20210303Application.pdf

Y ROCKY MOUNTAIN
nPJ*vE#*,1407 W North Temple, Suite 330
Salt Lake City, Utah 84116
March 3,2021
VIA ELECTRONIC FILING
Jan Noriyuki
Commission Secretary
Idaho Public Utilities Commission
11331 W. Chinden Blvd
Building 8 Suite 20lA
Boise,lD 83714
Re:CASE NO. PAC-E-2I.05
IN TI{E MATTER OF TIIE APPLICATION OF PACIFICORP FOR APPROVAL
OR REJECTION OF THE PURCIIASE POWER AGREEMENT WITH
COMMERCIAL ENERGY MANAGEMENT, INC.
Dear Ms. Noriyuki:
Please find attached 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,
R.
Vice-President of Regulation
Enclosures
Emily Wegener
Rocky Mountain Power
1407 WestNorth Temple, Suite 320
Salt Lake City, Utah 84116
Telephone: [phone]
Attorney for Rocky Mountain Power
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION ) CASE NO. PAC.E.2I.Os
OF PACIFICORP FORAPPROVAL OR )REJECTION OF TIIE PURCHASE POWER ) APPLICATION OF
AGREEMENT WITH COMMERCIAL ) ROCKY MOUNTAIN POWER
ENERGY MANAGEMENT, INC. )
Rocky Mountain Power, a division of PacifiCorp, ("Comp?Dy"),pursuant to RP 52 andthe
applicable provisions of the Federal Energy Regulatory Commission's ("FERC") Public Utility
Regulatory Policies Act of 1978 ("PURPA"), hereby respectfully applies, to the Idaho Public
Utilities Commission, ("Commission"), for an order approving or rejecting the Power Purchase
Agreement ("Agreement") between PacifiCorp and the Commercial Energy Management, Inc.,
("Seller") dated February 26,2021.
In support of this Application, Rocky Mountain Power states as follows:
I. 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.
2. Seller owns, operates, and maintains a small hydro-electric power plant located on
the Portneuf river approximately three-quarters of a mile east of Lava Hot Springs, in Bannock
Page I
County, Idaho with a nameplate capacity rating of 900 kilowatts ("kW") (the "Facility"). Seller
operates the Facility as a qualiffing facility ("QF") underthe applicable provisions of the PURPA.
The Seller desires to sell, and PacifiColp agrees to purchase, the net output delivered by the Facility
in accordance with the terms and conditions of this Agreement.
3. The rates, terms and conditions in this Agreement are in accordance with the rates,
terms, and conditions previously approved by the Commission for purchases from QFs. The
Company intends to designate the Facility as a network resource for the purposes of serving
network load.
4. Sections 201 and 210 of PURPA, and pertinent regulations of 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 Commission has authority under PURPA, Sections 201 and
210 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.
5. 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 and32802 on February 5,2013 and
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May 5, 201 3, respectively, which further clarified certain terms and conditions of PPAs. The energy
service agreement ("ESA") contains published rates for projects of 10 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
term of the Amendment, with no suffrciency period. See Order No. 32697 at 2l-22, Order No.
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 ("SAR") avoided cost methodology.
II. THE POWER PURCI{ASE AGREEMENT
6. The Seller's original PURPA contract was dated November 21, 1991. That PURPA
contract was entered into prior to PacifiCorp's separation of its energy supply and transmission
functions as required by FERC. For this reason, the contract included provisions that addressed
both energy sales and interconnection requirements. That contract was scheduled to expire on May
3l,2020,and the Seller expressed a desire to continue to make sales from the Facility to PacifiCorp
consistentwith the requirements of PURPAas implemented in the State of Idaho while making the
necessary interconnection upgrades.
7. To provide the Seller additional time to meet the current transmission
interconnection requirements the Company filed an application with the Commissionl requesting
authorization to extend the existing contract on June 8,2020. The Commission granted that request
approving the amended contract and authorized anextension through March 1,2021, or upon the
replacement date of the new PPA, which ever was sooner.
I In the Matter of the Applicationfor Approval of the Power Purchase Agreement Between PacifiCorp ond
Commercial Energt Management Inc. PAC-E-20-09, OrderNo. 34792.
Page 3
8. On March 24, 2020, the Seller secured a new stand-alone interconnection
agreement that replaces the interconnection provisions in the original PURPA contract. The Seller
has demonstrated to PacifiCorp that the Facility remains a QF as defined by PURPA and as
implemented in the State of ldaho.
9. 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 term of this Agreement; and
(2) the likelihood that the Facility, under average design conditions, will generate at no more than
0.9 aMW in any calendar month. The Facility's estimated annual net output over the term is 2,187
megawatt-hours per year.
10. The Agreement submitted herewith, as Attachment l, complies with previous
Commission orders. Except as otherwise indicated, the Company will pay the Seller the price set
forth in Exhibit K of the Agreement.
I l. Paragraph 2 of the Agreement provides that the contract 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 this energy and capacity are legitimate expenses for cost recovery in Idaho.
III. COMMT]NICATIONS
12. Communications regarding this filing should be addressed to:
Ted Weston
Idaho Regulatory Affairs Manager
Rocky Mountain Power
1407 WestNorth Temple, Suite 330
Salt Lake city, utah 841l6
Telephone: [phone]
Email: ted.weston@pacifi corp.com
IdahoDockets@ pac i fi corp.com
Page 4
Emily Wegener
Counsel
Rocky Mountain Power
1407 West Norttr Temple, Suite 320
Salt Lake city, Utah 84116
Telephone : [phone]
Email: emily.weeener@nacifi corp.com
In addition, Rocky Mountain Power requests that all data requests regarding this
Application be sent in Microsoft Word to the following:
By email (prefened) : datareq ue st@pac ifi coro. com
By regular mail Data Request Response Center
PacifiCorp
825 Multnomah, Suite 2000
Portland, Oregon 97232
Informal questions may be directed to Ted Weston, Idaho Regulatory Affairs Manager at
(80t)220-2963.
IV. MODIFIED PROCEDURE
13. 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. REQUEST FOR RELIEF
WHEREFORE, Rocky Mountain Power respectfully requests that the Commission:
(l) Issue an order authorizing that this matter be processed by Modified Procedure;
(2) Approve or reject the power purchase agreement between the Commercial Energy
Management, Inc. and PacifiCorp without change or condition; and
Page 5
(3) Declare that the avoided cost prices set forth in the Amendment 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.
DATED this 3'd day of March,2\2l.
Respectfu lly submitted,
ROCKYMOI.JNTAIN POWER
fu- UJe"rf^'
Emily dgener v
Rocky Mountain Power
1407 WestNorth Temple, Suite 320
Salt Lake city, utah 84116
Telephone: [phone]
Attorneyfor Roclcy Mountain Power
Page 6
Attachment L
Idaho Existing Hydro - DGCUTION COPY
POWER PURCHASE AGREEMENT
BETWEEN
COMMERCIAL ENERGY MANAGEMENT, INC.
AI\tD
PACIFICORP
TABLE OF CONTENTS
SECTION I DEFTNITIONS, RULES OF rNTERPRETATION...............
1.1 Defined Terms.
1
1
1.2 Rules of Interpretation.9
2.2 Milestones...10
SECTION 3 REPRESENTATIONS Ai\D WARRANTIES ...............11
3.1 Mutual Representations and Warranties.. ..............11
3.2 Seller's Further Representationsr'lVarranties and Covenants... .....................11
3.3 No Other Representations or Warranties............ .......................13
3,4 Continuing Nature of Representations and Warranties; Notice.13
SECTION ................... 1 3
DELIVERIES OF NET OUTPUT..........13
4.2 Designation as Network Resource..... .....................13
4.3 No Sales to Third Parties.L4
4.6 PaciliCorp as Merchant .....................14
4.7 Ownership of Environmental Attributes................ .....................15
4.8 Purchase and Sale of Capacity Rights...15
SECTION 5 CONTRACT PRICE; COSTS .......................17
5.1 Contract Price; Includes Capacity Rights.......... .........................17
ll
5.5 Costs of Ownership and Operation.... .....................19
5.6 Rates Not Subject to Review. ..............19
SECTION 6 OPERATTON AND CONTROL ....................18
6.2 Standard of Facility Operation. .........19
6.4 Coordination with System. ..................19
6.10 Transmission Provider Consent. ........................22
6.11 Dedicated Communication Circuit. ....................22
6.12 Reports and Records ......................22
6.13 X'inancial and Accounting Information............... ....................24
SECTION 7 QUALTFYING FACILITY STATUS... ........25
7.1 Seller's QF Status..25
SECTION 8 SECURITY AND CREDIT SUPPORT 2S
SECTION 9 25
25
9.1 Installation of Metering Equipment.. ......................25
9.3 Inspection, Testing, Repair and Replacement of Meters
-1lr-
.25
9.5 WREGIS Metering. .......25
SECTION 10
BILLINGS, COMPUTATIONS AND PAYMENTS 26
26
10.3 Interest on Late Payments..... .......26
SECTION 11 DEFAULTS AI\D REMEDIES
ll.2 Remedies for f,'ailure to Deliver/Receive............ ....................28
11.3 Termination and Remedies................... ............28
ll.4 Termination of Duty to Buy.......... .....................29
11.5 Termination Damages. .................29
11.6 Duty/Right to Mitigate... .......'.......30
11.8 Cumulative Remedies..... ...............30
SECTION 12 INDEMNIFICATION AND LIABILITY................ .....30
SECTION 13 31
31
SECTION 14 32
-lv-
FORCE MAJEURE 32
l4.l Definition of f,'orce Majeure. .........32
14.2 Suspension of Performance..32
14.3 tr'orce Majeure Does Not Affect Other Obligations............. .......................32
SECTION 15 SEYERAL OBLIGATIONS 33
SECTION 16 CHOICE OF LAW
SECTION 17 PARTIAL INVALIDITY....................33
33SECTION 18 NON-WAIY8R..........
SECTION 19 GOVERNMENTAL JURISDICTION AND AUTHORIZATIONS......... ......34
SECTTON 20 SUCCESSORS AI\D ASSrGNS........... ........34
20.1 Restriction on Assignments. .............. ................34
20.2 Permitted Assignments ..................34
SECTION 21 ENTIRE AGREEMENT 34
22.1 Addresses and Delivery Methods...... .................34
SECTION 24 DISAGREEMENTS 35
24.4 WAIVER OF JURY TRIAL. ........35
-vl-
EXHIBITS
ExhibitA-l
Exhibit B
Exhibit C
ExhibitD
Exhibit E
Exhibit F
Exhibit G
Exhibit H
Exhibit I
Exhibit J
Exhibit K
Exhibit L
Estimated Monthly Net Output
Description of Seller's Facility
Seller's Interconnection Facilities
Required Facility Documents
Leases
Reserved
Qualified Reporting Entity Services Agreement
Seller Authorization to Release Generation Data to PacifiCorp
Required Insurance
NERC Event Types
Rocky Mountain Power Schedule No. 38
Party Notice Information
-vlt-
POWER PURCHASE AGREEMENT
THIS POWER PURCHASE AGREEMENT (this "Agreement"), is entered into between
Commercial Energy Management, an ldaho 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"Pafi."
A. Seller owns, operates and maintains an existing hydro-powered generating facility
known as Portneuf River Hydroelectric for the generation of electric energy located in Bannock
County, Idaho, with a nameplate capacity rating of 0.9 MW (the "Facility"); and
B. Seller will operate the Facility as a Qualiffing Facility ("QF"); and
C. Seller desires to sell, and PacifiCorp agrees to purchase, the Net Output delivered
by the Facility in 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 designate the Facility as a Network Resource for the
purposes of serving network load.
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, RULES OF INTERPRETATION
1.1 Defined Terms. Unless otherwise required by the context in which any term
appears, initially capitalizedterms used in this Agreement have the following meanings:
ooAbandonment" means the relinquishment of all possession and control of the
Facility by Seller, but only if such relinquishment is not caused by or athibutable 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 4.10.
"Affiliate" means, with respect to any entity, each entity that directly or indirectly
controls, is controlled by, or is under common 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.
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.
I
66AC" means alternating current.
ooBusiness 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 athibute thereof, including reactive power, or accounting
construct, including any of the same counted towards any current or future resource adequacy or
reserve 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 except Non-Conforming Energy
subject to any adjustments to the Energy Delivery Schedule in Section 4.9.
"Conforming Energy Purchase Price" means the applicable price for Conforming
Energy and capacity (if any), specified in Exhibit K.
