20210611Application.pdf

Y ROCKY MOUNTAIN
PO\A'ER
1407 W. North Temple, Suite 330
Salt Lake City, Utah 84116
June I 1,2021
VA ELECTRONIC DELIWRY
Jan Noriyuki
Commission Secretary
Idatro Public Utilities Commission
ll33l W. ChindenBlvd
Building 8 Suite 20lA
Boise,ID 83714
Re: CASE NO. PAC-E-21-14
IN TIIE MATTER O[' THE APPLICATION FOR APPROVAL OR REJECTION
OF THE AMENDED POWER PI]RCHASE AGREEMENT BETWEEN
PACIf,'ICORP AI\D MII\IK CREEK ITYDRO LLC.
Dear Ms. Noriyuki:
Please find for filing Rocky Mountain Power's Application in the above-referenced matter.
Infomral inquiries may be directed to Ted Weston,Idaho Regulatory Manager at (801) 220-
2963.
Very truly yours,
Joelle R.
Vice-President of Regulation
Enclosures
Emily Wegener (ISB #l1614)
Rocky Mountain Power
1407 West North Temple, Rm 320
Salt Lake city, utah 84116
Telephone: [phone]
Email : emily.wegener@pacifi corp.com
Attorneyfor Roclry Mountain Power
BEF'ORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OX'THE APPLICATION ) cAsE NO. PAC-E.-21-14
FORAPPROVAL OR REJECTION OFTHE )
AMENDED POWER PI]RCHASE ) APPLICATION OF
AGREEMENT BETWEEN PACIFICORP ) ROCKY MOUNTAIN POWER
AND MINK CREEK ITYDRO LLC. )
Rocky Mountain Power, a division of PacifiCorp, ("Company") respectfully requests,
pursuant to RP 52 and the applicable provisions of the Public Utility Regulatory Policies Act of
1978 ("PURPA"), that the Idaho Public Utilities Commission ("Commission") issue an order
approving or rejecting the Power Purchase Agreement ("PPA") between PacifiCorp and Mink
Creek Hydro LLC, ("Seller") dated May 25,2021.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
Idaho, 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 ldaho Code 6l-129. Rocky Mountain Power provides retail electric
service to approximately 85,600 customers in the state of Idaho.
2. Seller owns, operates, and maintains a small hydro-electric powerplant located near
Preston, in Franklin County, Idaho with a nameplate capacity rating of 2.95 megawaffs ("MW")
Page I
(the "Facility"). Seller operates the Facility as a Qualifring Facility ("QF") under the applicable
provisions of PURPA.
3. Sections 201 and 210 of PURPA, and pertinent regulations of the Federal Energy
Regulatory Commission ("FERC") require that regulated electric utilities purchase electricity
produced by co-generators or small power producers that obtain QF status. The rate a QF receives
for the sale of its electricity is generally referred to as the avoided cost and must reflect the
incremental cost to an electric utility of electric energy or capacity or both, which, but for the
purchase from the QF, such utility would generate itself or purchase from another source.
4. The Commission has authority under PURPA, Sections 20I and 210 and FERC
regulations, l8 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. 32697,1 which
established parameters for published and negotiated avoided cost rate calculations. The
Commission further established and defined numerous contract terms and conditions for standard
PPAs entered into between regulated utilities and QFs.
6. 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 May 5, 2013, respectively, which further clarified certain terms and
conditions of PPAs.
I In the Matter of the Commissionb Review of PURPA QF Contract Provisions Including the Surrogate Avoided
Resource (SAR) and Integrated Resource Planning (IRP) Methodologies for Calculoting Avoided Cost Rates, Case
No. GNR-E-ll-03.
Page2
7. The Facility is an existing QF seeking to renew its current PURPA contract set to
expire March 31, 2022. The Seller's original PURPA contract was dated May 21, 1985. That
PURPA contract was entered into prior to PacifiCorp's separation of its energy supply and
transmission functions as required by federal law and regulations. Therefore, the contract included
provisions that addressed both energy sales and interconnection requirements. The Seller has
expressed a desire to continue to make sales from the Facility to PacifiCorp consistent with the
requirements of PURPA as implemented in the State of Idaho.
8. The PPA contains energy and capacity payments for the entire term of the contract
for the frst2.70 megawatt-hours of net output and energy only for any generation above that until
2029 when energy and capacity payments will be made for all of the net output generated by the
Facility.
9. The PPA will become effective after the occurrence of all of the following events:
(l) execution by both Parties; (2) approval by the Commission; and (3) Seller has executed and is
performing in accordance with a new generation interconnection agreement.
10. The Seller is currently in the process of obtaining a generation interconnection
agreement. Before this contract can become effective, the Seller must hold all rights suffrcient to
enable the delivery of the net output from the Facility pursuant to this PPA by April 1, 2022.
II. RENEWAL OF POWER PURCHASEAGREEMENT
1 1. The Seller and PacifiCorp are in the process of securing a new stand-alone
interconnection agreement that will replace the interconnection provisions in the expired PPA. The
Seller has demonstrated to the Company's reasonable satisfaction that: (l) the Facility's net energy
will equal the energy delivery schedules for the extended term of this PPA; and (2) the likelihood
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that the Facility, under average design conditions, will generate at no more than 2.95 average MW
in any calendar month as shown in ExhibitA.
12. During the renewal process the Company identified that the nameplate rating
included in the original PPA was 2.70 MW; however, the Facility's actual nameplate rating is
2.95 MW. The PPA signed by the Company and the Seller contains two sets of rates, one with
capacity and energy for the frst2.70 MW and the second with energy only for production above
that level until the Company's next capacity deficiency period.
1 3. Exhibit K of the PPA, submitted with the Application as Attachment I , summarizes
the rates the Company will pay the Seller. If the Commission determines that Staff's
recorlmendation in Case PAC-E-21-10, to use one set of avoided cost rates, is the appropriate
approach, the Company will work with the Seller to amend Exhibit K and file the amended exhibit
with the Commission.
14. The PPA 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 energy and capacity are legitimate
expenses for recovery.
III. COMMT]NICATIONS
15. Communications regarding this filing should be addressed to:
Ted Weston
Idaho Regulatory Affairs Manager
Rocky Mountain Power
1407 West North Temple, Suite 330
Salt Lake City, Utah 84116
Telephone : [phone]
Email : ted. weston@pacifi corp.com
I dahoDockets@pacifi corp.conr
Page 4
Emily Wegener
Senior Counsel
Rocky Mountain Power
1407 West North Temple, Suite 320
Salt Lake Ciry, Utah 84116
Telephone : [phone]
Email: emily. wesener@pacificorp. conl
In addition, Rocky Mountain Power requests that all data requests regarding this
Application be sent in Microsoft Word to the following:
By email (preferred) : datarequest@paci ficorp. 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
[phone].
ry. MODIFIED PROCEDURE
16. The Company believes that a hearing is not necessary to consider the issues
presented herein and respectfully requests that this Application be processed under Modified
Procedure, i.e., by written submissions rather than by hearing, pursuant to RP 201.
V. REOUEST FOR RELIEF
WHEREFORE, Rocky Mountain Power respectfully requests that the Commission:
(1) Issue an order authorizing that this matter be processed by Modified Procedure; (2) Approve
or reject the PPA between Mink Creek Hydro and the Company without change or condition;
and (3) Declare that the avoided cost prices set forth in the PPA are just and reasonable, in the
public interest, and that the Company's incurrence of such costs are legitimate expenses for cost
recovery.
Page 5
DATED this lle day of Jrme 2021.
Respoctfrrlly submitted,
ROCKY MOI.'NIAIN POWER
I
1407 WestNorthTemple, Suito 320
Salt Lake City, Utah 84116
Telephone No. (801) 2204526
Mobile No. (385) 22VA476
Emait Emily.weeener@Facifi corp.com
Attornqfor Rocky Moantdn P*ver
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EXECUTION COPY 5-17.2021
POWER PURCHASE AGREEMENI
BETWEEN
MINK CREEK IIYDRO L.L.C.
AND
PACIT'ICORP
TABLE OF CONTENTS
SECTION I DEFINTTTONS, RULES OF INTERPRETATION.................
l.l Defined Terms.1
1.2 Rules of Interpretation.9
SECTION 2 TERM; MILESTONES........ 10
2.2 Milestones.10
SECTION 3 REPRESENTATIONS AIID WARRANTIES 10
3.1 Mutual Representations and Warranties.. ..............10
3.2 Seller's Further Representations, Warranties and Covenants... .....................11
SECTION 4 L4
DELIVERIES OF NET OUTPUT t4
4.1 Purchase and Sale....14
4.2 Designation as Network Resource..... ......................14
4.3 No Sales to Third Parties. ...................14
4.4 Title and Risk of Loss of Net Output........ ...............14
4.5 Curtailment....15
4.6 PaciliCorp as Merchant .......................15
4.7 Ownership of Environmental Attributes, Tax Credits........ ........15
4.8 Purchase and Sale of Capacity Rights......... ............15
SECTION 5 CONTRACT PRICE; COSTS .....L7
5.1 Contract Price; Includes Capacity Rights....17
5.3 Station Service.18
5.4 Taxes.18
1
5.5 Costs of Ownership and Operation.
-ll-
..19
5.6 Rates Not Subject to Review.19
SECTION 6 oPERATION AltD CONTROL ................... 19
6.2 Standard of Facility Operation. ..........19
6.3 Interconnection.20
6.4 Coordination with System........ ...........20
6.5 Outages..20
.216.6 Scheduling....
6,7 Forecasting....22
6.10 TransmissionProviderConsent ..25
6.11 Dedicated Communication Circuit. ....................23
6.13 Financial and Accounting Information............... ....................25
SECTTON 7 QUALII'YING FACILITY STATUS 25
7.1 Seller's QF Status...25
SECTION 8 SECURITY AI\D CREDIT SUPPORT 25
SECTION 9
METERING
9.1 Installation of Metering Equipment..
9.2 Metering.
9.3 Inspection, Testing, Repair and Replacement of Meters............... ..................25
9.5 WREGIS Metering. ........26
.26
.26
...26
..26
SECTION 10......
-lll-
26
10.1 Monthly Invoices. ....,..26
BILLINGS, COMPUTATIONS AND PAYMENTS......25
10.2 Offsets....26
10.3 Interest on Late Payments.... ......,,..27
10.5 Audit Rights....27
SECTION 11 DEFAULTS AND REMEDIES 27
I1.1 Defaults....27
ll.2 Remedies for Failure to Deliver/Receive....29
ll.5 ...31
ll.6
Termination Damages.
Duty/Right to Mitigate.....31
ll.8 Cumulative Remedies.... .................31
SECTION 12 INDEMNIFICATION AND LIABILITY .....31
l2.l Indemnities....32
SECTION T3INSURANCE 34
13.1 Required Policies and Coverages....34
SECTION 14 34
FORCE MAJEURE......34
l4.l Definition of Force Majeure. ..........34
14.3 Force Majeure Does Not Affect Other Obligations.......35
14.4 Strikes...35
14.5 Right to Terminate.
-lv-
...35
SECTION 15 SEVERAL OBLIGATIONS 35
SECTION 16 CHOICE OF LAW ...35
SECTION 17 PARTIAL II\WALIDITY ..35
SECTION 18 NON-WATVER 36
SECTION 19 GOVERNMENTAL JURISDICTION AI\D AUTHORIZATIONS.35
SECTION 20 SUCCESSORS AND ASSIGNS 35
20.2 Permiffed Assignments ....................36
SECTION 21 ENTIRE AGREEMENT 35
SECTION 22 NOTICES 37
22.1 Addresses and Delivery Methods..37
SECTION 23 PUBLICITY ...37
23.1 News Releases and Publicity..?7
SECTION 24 DISAGREEMENTS 37
24.2
24.3
24.4
Mediation......38
WATVER OFJTJRY TRIAL..38
Exhibit A
ExhibitB
Exhibit C
Exhibit D
Erfribit E
Exhibit F
Exhibit c
E*ibitH
E dlibitI
Bxhibit J
Exhibit K
Exhibit L
EXIIIBITS
Estimated Monthly Net Output
Description of Seller's Facility
Seller's Interconnection Fapilities
Required Facility Documents
Leases
Reserved
Qualified Reporting Entity Services Agreement
Seller Authorization to Release Generation Datato PacifiCorp
Required Insurance
NERC Event Types
Rocky Mormtain Power Schedule No. 38
Party Notice Information
-vi-
POWER PURCHASE AGREEMENT
THIS POWER PURCHASE AGREEMENT (this "Agreement"), is entered into between
Mink Creek Hydro L.L.C., an Idaho Limited Liability Corporation (the "Seller"), and
PacifiCorp, an Oregon corporation ("PacifiCorp"). Seller and PacifiCorp are sometimes referred
to in this Agreement collectively as the "Parties" and individually as a "Party."
