Liability. Seller shall maintain insurance to include premises
and operations, contractual liability, with a minimum single limit of $1,000,000 each
occrurence to protect against and from loss by reason of injury to persons or damage to
property based upon and arising out of the activity under this Agreement.
1.1.4 Business Automobile Liability. Seller shall secure and continuously carry business
automobile liability insurance with a minimum single limit of $1,000,000 each accident
covering bodily injury and property damage with respect to Seller's vehicles whether
owned, hired or non-owned.
1.1.5 Umbrella/excess Liability. Seller shall maintain umbrella or excess liability
insurance on an occurrence and following form basis with a minimum limits as follows:
(a) Facility Capacity Rating under 200 KW - $1,000,000
(b) Facility Capacity Rating at or above 200 KW - $5,000,000
1.1.6 Property lnsurance. Seller shall maintain property insurance covering equipment
and structures in an amount at least equal to the full replacement value for "all risks" of
physical loss or damage, including coverage for earth movement, flood boiler and
machinery, and business intemrption. The policy may contain separate sub-limits and
deductibles subject to insurance company underwriting guidelines. Property insurance will
be maintained in accordance with terms available in the insurance market for similar
facilities.
1.2 Additional Provisions or Endorsements.
1.2.1 Except for workers' compensation and property insurance, the policies required must
include provisions or endorsements as follows:
(a) naming PacifiCorp, parent, divisions, officers, directors and employees as
additional insureds;
- Project-specific insurance requirements will be provided in the project-specific draft PPA, informed by the specific
details ofthe proposed project.
(b) include provisions that such insurance is primary insurance with respect to
the interests of PacifiCorp and that any other insurance maintained by PacifiCorp
is excess and not contributory insurance with the insurance required hereunder, and
(c) cross liability coverage or severability of interest.
1.2.2 Unless prohibited by applicable law, all required insurance policies must contain provisions
that the insurer will have no right of recovery or subrogation against PacifiCorp.
1.3 Certificates of Insurance. Prior to connection of the Facility to PacifiCorp's electric
system, or another utility's electric system if delivery to PacifiCorp is to be accomplished by
wheeling, Seller shall secure and continuously carry insurance in compliance with the
requirements of this Section. Seller shall provide PacifiCorp with certificates of insurance within
ten (10) days after the date by which such policies are required to be obtained, in ACORD or
similar industry form. The certificates must indicate that the insurer will provide thirty (30) days
prior written notice of cancellation. Seller's compliance with the insurance requirements
hereunder. lnsurance certificate confirming compliance shall be provided to PacifiCorp by Seller
at least annually and each time a new insurance policy is issued or becomes effective.
Commercial General Liability coverage written on a "claims-made" basis, if any, shall be
specifically identified on the certificate, and Seller shall be maintained by Seller for a minimum
period of five (5) years after the completion of this Agreement and for such other length of time
necessary to cover liabilities arising out of the activities under this Agreement.
1.4 Term of Commercial General Liabilitv Coveraee. Commercial general liability coverage
must be maintained by Seller for a minimum period of five (5) years after the completion of this
Agreement and for such other length of time necessary to cover liabilities arising out of the
activities under this Agreement.
1.5 Periodic Review. PacifiCorp may review this schedule of insurance as often as once
every two (2) years. PacifiCorp may in its discretion require Seller to make reasonable changes
to the policies and coverages described in this Exhibit to the extent reasonably necessary to cause
such policies and coverages to conform to the insurance policies and coverages tlpically
obtained or required for power generation facilities comparable to the Facility at the time
PacifiCorp's review takes place.
EXHIBIT J
NERC EVENT TYPES3
3 Not" to Form - This table will be adjusted as necessary to conform with NERC requirements as they exist at the
Event
Tyoe
Description of Outages
UI
Unplanned (Forced) Outaerlmmediate - An outage that requires immediate
removal of a unit from service, another outage state or a Reserve Shutdown state.
This type of outage results from immediate mechanicaVelectrical/hydraulic
control systems trips and operator-initiated trips in response to unit alarms.
U2
Unplanned (Forced) OutasFDelayed - An outage that does not require
immediate removal of a unit from the in-service state but requires removal within
six (6) hours. This type of outage can only occur while the unit is in service.
U3
Unplanned (Forced) OutaerPostponed - An outage that can be postponed
beyond six hours but requires that a unit be removed from the in-service state
before the end of the next weekend. This type of outage can only occur while the
unit is in service.
SF
Startup Failure - An outage that results from the inability to synchronize a unit
within a specified startup time period following an outage or Reserve Shutdown.
A startup period begins with the command to start and ends when the unit is
synchronized. An SF begins when the problem preventing the unit from
synchronizing occurs. The SF ends when the unit is synchronized or another SF
occurs.