"Contract Interest 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 Conforming Energy Purchase Price or Non-
Conforming Energy Purchase Price as applicable expressed in $/lvlWh, for Net Output and
Capacity Rights stated in Section 5.1.
'oContract 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 (b) 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.
"Effective Date" is defined in Section 2.1.
2
"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, organuation 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 atmosphere. 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.
"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 l.l
"Expected Monthly Net Output" means the estimated monthly Net Output as
determined in Exhibit A-1.
"Expected Net Output" means 2300 MWh (depends on run-of-river flow) of Net
Output in the first Contract Year, as applicable, by an annual degradation factor of I o/o (depends
on run-of-river flow) per Contract Year, measured at the Point of Delivery. Seller estimates that
the Net Output will be delivered during each Contract Year according to the Expected Monthly
Net Output provided in Exhibit A-1, 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 fumishing of electric energy by Seller to PacifiCorp and required to
interconnect with the System.
"FERC" means the Federal Energy Regulatory Commission.
J
o'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 Index on such day, multiplied by the hourly CAISO
day-ahead market locational marginal price for the "PACE. DGAP_PACE-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 14.1.
"Forced Outage" means NERC Event Types Ul, U2 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
lnterconnection Facilities.
o'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.
"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.
"lnadvertent Energy" means: (l) energy delivered in excess of the Maximum
Monthly Purchase Obligation; and (2) energy delivered to the Point of Delivery atarute
exceeding the Maximum Delivery Rate. Inadvertent Energy is not included in Net Output.
"Indemnified Party" is defined in Section 6.2.3(b).
"Initial Delivery Date" is defined in Section 2.2(a).
"Initial Energy Delivery Schedule" shall have the meaning set forth in Section
4.9.
"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,
4
upgrades, transformers and associated equipment, substations, relay and switching equipment,
and safety equipment.
"Interconnection Provider" means Pacifi Corp Transmission.
'(KWr" means kilowatt.
"Lender" 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 pernanent 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 Credif' 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 Qualiffing 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) 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.
"Maintenance 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.
5
"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 an average rate equivalent to the actual Nameplate
Capacity Rating, as stated in Exhibit A-1.
"Maximum Monthly Purchase Obligation" means the maximum amount of
energy PacifiCorp is obligated to purchase under this Agreement in a calendar month. In
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, [nc.
"Mountain Prevailing Time" or "MPT" means Mountain Standard Time or
Mountain Daylight Time, as applicable in Utah on the day in question.
66MWr" means megawaff.
"MWh" means megawatt-hour.
'Nameplate Capacity Rating" means the maximum installed instantaneous
generation capacity of the completed Facility, expressed in MW (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 0.9 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 hansmission losses and other adjustments (e.g., Seller's load
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.
o'Non-Conforming Energy" means for any Billing Period subject to any
adjustments to the Energy Delivery Schedule in Section 4.9 and Section 4.10: (l) that portion, if
any, of Net Energy delivered subsequently to the initial ll0% of the Scheduled Monthly Energy
Delivery for that Billing Period; or (2) all Net Energy delivered when Net Energy delivered is
less than 90%o of the Scheduled Monthly Energy Delivery for that Billing Period; 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.
6
"Off-Peak Hours" means all hours 24:00:00 through 07:00:00 and hours 23:00:00
through 24:00:00, MPT, Monday through Saturday and hours 24:00:00 through 24:00:00 on next
date, MPT, on Sundays and NERC designated holidays.
"On-Peak Hours" means all hours 07:00:00 through 23:00:00 MPT, 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 l2.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 ayerage of the Firm Market Price Index 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.
"Pafi" and "Parties" are defined in the Recitals.
"Permits" means the permits, licenses, approvals, certificates, entitlements and
other authorizations issued by Governmental 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
f, and specifically excludes any Maintenance Outage or Forced Outage.
"Point of Delivery" means the point of interconnection between the Facility and
the System, as specified in the Generation lnterconnection Agreement and as further 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.
7
"QF" means "Qualifring Facility," as that term is defined in the FERC
regulations (codified at 18 CFR Part 292) in effect on the Effective Date.
"Qualiffing 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 4.9 and 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.
"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).
6(RTO" means any entity (including an independent system operator) that
becomes responsible as system operator for, or directs the operation of, the System.
(6S&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.
"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 4.9.2 of this
Agreement.
"Seller" is defined in the Recitals.
"Seller lndemnitees" 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 realized by 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
8
additions required to interconnect the Facility, all as provided in the Generation Interconnection
Agreement.
"Tariff'means PacifiCorp's Open Access Transmission Tariff on file with FERC,
as such tariff is 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 11.5
"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 Interpretation.
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,"
"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; (f) the masculine includes the feminine and neuter
and vice versa; (g) "including" means "including, without limitation" or "including, but not
limited to"; (h) all references to a 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 o'days" means calendar days, unless expressly stated otherwise in this
Agreement.
1.2.2 Terms Not to be Construed For or Aeainst Either Partv. 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 OrderNo. 717, Standards of Conduct for Transmission
9
Providers, and its companion orders, requiring the separation of its transmission 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
Interconnection Agreement is a separate and free standing contract and that the terms of this
Agreement are not binding upon the Interconnection Provider.
(b) Notwithstanding any other provision in this Agreement, nothing in
the Generation Interconnection Agreement, nor any other agreement 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 Interconnection Agreement, will alter or modiff 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
Interconnection 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
Interconnection Provider or Transmission Provider, and is not liable for any breach of agreement
or duty by Interconnection Provider or Transmission Provider.
SECTION 2
TERM; MILESTONES
2.1 Term. This Agreement will become effective after the occurrence of all of the
following events (such date of occurrence, the "Effective Date"): (l) it is executed and delivered
by both Parties; (2) it is approved by the Commission as described below; and (3) Seller has
executed and is performing in accordance with a new Generation Interconnection Agreement
with the Interconnection Provider. This Agreement shall not become effective until the
Commission has determined, 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 Idaho in the event other
jurisdictions deny recovery of their proportionate share of said expenses. Unless terminated
earlier as provided herein, if effective, this Agreement remains in effect until November 30,
2036. For the sake of clarity, Seller is obligated to sell and make available to PacifiCorp its Net
Output from the Initial Delivery Date through the last date of the Term.
2.2 Milestones. Time is of the essence in the perfornance of this Agreement, and
Seller's delivery of Net Output is critically important. Therefore, Seller must achieve the
milestones provided in (a) below at the times so indicated.
(a) Seller must begin selling and making available to PacifiCorp Net
Output under this Agreement on March 1,2021("Initial Delivery Date").
l0
SECTION 3
REPRESENTATIONS AND WARRANTIES
3.1 Mutual Reoresentations and Warranties. Each Party represents and warrants to
the other that:
3.1.1 Organization. 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 Contravention. The execution and delivery of this Agreement does not
contravene any provision of, or constitute a default under, any indenfure, 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 Govemmental
Authority having authority to which it is subject.
3.1.5 Valid and Enforceable Agreement. 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 Authoritv. 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 Premises 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
l1
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 Effective Date, Seller
must promptly notiff 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 Enersv. Before the Initial Delivery Date, 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.
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 Litigation. 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 Elieible 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
t2
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 the Initial Delivery Date. 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
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 Designation 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 Integration 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 Conhact Price or
other terms and conditions of this PPA. Il 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 o'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 DNRNotice. 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
l3
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 Pur,ty;
[, however, that Seller's right to terminate the Agreement under this Section 4.2 will
cease following (a) any amendment of this Agreement associated with addressing maffers
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 Ou@ut,
energy, or Capacity Rights from the Facility to any party other than PacifiCorp; ryldgd,
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 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 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
Interconnection 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
Output) 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
capacity), even if and no matter how such curtailment or redispatch directive is carried out by
PacifiCorp, which may fulfill 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 ofNet 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.
t4
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 Capacitv Rights. Seller transfers 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 Energv Delivery Schedule. Seller shall prepare and provide to PacifiCo{p, on an
ongoing basis, a written schedule of Net Energy expected to be delivered by the Facility
("Energy Delivery Schedule") , in accordance with the following:
From the Effective Date through the first twelve full calendar months following the Effective Date,
Seller predicts that the Facility will produce and deliver the following monthly amounts ("Initial
Energy Delivery Schedule"):
Month Enerev Deliverv (kWh)
January
February
March
April
May
June
July
August
September
October
November
December
105,000
125,000
250,000
275,000
290,000
275,000
245,000
205,000
160,000
125,000
125,000
130,000
4.9.1 Seller may revise the Initial Energy Delivery Schedule any time prior to
the Effective Date. The amounts of energy to be generated reflected in the Energy Delivery
Schedule are estimates for the purpose of determining applicable Contract Price and do not
restrict actual generation.
15
4.9.2 Beginning at the end of the ninth full calendar month of Effective Date,
and at the end of every third month thereafter, Seller shall supplement the Energy Delivery
Schedule with three additional months of forward estimates (which shall be appended to this
Agreement as Exhibit 4.9.2) ("Subsequent Energy Delivery Schedule"), such that the Energy
Delivery Schedule will provide at least three months of scheduled energy estimates at all times.
Seller shall provide Subsequent Energy Delivery Schedules no later than 5:00 p.m. MPT of the
fifth business day after such ninth month and each subsequent third month. If Seller does not
provide a Subsequent Energy Delivery Schedule by the above deadline, scheduled energy for the
omitted period shall equal the amounts scheduled by Seller for the same three-month period
during the previous year.
4.9.3 On an after March 1,2021(first month), 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. tf
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. Pacificorp agrees that such
dates above shall be revised to the 25th day of the month that is prior to the month to be revised
(or the last business day prior to the 25th of the month if the 25th falls on a weekend or holiday)
to the extent that Pacificorp develops a web-based or other electronic noticing or scheduling
system for Seller to provide such estimates.
(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 Delivery
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 Adjusfinent of Energ.v Delivery Schedule. In the event of a Qualiffing
Curtailment, the Scheduled Monthly Energy Delivery will be adjusted,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:
SMED (adj ): SMED t (1-z )n
i=l
Hr,*DRm -DRc,
Ht DRm
Scheduled Monthly Energy Delivery for the month in which the
Qualiff ing Curtailment occurs
Adjusted Scheduled Monthly Energy Delivery for the month in
SMED
Where:
SMED(adj)
t6
which the Qualiffing Curtailment occurs
the duration in hours of the Qualiffing Curtailment (r)
total hours in the month in which Qualiffing Curtailment occurs
the Maximum Curtailed Facility Delivery Rate during the
Qualiffing Curtailment (i)
the Maximum Facility Delivery Rate
a Qualiffing Curtailment
the number of Qualifuing curtailments in the month
Where Qualiffing Curtailments overlap, each distinct period of overlap shall be calculated as a
separate Quali$ing Curtailment such that no hour within a calendar month may figure into more
than one Qualifying Curtailment.
SECTION 5
CONTRACT PRICE; COSTS
5.1 Contract Price: Includes Capacitv Rights. PacifiCorp will pay Seller Conforming
Energy or Non-Conforming Energy Purchase Prices as applicable 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 Charges. Seller is responsible for paying or satisfring 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 transmission costs, transmission line losses, and any operation
and maintenance charges imposed by Interconnection Provider for the Interconnection Facilities.
Except as provided in Section 4.Z,PacifrCorp is responsible for all costs or charges, if any,
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
Interconnection Agreement, is responsible for all costs associated with the modifications to
Interconnection Facilities or the System (including System upgrades) caused by or related to the
Facility.
Hci
Ht
DRci
DRm
i
n
T7
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, as applicable, 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. In 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 characteraed) 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 p.opor"d by a
Putty, 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 Corp., 350 U.S. 332 (1956), and Federal Power Commission v. Sierra Pacific Power Co.,
350 U.S. 348 (1956), and clarified by Morgan Stanley Caoital Group. Inc. v. Public Util. Dist.
No. 1 of Snohomish, 554 U.S. 527,128 S. Ct.2733 (2008).
SECTION 6
OPERATION AI\D CONTROL
6.1
6.2
Reserved
Standard of Facilitv Operation
6.2.1 General. Seller will operate all interconnected equipment associated with
the Facility within its control 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
l8
applicable and mandatory standards, criteria and formal guidelines of FERC, NERC, any RTO,
und any other Electric System Authority and any successors to the functions thereof; (b) the
Permits and Required Facility Documents; (c) the Generation Interconnection Agreement; (d) all
Requirementr of La*; (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 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 "Indemnified Party") on account of any action by any Governmental Authority
due to noncompliance by the other Party (the "Indemniffing Party") with any Requirements of
Law or the provisions of this Agreement, or if the performance of the Indemnifring Party is
delayed or stopped by order of any Governmental Authority due to the Indemniffing Party's
noniompliance with any Requirements of Law, the Indemniffing Party must indemnify and hold
harmlesi the Indemnified Party against any and all Liabilities suffered or incurred by the
Indemnified Party as a result thereof. Without limiting the generality of the foregoing, the
IndemniSing Party must reimburse the Indemnified Party for all fees, damages, or penalties
imposed on the Indemnified Party by any Governmental Authority, other person or to other
utiiities for violations to the extent caused by a default by the Indemniffing Party or a failure of
performance by the Indemnifuing 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 lnterconnection 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
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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 Outages. 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 Interconnection 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 satisff a guarantee requirement.