A. Seller owns, operates and maintains an existing hydro-powered generating facility
for the generation of electric energy known as the Mink Creek Hydro Project located in County,
Idaho, with a nameplate capacity rating of 2.95 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 Agreemen! 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
pu{poses 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 suf,ficiency of which are hereby
acknowledged, the Parties mutually agree as follows:
SECTION I
DEFINITIONS, RULES OF INTERPRETATION
l.l Defined Terms. Unless otherwise required by the context in which any term
appears, initially capitalized terms used in this Agreement have the following meanings:
"Abandonment" means the relinquishment of all possession and control of the
Facility by Seller, but only if such relinquishment is not caused by or attributable to an Event of
Default by PacifiCo{p, & request by PacifiCorp, or an event of Force Majeure.
"Adjusted Scheduled Monthly Energy Delivery" shall have the meaning set forth
in Section 4.10
"Affrliate" 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, witho'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.
"Business Day" means any day on which banks in Portland, Oregon, are not
authorized or required by Requirements of Law to be closed.
"Capacity Rights" means any current or fufure defined characteristic, certificate,
tag, credit, ancillary service or attribute thereof (including reactive power), or accounting
construct, including any of the same counted towards any current or fufure 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 Nghts 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 Utilities Commission.
"Conditional DNRNotice" is defined in Section4.Z.
"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 lnterest Rate" means the lesser of (a) the highest rate permitted under
Requirements of Law or (b) 200 basis points per annum plus the rate per annum equal to the
publicly announced prime rate or reference rate for commercial loans to large businesses in
effect from time to time quoted by Citibank, N.A.as its "prime rate." If a Citibank, N.A.prime
rate is not available, the applicable prime rate will be the announced prime rate or reference rate
for commercial loans in effect from time to time quoted by a bank with $10 billion or more in
assets in New York City, N.Y., selected by the Party to whom interest is being paid.
"Contract Price" means the Conforming Energy Purchase Price or Non-
Conforming Energy Purchase Price as applicable, expressed in $A,IWh, for Net Output and
Capacity Rights stated in Section 5.1.
"Contract Year" means any consecutive twelve (12) month period during the
Term, commencing at 00:00 hours on April 1,2022 or 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)
'Baa1 ' or greater form Moody's; provided that if such ratings are split, the lower of the t'wo
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, orgarization or body of recognized standing with respect to the operations of the
electric system in the WECC region, as such are applicable to the Seller or PacifiCorp.
"Energy Delivery Schedule" is defined in Section 4.9 of this Agreement.
"Energy Imbalance Market" means generation facilities electrically located within
PacifiCorp's balancing authority areas that are, from time to time, bid in to or otherwise subject
to dispatch instructions issued or originating from the Market Operator.
"Environmental Attributes" means any and all claims, credits, benefits, emissions
reductions, offsets, and allowances associated with the avoidance of the emission of any gas,
chemical, or other substance to the air, soil or water. Environmental Attributes include: (a) any
avoided emissions of pollutants to the air, soil, or water such as sulfur oxides, nitrogen oxides,
carbon monoxide, and other pollutants; and (b) any avoided emissions of carbon dioxide,
methane, and other greenhouse gases that have been determined by any Governmental Authority
to contribute to the actual or potential threat of altering the Earth's climate by trapping heat in
the 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 constifute 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 Defaulf is defined in Section 1 1.1.
"Expected Monthly Net Output" means the estimated monthly Net Output as
determined in Exhibit A.
"Expected Net Output" means 9,324 MWh of Net Output in the first full Contact
Year reduced, as applicable, by an annual degradation factor of 0 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, as reduced
each Contract Year, as applicable, by the annual degradation factor.
"Facility" is defined in the Recitals and is more fully described in attached
Exhibit B and includes all equipment, devices, associated appurtenances owned, controlled,
operated and managed by Seller in connection with, or to facilitate, the production, generation,
transmission, delivery, or furnishing of electic energy by Seller to PacifiCorp and required to
interconnect with the System.
"FERC" means the Federal Energy Regulatory Commission.
J
"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
Interconnection Facilities.
"Governmental Authority" means any supranational, federal, state or other
political subdivision thereof, having jurisdiction over Seller, PacifiCorp or this Agreement,
including any municipality, township or county, and any entrty 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 tobehazardous under or pursuant to any environmental
law or regulation.
"Inadvertent Energy" means: (l) energy delivered in excess of the Maximum
Monthly Purchase Obligation; and (2) energy delivered to the Point of Delivery at a rate
exceeding the Maximum Delivery Rate. Inadvertent Energy is not included in Net Output.
"Indemnified Parly" 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 PacifiCorp Transmission.
"KW" 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 arangement) to Seller or Seller's Affiliates (a) for the
construction, term or permanent financing or refinancing of the Facility, (b) for working capital
or other ordinary business requirements for the Facility (including for the maintenance, repair,
replacement or improvement of the Facility), (c) for any development financing, bridge
financing, credit support, and related credit enhancement or interest rate, cturency, 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.
"Liabilities" is defined in Section l2.l.l
"Maintenance Outage" means NERC Event Type MO, as provided in affached
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-atread or intra-hour market.
"Maximum Delivery Rate" means the maximum hourly rate of delivery of Net
Output in MWh from the Facility to the Point of Delivery, calculated on the basis of the Net
Output delivered in an hour accruing at an average rate equivalent to the actual Nameplate
Capacrty Rating, as stated in Exhibit A.
"Maximum Monthly Purchase Obligation'o 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, Inc.
"Mountain Prevailing Time" or "MPT" means Mountain Standard Time or
Mountain Daylight Time, as applicable in Utah on the day in question.
"MW" means megawatt.
5
(6MWh" means megawaff-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 2.95 MW.
"Net Energy" means the energy component, in kWh, ofNet Output. Net Energy
does not include Inadvertent Energy.
"NERC" means the North American Electric Reliability Corporation.
'Net Output" means all energy and capacity produced by the Facility, less station
use and less transformation and transmission losses and other adjustnents (e.9., 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.
"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, as may be adjusted
pursuant to Section 4.10: (1) that portion, if any, of Net Energy delivered subsequently to the
initial lI0% of the Scheduled Monthly Energy Delivery for that Billing Period; or (2) all Net
Energy delivered when Net Energy delivered is less than90Yo 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.
"Off-Peak Hours" means all hours 0l: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.
"Outpuf'means all energy produced by the Facility.
"PacifiCorp" is defined in the Recitals, and explicitly excludes PacifiCorp
Transmission.
"PacifiCorp Avoided Cost Rates For Non-Seasonal Hydro Projects" means the
rates as attached in Exhibit K, and as approved by the Commission on the Effective Date.
"PacifiCorp Indemnitees" is defined in Section 12.1.1.
"PacifiCorp Representatives" is defined in Section 6.14.
6
"PacifiCorp Transmission" means PacifiCorp, an Oregon corporation, acting in its
interconnection or transmission function capacrty.
"PacifiCorp's Cost to Cover" means the positive difference, if any, between (a)
the time weighted average 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.
"Party" and "Parties" are defined in the Recitals.
"Permits" means the permits, licenses, approvals, certificates, entitlements and
other authorizations issued by Govemmental Authorities required for the construction,
ownership or operation of the Facility or occupancy of the Premises.
"Planned Outage" means NERC Event Type PO, as provided in attached Exhibit
J, and specifically excludes any Maintenance Outage or Forced Outage.
"Point of Delivery" means the point of interconnection between the Facility and
the System, as specified in the Generation Interconnection Agreement and as further described in
Exhibit C.
"Premises" means the real property on which the Facility is or will be located, as
more fullv 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
"QF" means "Qualifuing Facility," as that term is defined in the FERC
regulations (codified at 18 CFR Part292) 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.
"Qualifuing 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
7
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" mears any applicable federal, state and local law, stafute,
regulation, rule, action, order, code or ordinance enacted, adopted, issued or promulgated by any
Governmental Authority (including those pertaining to electrical, building, zoning,
environmental and wildlife protection, and occupational safety and health).
"RTO" means any entity (including an independent system operator) that
becomes responsible as system operator for, or directs the operation of, the System.
"S&P" means Standard & Poor's Rating Group (a division of S&P Global, Inc.).
"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 Indemnitees" is defined in Section 12.1.2.
"Seller's Cost to Cover" means the positive difference, if any, between (a) the
Contract Price per MWh, and (b) the net proceeds per MWh actually realizcd by Seller from the
sale to a third party ofNet Output not purchased by PacifiCorp as required under this
Agreement.
"System" means the electric transmission substation and transmission or
distribution facilities owned, operated or maintained by Transmission Provider, which includes
the circuit reinforcements, extensions, and associated terminal facility reinforcements or
additions required to interconnect the Facility, all as provided in the Generation Interconnection
Agreement.
*Tariff'means PacifiCorp's Open Access Transmission Tariffon file with FERC,
as such tariff is revised from time to time.
"Tax Credits" means any state, local and federal production and invesfinent tax
credits, tax deductions, or other tax benefits specific to the production of renewable energy or
investments in renewable energy facilities.
o'Term" is defined in Section 2.1.
'oTermination 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.
8
1.2
"WECC" means the Western Electricity Coordinating Council
Rules of Intemretation.
1.2.1 General. Unless otherwise required by the context in which any term
appears, (a) the singular includes the plural and vice versa; (b) references to "Articles,'o
'oSections," "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 stafute 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 0) the word "or" is not necessarily
exclusive. Reference to "days" means calendar days, unless expressly stated otherwise in this
Agreement.
1.2.2 Terms Not to be Construed For or Aeainst Either 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 Headinss. The headings used for the sections and articles of this
Agreement are for convenience and reference purposes only and in no way affect the meaning or
interpretation of the provisions of this Agreement.
1.2.4 Intemretation with FERC Orders. Each Party conducts its operations in a
manner intended to comply with FERC Order No. 717, Standards of Conduct for Transmission
Providers, and its companion orders, requiring the separation of its 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.
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.
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.
9
Seller acknowledges that, for purposes of this Agreement, consistent with FERC Order
No. 717, Standards of Conduct for Transmission Providers, and its companion orders, 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 occrrrence of all of the
following events (such date of occurrence, the "Effective Date"): (1) execution by both Parties;
(2) approval by the Commission; (3) Seller has executed and is performing in accordance with a
new Generation Interconnection Agreement with the Interconnection Provider; provided,
however, 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, once effective, this Agreement remains in effect until March 31,2042 (the
"Term"). 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 performance of this Agreement, and
Seller's delivery of Net Output is critically important. Therefore, Seller must achieve the
milestones provided in (a) through (c) below at the times so indicated.
(a) Seller must begin selling and making available to PacifiCorp Net
Output under this Agreement on April l, 2022 (*Irtrrial Delivery Date").
(b) Seller must provide a fully executed and effective Generation
Interconnection Agreement to PacifiCorp before April 1, 2022.
Seller must provide PacifiCorp with documentation showing that Seller has obtained
retail electric service for the Facility before April l, 2022.
SECTION 3
REPRESENTATIONS AND WARRANTIES
3.1 Mutual Representations and Warranties. Each Party represents and warrants to
the other that:
3.1.1 Oreanization. It is duly organized and validly existing under the laws of
the State of its organization.
3.1.2 Authoritv. It has the requisite power and authority to enter this Agreement
t0
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 indenture, mortgage, security
instrument or undertaking, or other material agreement to which it is a party or by which it is
bound, or any valid order of any court, or any regulatory agency or other Govemmental
Authority having authority to which it is subject.
3.1.5 Valid and Enforceable Aereement. This Agreement is a valid and legally
binding obligation of it, enforceable in accordance with its terms, except as enforceability may
be limited by general principles of equity or bankruptcy, insolvency, bank moratorium or similar
laws affecting creditors' rights generally and laws restricting the availability of equitable
remedies.
3.2 Seller's Further Representations. Warranties and Covenants. Seller frrther
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 eflect having applicability to either Seller or any owner of
Seller;
(b) require the consent or approval of or material filing or registration
with any Governmental Authority or other person other than consents and approvals which are
(i) provided in Exhibit D or (ii) required in connection with the construction or operation of the
Facility and expected to be obtained in due course; or
(c) result in a breach of or constitute a default under any provision of
(i) any security issued by Seller or any owner of Seller, the eflect 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 efflect of which would materially and adversely affect Seller's
performance of, or ability to perform, its obligations in this Agreement.
11
3.2.3 Required Facility 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 notifu PacifiCorp of any additional Required Facility Documents. If reasonably
requested by PacifiCorp, Seller must provide copies of any or all Required Facility Documents.
3.2.4 Delivery of Enersy. Before April l, 2022, Seller must hold all rights
sufficient to enable Seller to deliverNet 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 Litieation. No litigation, arbitration, investigation or other proceeding is
pending or, to the best of Seller's knowledge, threatened against Seller or any Affiliate of Seller,
with respect to this Agreement, the Facility, or the transactions contemplated in this Agreement.