MO
Maintenance Outaee - An outage that can be deferred beyond the end of the next
weekend, but requires that the unit be removed from service before the next
planned outage. (Characteristically, a MO can occur any time during the year, has
a flexible start date, may or may not have a predetermined duration and is usually
much shorter than a PO.)
ME
Maintenance Outaee Extension- An extension of a maintenance outage (MO)
beyond its estimated completion date. This is tlpically used where the original
scope of work requires more time to complete than originally scheduled. Do not
use this where unexpected problems or delays render the unit out of service
beyond the estimated end date of the MO.
PO
Planned Outaee - An outage that is scheduled well in advance and is of a
predetermined duration, lasts for several weeks and occurs only once or twice a
year.
PE
Planned Outage Extension - An extension of a planned outage (PO) beyond its
estimated completion date. This is typically used where the original scope of
work requires more time to complete than originally scheduled. Do not use this
where unexpected problems or delays render the unit out of service beyond the
estimated end date of the PO.
time of PPA execution.
Where
EXIIIBIT K
SCHEDT]LE 38 AI\D PRICING SUMMARY TABLE
Conforming Energy Purchase Price : AR"" * MPM
Non-Conforming Energy Purchase Price: Minimum of [AR". * MPM; or
Mid- c-851
AR." : Conforming Energy annual rate from Table 1, below, for the year ofthe Net
Output.MPM : monthly On-Peak or Off-Peak multiplier from Table 2, below, that
corresponds to the month of the Net Output and whether the Net Output
occurred during On-Peak Hours or Off-Peak Hours.
Mid-C-85 : 85% of weighted average of the average Firm Market Price Index for the
month, or portion of month, of Net Output.
Table L: Conforming Energy Annual Rates
Year
Conforming Energy
Annual Rate (AR".)
$/MWh
2021 $s6.35
2022 $s8.16
2023 $60.92
2024 s64.2s
202s $67.s3
2026 $69.88
2027 $7r.26
2028 $73.63
2029 $74.96
2030 $76.77
2031 $78.28
2032 $81.21
2033 $83.48
2034 $85.71
203s $87.86
2036 $90.30
2037 $92.19
2038 $94.21
2039 $96.37
2040 $99.30
2041 $101. l3
Table 2: Monthly On-Peal/0fr-Peak Muldplierr
Month 0n-Pcrk
Houn
Off-Peak
Hours
January t03%94o/o
Febnrarv l05o/o 97%
March 95o/o 80o/o
Aoril 95o/o 760/o
May 92o/o 630/o
June 94o/o 650/o
Julv l2lo/o 92%
Ausust tzt%106%
September t09%99P/o
October ll5o/o t05%
November ll0o/o 960/o
December l29o/o l20o/o
[Schedule 38 os it qists on the Effective Date will be inserted os Exhibit KJ
EXHIBIT L
PARTY NOTICE INFORMATION
Notices PacifiCorp Seller
All Notices:PacifiCorp
825 NE Multnomah, Suite 600
Portland, Oregon 97232- 2315
Attn: Contract Administration
E-mail: cntadmin@pacifi corp.com
Bryan Case
CEO/General Manager
Fall River Rural Electric
Cooperative
I l50N 3400E
Ashton, ID 83420
Office [phone]
Cell [phone]
All Invoices:Attn: Back Office, Suite 1900
Email:
powerinvoices@pacifi corp.com
Fall River Rural Electric
Cooperative
I 150N 3400E
Ashton, lD 83420
Scheduling:Attn: Pre-Scheduling, Suite 600
Phone: [phone]
Email:
cpreschd@pacifi corp. com
Dave Peterson
Manager of Engineering
Fall River Electric
Cooperative
[phone] Direct Office
O0$709-4870 Cell
Payments:Attn: Central Cashiers Office,
Suite 550
Phone: [phone]
Fall River Rural Electric
Cooperative
I l50N 3400E
Ashton, ID 83420
Wire Transfer:To be provided in separate letter
from PacifiCom to Seller
Credit and Collections:Attn: Credit Manager, Suite 600
Phone [phone]
Fall River Rural Electric
Cooperative
1 150N 3400E
Ashton, ID 83420
Notices of an Event of
Default or Potential
Event of Default:
PacifiCorp Legal Department
825 NE Multnomah, Suite 2000
Portland, Oregon 97232- 2315
Attn: Assistant General Counsel
Bryan Case
CEO/General Manager
Fall River Rural Electric
Cooperative
1 l50N 3400E
Ashton, ID 83420
Office (208)6s2-7431
Cell [phone]
EXflBTT 4.9.2
[Subsequent Energy Schedules - as appended]