6.5 .2 Maintenance Outaqes. If Seller reasonably determines that it is necessary
to schedule a Maintenance Outage, Seller must noti$ 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 must take all reasonable measures
consistent with Prudent Electrical Practices to minimize the frequency and duration of
Maintenance Outages.
6.5.3 Forced Outages. 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 (10%) 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 return 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.
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6.5.4 Notice of Deratines and Outases. 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 (5%) 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 Output. Seller represents and warrants
that the Expected Monthly Net Output provided in Exhibit A-l 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 Scheduling.
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 maffers 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 must 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 Interconnection Agreement or RTO requirement.
6.7 Forecasting.
6.7.1 Lons-Range Forecasts. Seller must, by December I't of each year during
the Term (except for the last year of the Term), provide an annual update to the expected long-
term monthly/diurnal mean net energy and net capacity factor estimates (l2X 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 Electric System Authority tariff procedures, protocols, rules and
testing as necessary and as may be modified from time to time.
6.7.2 Day-Ahead Forecasts and Updates. At Seller's expense, PacifiCorp will
solicit and obtain from a qualified renewable energy production forecasting vendor forecast data
and information with respect to the Facility, including day-ahead and real-time forecasting
services and provision of real-time meteorological data necessary for compliance with applicable
Electric System Authority procedures, protocols, rules and testing. Upon request by PacifiCotp,
Seller must provide a 24-hour telephone number that PacifiCorp may contact to determine the
then-current status of the Facility. PacifiCorp will present Seller with an invoice and
2l
documentation supporting the costs of obtaining such forecasting data. Seller must pay the
amount stated on the invoice within fifteen (15) days of receipt. PacifiCorp reserves the right to
change the forecasting vendor in its sole discretion during the Term.
6.8 Increase in Nameplate Capacity Rating: 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 ttrat 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 Parly to fulfill its obligations under this Agreement.
6.9 Telemetering. Seller must provide telemetering equipment and facilities capable
of transmitting the following information concerning the Facility pursuant to the Generation
Interconnection 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;
(b) 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 PacifiCo{p, 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) between PacifiCorp and the
control center in the Facility's control room or such other communication equipment as the
Parties may agree.
6.12 Reports and Records.
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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 the Initial Delivery Date.
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 certiffing 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 Other Information to be Provided to PacifiCom. At any time from the
Effective Date, one year's advance notice of the termination or expiration of any material
agreement, including Leases, pursuant to which the Facility or any material equipment relating
thereto is upon the Premises; provided that the foregoing does not authorize any early
termination of any land lease. In the event Seller has less than one year's advance notice of such
termination or expiration, Seller shall provide the notice contemplated by this Section to
PacifiCorp within fifteen (15) Business Days of Seller obtaining knowledge of the termination or
expiration.
6.12.4 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 Govemmental
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.L2.5 Documents to Governmental Authorities. After sending or filing any
statement, application, and report or any document with any Governmental Authority or Electric
System Authority relating to operation and maintenance of the Facility, Seller must promptly
provide to PacifiCorp a copy of the same.
6.12.6 Notice of Material Adverse Events. Seller must promptly notifr
PacifiCorp of receipt of written notice or actual knowledge by Seller or its Affiliates of the
occurence 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
23
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
Facility or on the Premises.
6.12.7 Notice of Litigation. Following its receipt of written notice or knowledge
of the commencement 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 notiff PacifiCorp.
6.12.8 Additional Information. 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.
6.12.9 Confidential Treatment. The reports and other information provided to
PacifiCorp under this Section 6.12 will be treated as confidential if such treatment 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 6.12.3 and 6.12.4, and pursuant to any
applicable Requirements of Law. Seller will have the right to seek confidential treatment of any
such information from any Governmental Authority entitled to receive such information.
6.13 Financial and Accounting 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 wriffen 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 Rights. 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
6.15 Reserved.
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 r"uronrble discretion that the Facility continues to qualify as a QF under all
applicable requirements.
SECTION 8
SECURITY AI\D CREDIT SUPPORT
Reserved.
SECTION 9
METERING
9.1 Installation of Metering Equipment. At Seller's expense, metering equipment
must be designed, furnished, installed, owned, inspected, tested, maintained and replaced as
provided in the Generation Interconnection Agreement. Seller must reasonably cooperate with
iracifiCorp 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 Interconnection Agreement, and as necessary to perform
Siller'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.
g.3 Inspection. Testing. 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 Interconnection Agreement, without PacifiCorp assuming any obligations of Seller
under the Generation Interconnection Agreement. If any of the inspections or tests disclose an
error exceeding 0.5 percent (0.5o ),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 Metering. Seller must cause the Facility to implement all necessary
25
generation information communications in WREGIS, and report generation information to
WREGIS which may be accomplished by executing a QRE agreement with PacifiCorp the
current form of which is attached as Exhibit G, pursuant to a WREGIS-approved meter dedicated
to the Facility and only the Facility.
SECTION 10
BILLINGS, COMPUTATIONS AI\D PAYMENTS
l0.l Monthly Invoices. On or before the thirtieth (30th) day following the end of each
Billing Period, PacifiCorp shall send to Seller payment for Seller's deliveries of Net Output to
PacifiCorp, together with computations supporting such payment. Payments in accordance with
this agreement will be direct deposited to Seller's bank account per Seller's instructions on
record with Accounts Payable.
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 Purty, in good faith, disputes any amount due under
an invoice provided under this Agreement, such Party must notiff 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 occurred. If any
amount disputed by such Party is determined to be due the other Pur,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 verifu the accuracy ofany
statement, charge or computation made under this Agreement or to veri$ 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 of Net 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 AND REMEDIES
I 1.1 Defaults. The following events are defaults under this Agreement, and are
26
"Events of Defaults" after the passing of notice and cure periods, as applicable:
I 1.1 .l Defaults by Either Partv
(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 commences, 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
Pafi anotice of the default;provided, 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; provided, 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.
ll.l.2 Defaults b), Seller.
(a) 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.
(b) 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
27
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.
(c) 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 Requlred
Facility Documents or Permits.
(d) Seller's Abandonment of construction or operation of the Facility
and such failure continues for thirty (30) days after Seller's receipt of written notice from
PacifiCorp.
(e) seller fails to maintain insurance as required by the Agreement
and such failure continues for fifteen (15) days after Seller's receipt of written noticefrom
PacifiCorp.
Il.2 Remedies for Failure to Deliver/Receive.
ll.2.l Remedy for Seller's Failure to Deliver. Upon the occurrence and during
the continuation of a default of Seller under Section ll.l.2(a), Seller must pay PacifiCorp within
five (5) Business Days after receipt of invoice, an amount equal to the surnof (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 PacifiCo{p, 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 PacifiCorp'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 thiJ
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 Capacitv 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.
I 1.3 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 termination
and delivered to the defaulting Party no less than fifteen (15) days before such termination date.
28
The notice required under this Section I 1.3 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 I 1.3. 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
W11L 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
contrary, 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
Siction I I 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 11.3 must be paid within thirty
(30) days after the billing date for such charges and will bear interest at the Contract Interest
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 1,4.6,5.4,5.5,5.6,6.2.3,6.3,6.12.1through 6.12.5,6.12.9,6.13,6.14,10.2through
10.5, and I I through 24 survive the termination of this Agreement.
ll.4 Termination of Duty to Buy. If this Agreement is terminated because of a default
by Seller, neither Seller nor any Affiliate or successor to Seller with respect to the ownership of
the Facility or Premises, may thereafter require or seek to require PacifiCorp to make any
purchases from the Facility or any electric generation facility constructed on the Premises under
pUnPA, or any other Requirements of Law, for any periods that would have been within the
Term had this Agreement remained in effect for its maximum term. Seller agrees that it will not
seek to avoid the restrictions in this Section 1 1.4 through use or establishment of a special
purpose entity or other Affiliate.
11.5 Termination Damages. 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
associated transmission necessary to deliver such replacement power; and (b) the Contract Price
29
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 I 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 Eveni 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 I 1.5 are a fair and reasonable calculation of such damages
I 1.6 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 rnay
incur as a result of the other Party's performance or non-performance. With respect io 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, oibeing
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 tominimize 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 amounti that Seller owes
PacifiCorp arising from such default.
I 1.8 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 AI\[D LIABILITY
12.l Indemnities.
l2.l.l Indemnity by 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, Affiliates, 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 Agieement, 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
Liabilities caused by the gross negligence or willful misconduct of any person or entity wiihin
30
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 Indemnitv by PacifiCorp. To the extent permitted by Requirements of
Law and subject to Section l2.l.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'oseller 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,
Lodily 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, except for Liabilities caused by the gross
negligence or willful misconduct of any person or entity within the Seller Indemnitees.
12.1.3 Additional Cross Indemnitv. 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
ih" g.orr negligenie, willful misconduct, or a breach of this Agreement by any member of the
PacifiCorp Indemnitees or the Seller Indemnitees, respectively, seeking indemnification under
this Agreement.
12.I.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 Damaees. NEITHER PARTY WILL BE LIABLE TO
THE OTIIER PARTY FOR SPECIAL, PUNITIVE,INDIRECT, EXEMPLARY OR
CONSEQUENTIAL DAMAGES, WHETHER SUCH DAMAGES ARE ALLOWED OR
PROVIDED BY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY, STATUTE OR OTHERWISE. THE PARTIES AGREE THAT AI\Y
LIQUIDATED DAMAGES, TERMINATION DAMAGES, PACIFICORP AND SELLER
COST TO COYER DAMAGES, OR OTHER SPECIFIED 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 Coverages. Without limiting any Liabilities or any other
obligations of Seller, Seller must secure and continuously carry the insurance coverage specified
31
on Exhibit I.
SECTION 14
FORCE MAJEURE
l4.l Definition of Force Maieure. "Force Majeure" or "ar 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 thJ 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 dililence 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 Parly has not applied for or assisted in the application for, and has opposed to the
extent reasonable, such court or government action). Notwithstanding the foregoing, none of thefollowing constitute Force Majeure: (i) Seller's ability to sell, or PacifiCorp'r uUitity 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 serialiquipment
defect) that is not caused by an independent event of Force Majeure; (v) the imposition upon a
Parly 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 Interconnection 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 Interconnection
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
occurence 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 perfornance of the affected party's
obligations is of no greater scope and of no longer duration than is required to remedy thi effect
of the Force Majeure; and (c) the affected Party uses diligent efforts to remedy its idbility to
perform.
14.3 Force Majeure Does Not Affect Other Obligations. No obligations of either Party
that arose before the event of Force Majeure causing the suspension of perfornance or that arise
32
after the cessation of such event of Force Majeure is excused by such event of Force Majeure.
14.4 Strikes. Notwithstanding any other provision of this Agreement, neither Party
will be required to seffle 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.
I4.5 Risht 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,
ihen the Party not affected by the Force Majeure event may terminate this Agreement by giving
ten (10) days prior notice to the other Party. Upon such termination, neither Party will have any
liability to the other with respect to the period following the effective date of such termination;
provided, however. that this Agreement will remain in effect to the extent necessary to facilitate
ihe 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, parbrership or
joint venture or to impose a trust, partnership 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, applying any choice of law rules that may direct the application of the laws of another
jurisdiction.
SECTION 17
PARTIAL INYALIDITY
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 intering 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
No waiver of any provision of this Agreement will be effective unless the waiver is
provided in writing that (a) expressly identifies the provision being waived, and (b) is executed
Ly 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.
JJ
SECTION T9
GOYERNMENTAL JURISDICTION
AI\[D AUTHORIZATIONS
This Agreement is subject to the jurisdiction of those Governmental Authorities havingjurisdiction over either Party or this Agreement.
SECTION 20
SUCCESSORS AI\[D ASSIGNS
20.1 Restriction on Assisnments. 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.
20.2 Permitted Assienments. 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,provided, however, that Seller will not transfer, sell, encumber or assign this Agreement or any
interest in this Agreement to any Affiliate 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. PacifiCo1p 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 leffers, whether oral or in writing, regarding the subject matter of this Agreement.