No other investigation or proceeding is pending or threatened against Seller or any Affiliate of
Seller, the effect of which would materially and adversely affect Seller's performance of its
obligations in this Agreement.
3.2.7 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
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.
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3.4 Continuing Nature of Representations and Warranties: Notice. The
representations and warranties provided in this Section 3 are made as of the Effective Date and
are deemed repeated as of April 1,2022. If at any time during the Term, either Parly 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 wa:ranties affected, and the action, if any, which such Party intends to take
to make the representations and waranties true and correct. The notice required by this section
must be given as soon as practicable after the occurrence of each such event.
13
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 Desienation 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 Contract Price or
other terms and conditions of this PPA. Iq within thirly (30) days following the date of
PacifiCorp's receipt of the Conditional DNR Notice, the Parties are unable to reach agreement
on any necessary adjustments to ensure the Contract Price reflects an "avoided cost" price as
determined by the Commission and PURPA, PacifiCorp will submit the matter to the
Commission for a determination on what adjustments, if any, are appropriate as a result of the
Conditional DNR Notice. PacifiCorp will submit such filing with the Commission within sixty
(60) days following the date of PacifiCorp's receipt of the Conditional DNRNotice. In the event
of a Conditional DNR Notice, Seller will have the right to terminate the Agreement upon written
notice to PacifiCorp and such termination by Seller will not be an Event of Default and no
damages or other liabilities under this Agreement will be owed by one Party to the other Party;
, 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 matters
covered under this Section 4.2 or (b) PacifiCorp incuning costs at Seller's request in furtherance
of addressing matters covered under this Section 4.2.
4.3 No Sales to Third Parties. During the Term, Seller will not sell any Net Output,
energy, or Capacity Rights from the Facility to any party other than PacifiCo.p; provided,
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.
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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; (d) an icing event within the immediate water source used as the Facility's primary
motive force; or (e) an event of Force Majeure prevents either Party from delivering or receiving
Net Output. Seller will reasonably determine the MWh amount of Net Output curtailed under
this Section 4.5 based on the amount of energy that could have been generated at the Facility and
delivered to PacifiCorp as Net Output but that was not generated and delivered because of the
curtailment. Seller must promptly provide PacifiCorp with access to such information and data
as PacifiCo{p 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 PacifiCorp as Merchant. Seller acknowledges that PacifiCorp, acting in its
merchant capacity function as purchaser under this Agreement, has no responsibility for or
control over PacifiCorp Transmission, in either its capacity as Transmission Provider or
Interconnection Provider.
4.7 Ownership of Environmental Attributes. Tax Credits. Seller maintains ownership
of any Environmental Attributes associated with the Output and any Tax Credits associated with
the Output or the Facility.
4.8 Purchase and Sale of Capacitv Riehts. 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 Energy 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 Initial Delivery Date through the first twelve full calendar months following the Initial
Delivery Date, Seller predicts that the Facility will produce and deliver the following monthly
l5
amounts ("Initial Energy Delivery Schedule"):
Month
January
February
March
April
May
June
July
August
September
October
November
December
Enerry Deliverv (kWh)
379,247
309,554
340,484
600,293
l,5l1,8ol
1,671,755
1,172,791
988,028
768,258
637,431
505,145
439,576
4.9.1 Seller may revise the Initial Energy Delivery Schedule any time prior to
the Initial Delivery Date.
4.9.2 On an after April 7,2022, the Seller may revise any future monthly
Energy Delivery Schedule with additional forward estimates (which shall be the "Subsequent
Energy Delivery Schedule") by providing written notice no later than 5 PM Mountain Standard
time on the 20th day of the month that is prior to the month to be revised. If the 20th day of the
month falls on a weekend or holiday, then written notice must be received on the last business
day prior to the 20th day of the month. For example, if the Seller would like to revise the Energy
Deliverv Schedule for October, Seller must submit a revised schedule no later than Septernber
20th or the last business day prior to September 20th. PacifiCorp agrees that such dates above
shall be revised to the 25tl' 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 Energl,
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
16
Schedule
4.10 Adjustment of Enerey Delivery Schedule. In the event of either (i) a Quali&ing
Curtailment, or (ii) a Forced Outage lasting at least 48 hours and for which Seller provides notice
to PacifiCorp pursuant to Section 6.5.3 ("Qualifring Outage"), the Scheduled Monthly Energy
Delivery will be adjusted,pro rato, ("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*1
Hci *DRm - DRc,
Ht DRmI()
Where:
SMED Scheduled Monthly Energy Delivery for the month in which the
Qualifuing Curtailment(s) and/or Qualifring Outage(s) occur
Adjusted Scheduled Monthly Energy Delivery for the month in
which the Qualiffing Curtailment(s) and/or Qualiffing Outage(s)
occur
the duration in hours of the Qualiffing Curtailment(s) and/or
Qualifuing Outage(s) occur
total hours in the month in which Qualiffing Curtailment(s) and/or
Qualiffing Outage(s) occur
the Maximum Curtailed Facility Delivery Rate during the
Qualifring Curtailment(s) and/or Qualifring Outage(s) occur
the Maximum Facility Delivery Rate
a Qualiffing Curtailment and/or Qualifuing Outage
the number of QualiSing Curtailment(s) and/or Quali$ing
Outage(s) in the month
SMED(adj)
Where Qualiffing Curtailments and/or Qualifuing Outages overlap, each distinct period of
overlap shall be calculated as a separate Qualiffing Curtailment and/or Qualifring Outage such
that no hour within a calendar month may figure into more than one Qualifuing Curtailment or
Qualifuing Outage.
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.
Hci
Ht
DRci
DRm
I
n
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5.2 Costs and Charses. Seller is responsible for paying or satisfting 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 4.2,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.
5.3 Station Service. Seller is responsible for arranging and obtaining, at its sole risk
and expense, station service required for the Facility that is not provided by the Facility itself.
5.4 Taxes. Seller must pay, or reimburse PacifiCorp for, all existing and any new
sales, use, excise, severance, ad valorem, and any other similar taxes, imposed or levied by any
Governmental Authority on the Net Output or Capacity Rights up to and including the Point of
Delivery, regardless of whether such taxes are imposed on PacifiCorp or Seller under
Requirements of Law. PacifiCorp must pay, or reimburse Seller for, all such taxes imposed or
levied by any Governmental Authority on the Net Output or Capacity Rights beyond the Point of
Delivery, regardless of whether such taxes are imposed on PacifiCorp or Seller under
Requirements of Law. The Contract Price will not be adjusted on the basis of any action of any
Govemmental Authority with respect to changes to or revocations of sales and use tax benefits,
rebates, exception or give back. 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.
18
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 characterized) 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 Panies. Neither Party will petition FERC
to amend such prices or terms, or support a petition by any other person seeking to amend such
prices or terms, absent the agreement in writing of the other Party. Further, absent the agreement
in writing by both Parties, the standard of review for changes to this Agreement proposed by a
Party, a non-parly or the FERC acting sua sponte will be the "public interesf' application of the
'Just and reasonable" standard of review as described in United Gas Pipe Line Co. v. Mobile Gas
Service Com., 350 U.S. 332 (1956), and Federal Power Commission v. Sierra Pacific Power Co..
350 U.S. 348 (1956), and clarified by Morean Stanle), Capital Group. Inc. v. Public Util. Dist.
No. I 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
applicable and mandatory standards, criteria and formal guidelines of FERC, NERC, any RTO,
and any other Electric System Authority and any successors to the functions thereof; (b) the
Permits and Required Facility Documents; (c) the Generation Interconnection Agreement; (d) all
Requirements of Law; (e) the requirements of this Agreement; and (0 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.
19
(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.
If fines, penalties, or legal costs are assessed against or incurred by either Party (he
"Indemnified Party") on account of any action by any Govemmental Authority due to
noncompliance by the other Party (he "Indemnifuing Party") with any Requirements of Law or
the provisions of this Agreement, or if the performance of the Indemniffing Party is delayed or
stopped by order of any Governmental Authority due to the Indemniffing Party's noncompliance
with any Requirements of Law, the Indemnifring Party must indemni& and hold harmless the
Indemnified Pafty against any and all Liabilities suffered or incuned by the Indemnified Party as
a result thereof. Without limiting the generality of the foregoing, the Indemnifying Party must
reimburse the Indemnified Party for all fees, damages, or penalties imposed on the Indemnified
Party by any Govemmental Authority, other person or to other utilities for violations to the
extent caused by a default by the Indemnifring 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 Interconnection 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
capacrty, 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, acting in
such capacities, in connection with the Generation Interconnection Agreement or otherwise.
6.4 Coordination with System. Seller's delivery of electricity to PacifiCorp under this
Agreement must be at a voltage, phase, power factor, and frequency as reasonably specified by
PacifiCorp. Seller will fumish, install, operate, and maintain in good order and repair, and
without cost to PacifiCorp, such switching equipment, relays, locks and seals, breakers,
automatic synchronizers, and other control and protective apparatus determined by PacifiCorp to
be reasonably necessary for the safe and reliable operation of the Facility in parallel with the
System, or Seller may contract with PacifiCorp to do so at the Seller's expense. PacifiCorp must
at all times have access to all switching equipment capable of isolating the Facility from the
System.
6.5 Outases.
6.5.1 Planned Outaqes. 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 frst 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
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vendor to satisfu a guarantee requirement.
6.5.2 Maintenance Outages. If Seller reasonably determines that it is necessary
to schedule a Maintenance Outage, Seller must notiff 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 Elechical 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 modifu 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 Outaees. 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.
6.5.4 Notice of Deratines and Outaees. Without limiting the foregoing, Seller
will inform PacifiCorp, via telephone to a number specified by PacifiCorp (or other method
approved by PacifiCorp), of any limitations, restrictions, deratings or outages reasonably
predicted by Seller to affect more than five percent (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 warants
that the Expected Monthly Net Output provided in Exhibit A takes into account the Planned
Outages, Maintenance Outages, and Forced Outages that Seller reasonably expects to encounter
in the ordinary course of operating the Facility.
6.6 Scheduline.
6.6.1 Cooperation and Standards. With respect to any and all scheduling
requirements, (a) Seller must cooperate with PacifiCorp with respect to scheduling Net Output,
2t
and (b) each Party will designate authorized representatives to commtrnicate with regard to
scheduling and related matters arising under this Agreement. Each Party must comply with the
applicable variable resource standards and criteria of any applicable Electric System Authority,
as applicable.
6.6.2 Schedule Coordination. If, as a result of this Agreement, PacifiCorp is
deemed by an RTO to be financially responsible for Seller's performance under the Generation
Interconnection Agreement due to Seller's lack of standing as a "scheduling coordinator" or
other RTO-recognized designation, qualification or otherwise, and PacifiCorp declines to absorb
the cost of such financial responsibility 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, this Agreement shall terminate
without penalty.
6.7 Forecastine.
6.7.1 Lons-Ranee Forecasts. Seller must, by December l'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 (lzx 24 profile). Seller
must prepare such forecasts utilizing a renewable energy resource prediction model or service
that is satisfactory to PacifiCorp in the exercise of its reasonable discretion and comparable in
accuracy to models or services commonly used in the industry. The forecasts provided by Seller
must comply with all applicable Electric System Authority tariff procedures, protocols, rules and
testing as necessary and as may be modified from time to time.
6.8 Net Output Above Maximum Delivery Rate: New Project Expansion or
Development. PacifiCorp is not required to purchase any Net Output above the Maximum
Delivery Rate. If Seller builds an expansion or additional project such that the Facility combined
with the expansion or additional project would be deemed a single QF or the same site under
FERC regulations, 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 under the terms, conditions, and prices in this Agreement. Instead, Seller may
exercise any rights to enter into a new agreement for the sale of such incremental energy from
such additional facility that is a QF under then-applicable laws and regulations.
6.9 Telemeterine.
6.9.1 If the Facility has a Nameplate Capacity Rating above 3 MW, Seller must
provide telemetering or other cellular or web-based 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;
Net Output; and
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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 PacifiColp 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.
6.9.2 If the Facility has a Nameplate Capacity Rating less than or equal to 3
MW, Seller must install Telemetering required in Section 6.9.1 and Dedicated Communication
Circuit in Section 6.11, Seller will be billed for monthly manual meter reads subject to Section
10 at a rate of $500 per month dwing the Term.
6.10 Transmission Provider Consent. Within ten (10) days of the Effective Date,
Seller must execute and submit to PacifiColp, & 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.
6.11 Dedicated Communication Circuit. Seller must install a dedicated direct
communication circuit (which may be by common carrier telephone), or cellular or web-based
equipment, between PacifiCorp and the control center in the Facility's control room or such
other communication equipment as the Parties may agree, if requested to by PacifiCorp.
6.12 Reports and Records.
6.12.1 Elechonic Fault Loe. Seller must maintain an electronic fault log of
operations of the Facility during each hour of the Term commencing on April 1,2022. 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 certifuing 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.
6.12.4 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
23
intervenor status in any PacifiCorp rate proceeding or other proceeding before any Governmental
Authority. Seller must use best efforts to provide this information to PacifiCorp sufficiently in
advance to enable PacifiCorp to review such date and meet any submission deadlines.
PacifiCorp will reimburse Seller for all of Seller's reasonable actual costs and expenses in excess
of $5,000 per year, if any, inctu'red in connection with PacifiCorp's requests for information
under this subsection.
6.12.3 Other Information to be Provided to PacifiCorp. 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.
6.12.5 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 notiff
PacifiCorp of receipt of written notice or actual knowledge by Seller or its Affiliates of the
occurrence of any event of default under any material agreement to which Seller is a party and of
any other development, financial or otherwise, which would have a material adverse effect on
Seller, the Facility, or Seller's ability to develop, construct, operate, maintain or own the Facility,
including any material violation of any environmental laws or regulations arising out of the
construction or operation of the Facility, or the presence of Environmental Contamination at the
Facility or on the Premises.
6.12.7 Notice of Litieation. 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 Govemmental Authority entitled to receive such information.
24
6.13 Financial and Accountine Information. If PacifiCorp or one of its Affiliates
determines that, under (a) the Accounting Standards Codification (ASC) 810, Consolidation of
Variable Interest Entities, and (b) Requirements of Law that it may hold a variable interest in
Seller, but it lacks the information necessary to make a definitive conclusion, Seller agrees to
provide, upon PacifiCorp's written request, sufficient financial and ownership information so
that PacifiCorp or its Aftrliate 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, suffrcient
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 treatnent of any such
information from any Governmental Authority entitled to receive such information.
6.14 Access Riehts. Upon reasonable prior notice and subject to the prudent safety
requirements of Seller, and Requirements of Law relating to workplace health and safety, Seller
must provide PacifiCorp and its authorized agents, employees and inspectors ("PacifiCorp
Representatives") with reasonable access to the Facility: (a) for the purpose of reading or testing
metering equipment, (b) as necessary to witness any acceptance tests, and (c) for other
reasonable purposes at the reasonable request of PacifiCorp. PacifiCorp will release Seller from
any and all Liabilities resulting from actions or omissions by any of the PacifiCorp
Representatives in connection with their access to the Facility, except to the extent such
Liabilities are caused by the intentional or negligent act or omission of Seller or its agents or
Affiliates.
SECTION 7
QUALIF'YING FACILITY STATUS
7.1 Seller's OF Status. Seller must maintain throughout the Term the Facility's status
as a QF. Seller must provide PacifiCorp with copies of any QF certification or recertification
documentation within ten (10) days of its filing with any Governmental Authority. At any time
during the Term, PacifiCorp may require Seller to provide PacifiCorp with evidence satisfactory
to PacifiCorp in its reasonable discretion that the Facility continues to qualifr as a QF under all
applicable requirements.
SECTION 8
SECURITY AND CREDIT SUPPORT
Reserved.
25
SECTION 9
METERING
9.1 Installation of Meterine Equipment. At Seller's expense, metering equipment
must be designed, furnished, installed, owned, inspected, tested, maintained and replaced as
provided in the Generation Interconnection Agreement. Seller must reasonably cooperate with
PacifiCorp in developing any metering protocols necessary for PacifiCorp to comply with the
requirements of the Market Operator.
9.2 Meterine. Metering must be performed at the location and in the manner
specified in Exhibit C, the Generation Interconnection Agreement, and as necessary to perform
Seller's obligations under this Agreement. All quantities of Net Output purchased must reflect
the net amount of energy flowing onto the System at the Point of Delivery.
9.3 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 (0.5%), either fast or slow, the necessary corrections will be made of
previous readings for the actual period during which the metering equipment rendered inaccurate
measurements if that period can be ascertained. If the actual period of error cannot be
ascertained, the corrections will be made for the entire time period since the metering equipment
was last inspected and verified accurate, not to exceed three (3) months. Any corrections under
this Section 9.3 will be reflected as an adjustment in the next monthly invoice.
9.4 Meterine Costs. To the extent not otherwise provided in the Generation
Interconnection Agreement, Seller is responsible for all costs relating to all metering equipment
installed to accommodate Seller's Facility.
9.5 WREGIS Meterine. Seller must cause the Facility to implement all necessary
generation information communications in WREGIS, and report generation information to
WREGIS, 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 AND PAYMENTS
10.1 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 ofNet Output to
PacifiCorp, together with computations supporting such payment.
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.
26
10.3 Interest on Late Payments. Any amounts not paid when due under this
Agreement will bear interest at the Contract Interest Rate from the date due until paid.
10.4 Disputed Amounts. If either Party, in good faith, disputes any amount due under
an invoice provided under this Agreement, such Party must 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 frst occurred. If any
amount disputed by such Party is determined to be due the other Party, 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 Riehts. Each Party, through its authorized representatives, has the right, at
its expense upon reasonable notice and dwing normal business hours, to examine and copy the
records ofthe other Party to the extent reasonably necessary to veriff the accuracy ofany
statement, charge or computation made under this Agreement or to veriff 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 ove{payment or underpayment to the date of receipt of the reconciling
payment.
SECTION 11
DEX'AULTS AND REMEDIES
1 1.1 Defaults. The following events are defaults under this Agreement, and are
"Events of Defaults" after the passing of notice and cure periods, as applicable:
11.l.l Defaults bv Either Party
(a) A Party fails to make a payment when due under this Agreement if
the failure (i) is not the subject of a good faith dispute under Section 10.4, and (ii) is not cured
within ten (10) Business Days after the non-defaulting Party gives the defaulting Party a notice
of the default.
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.
A Party breaches a representation or warranty in this Agreement if the breach is not cured
within thirty (30) days after the non-defaulting Party gives the defaulting Party a notice of the
default; 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,
27
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.
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 Parly 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
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 Required
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 notice from
PacifiCorp.
(f) Seller fails to satis$ the requirement to maintain QF status under
(g) Any modification of the Facility that (i) results in the Facility
Section 7.1
28
increasing its Nameplate Capacity Rating beyond that stated in Exhibit B, or (ii) is reasonably
likely to result in the expected annual Net Output, as calculated in Exhibit A, to increase.
ll.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 I 1.1.2(a), Seller must pay PacifiCorp within
five (5) Business Days after receipt of invoice, an amount equal to the sum of (a) PacifiCorp's
Cost to Cover multiplied by the Net Output delivered to a party other than PacifiCorp, (b)
additional transmission charges, if any, reasonably incurred by PacifiCorp in moving
replacement energy to the Point of Delivery or if not there, to such points in PacifiCorp's control
area as determined by PacifiCorp, and (c) any additional cost or expense incurred as a result of
Seller's default, as determined by PacifiCorp in a commercially reasonable manner. The invoice
for such amount must include a written statement explaining in reasonable detail the calculation
of such amount.
11.2.2 Remed)' 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 this
Agreement, then PacifiCorp must pay Seller, on the earlier of the date payment would otherwise
be due in respect of the month in which the failure occurred or within five (5) Business Days
after receipt of invoice, an amount equal to Seller's Cost to Cover multiplied by the amount of
Net Output not purchased. The invoice for such amount must include a written statement
explaining in reasonable detail the calculation of such amount.
11.2.3 Remedy for Seller's Failure to Provide 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.
29
11.3 Termination and Remedies. From and during the continuance of an Event of
Default, the non-defaulting Party will be entitled to all remedies available at law or in equity, and
may terminate this Agreement by notice to the other Party designating the date of termination
and delivered to the defaulting Party no less than fifteen (15) days before such termination date.
The notice required under this Section 11.3 may be provided in the notice of default (and does
not have to be a separate notice) provided it complies with the terms of this Section 11.3. Seller
must provide copies of such termination notice to the notice addresses of the then-current
President and General Counsel of PacifiCorp by registered overnight delivery service or by
certified or registered mail, return receipt requested. Seller's termination notice must state
prominently in type font no smaller than l4-point capital letters that "THIS IS A
TERMINATION NOTICE UNDER A PPA. YOU MUST CURE A DEFAULT, OR THE PPA
WILL BE TERMINATED," must state any amount alleged to be owed, and must include wiring
instructions for payment. Notwithstanding any other provision of this Agreement to the
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
Section l l 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, all provisions of
this Agreement that either expressly by their terms survive, or, by their nature are intended to
survive or come into or continue in force and effect after the termination or expiration of this
Agreement shall remain in effect.
30
ll.4 Termination of Duty to Buv. 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
PURPA, or any other Requirements of Law, for any periods that would have been within the
Term had this Agreement remained in effect for its ma:rimum term. Seller agrees that it will not
seek to avoid the restrictions in this Section 11.4 through use or establishment of a special
purpose entity or other Affiliate.
11.5 Termination Damaees. If this Agreement is terminated by PacifiCorp as a result
of an Event of Default by Seller, termination damages owed by Seller to PacifiCorp will be the
positive difference, if any, between (a) PacifiCorp's estimated costs to secure replacement power
for a period of twenty four (24) months following the date of termination, including any
associated transmission necessary to deliver such replacement power; and (b) the Contract Price
for such twenty fow (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 Event of Default
would be difficult or impossible to predict with certainty, it is impractical and difficult to assess
actual damages in the circumstances stated, and therefore the Termination Damages as agreed to
in this Section I 1.5 are a fair and reasonable calculation of such damages
I1.6 Dutv/Riqht to Mitieate. Each Party agrees that it has a duty to mitigate damages
and covenants that it will use commercially reasonable efforts to minimize any damages it may
incur as a result of the other Parly's performance or non-performance. With respect to Seller,
Seller must use commercially reasonable efforts to maximize the price for Net Output received
by Seller from third parties, including entering into an enabling agreement with, or being
affiliated with, one or more power marketers of nationally recognized standing to market such
Net Output not purchased or accepted by PacifiCorp (only during a period PacifiCorp is in
default), to the extent permitted by Requirements of Law and the Generation Interconnection
Agreement. With respect to PacifiCorp, PacifiCorp must use commercially reasonable efforts to
minimize the price paid to third parties for energy purchased to replace Net Output not delivered
by Seller as required under this Agreement.
ll.7 Securitv. If this Agreement is terminated because of Seller's default, PacifiCorp
may, in addition to pursuing any and all other remedies available at law or in equity, proceed
against any security held by PacifiCorp in whatever form to reduce the amounts that Seller owes
PacifiCorp arising from such default.
I1.8 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
3l
INDEMNIF'ICATION AND LIABILITY
l2.l Indemnities.
l2.l.l Indemnitv bv Seller. To the extent permitted by Requirements of Law and
subject to Section 12.1.5, Seller releases, indemnifies and holds harmless PacifiCorp, its
divisions, 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 Agreement, or
relating to the Facility or Premises, for or on account of injury, bodily or otherwise, to, or death
of, or damage to, or destruction or economic loss of property of, any person or entity, except for
Liabilities caused by the gross negligence or willful misconduct of any person or entity within
the PacifiCorp Indemnitees. Seller is solely responsible for (and will defend and hold PacifiCorp
harmless against) any damage that may occur as a direct result of Seller's breach of the
Generation Interconnection Agreement.
12.1.2 Indemnitv by PacifiCorp. To the extent permitted by Requirements of
Law and subject to Section 12.1.5, PacifiCorp releases, indemnifies and holds harmless Seller, its
Affiliates, and each of its and their respective directors, officers, employees, agents, and
representatives (collectively, the "Seller Indemnitees") against and from any and all Liabilities
actually or allegedly resulting from, arising out of, or in any way connected with, the
performance by PacifiCorp of its obligations under this Agreement for or on account of injury,
bodily or otherwise, to, or death of, or damage to, or destruction or economic loss of property of,
any person or entity within the Seller Indemnitees, 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 Indemnitees from and against all
Liabilities related to Net Output once delivered to PacifiCorp at the Point of Delivery as
provided in this Agreement, except in each case to the extent such Liabilities are attributable to
the gross negligence, willful misconduct, or a breach of this Agreement by any member of the
PacifiCorp Indemnitees or the Seller Indemnitees, respectively, seeking indemnification under
this Agreement.
12.1.4 No Dedication. Nothing in this Agreement will be construed to create any
duty to, any standard of care with reference to, or any liability to any person not a ParO. 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 Damases. NEITIIER PARTY WILL BE LIABLE TO
32
TIIE OTIIER PARTY T'OR SPECIAL, PUNITIVE,INDIRECT, EXEMPLARY OR
CONSEQI,]ENTIAL DAMAGES, WIIETIIER SUCH DAMAGES ARE ALLOWED OR
PROVIDED BY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY, STATUTE OR OTIMRWISE. THE PARTIES AGREE THAT ANY
LIQTIIDATED DAMAGES, TERMINATION DAMAGES, PACIX'ICORP AND SELLER
cosr To covER DAMAGES, OR OTIIER SPECTFTED MEASURE OF DAMAGES
EXPRESSLY PROYIDED FOR IN TIIIS AGREEMENT DO NOT REPRESENT
SPECIAL, PUMTTVE, II\IDIRECT, EXEMPLARY OR CONSEQI]ENTIAL DAMAGES
AS CONTEMPLATED IN THIS PARAGRAPH.