No modification of this Agreement is effective unless it is in writing and executed by both
Parties.
SECTION 22
NOTICES
22.1 Addresses and Delivery 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 I 1.3 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
34
or registered mail, retum receipt requested, will be deemed to have been given upon receipt. The
Partiis 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 Hathawayi'in any form,
requires the prior written consent of PacifiCorp.
SECTION 24
DISAGREEMENTS
24.1 Nesotiations. 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 Parly 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 thirty (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 Pu.ty, 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
dispute settlement, and will be exempt from discovery and production, and will not be admissible
in ividence (whether as admission or otherwise) in any litigation or other proceedings for the
resolution of the dispute.
24j Choice of Forum. Each Party irrevocably consents and agrces 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
35
jurisdiction by such court over each Party for the purpose ofany proceeding related to this
Agreement; (b) irrevocably agrees to be bound by any final judgment (afteiany and all appeals)of any such court arising out of such documents or actions; (c) irrevocably waives, to the fullestextent permitted by law, any objection that it may now or hereafter have io 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 broughi in an inconvenient forum) inconnection herewith; (d) agrees that service of process in any such action may be effected bymailing a copy thereof by registered or certified mail, postage prepaid, to sucit party at its
address stated in this Agreement; and (e) agrees that nothing in ttris Agreement affects the rightto effect service of process in any other manner permitted by law.
24.4 WAIVER OF ruRY TRIAL. EACH PARTY WAIVES THE RIGHT TO ATRTAL BY ruRY TN RESPECT OF ANY LITIGATION BASED ON THIS AGREEMENT,
OR ARISING OUT OF, LTNDER OR IN CONNECTION WITH THIS AGREEMENT. EACHPARTY FURTHER WAIVES ANY RIGHT TO CONSOLIDATE ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITHTHIS AGREEMENT WITH ANY PROCEEDING IN WHICH A JURY TRIAL HAS NOT ORCANNOT BE WAIVED. THIS PARAGRAPH WILL SURVIVE THE EXPIRATION ORTERMINATION OF THIS AGREEMENT.
36
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
in their respective names as of the date last written below.
COMMERCIAL ENERGY PACIFICORP
MANAGEMENT,INC.
By By
DigltallY signed bY Bruce
Bruce Griswold fli}!$,.,,.,u,0r,,0,
-08'00'
Name: Maher F. Wissa-Name: Bruce Gnswold
Title Title: Director, Short-term Origination
Date: February26.2021Date: _Febru ary 23, 2021
-
37
EXHIBIT A.1
EXPECTED MONTHLY NET OUTPUT
MAXIMUM DELIYERY RATE
900 kw
Month On-Peak Energy
(MWh)
Off-Peak Energy
(Nrwh)
Total Energy
(MWh)
January 72 aaJJ 10s
February 84 4l t25
March 140 110 250
April 185 90 275
May l9s 95 290
June 18s 90 275
July 165 80 245
Ausust l3s 70 205
September 110 50 160
October 83 42 125
November 84 41 t25
December 88 42 130
EXIIIBIT B
DESCRIPTION OF SELLER'S FACILITY
Commercial Energy Management, LLC ("Interconnection Customer") proposed continued
interconnection of 0.9 MW of existing generation to PacifiCorp's ("Public Utility") has an
existing Point of Interconnection to circuit LVAI l at 12.47 kv (Pole No. 34'09-038#223204)
located in Bannock County, Idaho. The Portneuf River Hydroelectric project ("Project") consists
of one 900 kV turbine for a total nameplate output of 0.9 MW.
Interconnection Customer is currently operating this generator as a Qualified Facility as defined
by the Public Utility Regulatory Policies Act of 1978 (PURPA) and plans to continue to do so.
Type (synchronous or inductive): Synchronous
Facility Nameplate Capacity Rating:
Model: Kunming Electrical Machinary Works China
Number of Phases: 3
Power factor requirements:
Rated Power Factor (PF) or reactive load (kVAR): 0.85
Rated Output (kW): 900
Rated Output (kVA): 612
Rated Voltage (line to line): 4160
Rated Current (A): Stator: _147 _A; Rotor: _ A
Maximum kW Output: 900_ kW
Maximum kVA Output: _612 kVA
Minimum kW Output: _80_ kW
Station service requirements, and other loads served by the Facility, if any:
Location of the Facility: [Please include city and county, and legal description of parce[]
The diversion weir is located in a parcel in government lot 9 of Section 22, Township 9 South,
Range 38 East, Boise Meridian, approximately three-quarters ( 3/ 4) of a mile east of Lava Hot
Springs, Bannock County, State of Idaho on the Porbreuf River.
The powerhouse is located in a parcel in government lot 9 of Section 22, Township 9 South,
Range 38 East, Boise Meridian approximately one-halt (ll2) of a mile east of Lava Hot Springs,
Bannock County, State of Idaho on the Portneuf River.
EXHIBIT C
SELLER'S INTERCONNECTION FACILITIES
Small Generating Facility: A 0.9 MW generating facility consisting of a single existing hydro
electric generator rated at 900 kW. The generator is connected to I MVA (Z:5o ) 4160 V -12.47 kY transformer. See Figure 1.
Interconnection Customer Interconnection Facilities: From the Small Generating Facility,
there will be a single relay controlled recloser located between the Small Generating Facility
step-up transformer and the Point of Interconnection. See Figure l.
Transmission Providerrs Interconnection Facilities: A single meter and associated tap poles.
See Figure 1.
Estimated Cost of Transmission Provider's Interconnection Facilities: Estimated cost of
Interconnection Facilities directly assigned to Interconnection Customer: $ I 0,000
Estimated Annual Operation and Maintenance Cost of Transmission Provider's
fnterconnection Facilities: $500. Interconnection Customer shall be responsible for
Transmission Provider's actual cost for maintenance of the Transmission Provider's
lnterconnection Facilities.
Point of Interconnection: The point where the Transmission Provider's Interconnection
Facilities connect to Circuit LVAI l. See Figure l.
Point of Change of Ownership: The point where the Transmission Provider's Interconnection
Facilities connect to the Interconnection Customer's Interconnection Facilities in Bannock
County,Idaho. See Figure l.
Figure I
One-line I)iagram Depicting the Small Qualifying Facility,Interconnection Facilities, Metering
Equipment, and Llpgrades
lnlerconncction Custorncr's
lnterconnection Farilities \
- -s-fo-
{v
410
McCamlm Greo Transmipsirn Provlder's I
hterronnec'tion Facilitbsr+--.-*
Pdrt d
ot
ft6w
DY
Lava
SubBtalion
l!
12 a7
12lt w
OEEe doffitt
Facility
EXHIBIT D
REQUIRED FACILITY DOCUMENTS
FERC License No. 7447-002 (See attached Exhibit D-l FERC Order Issuing License)
IDWR Water Rights No. 29-07699
QF Certification No. QF88-343-000
Small Generator Interconnection Agreement for a Quali$ing Facility between PacifiCorp and
Commercial Energy Management, Inc. fully executed March 24,2020. (See Exhibit D-2 SGIA
No.200324 Ql186)
EXIIIBIT E
LEASES
Idaho Department of Lands Lease No.: Easement No. 5402
',a7,4$33,L"
E',ns? Aoot touri ro
SrAIEOf IO HO EASEIIEilI tO. SrlO2
IH|S f lRSr AOOtNllt M TO sfAlt. Of lOAltO tASf MEt{l t{O. 5t102 {'}rst Addendum'} ir m.dr effccme es
ol the lrl d.y ot r.nu.ry, 20f4, bv sod b.turcGn $. SfAIt OS lDAllO, ry lnd throult thG gt t. Eorrd ol lend
Commlrrioaerl l'Grmtofl, rnd Comnlcrcill Imr3y Mrnlf.mcnl, tnc. {'Granttc'}.
R€ClrAlS
A. Grtnlot ,nd Grantcr hev* antrrld hrl6 Amtndcd Strtc of ldeho tasfrEcvrt No. 5{02
('€armcnt'l ddld r.nutry 23, 1996, rcordcd .r lnrtrumlnl t{o 95001675 ln rtr Offtce or ttr Colntt Rccordcr
ol 8.r$orl C.rsntY. ldrho, f,hat:ifi 9rrfltor treed tc Ertnt aD :J*mqnl !o Giantcr lor tht prrpo:tt ead tn
conrideratiori ol ths larmr *t rorth i,r thc E.rcrn.nt
A6iCtMfi{t
NOW THf nf$mt, ln (ongderttict d fi'! tbore ructa|1 whkh arc in(orpontcd hcnin by thrs rd6encc.
rnd otficr 3ood rrd v.lusbb coitldcrtton, thr .rc.lpt rnd luffid,cncy o, whiah ir hcrtfu .ctn$lcd€ed, tha
partl"r rtrar ar lollo{,r:
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ntodilhd ln thlt fi.st Mdendum All ol tfie term: hereln chill hsve tho sam€ meer{og ,.i (onteimd in th.
E$€mrnt, ercept r. rp€dflcrlly d€rined othrrwlre in thB Flrrt Add€nduft.
2, Stctbn lV ot thc f.Rctncnt is heraby dcler*d rnd neplrrcd ln tr entraty *lth tlle fiotlouaa6
;CCa ft. 'Icc' thrt 6ttbc drrfi pry b 6rrlto, $ll bc b..cd oo .nmd l{Iordt hour IXWX}
fodwdon, From bmrry l.201a to Dccrntcr lL 20ft, ttrc fcc rtral b. t00!G pcr nfl}| of
produthn.
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ft! f.. dFrtttlat rlull bt b$rd or dta F.rccltt{t trEa.r. h dra Co.asr}t frlca Irdrr {Cpll ia rl
Urben Co.Erlttsr prtllrhrd by thc Udtarl $al!r OcIartnrc.rl ot t bo, $tadtd6 ouc, tl|. pra{rlout f iyr
Y.r, tarlod, fho hr rqgtm.ls rrt b. Clkuh.d bl rpnthf th. f..rrant{. loc'rs. to tha uphkr3
Fhra Yarr ?arlod h. rala. for hitatra, f, tfu Frcrntlr ln .rara lrom r.nu.ry lola to O.a.nbar zOU
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io( o.r Fur Y.l P;lodl
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cxrrht Flur Y.ar Pcr|od, fu hr ol thr rrbr ffrf, Yrrr Frrlod rlrd rrnrJn h dtcrt ror rn rddhbad
Fhr! Y..; Mod. f, dsrl,t. . Fh,. lrr lrdod tlrr CPI cu*r to br gutldrrd or u$d, or ll rhe Cpl lor el
I TIRSTADDENOUM TO STATE OF IOAHO EJTSEMENT NO. S1O2
E14()3et?
0/
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poblhh.dor uE d to rncrqrr loi.tbn,
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EXHIBIT F
RESERVEI)
EXHIBIT G
QUALIFIED REPORTING ENTITY SERVICES AGREEMENT
Energy Supply Management Master v4.7 a; 03 122019
This Qualified Reporting Entity Services Agreement (this "Agreement") is entered into
by and between PacifiCorp ("PacifiCorp") and Commercial Energy Management, Inc.
("Counterparty"; PacifiCorp and Counterparty may be referred to individually herein as "Part5/"
and collectively as'oParties") as of the date signed by both Parties with reference to the
following:
WHEREAS, Counterparty represents to PacifiCorp that it owns or otherwise has the
rights to all or part of the non-energy attributes of the generation from that certain electric
generation facility as more particularly described in Exhibit A (the "Faciliry") as such rights are
defined in that power purchase agreement between PacifiCorp and Counterparty (the "PPA"), or
other rights respecting the Facility itself enabling it to lawfully enter hereinto; and
WHEREAS, the Westem Renewable Electricity Generation Information System
("WREGIS") is a system tracking quantities of renewable energy generation generated by
electric generating facilities in the nature of the Facility, as a Facility pursuant to WREGIS
Terms of Use ("TOU"); and
WHEREAS, WREGIS requires that each Facility have a designated Qualified Reporting
Entity; and
WHEREAS, Counterparty is an Account Holder in WREGIS and wishes to register the
Facility with WREGIS; and
WHEREAS, Counterparty wishes to retain PacifiCorp to act as its WREGIS-defined
Qualified Reporting Entity ("QRE") for the Facility;
NOW THEREFORE, in consideration of the mutual promises herein contained, the
Parties agree as follows:
I. Definitions: Rules of Construction.
l.l Initially capitalized terms used and not otherwise defined herein are defined in the
in the WREGIS Operating Rules or in Attachment I Definitions of the WREGIS TOU.