33
SECTION 13
INSURANCE
l3.l Required Policies and Coveraees. Without limiting any Liabilities or any other
obligations of Seller, Seller must secure and continuously carry the insurance coverage specified
on Exhibit I.
SECTION 14
FORCE MAJEURE
l4.l Definition of Force Majeure. 'oForce Majeure" or "arr event of Force Majeure"
means an event that prevents a Party from performing an obligation under this Agreement and
that (a) is not reasonably anticipated as of the Effective Date, (b) is not within the reasonable
control of the Party affected by the event, (c) is not the result of such Party's negligence or
failure to act, and (d) could not be overcome by the affected Party's use of due diligence in the
circumstances. Force Majeure includes events of the following types (but only to the extent that
such an event, in consideration of the circumstances, satisfies the requirements in the preceding
sentence): environmental disasters,; civil disturbance; sabotage; strikes; lock-outs; work
stoppages; and action or restraint by court order or public or Governmental Authority (as long as
the affected Party has not applied for or assisted in the application for, and has opposed to the
extent reasonable, such court or govemment action). Notwithstanding the foregoing, none of the
following constitute Force Majeure: (i) Seller's ability to sell, or PacifiCorp's ability to purchase
energy or capacity at a more advantageous price than is provided under this Agreement; (ii) the
cost or availability of fuel or motive force to operate the Facility; (iii) economic hardship,
including lack of money or the increased cost of electricity, steel, labor, or transportation; (iv)
any breakdown or malfunction of the Facility's equipment (including any serial equipment
defect) that is not caused by an independent event of Force Majeure; (v) the imposition upon a
Party of costs or taxes; (vi) delay or failure of Seller to obtain or perform any Required Facility
Document unless due to a Force Majeure event; (vii) any delay, alleged breach of contract, or
failure by the Transmission Provider or 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.
34
14.2 Suspension of Performance. Neither Party will be liable for any delay or failure
in its perfonnance under this Agreement, nor will any delay, failure, or other occurrence or event
become an Event of Default, to the extent such delay, failure, occrurence 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
occurrence 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 perfonnance of the affected Party's
obligations is of no greater scope and of no longer duration than is required to remedy the effect
of the Force Majeure; and (c) the affected Party uses diligent efforts to remedy its inability to
perform.
14.3 Force Majeure Does Not Affect Other Oblieations. No obligations of either Party
that arose before the event of Force Majeure causing the suspension of perfonnance or that arise
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 settle any strike, walkout, lockout or other labor dispute on terms which, in
the sole judgment of the Party involved in the dispute, are contrary to the Party's best interests.
14.5 Rieht to Terminate. If a Force Majeure event prevents a Party from substantially
performing its obligations under this Agreement for a period exceeding 180 consecutive days,
then the Party not affected by the Force Majeure event may terminate this Agteement 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;
ryglgg[, however. that this Agreement will remain in effect to the extent necessary to facilitate
the settlement of all liabilities and obligations arising under this Agreement before the effective
date of such termination.
SECTION 15
SEVERAL OBLIGATIONS
Nothing in this Agreement will be construed to create an association, trust, partnership or
joint venture or to impose a trust, parfirership 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 INVALIDITY
If any of the terms of this Agreement are finally held or determined to be invalid, illegal
or void as being contrary to any applicable law or public policy, all other terms of this
Agreement will remain in effect. The Parties agree to use best efforts to amend this Agreement
to reform or replace any terms determined to be invalid, illegal or void, such that the amended
35
terms (a) comply with and are enforceable under applicable law, (b) give effect to the intent of
the Parties in entering into this Agreement, and (c) preserve the balance of the economics and
equities contemplated by this Agreement in all material respects.
SECTION 18
NON.WATVER
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
by the Party waiving the provision. A Party's waiver of one or more failures by the other Party
in the performance of any of the provisions of this Agreement will not be construed as a waiver
of any other failure or failures, whether of a like kind or different nature.
SECTION 19
GOVERNMENTAL JURISDICTION
AND AUTHORIZATIONS
This Agreement is subject to the jurisdiction of those Govemmental Authorities having
jurisdiction over either Party or this Agreement.
SECTION 20
SUCCESSORS AND ASSIGNS
20.1 Restriction on Assienments. 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,
ry[5!9g!, however, that Seller will not transfer, sell, encumber or assign this Agreement or any
interest in this Agreement to any Affrliate of PacifiCorp without the prior written consent of
PacifiCorp. For any assignment under (b) above, the assignee must agree in writing to be bound
by the terms and conditions of this Agreement and must possess the same or similar experience,
and possess the same or better creditrvorthiness, as the assignor. PacifiCorp may assign this
Agreement in whole or in part without the consent of Seller to any person or entity in the event
that PacifiCorp ceases to be a load-serving entity, in which event PacifiCorp will be released
from liability under this Agreement. The Party seeking to assign or transfer this Agreement is
solely responsible for paying all costs of assignment.
SECTION 21
ENTIRE AGREEMENT
This Agreement supersedes all prior agreements, proposals, representations, negotiations,
discussions or letters, whether oral or in writing, regarding the subject matter of this Agreement.
No modification of this Agreement is effective unless it is in writing and executed by both
Parties.
36
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 1 1.3 must contain the information required by Section 1 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 ovemight carrier to be effective. Notice by certified
or registered mail, return receipt requested, will be deemed to have been given upon receipt. The
Parties may change any of the persons to whom notices are addressed, or their addresses, by
providing written notice in accordance with this section.
SECTION 23
PUBLICITY
23.1 News Releases and Publicity. 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 mme "Berkshire Hathaway," in any form,
requires the prior written consent of PacifiCorp.
SECTION 24
DISAGREEMENTS
24.1 Neeotiations. Prior to proceeding with formal dispute resolution, the Parties must
first attempt in good faith to resolve informally all disputes arising out of, related to or in
connection with this Agreement. Any Party may give the other Party written notice of any
dispute not resolved in the normal course of business. Executives of both Parties at levels one
level above those employees who have previously been involved in the dispute must meet at a
mutually acceptable time and place within ten (10) days after delivery of such notice, and
thereafter as often as they reasonably deem necessary, to exchange relevant information and to
attempt to resolve the dispute. If the matter has not been resolved within 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 Party, any such statements and offers of settlement, and all
copies thereof, will be promptly retumed to the Party providing the same.
37
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 fi.rtherance, and in the context, of
dispute settlement, and will be exempt from discovery and production, and will not be admissible
in evidence (whether as admission or otherwise) in any litigation or other proceedings for the
resolution of the dispute.
24.3 Choice of Forum. Each Party irrevocably consents and agrees that any legal
action or proceeding arising out of this Agreement or the actions of the Parties leading up to the
Agreement will be brought exclusively in the state and federal courts in Salt Lake City, Utah.
By execution and delivery of this Agreement, each ParE (a) accepts the exclusive jtuisdiction of
such court and waives any objection that it may now or hereafter have to the exercise of personal
jurisdiction by such court over each Party for the purpose of any proceeding related to this
Agreement; (b) inevocably agrees to be bound by any final judgment (after any and all appeals)
of any such court arising out of such documents or actions; (c) inevocably waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceedings arising out of such documents brought in such court (including
any claim that any such suit, action or proceeding has been brought in an inconvenient forum) in
connection herewith; (d) agrees that service of process in any such action may be effected by
mailing a copy thereof by registered or certified mail, postage prepaid, to such Party at its
address stated in this Agreement; and (e) agrees that nothing in this Agreement affects the right
to effect service of process in any other manner permitted by law.
24.4 WAIVER OF ruRY TRIAL. EACH PARTY WAIVES THE RIGHT TO A
TRIAL BY ruRY IN RESPECT OF ANY LITIGATION BASED ON THIS AGREEMENT,
OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH
PARTY FURTHER WAIVES ANY RIGHT TO CONSOLIDATE ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH
THTS AGREEMENT WITH ANY PROCEEDING IN WHICH A ruRY TRIAL HAS NOT OR
CANNOT BE WAIVED. THIS PARAGRAPH WILL SURVIVE THE EXPIRATION OR
TERMINATION OF THIS AGREEMENT.
38
IN WITNESS WHEREOF, the Parties have causod this Agr@mcnt to be exocuted
in their respwtive narnes as of the date last uritten below.
PACIFICORP
By:By:
BruceGriswolM/
Name: John *Jake" Facklell
Tifle:lvlanagcr Mink Hydro LLC
Date:
Name: Bnrce Grisnvold
Title: Short-term Origination, Director
Date: tvlay 25,2021
39
IN WITNESS WHEREOF, the Parties have caused this Agreementto be executed
in their respective nzrmes as of the date last written below.
PACIFICORP
By:By:
John *Jake" Faclrell
Title:Mauager Mink Hydro LLC
Date:
Name: Bruce Griswold
'Title: Short-term Origination, Director
Date: May25,2A2l
39
EXIIIBIT A
EXPECTED MONTHLY NET OUTPUT
MAXIMUM DELTVERY RATE
2950 Kw
Month On-Peak Enerry
ftwh)
Off-PeakEnerry
ftwh)
Total Enerry (kWh)
January 240.598 138.649 379.247
February 184,258 125.296 309.5s4
March 216.006 124.478 340.484
April 373,515 226.778 600.293
May 9s9.099 552.702 1.511.801
June 1.040.203 631.s52 1.671.755
July 744,028 428.763 r.172.791
Ausust 626,813 361.2t5 988.028
September 478,027 290.23t 768.258
October 404,392 233,039 637.43r
November 314,312 190,833 505.145
December 278,871 160,705 439.576
EXHIBIT B
DESCRIPTION OF SELLER'S FACILITY
fProvide a detailed des*iption of the Facility, including the following, as applicable:J
Type (synchronous or inductive): Synchronous
Facility Nameplate Capacrty Rating: 2950 kw
Model: Ideal
Number of Phases: three phase
Power factor requirements :
Rated Power Factor (PF) or reactive load (kVAR): 0.90 P.F
Rated Output (k'M): 3075
Rated Output (kVA): 3416 KVA
Rated Voltage (ine to line): 4160
Rated Current (A): Stator:474 A; Rotor:
Maximum kW Output: 3075
Maximum kVA Output: 3416
Minimum kW Output: 50
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 porcel)
8802 E Mink Creek Rd
Preston, ID 83263
Franklin County
Powerhouse: Latitude: 42o15'38.96'N, Longitude I I Io39'56.I9"W
Diversion Structure : Latitude 42" I 6' 44.42"N, Longitud e I I l"37' 5 4.00"W
A

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E)ilIIBIT C
SELLER'S INTERCOIINECTION FACILITIES
The interconnection facilities for the Project are located at:
8802 E Mink Creek Rd. Preston,ID 83263
The facility is interconnected through Circuit TNR1 l out of the Tanner substation @ 12.5 kY
(approximately 42.266595oN, I11.659937'W) Iocated in Franklin County, Idaho.
One line diagram:
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EXHIBIT D
REQUIRET! FACTLTTY DOCT MENTS
IREQUIRED OF ALL FACILITIES:
QF Certification
InterconnectionAgreement (or list af sadies and study agreements completed as oftlw
Effictive Date)
Dependtng upan the type of Facllity and its $pectfrc chwacteristics, addittoaal Required Facility
Doctments moy be requested.J
FERC License N,o. 8646
IDWR Warer Right No. 13-7416
QF Certification No. QF85-61 8-000
EXIIIBI'T E
LEASES
The powerhouse for the project is located on oumed grormd. Parts of the penstock are located
on private land that there is a lease in place. The other part of the penstock is located on US
Forest Service land which the Seller has authorized use pursuant to its Special Use Permit FS-
27004 Authorization ID CMT87 that expires December 31,2036
Attached:
Exhibit E-1: Special Use Permit FS-2700-4 Authorization ID CMT87
Exhibit E-2: Excerpt from private land lease for term evidence
Exhibit E-l
iufsirflim lD: CUTS?
Catrct lD: MIN( CREEK HYDRO Ll,CErpffnDil.: la8lE0:r0
Uca Godc:0ll
u.&DEP RTilEXTOf tOSCtfTlnE
Forral Er{c.3'EGULt'8CFGnf'N
AI'THOETY:
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l{old.o 5 hcr*y rfio&ad b u!. or ocafy tlltdrsl Fdat SFEtl hn&. b ure rubii, b 0E cfrdnioll rt o,hlri, ql !E Cf,lbou-Targhrc N.0on5l ForE6t and Hsllpcllsr R8ngc( DBlrtl ol [E NtillutJ Fglll gfdam.