1.2 "Affiliate" means, with respect to any entity, each entity that directly or indirectly
controls, is controlled by, or is under common 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.
Notwittrstanainq the forc
Uatfrawav gnergv Comoanv ana
1.3 o'Business Day" means a day of the week other than Saturday, Sunday, or a
federal holiday.
1.4 "Electric System Authority" means each of NERC, WECC, WREGIS, a regional
transmission organization, a regional or sub-regional reliability council or authority, and any
other similar council, corporation, organization or body of recognized standing with respect to
the operations of the electric system in the WECC region.
1.5 "FERC" means the Federal Energy Regulatory Commission.
1.6 "Generation Interconnection Agreement" means the agreement entered into
separately between Counterparty and Interconnection Provider concerning the Interconnection
Facilities.
1.7 "Facility" is defined in the Preamble.
1.8 o'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.
1.9 "Interconnection Provider" means the FERC-regulated or United States
Department of Energy entity with whom the Facility has contracted for interconnection to the
elettric transmission grid; in the event Interconnection Provider is PacifiCorp, PacifiCorp would
be the Interconnection Provider operating in its regulated transmission function, and not as the
party hereto.
l.l0 "Metering External Webpage" means a website owned and operated by
PacifiCorp that PacifiCorp may at its option, but without being obligated to do so, make
available and operate for the display of all data that will be included in the Monthly Generation
Extract File.
l.l I "Monthly Generation Extract File" means a data file that contains generation data
from Counterparty's Points of Metering and conforms to the characteristics and requirements set
forth in the WREGIS Interface Control Document.
l.l2 "NERC" means the North American Electric Reliability Corporation.
l.l3 "Points of Metering" means the points at which electric generation is measured.
l.l4 "PPA" is defined in the Preamble.
1.15 "Prudent Electrical Practices" means any of the practices, methods and acts
engaged in or approved by a significant portion of the electrical utility industry 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. Prudent Electrical
Practices is not intended to be limited to the optimum practice, method or act to the exclusion of
all others, but rather to be a spectrum of possible practices, methods or acts.
1.16 "qRE" means a WREGIS-defined Qualified Reporting Entity
l.l7 "Renewable" is defined in section 2 of the WREGIS Operating Rules.
I .18 "Requirements of Law" means any applicable federal, state and local law, stafute,
regulation, rule, code or ordinance enacted, adopted, issued or promulgated by any federal, state,
local or other Governmental Authority or regulatory body (including those pertaining to
electrical, building, zoning, environmental and occupational safety and health requirements).
1.19 "Settlement Estimation Procedures" means a calculation based on standard utility
estimation rules using algorithms developed and approved by PacifiCorp's billing department.
1.20 "System" means the electric transmission substation and transmission or
distribution facilities owned, operated or maintained by Transmission Provider, which shall
include, after construction and installation of the Facility, the circuit reinforcements, extensions,
and associated terminal facility reinforcements or additions required to interconnect the Facility,
all as set forth in the Generation Interconnection Agreement.
l.2I "Tariff'means the PacifiCorp FERC Electric Tariff Fifth Revised Volume No.
I I Open Access Transmission Tariff, or such updated volume as posted on PacifiCorp's Open
Access Same-Time Information System on the effective date of this Agreement.
1.22 "Transmission Provider" means the FERC-regulated or United States Department
of Energy entity with whom the Facility has contracted for electric transmission at and away
from the Facility to any point on, or interconnection with, the electric transmission grid; in the
event Transmission Provider is PacifiCorp, PacifiCorp would be the Interconnection Provider
operating in its regulated transmission function, and not as the party hereto.
1.23 "Wholesale Generation Also Serving On-Site Loads" is defined in section 2 of the
WREGIS Operating Rules.
1.24 "WECC" means the Western Electricity Coordinating Council.
r.25
System.
"WREGIS" means the Westem Renewable Energy Generation Information
1.26 "WREGIS Certificate" or "Certificate" means "Certificate" as defined by the
WREGIS Operating Rules.
1.27 "WREGIS Operating Rules" means the operating rules and requirements adopted
by WREGIS, including the TOU.
1.28 General Rules of lntemretation. Unless otherwise required by the context in
which any term appears, (a) the singular includes the plural and vice versa; (b) references to
"Aftigles," ooSegtions," "SChedUleS," "AnneXeS," "AppendiCeS" Of "EXhibits" are tO artiCleS,
sections, schedules, annexes, appendices or exhibits hereof; (c) all references to a particular
entity or an electricity market price index include a reference to such entity's or index's
,u..L5o.r; (d) "herein," oohereof' and "hereunder" refer to this Agreement as a whole; (e) all
accounting terms not specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistently applied; (0 the masculine includes the feminine and
neutir and vice versa; (g) "including" means "including, without limitation" or "including, but
not limited to"; (h) all references to a particular law or statute mean that law or statute as
amended from time to time; and (i) the word "or" is not necessarily exclusive.
l.2g Interpretation with FERC Orders. Counterparty acknowledges and agrees that
PacifiCorp must conduct its operations in a manner intended to comply with FERC Order No.
7l 7, Standards of Conduct for Transmission Providers, which requires the functional separation
of a utility's transmission and merchant functions. Moreover, the Parties acknowledge that each
of Transmission Provider's and 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. Counterparty agrees
to ionduct itself and operate the Facility in accordance with all Requirements of Law, all
requirements of all applicable Electric System Authorities, and all requirements of the
lnterconnection Agreement.
1.29.1 Counterparty agrees to enter into the Generation Interconnection
Agreement with the Interconnection Provider. The Generation Interconnection Agreement shall
be a separate and free standing contract and the terms hereof are not binding upon the
Interconnection Provider or Transmission Provider, although both are express third party
beneficiaries hereof.
1.29.2 Notwithstanding any other provision in this Agreement, nothing in the
Generation Interconnection Agreement, nor any other agreement between Counterparty on the
one hand and Transmission Provider or Interconnection Provider on the other hand, nor any
alleged event of default thereunder, shall alter or modiff the Parties' rights, duties, and
obligation hereunder. Likewise, nothing herein or connected with the performance by
PacifiCorp hereof shall affect or impair the rights of Interconnection Provider or Transmission
Provider, under the Interconnection Agreement or otherwise. This Agreement shall not be
construed to create any rights between Counterparty and the Interconnection Provider or between
Counterparty and the Transmission Provider.
1.29.3 Counterparty expressly recognizes that, for purposes hereof, the
Interconnection Provider and Transmission Provider each shall be deemed to be a separate entity
and separate contractin g party from PacifiCorp whether or not the Generation Interconnection
Agreement is entered into with Interconnection Provider or an affiliate thereof. Counterparty
acknowledges that PacifiCorp, acting in its merchant capacity function as purchaser hereunder,
has no responsibility for or control over Interconnection Provider or Transmission Provider, and
is not liable for any breach of agreement or duty by Interconnection Provider or Transmission
Provider. Nothing in this Agreement shall operate to diminish, nor shall this Agreement extend
to, Interconnection Provider or Transmission Provider's use, retention, or disclosure of
Counterparty or Facility information (including information within the scope of this Agreement)
in connection with PacifiCorp operating in its transmission function, including its carrying out of
its obligations and business practices as a Balancing Authority or activities undertaken pursuant
to the Tariff.
II. Term and Termination.
2.1 This Agreement shall be effective upon execution by the Parties and shall
continue in effect until such time as either Purty, upon providing 60 days written notice to the
other Party, chooses to terminate. PacifiCorp may initiate any regulatory proceedings it deems
appropriate to terminate this Agreement prior to the effectiveness of such termination.
Notwithstanding the foregoing, (a) Counterparty may terminate this Agreement upon an event of
default by PacifiCorp if PacifiCorp does not cure such event of default within l0 days of wriffen
notice, (b) PacifiCorp may terminate this Agreement upon an event of default by Counterparty if
Counterparty does not cure such event of default within l0 days of written notice, (c) PacifiCorp
may terminate this Agreement if the Facility fails to meet the requirements of Section 3.1 hereof
and such failure is not cured within 30 days, and (d) either Party may terminate this Agreement
immediately upon notice to the other if Counterparty or the Facility fail to comply with Section
1.29. This Agreement may also be terminated as otherwise set forth herein.
[II. ORE Services.
3.1 ORE Services. PacifiCorp will, on the terms set forth herein, serve as a QRE for
the Facility so long as (a) the Facility meets the definition of Renewable, (b) is within the
metered boundaries of both PacifiCorp's Balancing Authority, (c) is equipped with either: (l)
Transmission Provider or Interconnection Provider (as applicable) owned and operated meters;
or (2) meters that meet the lnterconnection Provider's requirements and (d) meet all applicable
WREGIS requirements.
3.2 Compensation to PacifiCorp. In exchange for the services performed by
PacifiCorp hereunder, Counterparty shall pay PacifiCorp as follows: Counterparty shall pay
PacifiCorp a one-time initial setup fee of $280, which PacifiCorp may at its option deduct from
payments due to Counterparty under the PPA and otherwise shall be payable within ten days of
demand by invoice following execution of this Agreement. PacifiCorp shall charge
Counterparty a monthly reporting fee of $50 per generating unit for which PacifiCorp reports
output to WREGIS, provided that PacifiCo{p may, in its discretion, assess and bill for all fees
due hereunder on an annual, rather than monthly, basis. PacifiCorp may at its option deduct
from payments due to Counterparty under the PPA all other fees due hereunder, which shall
otherwise be due within ten days of PacifiCorp's issuance of an invoice for such fees.
PacifiCorp will review costs associated with this service on an annual basis, and may make
necessary adjustments to the monthly reporting fee charged herein. Any change in the monthly
reporting fee will become effective only after a minimum thirty (30) days prior written notice to
Counterparty. In the event WREGIS, WECC, or any other entity with the ability or jurisdiction
to modi$ the QRE reporting process requires a change that materially increases the costs to
PacifiCorp of providing QRE services, PacifiCorp may pass those costs to the Counterparty by
increasing the monthly reporting fee. PacifiCorp will use best efforts to provide Counterparty
with prior notice before billing Counterparty for such increased costs. The fees set forth herein
relate to PacifiCorp serving as a QRE for Counterparty pursuant to the terms of this Agreement.
The necessary metering is a prerequisite for this service and is not covered in the fees described
above.
3.3 Points of Meterine. The Points of Metering that PacifiCorp will use are set forth
in Exhibit A. Counterparty certifies that all Points of Metering listed in Exhibit A measure data
only from Facility that meet the definition of Renewable. Counterparty shall notiff PacifiCorp at
least thirty (30) Business Days prior to making any proposed material changes to the Points of
Metering. Following such notification, the Parties will decide whether such changes are
mutually acceptable. If such changes are not acceptable to PacifiCorp, PacifiCorp may terminate
this Agreement.
3.4 Expenses. Except as otherwise provided in the lnterconnection Agreement (and
in such case, only vis-i-vis Interconnection Provider), Counterparty shall bear all costs and
expenses, including those incurred by PacifiCorp, relating to all metering or other equipment
installed to accommodate Counterparty's Facility.
3.5 Reporting. Counterparty hereby grants to PacifiCorp sole and exclusive
permission and authority to report Data and Output to WREGIS and warrants and represents that
neither Counterparty nor any other person or entity acting on behalf of Counterparty has granted,
or will hereafter grant during the term hereof any similar data reporting authority or permission
to any other QRE or WREGIS Account Holder or to any other party or Agent for use in
WREGIS, or any other energy tracking system, for the Facility. As a precondition for PacifiCorp
to be able to perform hereunder, Counterparty shall submit Counterparty's Output data to
PacifiCorp by allowing PacifiCorp to collect such data, at the Points of Metering, and report such
data in the manner set forth herein.
3.5.1 Monthlv Generation Extract File. PacifiCorp shall submit a Monthly
Generation Extract File to WREGIS on Counterparty's behalf, which will conform to the
characteristics and data requirements set forth in the WREGIS Interface Control Document.
3.5.2 Reportine Cycle. PacifiCorp shall submit the Monthly Generation Extract
File to WREGIS no later than sixty days following the end date of the output being reported.
3.5.3 Verification. Should PacifiCorp choose at its option to operate and make
available a Metering External Webpage, PacifiCorp may in its reasonably exercised discretion
grant Counterparty access for Counterparty to veriff such information as prescribed by
PacifiCorp from time to time, and to timely notiff PacifiCorp in writing of any erors
Counterparty detects.