Thb parril ovrrr t .<rer.id B derorlbcd r. !irc. 23, T. 13 S., R. al E, 9OtS€ fGRDlAhl, Sc 22. T, t3 8.. R, ai
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l,norfd db dl{ git t O. mr ufio noli:. oa lra e,or,tdr b edr aoton ad a toGor$ tna, ts b
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0. &Lfgt &lff . &y dlocrtlmry d*ibn d (tbmiffr !y Uc efi6rt dtlctr rt a{.ct b h!gt fteltlbt.l 38 CFR 25t. a.'grl C, q rtt hbrr DGfr.
c Ellbr,sSrll hdECyanrol.nycdtnicrbdstilxlrdrlEptc.dhgprhHr(r.I rorltrgap€lolhrdri .ltyo,lha lerfie dr.Er o rry provibo |h0tol. ir pcc*fng trffi .r.lIr rhd ffiof
O. FERC Anldlailon. Cqrlrdon. ogaraah. snd mrtrilE. rti,{ri nc artuitul u.rr, ha Erf dy rll.if!. 9.tmmlll. 16. u#i b,r. tun $r ftdGfl Er:gy Rc$rlds, CorrEtr. Ita fntd fl aft'rHylt'r*tda rFr gmrrda. or rG,lcdin o, td bma.
E gnrmh.&g@g To Ffrcl {|Luc*alr|rt.| Ir., olr xrbn l Fo.d rtr. rr rfihm *rilortt Jt ac5lao I drnd ,l A4cL t(Xl ol FEnc LE i- .qt tr tSrr llrEreo Tgroi- Dt tr R.gsrtForrollr a4rof Jmra., ts. ,A+ e+ o.,-.^t .,-LA ou_ l? W, &qS.
f ilErlt[fr5.UlllE. Ih, paflrffi. rlrl lpro b oprren d $. FFCI ,ld.f, .rd nldilh b U.S.CUogtl Srq tlld.rd! r ta.rn eldog l$on dnr (l.Tr rrcort ol ildort ffillyorr*ram d tr
trri{td (ffin. Af dalr atiail b. md rd& b lhc Fcsl Srrbr. ft. daly 'rsdr o, non ${ br g.ffidtrrd, by Oac 3t' d.dr ytr b hr prafrg Octbrc f - ScCoatI fl) * F.. b: Fq* S.rr,Ld. Crtar-
Trgll.c iilod Fo.tct Ib p.nriL. $d rbo rld lh. r.qt,rn.tl fur monbrhg aa qrfr h l,r Ogailog Ph.
O. Rt Erd lld Pttn d vdtidi rrrl ms R.r6.rrt . (O5) Ih. tEb.. rfiC oE patd r'illrr repovl fsali rfhotd dcr ldur ruudry r -rfio ig.ldon g oa! rt.(rrEI' Il! hd.. tlt l dl|t lrbr rrt te't,na toor O* adqtad dE E de flanll? lrilr atnrh. a otir f,gle.r rl,it lrr rrrdtaad arr
I
.ppld,l c toan . rrd.r rh. F.fi.a Pail A.r ol .frE 10. tml. a h.lt Dirr S0lrn u* 0I ta.dlllBl Acf
d .h'r t7, leql ra rd*ad d lrry iltrc b ril h comr&a dir [tr drdrynra o, lrytrytr o b r!*rdd!,rr-. Tli f,fto.tsrEl, lt!*,t. f aau.d rum hr rfcft u.Jttrdtrg llld (ll L l,l. rd rU hhrt t St
ardt ffi a rdrrlbn dG,qttrt 'i !U (21 lb llGotEtoi tttT br. f lEr.ry. torft# Won fiey
($) d.F r*. dral h tr rragtrir d $r F.drJ E rryf n $Io.y Oonmuon. r d lh. Brur or tu-m&n h
thr oma d rdmet ffi, !t. Lnd3 mped rt ,rlhd lq rrr h urrcton rl,r lr grnrtilott d
hpoarcilc porrr, ,td&r.lirr &Udoo.ilil3. o ff F4oar ootfrm0fbd b, [r dqrl mfi rlidi !t hfib
hrtr br3t ra0l(tr*n. ib (fn thl na ada Ttrard ta tm Sttsa q poc hns h c m Dgeil d
D?rcdt. pre r b an, Lir, d d.m.t b p.ogcrth, lnFoUirl]tB. or o9.rm ll! b rdr dnrd*.rnt ?h.
hok .f f b. tu nttqy (g0) dayr a rilIcn b ,fi!y! tt. hg('i,od!lr.
r. HYgFtO Or't-Y Prer d wladib .rd Prltd Sqic (lGl. I ![.b€d. rarE !4 d Erh (r (ltrial n tt
FacalSartrtn!frd,ffiardd{rt.9od.aflldriCrhgu..u,r.h.Al..rro.halin,..hot flnoiryha
fo|!d Srvit Td rh* *e imd- tna.srx b ,rEtcl r& Fd.. r nrd by f. fu 6. ic..
J HYORO Oll,Y E{E&f lXBkIh! hHo. .hd cqlxrYt !r tEf,llc fI, dr.lE vdrc ol lrr ru ure. llll fttll
drmo cdsua{on. errdon. lfu mfrrrrstco of 0lr prciod inprounot
X. HYORO (}['Y EAry-lf0d-AgfO (K4. Ib hddt' lhd @rct n !ro, el B.* hd rnE, ruUllr.nb.
lriy.l. Fcarty csrr.il, rtd b* bonp- 1 rurrrr h ir rrtrrl nrd anyf,rh h rnil,l c trgrrtfi f,t(ErorE . Ga arrEra d lr. gftTigB r,rtE6 D, lra l,!EErrc|. CD.r.tE m lb t pa d rErrrilarIOdof4trrhoSraftatt.rtdihqfda,uro..rn hror5orfh(flirapro6drrt cfhdhln'farrdoth.rucEi b fr. 8.ftt, o, n PdrLc t rn o, tt tffi Sn1Ia lh. r9.ctc# ol !. County Smtfor. a (3) hgocfi(trt ol lh. Fqad S{vb. F tftr. l'rr h.aa, rl{ .rlrr. ftd .ny o{idrl ]ntty rcot rirol, rr rtrrr.ld.. rrq,Lld br lst
' HYOnOOilLYEEiE.El&q(Xl3). Th.hoHf,.h.f dry(r[doFr.kr. lft.tl;Umrr.llrrilOf.te.rdr trr tdrfv o, cnObfer nd h. Brulc, ..rd rh.X ..beuru u..lc ]!!r. Th. lldh. fid rlgrfuly hgad ftHEic gtd por$ frlrr dhAvc rclrty rflGr,lr E irod b trity pmEuon.
U. HYORO Otr[,Y Earitr cdffi. tdd RrimuEr (l(trl Th! ,rl0.. rhd !c nfo.rtt5 hr hc p'rrrdon rnd
coild d OI rur, clr.d .IlI *rc{fy c, irdlrdy b, sr|rr806n r Sar.tbn d lh. Fi.A rd .hd p.o,O
gralrilatr and coE ltrt-t ta r Gla.d bt il! Fqtd sit b.
fl! ho5cr tha rtp loFof tun €q|rfucEl ra..6(Igd r h {onepgl. Tathrn dgGray-dm*il. AIB nmvlq h &.lGd tttd.;\ad md.tq lh. h0adr dr.I cfity tCId I| tIrr, Blol oEl
rrpaq, rfiof h $f,ogri.b m!.4 ta Utr aH pedcrolr. fr, drd 'rrre..rb ll. .u (trlfr.d.
TolhaaEil pracilcdc sr llrEd F'oorl SFS| bfiX. h. hddr rhef oa*Idr.v.filiv.6vr qr I alrn rf dop... bfiou f!4, d dr dhr,bd !E G.pdG d grdrg a tEdr. @UI d grrn q otrr-Db r.0tldt, ar rBiS by lh. Fdld S.rdo. lh. hoH.t rhj .-d s plrl d. tn d tr ytat. tr tmurtr. .nd salh .p.d.a Ot.t fr fortxl 8a'\rtei onalda.| orit Oo bod crtiEa ol fml. tlr i*Il frl,toGdrdrrdtrill I ffi.r &r,. rrrll lrEh frn It dd h xihobyfhc
H. Artharlriirt rrIt*don ol frvtdfir| trtd (Et ll 5yitr&.tl b u-Dffi F,DE- t'rfu lh. Acl o' Urdr 3,
Lnd. (hetad h Hr errdzrur uthh lg. Dr.t
tt70. r ld ol Jur 2l'. telo (a tl ll*ro- h I1
tcrdttrroxrIh. he t tC -*.f ..sroa contol mr-uG. td dr.,t rftr ondfu.t Dy, aact t'.trrfi lrE ogcret lII[ !I Fotlt Sd.t,lo nolifi!. hG hda, hrt ho rdyrno cor&l ol trd
1{ HYORO Or'fY EItfl|&$AEllIEcgI (Kl3) Frandcr tn t .d b. l..d b cl,ti, l,.ltui.&b d, dtutEol. v.edbG rqrdc d.n!. lm6. ,6anh. Hr tLh. ard !o tEil!. r,Urd lha 9.1o. rfi igud ol thr
Focat 8mrc. Tb hd, $d !t6.n[ r cqrd b rm.ud o{ Fmrd ura ol p.r{b6.r Th. trF,t m.l coyrrrrrldDLrr.drDrdb.tpdaHcrlqradlrth.foltls-vio lft lElhrtlilPaolriraiacm&rfdhlba,Li h 0r brn r9rru EroepoUr b ta rclrdr. rn y b h o.r, rtgl utuo.d.d cltr-. d prrr
,.$rarr csroa nf,r,lrt hd ue rq rt0cP6l rt tlr Ex! ut rrpqt xI utnfrd. h arctr ft hailra, lt
rrl.,ionsrltqrd Jd ltrlnl,rf, b tn*
5
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O. HYDRO OIILY lmErovl'r.nt R btrlin (ltUl9). Tha Fract Sfidoe grrflti orB p.flnit silr lhc ip.r.. l,ld.ttbndng
fi€t*roddfuhltrlocdlorcrf gsulmlll.nilfru(orwlcnEdmEdrtlttsdsy'tqfolh.nadinoradtt[tmfltof BErladG rE alDr lmpuammE ($rctr .r !|r!m-*n llnc.. g.nrhdB. deafncs, fldlEs" r toa6), lh. told€r thal
r.loc|b il tlE hoE/. *p€n.. t.thln f ;} d€tr bllo*iog *mr ]t$lc{ b .tam.t!.
F. IIYDRO OIU.Y FG. LkE ri.rt Pn icct! (K311. Th hoH€r ohau pay rrrurly, ln adrm:, . rum dtEfir*rcd bf lhr
Foo.t Efirh! b hr lhG Er m!*dl wlur 0a h! uEe r[nE ffenE b, t*r F.mil
ot$G
,rd'r.d h ls af*rt),. In lhc ar!flt !E Fot.I 8ondc. .lcbfiiars lh8t f,lncnts b FERC flt llgnmcuiy les firn li
,ltrlea rr fil d it ltr lEld.r dboontru.€ rudr prtfioBnt6. El. FmEt SEt E6 ,Ecd\,ts tlg .bht b.rlrbHr an
tpprop.rd. t Jd eprlogridr.omdl[aE o, FF.flL tury hE prt by i. hoElr b FERC .rrl be cre.nd b{f,d thc
hG du. fqvr th6 ffi fu, la$rrna.
Q HYDRO OI{LY 8mt-Infq.leeligt EIES (Kre). LHssB son€, c.naXd 6 Bnrh*d bt thc rrhottsod o{ltecr.
h.cco.drE!rtlfr potlsnr of [rrornit 6clr'ltldthbpriflarh.ID.snn'rilwmlh Frrlcrll€ncqgtRogd$ayffir(FERC) tloraifo.faa{atrrd!.coartoldqrUlllflroa: brltl*FqrtlScvhamry
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EXHIBIT G
QUALIFIED REPORTING ENTITY SERVICES AGREEMENT
Energy Supply Management Master v 4.1 a; 03 122019
This Qualified Reporting Entrty Services Agreement (this "Agreement") is entered into
by and between PacifiCorp ("PacifiCorp") and (" C ounterp arly" ; Pac i fiCorp
and Counterparty may be referred to individually herein as "Party" and collectively as "Parties")
as of the date signed by both Parties with reference to the following:
WHEREAS, Counterpafty represents to PacifiCorp that it owns or otherwise has the
rights to all or part of the non-energy attibutes of the generation from that certain electric
generation facility as more particularly described in Exhibit A (the "Facility") 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 Western 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.
1.1 Initially capitalized terms used and not otherwise defined herein are defined in the
in the WREGIS Operating Rules or in Attachment 1 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.
Notrvithstandinq the foresoinq. with resoect to PacifiCom. Affiliate shall onlv include Berkshire
Hathawav Enerev Companv md ft
1.3 "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 "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
electric 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.
1.10 "Metering Extemal 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 Electic Reliability Corporation.