3.5.4 Adjustments. After PacifiCorp submits the Monthly Generation Extract
File to WREGIS, any information contained in the Monthly Generation Extract File shall be final
for purposes of WREGIS reporting, subject only to the adjustment procedures set forth in the
WREGIS Operating Rules, which shall be Counterparty's responsibility to implement if
necessary.
3.6 Obligations of Counterpartv. Counterparty shall report and provide to PacifiCorp
accurate and complete generation Data and Output information for the Facility. Counterparty
shall send the Data and other Output Information in a format and in compliance with any
protocols which PacifiCorp may speciff to Counterparty. Counterparty has a continuing duty to
immediately notiff PacifiCorp, if and when any generation Data or Output information has been
sent in error or ceases to be truthful, accurate, or complete and to supply the corrected data as
soon as practical, but not later than five (5) Business Days from the date Counterparty discovers
that discrepancy in the Data or Output information.
3.7 WREGIS Fees. Counterparty is solely responsible for the payment directly to
WREGIS of any and all WREGIS fees and costs that are required to register Counterparty's
Facility and, to the extent the Generator Owner is a WREGIS Account Holder, Counterparty is
responsible for the payment directly to WREGIS of all other WREGIS fees incident to the
reporting of GeneratorDatz and Output to WREGIS. Counterparty acknowledges and agrees
that PacifiCorp shall have no obligation to advance or make payment of WREGIS fees or costs
on Counterparty's behalf. Upon request by PacifiCorp made if PacifiCorp has received such a
request from WREGIS or any regulator or third party, Counterparty shall provide PacifiCorp
with evidence of payment of WREGIS fees and costs; failure to provide such information to
PacifiCorp, upon request, shall constitute an event of default under this Agreement.
3.8 WREGIS Accounts. Counterparty will be solely responsible to make
alTangements and registrations and for entering into any such agreements that are necessary to
establish transfer of Certificates directly to proper Accounts or Subaccounts of
Counterparty. Counterparty agrees that such arrangements shall preclude the need for
PacifiCorp to act as custodian of such Certificates or to be responsible in any way to hold such
Certificates in any Account or Subaccount of PacifiCorp or bear any responsibility, possession,
obligation, or risk of loss with respect to Certificates created, held, or owned, with respect to the
Facility. Counterparty acknowledges that, pursuant to section I I of the WREGIS TOU, any
generation data that PacifiCorp, acting as a QRE, provides to WREGIS shall reside in WREGIS
and Counterparty will have no control over such data's use other than that provided for under the
WREGIS TOU.
3.9 Obligations of PacifiCorp. PacifiCorp shall speci$ for Counterparty the
protocols, reporting frequency, data file formats, and communication protocols for reporting
generating Data, or output, as necessary. PacifiCorp shall timely report to WREGIS
Counterparty Data andlor Output information as specified in the most current WREGIS Interface
Control Document (ICD). PacifiCorp shall not use or disclose Counterparty generation Data for
any other purpose than reporting the Data to WREGIS, except as may be required by law, the
Public Utility Commission of Oregon, any other state, federal, municipal or other regulator or
govemmental authority with jurisdiction over PacifiCorp or any of its assets, or a court of
competent jurisdiction or as required under the terms of an existing agreement between the
Parties. PacifiCorp shall not use Generator Owner generation Data for any other purpose.
Notwithstanding the foregoing, PacifiCorp shall not be responsible for handling, account
administration, transfer, evidence of, or any determination of Counterparty Certificate ownership
or any other obligations for Certificates of Counterparty with regard to Certificates; and
Counterparty shall bear all responsibility for such handling, account administration, evidence of,
or any determination of Counterparty Certificate ownership and all other obligations pertaining
to creation and ownership of such Certificates.
3.10 Measurement.
3.10.1 Meter Data. Counterparty authorizes PacifiCorp's metering services
organization to provide Counterparty's meter data directly to WREGIS in the form of the
Monthly Generation Extract File. Counterparty authorizes PacifiCorp to gather data from the
Points of Metering listed in Exhibit A. All such data is considered data which Counterparty has
created and submitted to PacifiCorp, notwithstanding that PacifiCorp, rather than Counterparty
will gather it.
3.10.2 Wholesale Generation Also Servine On-Site Loads. [f Counterparty has
any Wholesale Generation Also Serving On-Site Loads (as defined in Article One above), such
Facility will need to have the on-site load generation metered (and registered) separately from
the generation that is supplied to the grid, in accordance with the WREGIS Operating Rules.
Otherwise, PacifiCorp will not report any datafrom such Facility. If such Facility exist, they
must be specified in Exhibit A.
3.10.3 Estimates. When meter readings are not available due to meter hardware
failure or data that is determined to be invalid due to meter malfunction or calibration or
configuration error, to the extent deemed by PacifiCorp to be appropriate and permitted pursuant
to WREGIS TOU, PacifiCorp will, if possible, rely on readings from redundant meters whether
such meters are PacifiCorp owned or not. If readings from redundant meters are not possible,
PacifiCorp will estimate and report meter data according to PacifiCorp's Sefflement Estimation
Procedures.
3.10.4 Responsibility. Counterparty is solely responsible for the data created and
submitted to PacifiCorp, acting as a QRE, to forward to WREGIS.
3.11 Regulatory Requirements. PacifiCorp may release information provided by
Counterparty hereunder, or gathered by PacifiCorp in connection herewith, to comply with any
regulatory requirements applicable to PacifiCorp or if requested by a PacifiCorp regulator or if
required by any other federal law or court order. Counterparty waives all applicable provisions
of the Tariff which require PacifiCorp to hold confidential information with respect to the
Generator Owner and the Facility, to the extent necessary for PacifiCorp to report, as a QRE,
generation Data and Output regarding the Generation Unit(s) and to carry out PacifiCorp's
obligations under this Agreement. This provision shall survive any termination of this
Agreement.
3.12 Grant by Counterpa4v. Counterparty hereby grants to, permits, and authorizes
Pacifi Corp the following :
3.12.1 PacifiCorp is hereby authorized to communicate and transact with
WREGIS as Counterpart5r's sole and exclusive reporting source of generation data for the
Facility, and WREGIS is hereby authorized to communicate and kansact directly with
PacifiCorp regarding any generation data issues for the Facility. PacifiCorp is hereby authorized
to act on behalf of Counterparly, but only to the extent that PacifiCorp has lawful, contractual
access to WREGIS.
3.12.2 PacifiCorp is hereby authorized to provide WREGIS with all generation
data for the Facility that WREGIS requires, including, but not limited to, data required for
preparation of required reports and billing.
3.12.3 PacifiCorp is authorized to undertake all actions which are reasonable and
necessary to carry out the obligations set forth in the subsections above.
3.12.4 Counterparty retains all other rights and responsibilities and all other
obligations to WREGIS.
ry. INDEMNITY.
4.1 INDEMNITY. TO THE EXTENT PERMITTED BY REQUIREMENTS OF
LAW, COUNTERPARTY HEREBY INDEMNIFIES AND AGREES TO HOLI)
PACIFICORP,ITS AFFILIATES, AND EACH OF ITS AI\D THEIR RESPECTIYE
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND REPRESENTATIVES
(COLLECTIVELY, THE "PACIFICORP INDEMNITEES") HARMLESS AGAINST
ANY AIID ALL LOSSES, FINES, PENALTIES, CLAIMS (INCLUDING THIRD PARTY
CLAIMS), DEMAI\DS, DAMAGES, LIABILITIES, ACTIONS OR SUITS OF ANY
NATURE WHATSOEYER (INCLUDING LEGAL COSTS AND ATTORNEY'S FEES,
BOTH AT TRrAL AtlD ON AppEAL, WHETHER OR NOT SUIT IS BROUGHT)
(COLLECTIYELY, "LIABILITIES") THAT ARE IN ANY WAY ASSOCIATED WITH
PACIFICORP'S PERFORMANCE OR FAILURE TO PERFORM HEREUNDER. THIS
INCLUDES LIABILITY ARISING FROM: TIIE DATA CONTAINED IN THE
MONTHLY GENERATION EXTRACT FILE, OR AI\TY OTHER FINANCIAL INJURY,
OR DAMAGE TO PERSONS OR PROPERTY. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING:
4.2 WAIVER OF CAUSES OF ACTION AIID CLAIMS FOR DAMAGES.
WITHOUT LIMITING THE GENERALITY OF SECTION 4.I ABOVE,
COUNTERPARTY HEREBY WAIVES AI\Y AND ALL CAUSES OF ACTION ARISING
UNDER OR IN RESPECT TO THIS AGREEMENT, WHETHER IN CONTRACT,
TORT OR A}tY OTHER LEGAL OR EQUITABLE THEORY (INCLUDING STRICT
LIABILITY) AGAINST PACIFICORP OR AI\Y PACIFICORP INDEMNITEE. IN NO
EVENT SHALL PACIFICORP OR AIYY PACIFICORP INDEMNITEE BE LIABLE TO
COUNTERPARTY ITS BOARD OF DIRECTORS, EMPLOYEES, AGENTS, OR
REPRESENTATIVES FOR AI\[Y DEMAAIDS, DIRECT COSTS, LOST OR
PROSPECTIVE PROFITS OR A}IY OTHER LIABILITIES OR EXPENSES,
WHETHER SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL,
OR INDIRECT IN NATURE, THAT ARE IN ANY WAY ASSOCIATED WITH
PACIFICORP'S PERFORMAI\CE OF TIIE QRE FUNCTION OR OTHERWISE
UNDER OR IN RESPECT OF THIS AGREEMENT.
4.3 INDEMNITY FOR COUNTERPARTY ACTIONS. WITHOUT LIMITING
THE GENERALITY OT SECTION 4.1 ABOYE, COUNTERPARTY SHALL RELEASE,
INDEMNIFY AIID HOLD PACIFICORP AI\D ALL PACIFICORP INDEMNITEES
HARMLESS AGAINST AND FROM A}[Y AI\D ALL LIABILITIES RESULTING
FROM, OR ARTSING OUT OF, OR IN AI\Y WAY CONNECTED WITH, THE
PERFORMAI\CE BY COUNTERPARTY OF ITS OBLIGATIONS HEREUNDER, OR
RELATING TO THE FACILITY, FOR OR ON ACCOUNT OF (t) INJURY, BODILY
oR oTHERWISE, TO, OR DEATH OF, OR (II) FOR DAMAGE TO, OR
DESTRUCTION OR ECONOMIC LOSS OF PROPERTY OF, AI\[Y PERSON OR
ENTITY, EXCEPTING ONLY TO THE EXTENT SUCH LIABILITIES AS MAY BE
CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY
PACIFICORP INDEMNITEE.
4.4 NOTWITHSTAI\DING ANY OTHER PROVISION OF THIS
AGREEMENT, COUNTERPARTY ASSUMES FULL RESPONSIBILITY AND RISK OF
LOSS RESULTING FROM (1) THE FAILURE TO SEND DATA IN A FORMAT
SPECIFTED By PACTFICORP, (2) THE FATLURE TO USE PROTOCOLS SPECTFTEn
BY PACIFICORP OR (3) THE SENDING OF ERRONEOUS, UNTRUTIIFUL,
INACCURATE, AND/OR INCOMPLETE GENERATING DATA TO PACIFICORP OR
THE SENDING OF ERRONEOUS, UNTRUTHFUL, INACCURATE, AI\D/OR
INCOMPLETE DATA BY PACIFICORP TO WREGIS. IN NO EYENT SHALL
PACIFICORP BE LIABLE FOR ANY CONSEQUENTIAL,INCIDENTAL, SPECIAL,
EXEMPLARY, OR OTHER INDIRECT LOSS OR DAMAGES RESULTING FROM
ANY BREACH OF THIS AGREEMENT, WHETHER CAUSED BY THE NEGLIGENCE
oR INTENTIONAL ACTIONS OF PACIFICORP (AI\[D/OR ITS CONTRACTORS,
AGENTS, AND EMPLOYEES), REGARDLESS OF WHETIIER SUCH CLAIM FOR
DAMAGES IS BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE.
IN NO EYENT SHALL PACIFICORP BE LIABLE FOR AI\Y LOSS OR HARM
SUFFERED BY COUNTERPARTY OR AI\Y THIRD PARTY DUE TO AI\Y ACTION
OR INACTION BY PACIFICORP TAKEN HEREUNDER THAT CAUSES A FACILITY
TO LOSE AIIY CREDENTIALS, REGISTRATION OR QUALIFICATION UNDER THE
RENEWABLE PORTFOLIO STAI\DARD OR SIMILAR LAW OF ANY STATE OR
OTHER JURISDICTION.
4.5 PACIFICORP WILL NOT BE RESPONSIBLE FOR AI\Y DAMAGES
RESULTING FROM ECONOMIC LOSS, LOSS OF USE, LOSS OF DATA, LOSS OF
BUSINESS, LOSS OF PROFIT, LOSS OF PRODUCTION TAX CREDITS, LOSS OF
SAVINGS OR REYENUE, LOSS OF GOODWILL, THE CLAIMS OF THIRD PARTIES
(INCLUDING CUSTOMERS AI\D SHAREHOLDERS OR OTHER EQUITY OWNERS),
PERSONAL INJURIES OR PROPERTY DAMAGES SUSTAINED BY THE
COUNTERPARTY OR ANY THIRD PARTIES, EVEN IF PACIFICORP HAS BEEN
NOTIFIED BY COUNTERPARTY (OR BY AI\IY THIRD PARTY) OF SUCH
DAMAGES.
4.6 PACIFICORP DISCLAIMS ANY LIABILITY FOR AI\D
COUNTERPARTY WAIYES AI\Y CLAIM FOR LOSS OR DAMAGE RESULTING
FROM ERRORS, OMISSIONS, OR OTHER INACCURACIES IN ANY PART OF
WREGIS OR THE REPORTS, CERTIFICATES OR OTHER INFORMATION
COMPILED OR PRODUCED BY AND FROM OR INPUT INTO WREGIS USING
COUNTERPARTY.SUPPLIED GENERATION DATA, WIIETHER OR NOT SUCH
ERRORS, OMISSIONS OR INACCURACIES ARE DUE TO ERRONEOUS,
UNTRUTHFUL, INCOMPLETE, OR INACCURATE INFORMATION INPUT BY
PACIFICORP INTO WREGIS.
4.7 COUNTERPARTY HEREBY RELEASES PACIFICORP AI\D
PACIFICORP INDEMNITEES FROM ANY AI\D ALL LIABILITY WITH RESPECT
TO DAMAGES OR INJURIES INCURRED BY GENERATOR OWNER AS RELATES
TO THE FOREGOING, EXCLUDING AI\Y ARISING AS A RESULT OF TORTIOUS
AND INTENTIONALLY KNOWING OR RECKLESS CONDUCT BY PACIFICORP.
4.8 COUNTERPARTY ACKNOWLEDGES AI\D AGREES THAT,IN THE
EVENT OF BREACH OF THIS CONTRACT OR ANY OTHER,ACTION RESULTING
IN LOSS OR POTENTIAL LOSS OR DAMAGE TO COUNTERPARTY,
COUNTERPARTY'S SOLE RECOURSE IS TERMINATION OF THIS AGREEMENT.
4.9 WITHOUT LIMITING THE GENERALITY OF SECTION 4.1 ABOVE,
COUNTERPARTY AGREES TO DEFEND,INDEMNIFY, AI\D HOLD PACIFICORP
AND PACIFICORP INDEMNITEES HARMLESS FROM AI{D AGAINST AI\Y AI\D
ALL CLAIMS (INCLUDING THIRD.PARTY CLAIMS); CAUSES OF ACTION,
WIIETHER IN CONTRACT, TORT, OR AIiY OTHER LEGAL THEORY (INCLUDING
STRICT LIABILITY); COSTS AI\D EXPENSES AI\D OTHER LIABILITIES OF AIIY
NATURE WHATSOEYE& WHENEVER ARISING, ARISING OUT OF, RESULTING
FROM, ATTRIBUTABLE TO, OR RELATED TO COUNTERPARTY GENERATION
DATA OR OUTPUT,INCLUDING: ANY INACCURACY, ERRO& OR DELAY IN OR
oMISSION Or g) AI\Y DATA,INFORMATION, OR SERyICE, OR (II) THE
TRANSMISSION OR DELIVERY OF AI\Y DATA,INFORMATION, OR SERVICE;
ANY INTERRUPTION OF AI\[Y SUCH DATA, OUTPUT,INFORMATION, OR
SERVICE (WHETI{ER OR NOT CAUSED BY PACIFICORP); OR AI\Y FINANCIAL,
BUSINESS, COMMERCIAL, OR OTHER JUDGMENT, DECISION, ACT, OR
OMISSION MADE BY ANY PERSON OR ENTITY BASED UPON OR RELATED TO
THE DATA, OUTPUT,INFORMATION OR SERVICE.
4.10 Interconnection. Counterparty shall have no claims hereunder 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
Interconnection Provider, in connection with the Generation Interconnection Agreement or
otherwise. Counterparty shall defend, indemniff and hold PacifiCorp harmless against any
liability arising due to Counterparty's performance or failure to perform under the Generation
Interconnection Agreement. Counterparty's failure to obtain, or perform under, the Generation
Interconnection Agreement, or its other contracts and obligations to, Transmission Provider or
lnterconnection Provider is not a Force Majeure.
4.ll This Article IV shall survive any termination of this Agreement, whether such
termination is by PacifiCorp or Counterparty, and whether or not such termination is on account
of a default.
V. FurtherCountemartvObligations.
5.1 No Sale. Nothing herein constitutes a sale or purchase of energy or renewable
energy certificates to or by PacifiCorp.
5.2 Tax Benefits. Counterparty shall bear all risks, financial and otherwise
throughout the Term, associated with Counterparty's or the Facility's eligibility to receive any
tax benefits, including production or investment tax credits or accelerated depreciation.
5.3 Further Assurances. At PacifiCorp's request, the Parties shall execute such
documents and instruments as may be reasonably required to effect the essential intent and
purposes hereof.
5.4 Station Service. Counterparty shall be responsible for arranging and obtaining, at
its sole risk and expense, any station service required by the Facility.
5.5 Costs of Ownership and Ooeration. Without limiting the generality of any other
provision hereof, Counterparty shall be 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 hereol and (b) all taxes and charges (however characterized) now
existing or hereinafter imposed on or with respect to the Facility, its operation, or on or with
respect to emissions or other environmental impacts of the Facility, including any such tax or
charge (however characterized) to the extent payable by a generator of such energy or renewable
energy certificates.
5.6 Coordination with System. Counterparty shall be responsible for the coordination
and synchronization of the Facility and the Interconnection Facilities with the System, and shall
be solely responsible for (and shall defend and hold PacifiCorp harmless against) any damage
that may occur as a direct result of Counterparty's breach of the Generation Interconnection
Agreement.
5.7 Data Request. Counterparty shall, promptly upon written request from
PacifiCorp, provide PacifiCorp with data 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. Counterparty shall use best efforts to provide this information to pacifiCorp
sufficiently in advance to enable PacifiCorp to riview it and meet any submission deadlines.
5.8 Additional Information. Counterparty shall provide to PacifiCorp such otherinformation respecting Counterparty or the Facility as PacifiCorp may, from time to time,reasonably request.
5.9 No Dediqation. Nothing herein shall be construed to create any duty to, any
standard of care with reference to, or any liability to any person not a party hereto. Noundertaking by one Party to the other under any provision hereof shall constitute the dedicationof PacifiCorp's facilities or any portion thereof to Counterparty or to the public, nor affect thestatus of PacifiCorq as_ an independent public utility corpoiation or Counterparty as an
independent individual or entity.
5.10 Required Policies and Coverases. Without limiting any liabilities or any otherobligations of Counterparty hereunder, Counterpar:ty shall secure and tontinuously carry with aninsurance company or companies the insurance coverage specified in the Generation
Interconnection Agreement.
VI. RepresentationsandWarranties.
6.1 Mutual Representations and Warranties. Each Party represents and warrants tothe other that: (i) it is duly organized and validly existing under the laws of the jurisdiction of itsincorporation or organization; (ii) it has the corporate, goue--"ntal and other legal capacity andauthority to enter hereinto and to perform its obligationi hereunder; (iii) such exe'cution andperformance do not violate or conflict with any law, order or agreement applicable to it; (iv) ithas all governmental and other authorizations that are requiredlo have been obtained orsubmitted by it with respect hereto, and they are in full force and effect; (v) its obligations
hereunder are valid, binding and enforceable in accordance with their terms (subject tobankruptcy or similar laws affecting creditors' rights generally); and (vi) no irrnt of Default, orevent which with notice andlor lapse of time would constitute such an Event of Default, hasoccurred and is continuing or would occur as a result of its entering into or performing itsobligations hereunder.
6.2 Representations and Warr?nlies of Counterpa4v. Counterparty hereby represents
and warrants to PacifiCorp: (i) it is not relying upon any representations of pacifiCorp other thanthose expressly set forth herein; (ii) it has entered hereinto with a full understanding of tnematerial terms and risks of the same, and it is capable of assuming those risks; (iii) it has madeits trading and investment decisions based upon its own judgmeniand any advice from suchadvisors as it has deemed necessary and not in reliance rpon uny view expressed by pacifiCorp;
(iv) it has not received from PacifiCorp any assurances or pro-ir., r.gurding any iinancialresults or benefits hereunder; (v) service hereunder is not a utility ,"*i". wit]rin ihe meaning ofSection 466 of the u{t9{ Slates Bankruptcy Code; and (vi) Counterparty holds legal title to theFacility or otherwise holds the legal right to cause the Facility to entir into this Agieement.
VII. FinancialResoonsibilitv.
7 .1 Adequate Assurances. Without limiting PacifiCorp's rights under Article VIII
hereof, if Counterparly has failed to make a timely payment hereunder, and PacifiCorp has
reasonable ground. for insecurity regarding the performance of any obligation of Counterparty
hereunder (ihether or not then due), PacifiCorp may demand Adequate Assurances of
performance. "Adequate Assurances of Performance" means sufficient security in the form,
amount, by an issueior guarantor, and for the term reasonably acceptable to PacifiCorp,
including, but not limited to, cash, a standby irrevocable letter of credit, a prepayment, a security
interest i, gor.--ent securities, an asset or a performance bond or guaranty. Such Adequate
Assurances of Performance shall be provided within three business days after a written demand
is made by PacifiCorp.
VIII. Events of Default: Remedies.
8.1 Event of Default. "Event of Default" means, with respect to a Party (the
"Defaulting Party"):
8.1.1 the failure to render when due any payment or performance hereunder, if
such failure is not remedied within five days after written notice;
8.1.2 the failure to timely provide adequate assurances required pursuant to
Article VII hereof;
8.1.3 any such Party's representation or warranty proves to have been incorrect
or misleading in any material respect when made;
8.1.4 the failure to perform any other covenant set forth herein if such failure is
not remedied within five days after written notice;
8.1.5 its bankruptcy, if adequate assurances acceptable to PacifiCorp and
approved by the Bankruptcy Court are not provided;
8.1.6 the expiration or termination of any credit support of Counterparty's
obligations hereunder (otherlhan in accordance with its terms) prior to the satisfaction of all
obligations of Counterparty without the written consent of PacifiCorp; or
8.I .7 In the case of CounterPartY:
8.1.7.1 Counterparty fails to report generation Data or Output information
to PacifiCorp for the Facility or Counterparty fails to send the data in a format and use the
protocols specified by PacifiCorp as determined by PacifiCorp to be required to meet the
requirements of the WREGIS Operating Rules;
8.1.7.2 Counterparty is delinquent in payment to WREGIS of any
WREGIS fees for registration or maintenance of Accounts or Subaccounts, which payment
impairs the ability of PacifiCorp to report Generator Data, Output, or other information to
WitpCtS regarding the Facility, which delinquency continues for a period of thirty (30) days;
8.1.7.3 Counterparty fails to comply with a request by PacifiCorp to
provide evidence of payment of wREGIS fees pertaining to the Facility; or
8.1.7 .4 counterparty knowingly or intentionally falsifies or misrepresents
any Data, Output information, or other information required by WREGIS.
8.2 Remedies Upon Event of Default. In the Event of Default by a Party and for so
long as the Event of Default is continuing, the non-defaulting Party (the "Performing ParU")
shall have the right to do any or all of the following: (l) upon two business days' wriffen notice
to the Defaulting Pu.ty, terminate this Agreement; (2) withhold any payments or performance
due in respect of this Agreement; and (3) exercise such other remedies as may be available at law
or in equity or as otherwise provided for herein, to the extent such remedies have not been
otherwise waived or limited pursuant to the terms hereof.
8.3 Setoff. If an Event of Default occurs, the Performing Party may, at its election,
set off any or all amounts which the Defaulting Party owes to it or any Affiliate of the
Performing Party (whether under this Agreement or otherwise and whether or not then due)
against any or all amounts which it or any Affiliate of the Performing Party owes to the
Defaulting Party (whether under this Agreement or otherwise and whether or not then due).