1 .13 "Points of Metering" means the points at which electric generation is measured.
l.l4 "PPA" is defined in the Preamble.
I .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.
l.l8 "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, zoring, environmental and occupational safety and health requirements).
l.l9 "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.2l "Tariff'means the PacifiCorp FERC Electric Tariff Fifth Revised Volume No.
11 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 "\tr/ECC" means the Western Electricity Coordinating Council.
1.25
System.
"WREGIS" means the Western 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 Interpretation. Unless otherwise required by the context in
which any term appears, (a) the singular includes the plural and vice versa; (b) references to
'oArticles," "Sections," "Schedules," "Annexes," "Appendices" or "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
successors; (d) "herein," "hereof' 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; (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; and (D the word "or" is not necessarily exclusive.
1.29 Interpretation with FERC Orders. Counterparty acknowledges and agrees that
PacifiCorp must conduct its operations in a manner intended to comply with FERC Order No.
717, 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 conduct 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
Interconnection 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 confract 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 contractingparty 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 responsibilrty 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.
il. 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 10 days of written
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.
m. 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: (1)
Transmission Provider or Interconnection Provider (as applicable) owned and operated meters;
or (2) meters that meet the Interconnection 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 modifr 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. Counterparly 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 Interconnection Agreement (and
in such case, only vis-d-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 Reportine. Counterparty hereby grants to PacifiCorp sole and exclusive
permission and authority to report Data and Output to WREGIS and warrants and represents that
neither Counterparly 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 Monthly 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 lnterface Control Document.
3.5.2 Reportine Cvcle. 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 Counteryarty to verifu such information as prescribed by
PacifiCorp from time to time, and to timely notiff PacifiCorp in writing of any errors
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 Countemarty. 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 specifr 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 Counterparly 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 Generator Data 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
arrangements 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 Oblieations of PacifiCom.PacifiCorp shall speciff 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 and/or 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 Orego& ffiy other state, federal, municipal or other regulator or
governmental 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 oe or any determination of Counterparty Certificate ownership
or any other obligations for Certificates of Counteryarty with regard to Certificates; and
Counterparly shall bear all responsibility for such handling, account administration, evidence of,
or any determination of Counterpafty 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 Counterpafty's meter data directly to WREGIS in the form of the
Monthly Generation Extract File. Counteryarty 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. If 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 data from 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 Settlement Estimation
Procedures.
3.10.4 Responsibilit-v. Counterparty is solely responsible for the data created and
submitted to PacifiCorp, acting as a QRE, to forward to WREGIS.
3.11 Reeulatory 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 Counterparly's sole and exclusive reporting source of generation data for the
Facility, and WREGIS is hereby authorized to communicate and transact directly with
PacifiCorp regarding any generation data issues for the Facility. PacifiCorp is hereby authorized
to act on behalf of Counterparty, 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.
IV. INDEMNITY.
4.1 INDEMNITY. TO THE EXTENT PERMITTED BY REQIIIREMENTS OF
LAW, COUNTERPARTY HEREBY INDEMNIFIES AND AGREES TO HOLD
PACIFICORP,ITS AFFILIATES, AND EACH OF'ITS AND TIIEIR RESPECTIVE
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AI\D REPRESENTATIYES
(COLLECTIYELY, THE "PACIFICORP INDEMNITEES") HARMLESS AGAINST
ANY AND ALL LOSSES, FINES, PENALTIES, CLAIMS (INCLUDING THIRD PARTY
CLAIMS), DEMATIDS, DAMAGES, LrABILrrrES, ACTIONS OR SUITS OF AI\ry
NATURE WHATSOEVER (INCLUDING LEGAL COSTS AtlD ATTORNEY',S FEES,
BOTH AT TRIAL AND ON APPEAL, WHETHER OR NOT SUIT IS BROUGHT)
(COLLECTIVELY, "LIABILITIES") THAT ARE IN ANY WAY ASSOCIATED WITH
PACIFICORP'S PERFORMANCE OR FAILURE TO PERFORM IIERET]NDER. THIS
INCLUDES LIABILITY ARISING FROM: THE DATA CONTAINED IN TIIE,
MONTHLY GENERATION EXTRACT FILE, OR ANY OTHER FINANCIAL INJURY,
OR DAMAGE TO PERSONS OR PROPERTY. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING:
4.2 WAIVER OF CAUSES OF ACTION AI\ID CLAIMS FOR DAMAGES.
WITHOUT LIMITING THE GENERALITY OF SECTION 4.1 ABOVE,
COUNTERPARTY HEREBY WAIVES AI{Y AND ALL CAUSES OF ACTION ARISING
UNDER OR IN RESPECT TO TIIIS AGREEMENT, WHETHER IN CONTRACT,
TORT OR AI\TY OTHER LEGAL OR EQUITABLE THEORY (INCLUDING STRICT
LIABILITY) AGAINST PACIFICORP OR AI\Y PACII'ICORP INDEMNITEE. IN NO
EVENT SHALL PACIFICORP OR AI{Y PACIFICORP INDEMNITEE BE LIABLE TO
COUNTERPARTY ITS BOARD OF DIRECTORS, EMPLOYEES, AGENTS, OR
REPRESENTATIVES FOR AI\Y DEMANDS, DIRECT COSTS, LOST OR
PROSPECTIVE PROFITS OR ANY OTHER LIABILITIES OR EXPENSES,
WHETHER SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL,
OR INDIRECT IN NATURE, THAT ARE IN AIYY WAY ASSOCIATED WITH
PACIFICORP'S PERX'ORMANCE OF THE QRE FUNCTION OR OTHERWTSE
UNDER OR IN RESPECT OF THIS AGREEMENT.
4.3 INDEMNITY FOR COUNTERPARTY ACTIONS. WITHOUT LIMITING
TIIE GENERALITY OF SECTION 4.1 ABOVE, COIJNTERPARTY SHALL RELEASE,
INDEMNIFY AI\D HOLD PACIFICORP AI{D ALL PACIFICORP INDEMNITEES
HARMLESS AGAINST AI\ID FROM AII"Y AIID ALL LIABILITIES RESULTING
FROM, OR ARTSING OUT OX" OR IN ANY WAY CONNECTED WITH, THE
PERFORMANCE BY COUNTERPARTY OF ITS OBLIGATIONS HEREITNDER, OR
RELATING TO TI{E I'ACILITY, FOR OR ON ACCOUNT OF (I) INJI RY, BODILY
oR oTHERWTSE, TO, OR DEATH OF, OR (Ir) FOR DAMAGE TO, OR
DESTRUCTION OR ECONOMIC LOSS OF PROPERTY OF, A}I'Y PERSON OR
ENTITY, EXCEPTING ONLY TO THE EXTENT SUCH LIABILITIES AS MAY BE
CAUSED BY TITE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AI{Y
PACIFICORP INDEMNITEE.
4.4 NOTWITHSTAI\DING AI\Y OTHER PROVISION OF THIS
AGREEMENT, COTINTERPARTY ASSUMES FULL RESPONSIBILITY AI\ID RISK OF
LOSS RESULTTNG FROM (1) THE FAILURE TO SEND DATA IN A FORMAT
SPECTFIED BY PACIFICORP, (2) THE FAILURE TO USE PROTOCOLS SPECIFIED
By PACIFICORP OR (3) THE SENDING OF ERRONEOUS, UNTRUTHFUL,
INACCURATE, AND/OR INCOMPLETE GENERATING DATA TO PACIT'ICORP OR
THE SENDING OF ERRONEOUS, T'NTRUTHFUL, INACCURATE, AND/OR
INCOMPLETE DATA BY PACIFICORP TO WREGIS. IN NO EVENT SHALL
PACIFICORP BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL,
EXEMPLARY, OR OTHER INDIRECT LOSS OR DAMAGES RESULTING FROM
AT{Y BREACH OF THIS AGREEMENT, WHETHER CAUSED BY THE NEGLIGENCE
oR INTENTIONAL ACTIONS OF PACIFTCORP (AIID/OR ITS CONTRACTORS,
AGENTS, AND EMPLOYEES), REGARDLESS OF WTIETITER SUCH CLAIM FOR
DAMAGES IS BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE.
IN NO EVENT SHALL PACIFICORP BE LIABLE FOR A}tY LOSS OR HARM
SUX'FERED BY COUNTERPARTY OR AIYY THIRD PARTY DUE TO ANY ACTION
OR INACTION BY PACIFICORP TAKEN HEREUNDER THAT CAUSES A FACILITY
TO LOSE ANY CREDENTIALS, REGISTRATION OR QUALIFICATION UNDER THE
RENEWABLE PORTFOLIO STANDARD OR SIMILAR LAW OF AI\Y STATE OR
OTIIER JURISDICTION.
4.5 PACIFICORP WILL NOT BE RESPONSIBLE FOR ANY DAMAGES
RESULTTNG FROM ECONOMIC LOSS, LOSS OF USE, LOSS OF DATA, LOSS OF
BUSINESS, LOSS OF PROFIT, LOSS OF PRODUCTION TAX CREDITS, LOSS OX'
SAVINGS OR REVENUE, LOSS OF GOODWILL, THE CLAIMS OF THIRD PARTIES
(INCLUDTNG CUSTOMERS Ar\D SHAREHOLDERS OR OTHER EQUITY OWI\rERS),
PERSONAL INJURIES OR PROPERTY DAMAGES SUSTAINED BY THE
COUNTERPARTY OR AIYY THIRD PARTIES, EVEN IF PACIFICORP HAS BEEN
NOTIFIED BY COUNTERPARTY (OR BY AIYY THIRD PARTY) OF SUCH
DAMAGES.
4.6 PACIFICORP DISCLAIMS AI\IY LIABILITY FOR AND
COUNTERPARTY WAIVES ANY CLAIM FOR LOSS OR DAMAGE RESULTING
FROM ERRORS, OMISSIONS, OR OTHER INACCURACIES IN ANY PART OF
WREGIS OR THE REPORTS, CERTIf,'ICATES OR OTITER INFORMATION
COMPILED OR PRODUCED BY AND FROM OR INPUT INTO WREGIS USING
COUNTERPARTY-SUPPLIED GENERATION DATA, WIIETHER OR NOT SUCH
ERRORS, OMISSTONS OR INACCURACIES ARE DUE TO ERRONEOUS,
UNTRUTHFUL, INCOMPLETE, OR INACCURATE INFORMATION INPUT BY
PACIFICORP INTO WREGIS.
4.7 COI]NTERPARTY HEREBY RELEASES PACIFICORP AND
PACIFICORP INDEMNITEES FROM AI\Y AND ALL LIABILITY WITH RESPECT
TO DAMAGES OR INJURIES INCTIRRED BY GENERATOR OWNER AS RELATES
TO THE FOREGOING, EXCLUDING ANY ARISING AS A RESULT OF TORTIOUS
AI\D INTENTIONALLY KNOWING OR RECKLESS CONDUCT BY PACIFICORP.
4.8 COUNTERPARTY ACKNOWLEDGES AI\D AGREES THAT,IN THE
EYENT 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, AND HOLD PACIFICORP
AI\D PACIFICORP INDEMNITEES HARMLESS FROM AND AGAINST ANY AND
ALL CLAIMS (INCLUDING THIRD.PARTY CLAIMS); CAUSES OF ACTION,
WHETIIER IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY (INCLUDING
STRICT LIABILITY); COSTS AND EXPENSES AI\D OTHER LIABILITIES OF ANY
NATURE WHATSOEVER, WHENEVER ARTSING, ARTSTNG OUT Of," RESULTING
FROM, ATTRIBUTABLE TO, OR RELATED TO COUNTERPARTY GENERATION
DATA OR OUTPUT,INCLUDING: AIYY INACCURACY, ERROR, OR DELAY IN OR
OMISSION OF (I) ANY DATA,INFORMATION, OR SERVTCE, OR (rr) THE
TRANSMISSION OR DELIVERY OF ANY DATA, INFORMATION, OR SERVICE;
ANY INTERRUPTION OF'AIYY SUCH DATA, OUTPUT,INFORMATION, OR
SERVICE (WHETHER 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
TIIE 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, indemni& and hold PacifiCorp harmless against any
liability arising due to Counterparly'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
Interconnection 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. Further Countema4v Oblisations.
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
pulposes 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 Operation. 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 hereof, 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 charucteized) to the extent payable by a generator of such energy or renewable
energy certificates.
5.6 Coordination with Svstem. 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 review it and meet any submission deadlines.
5.8 Additional Information. Counterparty shall provide to PacifiCorp such other
information respecting Counterparty or the Facility as PacifiCotp ffioy, from time to time,
reasonably request.
5.9 No Dedication. 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. No
undertaking by one Party to the other under any provision hereof shall constitute the dedication
of PacifiCorp's facilities or any portion thereof to Counterparty or to the public, nor affect the
status of PacifiCofp as an independent public utility corporation or Counterparty as an
independent individual or entity.