8.4 Payment of Damages. Any amounts due on account of default shall be paid by
the close of business on the next business day following the Defaulting Party's receipt of the
Performing Party's wriffen termination notice setting forth the termination payment due.
8.5 Limitation of Liabilit.v. THE EXPRESS REMEDIES AI\[D MEASURES OF
DAMAGES PROVIDED HEREIN SATISFY TIIE ESSENTIAL PURPOSES HEREOF.
FOR BREACH OF AI\IY PROYISION FOR WHICH AI\ EXPRESS REMEDY OR
MEASURE OF DAMAGE IS PROVIDED, SUCH REMEDY OR MEASURE SHALL BE
THE SOLE AI\ID EXCLUSIYE REMEDY THEREFOR. LIABILITY THAT HAS NOT
BEEN OTHERWISE EXCLUDED PURSUANT TO THE TERMS HEREOF SHALL BE
LIMITED TO DIRECT ACTUAL DAMAGES ONLY AS TIIE SOLE Ai\tD EXCLUSIYE
REMEDY. EXCEPT AS OTHERWISE SPECITICALLY SET FORTH HEREIN, NO
PARTY SHALL BE REQUIRED TO PAY OR BE LIABLE FOR SPECIAL,
CONSEQUENTIAL, INCIDENTAL, PUNITIYE, EXEMPLARY, OR INDIRECT
DAMAGES, LOST PROFIT OR BUSINESS INTERRUPTION DAMAGES, BY
STATUTE,IN TORT, CONTRACT OR OTHERWISE.
8.6 Survival. This Article survives the expiration or termination hereof
IX. Force Maieure.
9.1 Excep with regard to a Party's obligation to make payments hereunder, in the
event either Party hereto is rendered unable, wholly or in part, by Force Majeure to carry out its
obligations with respect hereto, then upon such Party's (the "Claiming Party") giving notice and
full particulars of such Force Majeure as soon as reasonably possible after the occurrence of the
cause relied upon, such notice to be confirmed in writing or by facsimile to the other Party, then
the obligations of the Claiming Party shall, to the extent they are affected by such Force Majeure,
be suspended during the continuance of said inability, but for no longer period, and the Claiming
Party shall not be liable to the other Party for, or on account of, any loss, damage, injury or
expense resulting from, or arising out of such event of Force Majeure. The Party receiving such
nolice of Force Majeure shall have until the end of the Business Day following such receipt to
notiff the Claiming Party that it objects to or disputes the existence of an event of Force
Majeure. "Force Majeure" means an event or circumstance which prevents one Party from
performing its obligations hereunder, which event or circumstance was not anticipated, which is
not within the reasonable control of, or the result of the negligence of, the Claiming Party, and
which, by the exercise of due diligence, the Claiming Party is unable to overcome or avoid or
cause to be avoided. Counterparty's failure to obtain, or perform under, the Generation
Interconnection Agreement, or its other contracts and obligations to, Transmission Provider or
Interconnection Provider is not a Force Majeure.
9.2 Force Majeure Does Not Affect Other Obligations. No obligations of either Party
that arose before the Force Majeure causing the suspension of performance or that arise after the
cessation of the Force Majeure shall be excused by the Force Majeure.
9.3 Strikes. Notwithstanding any other provision hereof, neither Party shall be
required to settle any strike, walkout, lockout or other labor dispute on terms which, in the sole
judgment of the Parly involved in the dispute, are contrary to the Party's best interests.
X. Miscellaneous.
10.1 Choice of Law. This Agreement shall be interpreted and enforced in accordance
with the laws of the state of Oregon, excluding any choice of law rules that may direct the
application of the laws of another jurisdiction.
10.2 Restriction on Assienments. Neither Party may assign this Agreement or any of
its rights or obligations hereunder without the prior written consent of the other Party, which
consent shall not be unreasonably withheld. Any purported assignment in violation hereof shall
be void ab initio. This Agreement inures to the benefit of and is binding upon the Parties and
their respective successors and permitted assigns.
10.3 Notices. All notices, requests, statements or payments shall be made to the
addresses set out on the Notices Exhibit. Notices required to be in writing shall be delivered by
letter, facsimile or other documentary form. Notice by facsimile or hand delivery shall be
deemed to have been given when received or hand delivered. Notice by overnight mail or couri-
er shall be deemed to have been given on the date and time evidenced by the delivery 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.
10.4 Entire Aqreement: Counterparts. This Agreement constitutes the entire agreement
between the Parties with respect to its subject matter. This Agreement may not be amended,
changed, modified, or altered unless such amendment, change, modification, or alteration is in
writing and signed by both Parties. This Agreement may be executed in counterparts, including
by telefacsimile transmission, each of which is an original and all of which taken together
constitute one and the same original instrument. This Agreement completely and fully
supersedes all other prior understandings or agreements, both written and oral, between the
Parties relating to the subject matter hereof. If any provision of this Agreement is determined
to be invalid, void or unenforceable by any court of competent jurisdiction, such determination
shall not invalidate, void, or make unenforceable any other provision, agreement or covenant of
this Agreement, provided the basic purposes of this Agreement and the benefits to the Parties are
not substantially impaired.
10.5 No Waiver. Waiver by a Party of any default by the other Party shall not be
construed as a waiver of any other default, nor shall any delay by a Party in the exercise of any
right under this Agreement be considered as a waiver or relinquishment thereof.
10.6 Jurisdiction. Any judicial action arising out of, resulting from or in any way
relating to this Agreement shall be brought only in a state or federal court of Multnomah County,
Oregon. In the event such judicial proceedings are instituted by either Purty, the prevailing Party
shall be entitled to award of its costs and attorneys' fees incurred in connection with such
proceedings.
10.7 Jurv Trial waiver. THE PARTIES EACH HEREBY rRREvocABLy
WAIVE ALL RIGHT TO TRIAL BY JURY IN AI\[Y ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING HERETO, OR THE TRANSAC.
TIONS CONTEMPLATED HEREBY. EACH PARTY FURTHER WAIVES A}[Y
RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS BEEN
WAIYED WITH ANry OTHER ACTION IN WIIICH A JURY TRIAL CAI\iNOT BE OR
HAS NOT BEEN WAIVED.
10.8 No Third Pa4v Beneficiaries. With the exception of Transmission Provider and
Interconnection Provider, who are express third party beneficiaries hereof, this Agreement
confers no rights whatsoever upon any person other than the Parties and shall not create, or be
interpreted as creating, any standard of care, duty or liability to any person not a Party hereto.
10.9 Relationship of the Parties. Nothing contained herein shall be construed to create
an association, joint venfure, trust, or partnership, or impose a trust or partnership covenant,
obligation, or liability on or with regard to any one or more of the Parties. Each Party shall be
individually responsible for its own covenants, obligations, and liabilities under this Agreement.
10.10 Survival. This Article survives the expiration or termination hereof.
[signature poge follow sJ
IN WITNESS WHEREOF, the Parties have executed this Agreement by their duly
authorized representatives as of the date last below written.
PacifiCorp
By
Name: Maher F. Wissa-
Title: President-
Date: February 23,2021-
<COUNTERPARTT>
By:
Name:
Title:
Date:
Exhibit A
Facility and Generation Data
For Facility enter the following information:
Facility Name and Address or Location Portneuf River Hydroelectic, Lava Hotsprings, Idaho
MeterNumber (Device ID) M77l95A
Facility's WREGIS Generator ID W2181
EIA or QF ID# FERC #7447-002
One-line diagram that includes descripion of meter locations at the facility - voltage and
location
EXHIBIT H
SELLER AUTHORIZATION TO RELEASE
GENERATION DATA TO PACIFICORP
February 23,2021
Director, Transmission Services
PacifiCorp
825 NE Muluromah, Suite 1600
Portland, OR 97232
To Whom it May Concern:
Commercial Energy Management, Inc. ("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.
Maher F. Wissa
President
Commercial Energy Management, Inc
EXHIBIT I
REQUIRBD INSURANCE
LI Required Policies and Coverages. Without limiting any liabilities or any other obligationsof Seller under this Agreement, Seller must secure and continuously carry with an insurance
company or companies rated not lower than "A-/VII" by the A.M. Best Company the insurance
coverage specified below:
1.1.1 Workers' Compensation. Seller shall comply with any applicable laws or statutes,
state or federal jurisdiction, where Seller performs work.
1.1.2 Employers' Liability. If applicable, Seller shall maintain employers' liability
insurance with minimum limits covering bodily injury for: $1,000,000 - each accident,
$ I ,000,000 by disease - each employee, and $ I ,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
occutrence 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.I.4 Business Automobile Liability. If applicable, 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 occuffence and following form basis with a minimum limits as follows:
(a) Facility Capacity Rating at or above I MW - $5,000,000
(b) Facility Capacity Rating below I MW - $2,000,000
1.1.6 Property Insurance. 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;
(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 under this
schedule; and
(c) cross liability coverage or severability of interest.
1.2.2 lJnless 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. Seller must 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. If any coverage is written on a "claims-made" basis, the
certification accompanying the policy must conspicuously state that the policy is "claims made."
1.4 Term of Commercial General Liabilitv Coverage. 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 typically
obtained or required for power generation facilities comparable to the Facility at the time
PacifiCorp's review takes place.
EXHIBIT J
NERC EVENT TYPES
Event
Type
Description of Outages
UI
Unplanned (Forced) Outage-Immediate - 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 mechanical/electrical/trydraulic
control systems trips and operator-initiated trips in resDonse to unit alarms.
U2
Unplanned (Forced) Outaes-Dela)red - 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 can only occur while the unit is in service
U3
Unplanned (Forced) Outage-Postooned - 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 Outage - An outage that can be defened 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 Outase Extension - An extension of a maintenance outage (MO)
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 ofthe MO.
PO
Planned Outage - 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 Outaee 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.
Where
EXITIBIT K
SCHEDULE 38 AI\ID PRICING SUMMARY TABLE
Conforming Energy Purchase Price : AR". * MPM
Non-Conforming Energy Purchase Price: Minimum of [AR"" * MPM; or PV-
8sl
= Conforming Energy annual rate from Table l, below, forthe year of the Net
Output.
= 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.
= 85% of weighted average of the average Firm Market Price Index for the
month, or portion of month, of Net Output, multiplied by 82.4% to account
for the non-firm nature of the power.
Table 1: Conforming Energy Annual Rates
Year
Conforming Energy
Annual Rate (AR"")
$/MWh
202t $s 1.1 I
2022 $s t.s8
2023 ss3.01
2024 $ss.52
2025 $s9.21
2026 $62.84
2027 $6s.66
2028 $67.85
2029 s69.29
2030 $70.08
2031 $71.2t
2032 s72.97
2033 $7s.06
2034 $77.04
2035 $78.78
2036 $80.s7
AR""
MPM
PV.85
Table 2: Monthly On-Peak/0ff-Peak Multipliers
Month On-Peak
Hours
Off-Peak
Hours
January 103%94%
February 105%97%
March 95o/o 80o/o
April 95o/o 760/o
Mav 92%63%
June 94%65o/o
Julv t2t%92%
Ausust l2l%o 106%
September l09o/o 99%
October ll5o/o 105%
November ll0%o 960/o
December 129%l20o/o
EXHIBIT L
PARTY NOTICE INFORMATION
Notices PacifiCorp Seller
All Notices:PacifiCorp
825 NE Multnomah, Suite 600
Portland, Oregon 97232- 2315
Attn: Director, Origination
Telefacsimile (503) 813 -627 |
With a copy to:
PacifiCorp
825 NE Multnomah, Suite 600
Portland, Oregon 97232- 2315
Attn: Contract Administration
Telefacsimile (503) 813 -629 I
E-mail:
cntadmin@pac ifi corp.com
With a copy to:
PacifiCorp Legal Department
825 NE Multnomah,
Suite 1800
Portland, Oregon 97232- 2315
Attn: Assistant General
Counsel
Telefacsimile (503) 813 -67 6l
Commercial Energy
Management, Inc. (CEM, Inc.)
Maher Wissa
1480 Gulf Blvd #1005
Clearwater, Florida 337 67
[e-mail]
All Invoices:[e-mail]
Scheduling [e-mail]
Payments:[e-mail]
Credit and Collections:CEM,Inc.
Maher Wissa
1480 Gulf Blvd #1005
Clearwater. Florida 337 67
Notices of an Event of
Default or Potential
Event of Default:
CEM,Inc.
Maher Wissa
1480 Gulf Blvd #1005
Clearwater, Florida 337 67
EXHIBIT 4.9.2
[Subsequent Enerry Schedules - as appended]