5.10 Required Policies and Coverages. Without limiting any liabilities or any other
obligations of Counterparty hereunder, Counterparty shall secure and continuously carry with an
insurance 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 to
the other that: (i) it is duly organized and validly existing under the laws of the jurisdiction of its
incorporation or organization; (ii) it has the corporate, govemmental and other legal capacity and
authority to enter hereinto and to perform its obligations hereunder; (iii) such execution and
performance do not violate or conflict with any law, order or agreement applicable to it; (iv) it
has all governmental and other authorizations that are required to have been obtained or
submitted 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 to
bankruptcy or similar laws affecting creditors' rights generally); and (vi) no Event of Default, or
event which with notice and/or lapse of time would constitute such an Event of Default, has
occurred and is continuing or would occur as a result of its entering into or performing its
obligations hereunder.
6.2 Representations and Warranties of Counterpa4v. Counterparty hereby represents
and warrants to PacifiCorp: (i) it is not relying upon any representations of PacifiCorp other than
those expressly set forth herein; (ii) it has entered hereinto with a full understanding of the
material terms and risks of the same, and it is capable of assuming those risks; (iii) it has made
its trading and investment decisions based upon its own judgment and any advice from such
advisors as it has deemed necessary and not in reliance upon any view expressed by PacifiCorp;
(iv) it has not received from PacifiCorp any assurances or promises regarding any financial
results or benefits hereunder; (v) service hereunder is not a utility service within the meaning of
Section 466 of the United States Bankruptcy Code; and (vi) Counterparty holds legal title to the
Facility or otherwise holds the legal right to cause the Facility to enter into this Agreement.
VII. FinancialResponsibilitv
7.1 Adequate Assurances. Without limiting PacifiCorp's rights under Article VIII
hereof, if Counterparty has failed to make a timely payment hereunder, and PacifiCorp has
reasonable grounds for insecurity regarding the perfornance of any obligation of Counterparty
hereunder (whether or not then due), PacifiCorp may demand Adequate Assurances of
Performance. "Adequate Assurances of Performance" means sufficient security in the form,
amount, by an issuer or 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 in government 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 (other than in accordance with its terms) prior to the satisfaction of all
obligations of Counterparty without the written consent of PacifiCo{pl or
8.1.7 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 regisfration or maintenance of Accounts or Subaccounts, which payment
impairs the ability of PacifiCorp to report Generator Data, Output, or other information to
WREGIS 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 Party")
shall have the right to do any or all of the following: (1) upon two business days' written notice
to the Defaulting Party, 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 urder this Agreement or otherwise and whether or not then due).
8.4 Payment of Damaees. 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 written termination notice setting forth the termination payment due.
8.5 LiMitAtiON Of LiAbiIit.V. THE EXPRESS REMEDIES AND MEASURES OF
DAMAGES PROVIDED HEREIN SATISFY TIIE ESSENTIAL PURPOSES HEREOF.
FOR BREACH OF AI{Y PROYISION FOR WIIICH AN EXPRESS REMEDY OR
MEASURE OF DAMAGE IS PROVIDED, SUCH REMEDY OR MEASURE SHALL BE
THE SOLE AI\[D EXCLUSIVE REMEDY TIIEREFOR. LIABILITY THAT HAS NOT
BEEN OTHERWISE EXCLUDED PURSUANT TO TIIE TERMS HEREOF SHALL BE
LIMITED TO DIRECT ACTUAL DAMAGES ONLY AS THE SOLE AND EXCLUSIVE
REMEDY. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN, NO
PARTY SHALL BE REQUIRED TO PAY OR BE LIABLE F'OR SPECIAL,
CONSEQUENTIAL, INCIDENTAL, PUMTIVE, EXEMPLARY, OR INDIRECT
DAMAGES, LOST PROFIT OR BUSINESS INTERRUPTION DAMAGES, BY
STATUTE, IN TORT, CONTRACT OR OTIIERWISE.
8.6 Survival. This Article survives the expiration or termination hereof.
IX. Force Majeure
9.1 Except 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 Majetre as soon as reasonably possible after the occrurence 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
notice of Force Majeure shall have until the end of the Business Day following such receipt to
notifu 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 Oblieations. 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 Party 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 Aereement; 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 jwisdiction, 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 Party, the prevailing Party
shall be entitled to award of its costs and attomeys' fees incurred in connection with such
proceedings.
10.7 Jurry Trial Waiver. THE PARTIES EACH IIEREBY IRREVOCABLY
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 ANY
RIGHT TO CONSOLIDATE AIIY ACTION IN WHICH A JURY TRIAL HAS BEEN
WAIVED WITH AIYY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR
HAS NOT BEEN WATVED.
10.8 No Third Partv 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 venture, 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
[s i gnatur e p age foll ow s J
IN MTNESS WHEREOF, the Parties have executed this Agreement by their duly
authorized represeatatives as of the date last belowwritten.
PacifiCorp
By:
Nanre
Tifle:
Date:
<COANTERPARTT>
By:
Name;
Title:
Date:
Exhibit A
Fecility end Gcneration Ilata
For Facility enter the following informatiou:
Facility Name and Address or Location Mink Creek Hydro LLC
Meter Nnmber (Device lD) 8337 57 62
Facility's WREGIS Generator ID W2049
EIA or QF ID# QF85-618-000
One-line diagram that includes description of meter locations at the facility - voltage and
location
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EXHIBIT I
REQUIRED INSURANCE
1.1 Required Policies and Coveraees. Without limiting any liabilities or any other obligations
of Seller under this Agreement, Seller must secure and continuously carry with an insurance
company or companies rated not lower than "A-/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. Seller shall maintain employers' liability insurance with
minimum limits covering bodily injury for: $1,000,000 - each accident, $1,000,000 by
disease - each employee, and $1,000,000 by disease - policy limit.
1.1 .3 Commercial General Liability. Seller shall maintain insurance to include premises
and operations, contractual liability, with a minimum single limit of $1,000,000 each
occurrence to protect against and from loss by reason of injury to persons or damage to
property based upon and arising out of the activity under this Agreement.
1.1.4 Business Automobile Liability. Seller shall secure and continuously carry business
automobile liability insurance with a minimum single limit of $1,000,000 each accident
covering bodily i"jury and properfy damage with respect to Seller's vehicles whether
owned, hired or non-owned.
1.1.5 Umbrella/excess Liability. Seller shall maintain umbrella or excess liability
insurance on an occurrence and following form basis with a minimum limits as follows:
(a) Facility Capacity Rating at or above 200 KW - $5,000,000
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 interruption. The policy may contain separate subJimits 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 Unless prohibited by applicable law, all required insurance policies must contain
provisions that the insurer will have no right of recovery or subrogation against PacifiCorp.
1.3 Certificates of Insurance. 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 Coveraee. Commercial general liability coverage
must be maintained by Seller for a minimum period of five (5) years after the completion of this
Agreement and for such other length of time necessary to cover liabilities arising out of the
activities under this Agreement.
1.5 Periodic Review. PacifiCorp may review this schedule of insurance as often as once
every two (2) years. PacifiCorp may in its discretion require Seller to make reasonable changes
to the policies and coverages described in this Exhibit to the extent reasonably necessary to cause
such policies and coverages to conform to the insurance policies and coverages typically
obtained or required for power generation facilities comparable to the Facility at the time
PacifiCorp's review takes place.
EXHIBIT J
NERC EYENT 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/hydraulic
conffol systems trips and operator-initiated trips in response to unit alarms.
U2
Unplanned (Forced) Outage-Delaved - An outage that does not require
immediate removal of a unit from the in-service state but requires removal within
six (6) hours. This type of outage can only occur while the unit is in service.
U3
Unplanned (Forced) Outage-Postponed - An outage that can be postponed
beyond six hours but requires that a unit be removed from the in-service state
before the end of the next weekend. This type of outage can only occur while the
unit is in service.
SF
Startup Failure - An outage that results from the inability to synchronize a unit
within a specified startup time period following an outage or Reserve Shutdown.
A startup period begins with the command to start and ends when the unit is
synchronized. An SF begins when the problem preventing the unit from
synchronizing occurs. The SF ends when the unit is synchronized or another SF
occurs.
MO
Maintenance Outaee - An outage that can be deferred beyond the end of the next
weekend, but requires that the unit be removed from service before the next
planned outage. (Characteristically, a MO can occur any time during the year, has
a flexible start date, may or may not have a predetermined duration and is usually
much shorter than a PO.)
ME
Maintenance 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 of the MO.
PO
Planned Outaee - An outage that is scheduled well in advance and is of a
predetermined duration, lasts for several weeks and occurs only once or twice a
Year.
PE
Planned 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
EXHIBIT K
PRICING STJMMARY TABLE
Conforming Enerry Purchase Price : AR." * MPM
Non-Conforming Enerry Purchase Price: Minimum of the following two values
(D 0.824 * PV-85
-Or-
(ii) "Weighted-Average Conforming Energy Purchase Price" which shall be
calculated by taking the revenue that would have been paid to the Seller in a given
month if all energy was Conforming Energy divided by the total energy generated by
the Facility for that month.
Provided however that,when the value of (0.824 * PV-85) is lower than the Weighted-
Average Conforming Energy Purchase Price and Net Energy delivered in the month exceeds
ll0% of the Scheduled Monthly Energy Delivery, the price that will be applied for all Net
Energy during the month shall be a weighted-average rate between the Weighted-Average
Conforming Energy Purchase Price, and Non-Conforming Energy Purchase Price using
formula in (i) above weighted by the amount of generation below and above the ll0Yo upper
threshold, respectively.
When energy delivered is below 90% of Scheduled Monthly Energy Delivery, the Non-
Conforming Energy Purchase Price will be applied to the entire output.
ARc.
MPM
(i) from April I ,2022 through December 31,2028, the Conforming Energy
annual rate from Table 1, Column 1.a. below, for the year for all Net Output
in each hour up to 2,700 kwh, and the Conforming Energy annual rate from
Table 1, Column 1.b. for all Net Output in each hour in excess of 2,700
kwh;
-and-
(ii) from January 1,2029 until the end ofthe Term, the Conforming Energy
annual rate from Table l, Column 1.a. below, for the year for all 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, ofNet Output.
PV-85
* For avoidance of doubt, the prices described in this Exhibit K shall be calculated consistent
with the illustrative example contained in Attachment A to the Stipulation filed in Commission
Case No. PAC-E-20-10 on October 13,2020.
PacifiCorp
Avoided Cost Rates For Non-Seasonal llydro Projects
Effective April 5,2021
Table l: Conforming Enerry Annual Rates
Year
Column 1.a.
Conforming Energy
Annual Rate (AR"")
$/MWh
Column 1.b.
Conforming Energy
Annual Rate (AR")
$/lvrwh
2022 51.58 23.90
2023 53.0r 24.93
2024 55.52 27.03
2025 59.21 30.30
2026 62.84 33.51
2027 6s.66 35.90
2028 67.85 37.65
2029 69.29 N/A
2030 70.08 N/A
2031 71.21 N/A
2032 72.97 N/A
2033 75.06 N/A
2034 77.04 N/A
2035 78.78 N/A
2036 80.s7 N/A
2037 83.22 N/A
2038 8s.46 N/A
2039 87.27 N/A
2040 89.12 N/A
2041 90.92 N/A
2042 92.92 N/A
Table 2: Monthly On-Peak/Off-Peak Multipliers
Month On-Peak
Hours
Off-Peak
Houns
January t03%94%
February t05%97%
March 9s%80%
April 95%76%
May 92%63%
June 94%6s%
Julv t2t%92%
Aueust t2t%106%
Month OpPcek
Hour:s
OGPesk
Hours
Seotombsr 1W%99o/o
October tt5%t05%
Nove,mber llff/o 96%
December 129f/o lA$oy'o
[Toble 1 and Table 2 as approved on the Effective Date will be inserted as Exhibit KJ
EXHIBIT L
PARTY NOTICE INF'ORMATION
To Counterparty:
Mink Creek Hydro LLC
PO Box #l
Preston,lD 83263
Athr: Jake Fackrell,
Manager
Phone- 949-677-5629
Email:
j [e-mail]
with a copy to:
Stephanie Fackrell
89 S Eastridge Dr
St. George, UT
84790
Phone: [phone]
To PacifiCorp:
with a copy to:
With a copy to:
PacifiCorp
825 NE Multnomah, Suite 600
Portland, Oregon 97232- 2315
At[r: Director, Origination
Telefacsimile (503) 813-627 I
PacifiCorp
825 NE Multrnomah, Suite 600
Portland, Oregon 97232- 2315
Attn: Confract Administation
Telefacsimile (503) 813 -6291
E-mail : cntadmin@pacifi corp.com
PacifiCorp Legal Deparbnent
825 NE Multnomah, Suite 1800
Portland, Oregon 97232- 2315
Attn: Assistant General Counsel
Telefacsimile (503) 813-67 6l
EXHIBIT 4.9.2
[Subsequent Energy Schedules - as appended]